Rendered Date: November 21, 2012
ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE BRIAN C. EDWARDS, JUDGE NO. 10-CR-002003
COUNSEL FOR APPELLANT: Molly Mattingly Assistant Public Advocate
COUNSEL FOR APPELLEE: Jack Conway Attorney General of Kentucky James Daryl Havey Assistant Attorney General
A Jefferson Circuit Court jury found Appellant, Angela Baumia, guilty of murder, first-degree wanton endangerment, first-degree criminal mischief, and driving under the influence. For these crimes, Appellant received a thirty-five year prison sentence. She now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that the trial court erroneously: (1) allowed the introduction of Appellant's pre-arrest silence during the Commonwealth's case-in-chief, (2) permitted the introduction of the accident scene video, (3) admitted the 911 recording, (4) failed to exclude Appellant's post-collision use of profanity, and (5) permitted the introduction of Appellant's misdemeanor theft by deception conviction during the sentencing phase of her trial.
For the reasons set out below, we affirm Appellant's conviction and thirty-five year prison sentence.
On June 26, 2010, Appellant and her boyfriend, Cedric Thompson, attended a birthday party that was held at Appellant's father's house in the Fincastle neighborhood of Louisville, Kentucky. According to Appellant, she began consuming alcohol between 5:00 and 5:30 p.m. on the date in question. Around 8:00 p.m., Appellant decided to leave the party and entered the driver's side of her vehicle with an open beer bottle. Thompson entered the vehicle on the passenger's side.
According to Appellant, Thompson became angry at having to leave the party and began assaulting her while she was attempting to exit the neighborhood. Witnesses James Black and Rachel Canine saw this altercation occurring and, although neither individual actually saw Thompson hit Appellant, Appellant and Thompson were moving their hands in a way that made them believe the conflict was physical. This prompted Canine to pull behind Appellant and call 911. Meanwhile, Black attempted to approach Appellant's vehicle on foot, but when Appellant saw him through her rearview mirror, she turned her vehicle around and headed back toward her father's home.
Appellant testified that she had decided go back to her father's to report Thompson's behavior. However, when Thompson allegedly promised her he would stop, she turned the car back around and again attempted to drive to her home. Witnesses Jonathan Hayes, Gilbert Robbins, and Cleona Mills noticed Appellant run a stop sign after she attempted to exit the neighborhood a second time. Each witness estimated that Appellant's vehicle was traveling above the twenty-five-mile-per-hour speed limit. According to Robbins, Appellant decelerated through the stop sign, looked toward him, and then sped away. Robbins testified that it sounded like Appellant gave her vehicle "all the gas she could."
At the same time, three children (Rayshon Green, Larome White, and Dylan Geitgey) were riding their bikes in the neighborhood. White and Green were attempting to cross the street and enter the sidewalk when Green's bicycle chain popped off. At this point, Geitgey was riding behind them, attempting to catch up.
As Green leaned over to fix his chain, he saw Appellant's car speed toward him, and as he later testified, it came so close to hitting him that he felt the air from the vehicle's movement as it passed. Appellant's vehicle, however, swerved and hit Geitgey. Geitgey was thrown approximately sixty-nine feet. After hitting Geitgey, Appellant's vehicle crashed into Judy Crump's home, causing damage to her garage and two vehicles parked in the driveway.
After emergency personnel arrived and Geitgey had been securely placed into an ambulance, Sergeant Timothy Howell spoke to Appellant. He testified that she was unresponsive, unsteady on her feet, smelled of alcohol, and that her eyes were glassy. Given these observations, Howell testified that she appeared to be intoxicated. Thereafter, two EMTs transported Appellant to the hospital. Both testified that Appellant was belligerent and smelled of alcohol. According to one of the EMTs, Appellant admitted she had had a couple of drinks.
Lauren Ashley Lincoln, a hospital nurse, triaged Appellant at the hospital. She testified that Appellant was belligerent, smelled of alcohol, and told her that she had had a couple of drinks. When Lincoln asked her if she had been assaulted, Appellant replied that she had not. Dr. William Compton, the emergency room physician, also testified that Appellant smelled of alcohol, exhibited horizontal gaze nystagmus (an eye condition indicative of alcohol intoxication), and that she told him she had a couple of drinks.
Officer Buddy Van Cleave, who was at the hospital awaiting Appellant's arrival, spoke with Appellant after she was placed in a room. When he asked her to submit to a portable breathalyzer test, Appellant replied: "My father told me not to talk to the f—n' police, see my attorney." Officer Van Cleave then left the hospital, collected information from other investigators,  and obtained a search warrant for samples of Appellant's blood. After three samples were taken, Appellant was released from the hospital.
Dr. Bill Smock, the Commonwealth's expert, later analyzed the blood samples. In Dr. Smock's opinion, Appellant's blood alcohol level was between.23 and .26 when she struck Geitgey with her vehicle and, according to Smock, Appellant would have had to consume 7.6 beers to reach that level of intoxication. Appellant later admitted to having consumed around six beers and stated that she was under the influence of alcohol at the time of the collision.
Geitgey died the next day. Appellant was then taken into custody and formally charged with murder, first-degree wanton endangerment, first-degree criminal mischief, driving under the influence, and tampering with physical evidence. The jury subsequently found Appellant guilty on all counts except the tampering with physical evidence charge, and the trial court adopted the jury's recommended sentence of thirty-five years' imprisonment.
Further facts will be developed as required.
A. Right to Remain Silent
Appellant first argues that her Fifth Amendment privilege against self-incrimination was violated when the trial court failed to properly exclude portions of the testimony from two police officers that contained impermissible references to her assertion of her right to remain silent.
Prior to trial, the trial court denied Appellant's motion to exclude Officer Van Cleave's testimony concerning Appellant's invocation of her right to remain silent based on its finding that she was not in custody when Van Cleave questioned her. During trial, Appellant moved for a mistrial after Sergeant Howell commented on her silence when explaining her demeanor after the collision. Finding that Appellant was not in custody during this exchange, the trial court denied this motion as well.
We review the trial court's denial of Appellant's motions for an abuse of discretion. See Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000) ("[A]buse of discretion is the proper standard of review of a trial court's evidentiary rulings."); Star v. Commonwealth, 313 S.W.3d 30, 37 (Ky. 2010 ("On review of the denial of a motion for a mistrial, the applicable standard is abuse of discretion."). "[T]he test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear, 11 S.W.3d at 581.
1. Officer Van Cleave's Testimony
As to Officer Van Cleave's testimony, we must make two determinations: First, we must determine whether the trial court abused its discretion in permitting Officer Van Cleave to testify as to Appellant's pre-custody, pre-Miranda invocation of her right to remain silent. See Goodyear, 11 S.W.3d at 577. Because we find that it did, we must also determine whether the trial court's error was harmless beyond a reasonable doubt. See ...