ON APPEAL FROM MONROE CIRCUIT COURT HONORABLE EDDIE C. LOVELACE, JUDGE NO. 10-CR-00117.
COUNSEL FOR APPELLANT: Kathleen Kallaher Schmidt, Karen Shuff Maurer, Assistant Public Advocates
COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky, William Bryan Jones, Assistant Attorney General
Donna Bartley appeals as a matter of right from a Judgment of the Monroe Circuit Court convicting her of first-degree assault, in violation of Kentucky Revised Statute (KRS) 508.010, and of first-degree criminal abuse, in violation of KRS 508.100. In accord with the jury's recommendation, the trial court sentenced Bartley to consecutive terms of imprisonment of twenty and ten years, respectively. Bartley and co-defendant Rita Mitchell, Bartley's friend and roommate of many years, were jointly charged with having neglected and abused Bartley's disabled son, K.B. Bartley contends that the trial court erred (1) by failing to acknowledge her right to conflict-free counsel; (2) by not dismissing the assault charge; (3) by inadequately instructing the jury with respect to the alleged assault; (4) by failing to instruct the jury with respect to a lesser included offense of assault; (5) by denying Bartley's pre-trial motion for a continuance; and (6) by denying her motion for a mistrial when one of the Commonwealth's medical witnesses improperly testified that K.B. may have been subjected to cigarette burns. Convinced that Bartley was lawfully charged and fairly convicted, we affirm the trial court's Judgment.
The proof at trial tended to show that for several years prior to the spring of 2010, Bartley, Mitchell, and Bartley's three children lived together in Bartley's mobile home on Mudlick Flippin Road in Tompkinsville. Mitchell, a recipient of social security disability income benefits, testified that in exchange for her food and lodging she helped care for Bartley's children and the home and allowed Bartley to take control of her social security checks. In particular, she helped care for K.B., Bartley's eldest child, who, as a result of cerebral palsy, mental retardation, and possibly autism, is severely disabled.
In the late spring or early summer of 2010, Bartley and her two younger children, teenagers at the time, moved from the Tompkinsville mobile home to a new home in Glasgow. Mitchell (who herself suffers from chronic obstructive pulmonary disease and depression) and the then twenty-four year old K.B. remained in Tompkinsville. The plan, apparently, was to have the mobile home moved to Glasgow near to where the others were living, but for whatever reason that move did not occur. Instead, Bartley increasingly disassociated herself from her son and Mitchell and from their circumstances. Although she remained in control of the purse strings, including Mitchell's and K.B.'s social security benefits, she ceased to make the mortgage payments on the mobile home; ceased to provide for trash removal; ceased to pay for water service, which in August 2010 was discontinued; and visited the mobile home only on weekends, delivering food and a few gallons of water. Bartley apparently ignored the deplorable and worsening conditions in which her son and Mitchell were living.
Matters came to a head in October 2010. By then the mortgagee bank was contemplating foreclosure on the mobile home. A bank representative sent to inspect the property found his attempts thwarted by a large number of stray dogs gathered in the yard. Concerned by the dogs, by a bad smell pervading the area (perceptible as far as 100 feet from the door), and by statements from neighbors that a boy was being kept inside the premises, the inspector reported the situation to the Monroe County Sheriff's office. Soon thereafter, a deputy sheriff, assisted by a social worker from the local Cabinet for Family and Health Services office, entered the home with Mitchell's consent. They immediately encountered an almost unbearable stench, arising, at least in part, from the numerous dogs milling about and their excrement, which had been allowed to accumulate on the floors and furniture. Mitchell told them that K.B. was in the home.
The deputy sheriff and social worker then summoned emergency medical assistance, and when the E.M.S. workers arrived, they all proceeded to a back bedroom, locked from the outside, where they found K.B. Photographs they took graphically confirmed that amid heaps of snack wrappers, food scraps, and empty soft drink cans, K.B. was lying naked on a mattress, which was covered with nothing but a sheet of plastic. Through long use, apparently, the center of the mattress had become hollowed out, and in the depression where K.B. was lying was a puddle, inches deep, of his own urine and feces. His hair was matted; his toenails and fingernails, several inches long, were caked with grime; sores and feces on his skin had attracted numerous flies; and he was too weak to move. K.B.'s language abilities are very limited, but he repeatedly asked the rescuers for "coke" and "cookie." Initially, even the E.M.S. workers were unsure how to proceed, but eventually, with additional assistance from some volunteer firefighters, K.B. was removed to the Monroe County Medical Center. Several people involved in this rescue testified at trial. They expressed shock at the deplorable conditions in which K.B. had been found, describing it as "a scene from a horror movie" and "as close to a Holocaust scene as I will ever see."
Several of the medical personnel who treated K.B. also testified, including the nurses who bathed him and fed him during his two week hospital stay. The nurses described K.B. as having been covered in feces literally from head to toe. They washed it from his hair, from the length of his body, and from his feet. It was caked behind his long fingernails; and it was on his teeth. The foul odor clung to him for many days as did the stain upon his skin. It was also several days before K.B. could resume normal eating. He had arrived at the hospital very hungry, but when the nurses fed him ordinary food, he vomited. Consequently, for several days, he was given baby food while his digestive system recovered.
The physician who treated him testified that K.B.'s digestive problem, apparently the result, in part at least, of a gas blockage in the small bowel, was serious and could have been fatal, had it not been treated. Likewise, K.B.'s contact with his feces, particularly the feces in his mouth, had exposed him to a very serious risk of bacterial, especially E-coli, infection and sepsis, which is potentially fatal.
In addition to having been exposed to those potentially grave conditions, K.B. had also suffered, according to the doctor, a number of lesser, but significant, injuries. His skin had developed bed sores and papules—raised red dots—that K.B. had scratched open. His skin had also sagged and wrinkled due to his extreme weight loss. More seriously, K.B.'s left clavicle had become displaced and his left shoulder had collapsed inward, a result, the doctor believed, of his having lain too long and too uninterruptedly on that side. His muscles had atrophied to the point that he had lost much of his mobility; only months later would he finally regain the ability to walk. He had become deficient in several vitamins, including the fat soluble vitamins A and D. His teeth, too, were severely decayed, and, indeed, all were removed within a year of his release from the hospital. Asked whether K.B.'s condition could have developed in the two weeks immediately prior to his rescue, the doctor explained that it could not have. The shoulder collapse, the muscle atrophy, and the vitamin A and D deficiencies all required several weeks if not months to develop. Months, too, were necessary for the growth of K.B.'s inches-long fingernails and toenails.
Mitchell, nevertheless, testified that until about two weeks prior to the rescue, conditions in the home generally and K.B.'s condition in particular had not been so bad. That happened to be, according to Mitchell, about the time of Bartley's last visit. Mitchell claimed that Bartley regularly brought groceries, water, and clean sheets for K.B., and spent time visiting with him. During those last two weeks, however, Mitchell testified that Bartley had not been by, and Mitchell's depression had become so severe that it rendered her incapable of caring for K.B. or of tending to the home. It was only during those last two weeks, Mitchell said, that K.B.'s plight had become the dire one the rescuers discovered.
During cross-examination by the Commonwealth, Mitchell admitted that she felt intimidated by Bartley, who, during the long course of their relationship, had always been the one in charge, and who had even struck her and knocked her down on one occasion. She explained that she had not sought help for K.B. because she feared that he would be removed from their custody and that Bartley "would be mad." Mitchell acknowledged that K.B. had not left the bedroom in which he was found for several months preceding his rescue. Mitchell's closing argument stressed her own limitations, the overwhelming situation in which she found herself when Bartley left the care of K.B. to her, and Bartley's failure to render even such minimal assistance as having the water service restored.
Bartley opted not to testify, but she argued during closing that "it was Rita's [Mitchell's] fault." According to Bartley, the evidence showed only that she had entrusted K.B.'s care and custody to Mitchell, that she had found K.B. well the many times she had checked on him, and that it was only toward the end that she had relied—unwisely perhaps but not criminally—on Mitchell's assurances that K.B. was well. As noted, Bartley was convicted of first-degree assault, a Class B felony, and first-degree criminal abuse, a Class C felony. Bartley now contends that during trial she was denied, in a number of ways, a fair opportunity to develop and present her defense. Our analysis begins, however, with her claim that her defense was undermined from the outset when she was assigned counsel who, because he worked in the same public defender's office as Mitchell's counsel, labored under a conflict of interest.
I. Counsel's Representation of Bartley Was Not Adversely Affected By a Conflict of Interest.
Bartley asserts, and the Commonwealth does not dispute, that although she and Mitchell were represented by different attorneys, both attorneys worked for the same office, the Glasgow trial office of the Kentucky Department of Public Advocacy. Mitchell was represented by one of the office's staff attorneys while Bartley was represented by the office's director. At no time prior to or during trial did either defendant, either attorney, or the trial court object to or question the propriety of that arrangement. Bartley now contends, however, that the joint representation by the public defender's office created a conflict of interest and that the conflict is so likely to have had an adverse affect on her attorney's performance as to entitle her to a new trial. Because Bartley has failed to identify any such adverse affect on her attorney's performance, we reject her first allegation of error.
As Bartley correctly notes, her right under the Sixth Amendment to the Constitution of the United States to the effective assistance of counsel includes the right to counsel whose loyalty to her is not divided by a conflicting interest. Holloway v. Arkansas, 435 U.S. 475 (1978). To help protect that right, Kentucky Rule of Criminal Procedure (RCr) 8.30 provides in part that in criminal matters where confinement or a substantial fine is at stake, "no attorney shall be permitted at any stage of the proceedings to act as counsel for the defendant while at the same time engaged as counsel for another person or persons accused of the same offense or of offenses arising out of the same incident or series of related incidents" unless, among other conditions, the trial court explains the attorney's possible conflict of interest to the defendant, and the defendant waives in writing any objection thereto. See RCr 8.30(1).
In Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky. 2001), we assumed without discussion that representation of co-defendants by two attorneys from the same public defender's office implicates this rule. We held, however, that where neither the defendant nor his counsel objected to the representation, the trial court's failure to give the warning required by the rule and to obtain the defendant's waiver did not entitle the defendant to a new trial, unless the defendant showed that his attorney's potential conflict of interest had materialized and had adversely affected his performance. This is the same "actual conflict" standard the United States Supreme Court has applied to unpreserved claims of multiple-representation-based violations of the Sixth Amendment. See Mickens v. Taylor, 535 U.S. 162, 168-69 (2002) (discussing Cuyler v. Sullivan, 446 U.S. 335 (1980)).
Relief was not warranted in Kirkland, we explained, because whatever may have been the potential for conflict, no actual conflict ever materialized: the codefendants' defenses were not antagonistic and neither codefendant had made any statements contradictory of the other's. Here, of course, the codefendants' defenses were antagonistic, but even assuming the existence of a conflict, to be entitled to relief, Bartley must show that the conflict adversely affected her counsel's performance. She must show, that is, "some specific defect in [her] counsel's strategy, tactics, or decision making attributable to [the] conflict. . . . Speculative allegations and conclusory statements are not sufficient . . . ." People v. Morales, 808 N.E.2d 510, 515 (111. 2004) (citations and internal quotation marks omitted). This Bartley has failed to do.
Aside from a great deal of speculation about how her counsel's decisionmaking might have been affected by litigating against another, subordinate attorney from his office, the only specific defect in counsel's performance Bartley can point to is an alleged failure to cross-examine Mitchell vigorously enough. Bartley complains that counsel questioned Mitchell for only about six minutes, and she contends that rather than trying to capitalize on important admissions Mitchell made near the end of the Commonwealth's cross-examination of her, counsel instead "put his foot on the brake" at a time when Mitchell was providing testimony favorable to Bartley. This is not an accurate characterization of counsel's performance.
Rita Mitchell, both in the statements she made to investigators prior to trial and in her testimony during trial, was anything but a clear, coherent, and consistent witness. At various points during her testimony, Mitchell said that Bartley was aware of the conditions inside the mobile home and then that Bartley was not aware of them; she said that Bartley had seen the feces smeared on K.B.'s body and that Bartley had not seen his condition; she said that Bartley had brought clean sheets to the mobile home as recently as the Friday before the Wednesday when K.B. was rescued and then that Bartley had not visited the mobile home for two weeks prior to the rescue.
Toward the end of her cross-examination by the Commonwealth, Mitchell became increasingly adamant that Bartley had not been to the mobile home during the two weeks immediately prior to K.B.'s rescue and that it was only during those two weeks that K.B.'s condition had become so egregious. She reiterated that testimony even in the face of the prosecutor's reminders that the rescuers had described and taken pictures of deplorable conditions that could not possibly have developed in so short a period.
Bartley's counsel then, as Bartley notes, had his turn at cross-examining Mitchell. Counsel's dilemma, plainly, was somehow to distance Bartley from the appalling conditions in which K.B. had been found without at the same time making it seem that she had abandoned her son altogether. Mitchell's assertion that Bartley had visited the mobile home regularly until the last two weeks, and only then had conditions there become unspeakably awful, answered Bartley's dilemma about as well as could be hoped. Counsel thus had Mitchell repeat what she had just said: that Bartley had been actively concerned, but that she had not been aware of how bad things had become in the final two-week period. Counsel did not, it is true, press Mitchell for additional details, but that decision was clearly prompted, not by any sense of obligation to Mitchell or to Mitchell's counsel, but by a very justifiable fear that if pressed Mitchell would contradict herself yet again and say something damaging to Bartley's case. This impression is confirmed by Bartley's counsel's closing argument, an argument largely devoted to lambasting Mitchell and one providing no suggestion whatsoever that counsel felt obliged to "spare" her.
We are thus convinced that, even if counsel's representation of Bartley could be deemed conflicted, the conflict of interest was not objected to and has not been shown to have adversely affected counsel's performance in any perceptible way; it does not, therefore, entitle Bartley to relief. That said, we remind trial judges and counsel, both for the defense and the Commonwealth, that the orderly administration of justice is best-achieved when a potential conflict of interest is addressed at the outset pursuant to RCr 8.30. Counsel and the trial court should be attuned to the potential for a conflict of interest in any case involving multiple defendants and, where appropriate, take the necessary steps to address it.
II. Bartley Was Lawfully Charged With and Fairly Convicted of First-Degree Assault.
Bartley next challenges her conviction for assault. She contends, first, that the assault conviction was "simply nonsensical" in that KRS 508.010, the first-degree assault statute, was not intended to apply to cases of neglect. In her view, the application of it here effectively creates a new crime not authorized by the Penal Code. She also contends that if there is such a crime as "assault by neglect, " the jury instruction pertaining to it omitted the essential element of "duty" and in that way undermined the fairness of her trial. Finally, she contends that the trial court erred by failing to instruct the jury on the lesser included offense of neglect of an adult, as defined by KRS 209.020 and outlawed by KRS 209.990. We begin with Bartley's contention that the assault statutes do not apply to failures to act, but outlaw only "overt acts."
A. Under the Penal Code a Person Can Commit Assault By Failing To Perform a Legal Duty.
KRS 508.010 provides in pertinent part that
A person is guilty of assault in the first ...