Released for Publication January 9, 2014.
[Copyrighted Material Omitted]
ON APPEAL FROM TAYLOR CIRCUIT COURT. HONORABLE DAN KELLY, JUDGE. NO. 11-CR-00143.
COUNSEL FOR APPELLANT: Steven Jared Buck, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Kentucky.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General, David Wayne Barr, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals, Frankfort, Kentucky.
Minton, C.J.; Abramson, Cunningham, and Scott, JJ., concur. Venters, J., concurs in result only by separate opinion in which Keller, J., joins. VENTERS, J., CONCURS IN RESULT ONLY.
The Appellant, Kathleen Wise, was convicted of intentional murder and sentenced to life in prison. On appeal, she alleges two errors. First, 'she argues that the trial court erred when it denied her motion to suppress statements she gave to police after a polygraph examination because she did not knowingly and voluntarily waive her Miranda rights. Second, she claims that the trial court erred when it failed to instruct on the lesser-included offense of first-degree manslaughter. For the reasons set forth herein, this Court affirms her conviction and sentence.
On the morning of June 8, 2011, the Appellant found her 71-year-old husband, Kenneth Wise, dead in his bed.
Taylor County Coroner Terry Dabney went to the Wises' home to examine the body. Upon his arrival, the Appellant told the coroner that her husband had not been feeling well the previous day, that he had gotten sick to his stomach in the middle of the night, and that he had been vomiting and stumbling around in the bathroom. The Appellant told the coroner that she had asked Kenneth if he would like to go to the hospital, but that he had declined. She stated that Kenneth had complained to her of chest pains and that she had given him a nitroglycerin pill before he had returned to bed.
The coroner conducted a visual examination of Kenneth's body, and based upon his conversation with the Appellant and Kenneth's medical history, which included a
history of heart problems, determined the cause of death to be a heart attack. He also collected blood and urine samples from Kenneth's body, as was his custom when no one had witnessed a death, and sent them to a toxicology laboratory to be analyzed.
The laboratory's test results revealed that Kenneth had likely died of a morphine overdose. At the time of his death the concentration of morphine in his blood was 5,738 nanograms per milliliter. According to testimony at trial, the typical therapeutic range for morphine is between 10 to 80 nanograms per milliliter.
The coroner contacted the Taylor County Sheriff's Department and spoke to Deputy Sheriff Brian Pickard about the circumstances surrounding Kenneth's death. Deputy Pickard conducted several interviews to learn more about the Appellant's and Kenneth's relationship. Through his investigation, Deputy Pickard learned that the Appellant had worked as a nurse for over thirty years and was employed at the Medco nursing home in Taylor County. He also discovered that the Appellant, as part of her job duties, was responsible for storing narcotics and destroying narcotics that were no longer needed by the nursing home.
A week later, Deputy Pickard interviewed the Appellant at the Taylor County Sheriff's Department. Prior to this interview, the Appellant was advised of her Miranda rights and signed a waiver form waiving her rights for that interview. The Appellant told Deputy Pickard a story very similar to the one that she told the coroner. She said she thought her husband was suffering from some kind of virus on the day he died. She also stated that during the night she had heard Kenneth in the bathroom and had found him leaning against the window sill with a broken towel rack in his hands--the apparent result of falling. The Appellant said she gave Kenneth a nitroglycerin pill and he returned to bed. She stated she. heard him snoring at 5:30 a.m., but that when she checked on him between 8:00 or 8:30 a.m., he was dead. At the end of the interview, the Appellant consented to Deputy Pickard's request to take a polygraph at police headquarters in Louisville. The polygraph was scheduled for five days later.
On the day of the polygraph examination, the Appellant rode with Deputy Pickard and another deputy to Louisville. In Louisville, the polygraph examination was administered by Louisville Metro Police Detective Mark Bratcher. Before beginning the examination, Detective Bratcher confirmed the Appellant could read and write and gave her a form to sign. In pertinent part, the form stated:
I, Kathleen Wise, voluntarily--without threats, duress, coercion, force, promises of immunity or reward agree and stipulate to take a polygraph examination for the mutual benefit of myself Louisville Metro Police Department. I fully realize that. I am not required to take this examination. I may remain silent the entire time I am here; anything I may say can be used against me in any court of law. I may first consult with an attorney; or anyone I wish to before either signing this form or taking the examination. I may have an attorney present, in the building if I cannot afford an attorney and desire one a attorney will be appointed for me prior to my questioning, and I have the opportunity
to exercise all these rights at any time I wish to during the entire time I am here. I consent to the use of electronic hearing and recording devices and I voluntarily request and authorize the Louisville Metro Police Department to now proceed with the examination.
The Appellant looked over the form for less than a minute and signed it. Detective Bratcher did not read the form to the Appellant, but he did ask her if she had any questions or concerns before beginning the exam. She indicated she did not. Detective Bratcher then began the polygraph examination.
At the conclusion of the examination, Detective Bratcher told the Appellant that she had " reacted" to the polygraph examination and told her, " This is your opportunity to tell the truth." Detective Bratcher did not give the Appellant any additional Miranda warnings at this time. The Appellant then told Detective Bratcher that she took " a lot" of morphine home with her from Medco on June 6, 2011, and that she had stored it in a glass or jar at her home. She then stated that on June 7, 2011, she had given her husband the morphine in his drinking water. The Appellant stated that she felt bad about it and was disappointed she had put so much of it in his water. She stated that she should not have done it. None of these statements to Detective Bratcher was recorded, as is the policy for all polygraph examinations conducted at the Louisville Metro Police Department.
It is also the policy of the Louisville Metro Police Department to turn over any investigation to local investigating officers if an examinee makes an admission to a crime during a polygraph examination. The policy also requires investigating officers from the crime's locale to be on-site at the Louisville police department when a polygraph examination takes place. Thus, after the Appellant's admissions, Detective Bratcher turned the questioning over to the Taylor County deputies, who had been watching the polygraph examination by closed circuit television monitors.
After Detective Bratcher finished talking with the Appellant, he told her he was going to let her speak to the Taylor County deputies. Detective Bratcher then walked to where the deputies had been watching the Appellant's polygraph examination and told them, " It's your turn to take over." Detective Bratcher then returned to the polygraph examination suite and escorted the Appellant to a different office on the same floor of the police department. The Taylor County deputies were waiting there when the Appellant entered the room. Detective Bratcher estimated that thirty seconds to two minutes elapsed from the time the Appellant finished making her admissions to him until the time she entered the room with the Taylor County deputies. Detective Bratcher then briefly left the room and returned with the form the Appellant had signed before the polygraph examination.
The Appellant's interaction with the Taylor County deputies was recorded on video. The recording shows Detective Bratcher giving the form that the Appellant had signed to Deputy Pickard, who then showed the Appellant the form and asked her if the signature on the document was hers. She indicated to Deputy Pickard that her signature was on the form. Deputy Pickard and the other deputy then began interviewing the Appellant.
The Appellant told the deputies that she and her husband had not been speaking for almost two and a half months and that her husband had asked her son to call her
to ask if she wanted a divorce. The Appellant stated that she had told her son she did not believe she wanted a divorce and that he had relayed that information to her husband. The Appellant stated that she had also personally spoken to her husband and told him she did not want a divorce.
The Appellant then told the deputies that she had taken morphine home from her work and had put it in her husband's drinking water. A deputy asked the Appellant, " You gave him the water and morphine and you really didn't think that it'd kill him, is that what you said?" The Appellant replied, " I didn't think that it would. I mean, it was just, it wasn't a great amount." The deputy then asked if she had given her husband the water to intentionally kill him or to make him sick. The Appellant answered, " I did ...