PAMELA S. BARTLEY, APPELLANT
COMMONWEALTH OF KENTUCKY, APPELLEE
ON REVIEW FROM COURT OF APPEALS. CASE NO. 2010-CA-001640-MR. ROWAN CIRCUIT COURT NO. 09-CR-00117.
FOR APPELLANT: W. Robert Lotz, Jr., Covington, Kentucky.
FOR APPELLEE: Jack Conway, Attorney General, John Paul Varo, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, Kentucky.
OPINION OF THE COURT BY JUSTICE NOBLE. All sitting. Minton, C.J.; Abramson, Keller and Venters, JJ., concur. Cunningham, J., dissents by separate opinion in which Scott, J., joins.
REVERSING AND REMANDING
Appellant, Pamela Bartley, was convicted in Rowan Circuit Court of second-degree manslaughter for killing her husband,
Carl Bartley, and was sentenced to eight years' imprisonment. The Court of Appeals affirmed her conviction and sentence, holding that the trial court had not erred by admitting into evidence a recorded conversation between Appellant and a police detective in which Appellant repeatedly was silent in the face of accusatory questions, and that other errors in the case did not require reversal.
On discretionary review, the primary issue presented to this Court is whether the trial court erred by permitting the introduction of the recorded conversation into evidence, and whether the Commonwealth may introduce a criminal defendant's pre-arrest, post- Miranda silence as substantive evidence in its case-in-chief. In addressing this issue, we must necessarily address whether a criminal defendant may selectively invoke his or her right to remain silent, and if so, under what circumstances will continued comment from an accused constitute a waiver of a selective invocation of silence.
On July 31, 2007, police officers were dispatched to the residence of Pamela and Carl Bartley in Montgomery County. The dispatch was made in response to a call by some of Carl's relatives after they became concerned about his safety and whereabouts. Carl had failed to show up to a scheduled meeting with his sister the previous evening and had not responded to any attempts to contact him. Family members were especially concerned about Carl because of recent difficulties in his marriage. At the time of his death, Carl and his wife, Appellant, had been married thirty-eight years, but the relationship, which by many accounts had always been tumultuous, had grown even more volatile when Appellant learned that Carl had been having an affair for five years with a woman named Katherine Lee.
When officers arrived at the Bartley home, they were let inside with a key by members of Carl's family. Although an initial police sweep uncovered nothing out of the ordinary, Carl's relatives urged the officers to search the home again because Carl's vehicle was uncharacteristically parked inside the garage. A second sweep of the home revealed Carl's body--underneath some blankets and cardboard boxes--between two vehicles parked inside the garage. The cause of death was a single gunshot wound to the back of the head. Later analysis could not determine Carl's time of death, but ballistics analysis determined that the fatal shot had been fired by either a .357 or .38 handgun.
After Carl's body was found, Kentucky State Police Detective Larry Bowling was assigned as the lead investigator in the case. At the time he arrived on the scene, several of Carl's family members were present and stated they believed Appellant was responsible for Carl's death. Appellant was not at the scene because she had gone to visit her daughter the day before and had stayed the night. But Appellant had spoken to Carl's sister the night before when he had not shown up to meet her. During that conversation, Appellant indicated that she and Carl had had a heated argument that morning, that he had left, and that she had gone to visit her daughter, but that she was not concerned about his whereabouts because he was probably with his mistress. When Appellant did arrive at the crime scene after the body was found, she and her son separately advised Detective Bowling that she would not speak to him without an attorney.
Approximately a month after Carl's body was found, on September 7, 2009, Appellant called police to report that she
and her son had been chased and shot at as they drove in their vehicle and that the car's rear window had been busted out with a baseball bat by a man named Thomas Lee. Lee was Carl's mistress's brother. After reporting the crime to the responding officer, Appellant asked to speak to Detective Bowling.
After Detective Bowling arrived, he spoke with Appellant in his car parked in her driveway. The conversation, which lasted almost two hours, was recorded. It is this conversation that is the central focus of this appeal.
A brief synopsis of the conversation is relevant to the issues of this case. As played into the record at trial, the conversation begins with Appellant consulting her attorney. She can be overheard acknowledging that she should only speak about the alleged incident of that day. Detective Bowling then read Appellant her Miranda rights and asked her if she wanted to talk to him. She indicated she did but only about the incidents of that day. Detective Bowling stated that he understood the limited scope of the conversation. Appellant proceeded to tell Detective Bowling a basic account of the alleged attack, but interwoven in this account, Appellant implicated Thomas Lee in the murder of her husband.
Appellant stated that she did not know why Thomas Lee wanted to kill her and her family like he had killed Carl. She further stated that Lee had broken into her and Carl's home many years before and that she wanted to re-open that case and see if any fingerprints could tie him to the murder. She inquired whether the police would test Lee's gun for gunshot residue and said that it was probably the gun he had used to kill her husband. In response to Appellant's assertions about Lee, Detective Bowling began to ask pointed questions about Appellant's involvement in her husband's murder.
Specifically, Detective Bowling focused his questions on the location of Appellant's .38 handgun, a gun she was widely known to carry in her purse, and what time she had left for her daughter's house the day before Carl's body was found. In response to questions about those subjects, Appellant would alternatively say nothing or would respond by saying she was not supposed to talk about that or that she had to do what her attorney had advised her to do.
The pattern of the nearly two-hour conversation was circuitous in nature. First, the detective would put forth his theory of the case (essentially, that Appellant had killed Carl because she was angry about his affair), and ask pointed questions about the location of her gun or her whereabouts the day before, which she would not answer or would comment that she should not answer. Inevitably, Appellant would then circle back to the crime she had reported that day and how she believed Thomas Lee was involved in her husband's death. Interspersed in this pattern, Detective Bowling and Appellant would casually discuss other topics, such as the couple's marriage or family.
Several months after this conversation, Appellant was indicted for murdering her husband. The Commonwealth indicated that it wished to introduce the entire audio recording into evidence during trial. Prior to trial, Appellant moved to suppress the
audio recording on the grounds that she had clearly invoked her right to remain silent about instances other than the alleged September 7 incident and thus that Detective Bowling should not have questioned her about anything beyond the scope of the incident. Moreover, Appellant argued that the introduction of the tape would impermissibly allow the Commonwealth to comment on her right against self-incrimination under the Fifth Amendment to the United States Constitution and Section 11 of the Kentucky Constitution.
On the day the trial began, the trial court denied Appellant's motion and allowed the Commonwealth to introduce the recording in almost its entirety because it did not believe the conversation contained any damaging admissions by Appellant and that the reporting of the alleged incident was inextricably linked to Carl's murder. Appellant was ultimately convicted of second-degree manslaughter.
The Court of Appeals affirmed Appellant's conviction by a divided opinion. In affirming her conviction, the court found that though Appellant had invoked her right to remain silent as to events unconnected to the alleged incident on September 7, she had, by implicating Thomas Lee in the murder, impliedly waived her right to remain silent and thus the jury was entitled to hear the entire interview. Moreover, the Court of Appeals found that the other errors complained of in the case did not amount to palpable error.
Appellant sought discretionary review, which this Court granted.
A. Admission of the recording violated Appellant's due process rights by using her silence against her.
Appellant's main claim of error relates to her privilege against self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution and Section Eleven of the Kentucky Constitution. Her basic argument is that the introduction of the recording was error because the tape was not relevant evidence and allowed the Commonwealth to impermissibly use her silence throughout the interview as substantive evidence against her. She also claims somewhat generically that the use of the evidence deprived her of a fair trial.
The privilege against self-incrimination has been recognized as being especially important in the context of police interrogations. In the seminal case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the U.S. Supreme Court held that any person who is in custody and subjected to police interrogation must be informed of his right against self-incrimination, or as standard in Miranda warnings, his right to remain silent. Id. at 444-45.
But the protections of the privilege with respect to incriminating statements are not automatic. An accused who " desires the protection of the privilege ... must claim it," United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943), and must do so unambiguously. Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). The effect of invoking the right is that police questioning must cease. Miranda, 384 U.S. at 473-74 (" If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." ). If the police continue to press the issue, and the defendant makes incriminating statements, those statements are properly suppressed.
Closely related to an accused's invocation of the right to remain silent is whether,
if at all, the government may use a defendant's silence in response to questioning. Prior to Miranda, the U.S. Supreme Court held that " the Fifth Amendment ... forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). And in Miranda, it reiterated that " [t]he prosecution may not ... use at trial the fact that [a defendant] stood mute or claimed his privilege in the face of accusation." Miranda, 384 U.S. at 468 n.37 (emphasis added).
Since Miranda, courts have grappled with various issues related to Miranda warnings and an accused's rights against self-incrimination, including the effect of giving the warnings themselves, whether and when an accused's silence may be used, and whether the accused waived the right. All of these issues are present in this case and must be addressed. Accordingly, the Court must make a number of determinations to address Appellant's claim of error. First, we must determine what effect, if any, the Miranda warnings given to Appellant by Detective Bowling at the beginning of their conversation had on the Commonwealth's ability to introduce her silence as substantive evidence against her at trial. Second, the Court must determine whether Appellant was entitled to selectively invoke her right to remain silent by remaining mute at various occasions throughout her interview. Third, and related to the second point, we must address whether she waived that right by making statements about her husband's death.
1. The giving of Miranda warnings generally render an accused's silence inadmissible.
As noted above, we must first address the impact of Appellant receiving Miranda warnings and what effect, if any, that had on the admissibility of her silence at trial. Both Appellant and the Commonwealth agree that Appellant was not technically entitled to receive Miranda warnings prior to her interview with Detective Bowling because she was not in custody. Indeed, the conversation, which was initiated at Appellant's request, took place in Bowling's police cruiser as it sat in the driveway of Appellant's home. Moreover, Appellant made references to getting out of the cruiser during the interview, so it was clear she felt that she could terminate the interview and leave at any time. Thus, the question becomes what effect, if any, do unnecessary Miranda warnings have on the admission of otherwise non-custodial silence as substantive evidence in the Commonwealth's case-in-chief.
The admissibility of a criminal defendant's silence has been discussed in predominantly two contexts: impeachment evidence and substantive evidence. As will become clear from the cases, the stage of the pre-trial proceedings--such as whether the accused has been taken into custody or has been given the Miranda warnings--plays a significant role in whether and how an accused's silence may be used.
The starting point of this analysis is the U.S. Supreme Court's decision in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), which addressed the use of silence for impeachment purposes. In Doyle, two defendants were arrested and read their Miranda rights but neither made any statements to police. Id. at 611. At the defendants' joint trial, each took the stand and stated for the first time that they were innocent and had ...