Barnes v. Com.

• Decision Date: 19 December 2002
• Docket Number: No. 2001-SC-0544-MR.,2001-SC-0544-MR.
• Citation: 91 S.W.3d 564
• Parties: Beckham B. BARNES, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: Supreme Court of Kentucky

91 S.W.3d 564

Beckham B. BARNES, Appellant, v.COMMONWEALTH OF KENTUCKY, Appellee.

No. 2001-SC-0544-MR.

Supreme Court of Kentucky.

December 19, 2002.

William E. Johnson, Johnson, Judy, True & Guarnieri, LLP, Frankfort, David Lewis Williams, Burkesville, Counsel for Appellant.

A.B. Chandler, III, Attorney General, Susan Roncarti, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

COOPER, Justice.

Appellant Beckham B. ("B.B.")Barnes was convicted by a Wayne Circuit Court jury of intentionally killing Troy Miller, for which he was sentenced to twenty-two years in prison.He appeals to this Court as a matter of right.Ky. Const. § 110(2)(b).We reverse and remand for a new trial because the prosecutor's closing argument violated Appellant's right to a fair trial.

I.FACTS.

Appellant admitted killing Miller but contended that he did so in self-defense.Appellant and Miller were friends and had a business relationship.Appellant was a civil engineer and land surveyor, and had hired Miller as an apprentice shortly after Miller graduated from high school.After several years, Miller started his own business.However, he continued to seek Appellant's assistance and to use the maps, computer, and other equipment in Appellant's office.When Miller did seek Appellant's help on a project, he would pay Appellant a fee of twenty percent.

Appellant was helping Miller with such a project at Appellant's office on the evening of April 1, 1999.The office computer showed initial activity on that project from 9:45 p.m. until 10:07 p.m.However, when the two finished, Appellant would not permit Miller to print the project.Apparently, they had agreed to settle their accounts on a quarterly basis, but Miller had not paid Appellant for his assistance for the last quarter of 1998 and the first quarter of 1999.Appellant told Miller that he could print the project only when he paid Appellant what he owed.According to Appellant, Miller did not seem overly upset by this interdiction and left the office peacefully.Appellant also went home (his residence is across the road from the barn constituting his office) and fell asleep watching television.

Appellant alleged that he was awakened sometime in the early morning hours of April 2, 1999, by the sound of his dog barking.The dog led him to his office.The night was foggy, but Appellant saw movement by the light of the office computer screen.He crept towards the office, opened a door, and yelled "freeze."He heard loud gunshots, returned fire with a rifle that he kept in the office, and ran back to his residence, where he informed his wife, Paula Barnes, that it appeared that he had shot an unidentified intruder.Appellant claimed that he did not realize that Miller was the intruder until he was informed of that fact sometime later that morning.

Paula Barnes called the "911" emergency operator at 2:13 a.m.She reported to the operator that a male had been shot, but gave little other information.Law enforcement authorities arrived at approximately 2:38 a.m. Deputy Sheriff Garner testified that it was so foggy he had to shine his spotlight on the ditches in order to stay on the roadway.The police described Appellant and his wife as relatively "close-lipped."Appellant testified at trial that he did not trust one of the investigating officers, Scott Hammond, whose family had had previous disagreements with the Barnes family.In any event, he told the officers little more than that the intruder was "in the barn" and that "I saw him go down."Appellant then informed the police that he would not say anything else until his lawyer arrived.He refused a gunshot residue test.Paula Barnes had also called Appellant's parents, Wilbur and Margie Barnes, who arrived at their son's residence shortly after the police.

Police found Troy Miller dead on the floor of Appellant's office.He had been killed by two shots to the chest from a hunting rifle.Next to Miller's hand was a .38 caliber pistol, which police later determined was owned by Miller's girlfriend, Kathy Wade.Three spent rounds from the .38 caliber pistol were found embedded in the walls and shelving of the office, including one in the doorframe where Appellant alleged that he had entered the office.The pistol was later determined to be an "emitter,"i.e., it had a tendency to emit antimony, but a gunshot residue expert found an "insignificant" amount of antimony on Miller's hands.However, she clarified that "this does not eliminate the possibility that [Miller] handled or discharged a firearm."No fingerprints were found on that pistol.The pistol also appeared to the police to be clean of blood, although no formal test was ever conducted to confirm this observation.

The office computer's internal log showed that there had been additional activity on Miller's project beginning at 12:40 a.m. and ending at 1:52 a.m.The police found Miller's truck parked one-half mile away from the office at a house used by the community, including Miller and Appellant, for activities like hunting.Police found a second gun wrapped in a T-shirt in Miller's truck which had no discernable relevance to Miller's death except that Appellant had owned a gun of the same make and model¹ and the serial numbers had recently been filed off the gun.A solitary shaving from the filings of that gun was found on a sock Miller was wearing when he died.No shavings were found on the clothes Appellant was wearing at the time of his arrest.This gun had not been recently fired.

The Commonwealth's theory was that Appellant had "cold-bloodedly" killed Miller and afterwards "doctored" the crime scene with the help of his father.Under this theory, Wilbur Barnes arrived before the law enforcement officers.Wilbur then filed the serial numbers off the gun that was eventually found in Miller's truck with the intention that it would serve as the "throw-down" gun.However, after the filing was complete, they discovered Wade's pistol in Miller's truck, and decided to use that as the "throw-down" weapon instead.They then left the first gun in Miller's truck and went to the crime scene, fired three shots from Wade's pistol into the walls and shelving of the office, wiped the pistol clean of fingerprints, and placed it next to Miller's hand, being careful not to leave any footprints in the blood pooling on the floor.The two then drove Miller's truck to the house one-half mile away, and returned together to Barnes's residence.Wilbur Barnes then drove home to clean up before returning to Appellant's residence, arriving shortly after the police.

In support of its theory that Appellant had doctored the crime scene, the Commonwealth offered law enforcement testimony that Wilbur Barnes was alone when he drove into Appellant's driveway.This was inconsistent with Wilbur and Margie Barnes's testimony that they drove together and with the fact that Margie Barnes was present at her son's home that night.Although Margie testified at the grand jury proceeding that she and Wilbur had walked to the house together after parking, both Wilbur and Margie testified at the trial that Wilbur had first dropped Margie off at the house and then parked.The Commonwealth also argued that because Margie Barnes had heard her son invoke his rights to counsel and silence to an officer, and that Appellant had invoked his rights to an officer before Wilbur arrived, Margie must have been present at the house before Wilbur arrived.Defense counsel pointed out that Appellant invoked his rights to several officers that night at several different times.

There was no evidence that Appellant had any motive to kill Miller, although the prosecutor noted during closing argument that Appellant and Miller were business competitors and speculated that Appellant would get more business if Miller were out of the way.

II.CLOSING ARGUMENT.

We need not address every improper argument in the summation.Suffice it to say that the trial judge sustained twenty-nine objections during the prosecutor's closing argument and admonished the jury eleven times.Many of the sustained objections pertained to misstatements of the evidence.Others included a reference to the fact that the prosecutor's son was a state trooper, and a comparison of this case to the O.J. Simpson trial.The most egregious, however, and one to which defense counsel's objection was overruled, was the prosecutor's statement to the jury that to acquit Appellant would be a crime worse than murder.

Ladies and Gentlemen there would be only one crime greater than this, the brutal taking of the life of Troy Miller.And that would be to allow this man to pull the wool over the eyes of Justice, and walk out of here with his liberty when he took this man's life.

Our cases have consistently held that a prosecutor may not imply that an acquittal would be equivalent to a criminal act.In reversing because of improper closing argument, our predecessor Court held in Meland v. Commonwealth, Ky., 280 S.W.2d 145(1955), that "[a] threat made against the jury that they will be considered in the same class as is [the] accused and held up to scorn by the good citizens of the community should they acquit him, will never be tolerated by this court."Id. at 147.In Napier v. Commonwealth,268 Ky. 482, 105 S.W.2d 594(1937), reversal was required when "[t]he Commonwealth's attorney went so far as to say to the jury, it' they should write a verdict under a manslaughter instruction, they might become an accessory to murder."105 S.W.2d at 598.See alsoStasel v. Commonwealth, Ky., 278 S.W.2d 727, 729(1955)(reversing because the jury was effectively told that they would receive the condemnation of the community if they acquitted defendant);Goff v. Commonwealth,241 Ky. 428, 44 S.W.2d 306, 308(1931)(reversing because jurors were told they would be "traitors" and "in a class with Judas" if they...