Barnett v. Com., 87-SC-710-MR

• Decision Date: 15 December 1988
• Docket Number: No. 87-SC-710-MR,87-SC-710-MR
• Citation: 763 S.W.2d 119
• Parties: J.D. BARNETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 119

763 S.W.2d 119

J.D. BARNETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 87-SC-710-MR.

Supreme Court of Kentucky.

Dec. 15, 1988.

Rehearing Denied Feb. 9, 1989.

Frank E. Haddad, Jr., George Salem, Jr., Louisville, for appellant.

Frederic J. Cowan, Atty. Gen., Elizabeth A. Myerscough, Asst. Atty. Gen., Frankfort, for appellee.

LEIBSON, Justice.

The jury convicted the appellant for intentional murder and fixed his punishment at twenty years, the minimum sentence.

At the time of the murder the appellant was 57 years old, with no previous criminal history. The Commonwealth's theory was that the appellant carefully planned and carried out the murder of his wife of forty years to dispose of her while retaining the money and property they had accumulated during their marriage.

In support of this theory the Commonwealth produced evidence much of which the defense challenges as inadmissible. A former paramour testified regarding a longstanding extramarital affair which, however, ended 21 months before the murder occurred. She testified that during the course of their relationship the appellant told her he would never divorce his wife because of the money it would cost him. Additionally, the Commonwealth produced the testimony of a son-in-law that shortly before the date of the crime the victim had told him that she would leave her husband if he took another vacation without her, and the testimony of a divorce attorney that more than a year before her death the victim had consulted him about domestic problems, principally about tracing the proceeds from certain certificates of deposit that she had jointly held with her husband. Bank employees testified that within the year before the victim's death the appellant had transferred approximately $90,000 from certificates of deposit jointly held with his wife to the account of a Delores Fife, who in turn retransferred $75,000 of these funds to the appellant after his wife's murder. ¹

This case unfolds with the kind of drama more likely encountered in a made-for-television murder mystery rather than a courtroom. The murder occurred in the hour before midnight on July 29, 1985, on a dark and lonely road winding between two major thoroughfares. After the murder occurred, the appellant flagged down a passing motorist to get him to call the police to the scene. He cooperated fully in arranging a forensic examination of his person and his clothes, and he gave a voluntary tape-recorded statement to the police about four hours after the occurrence.

In this statement the appellant related that after a evening's visit with a fellow church member, he and his wife were returning home when the car started missing badly and then stalled out. He checked under the hood without success, and then told his wife to roll up her glass and lock the doors, because he was going to walk over to a service station on Seventh Street Road, a round trip of about ten or fifteen minutes. The appellant worked nearby and was familiar with the neighborhood. When he reached the service station he found it closed, so he elected to return to his truck, meanwhile trying to flag down vehicles with his flashlight without success. When he returned to the truck he opened the door on the driver's side with his extra set of keys, saw that his wife was not in the truck, walked around the front of the truck and found her lying beside the truck with a lot of blood flowing from her face or mouth. He reached down to see if she had any warmth and he "might" have touched her; then realizing that it was useless, he again undertook to flag down the occasional passing motorists, finally succeeding in stopping one who agreed to call the police.

There was no eyewitness to prove the appellant guilty. There was testimony from passers-by who saw the appellant and his truck before and after the occurrence, some of which corroborated the appellant's story and some of which tended to cast doubt on certain details. Examination of physiological evidence consisting of swabs from the appellant and his clothes were reported as showing traces of blood, otherwise unidentifiable even as human blood. The serologist testified as an expert over objection that this was consistent with the appellant having washed off the blood which could have been expected from the vicious stab wounds in the victim's neck and chest. There was a large puddle of water near the scene, but no evidence was offered that it had been disturbed by washing, or of blood, and no one observed the appellant as wet or bearing any signs of a struggle. The Commonwealth's mechanic who examined the truck was unable to make the truck stall during vigorous testing, but there was evidence of mechanical problems and other evidence to sustain theorizing that it may have stalled out.

The key witness was a woman, Rose Pierce, living in the area near the crime scene, who, if believed, proved that the appellant was casing the scene during the week before the crime occurred. She testified to seeing the appellant's truck stopped in the neighborhood on several occasions in the week before the occurrence, and on one occasion seeing the appellant standing nearby. She made the identification from observing his television appearance at the time of his indictment, which was about six months after the occurrence and eighteen months before trial. She testified that she notified the police immediately through a friend, but the police only showed up to interview her and took her statement two daysl before the trial started.

Counsel for the appellant vigorously opposed permitting this witness to testify, claiming breach of pre-trial discovery orders and procedures, concealment by the Commonwealth after representing that it was providing "open file" discovery, sandbagging and surprise. By court order entered with no prior objection, the Commonwealth had been directed to furnish names of witnesses and statements obtained before the trial started, and, apparently, it had complied omitting Rose Pierce.

On appeal the appellant complains that the evidence in this case, taken as a whole, was insufficient to sustain a guilty verdict, and further of eight different trial errors each sufficiently serious to require reversing and remanding for a new trial. Additionally, he claims that if we should deem no one of the trial errors sufficient in itself to require reversal, then the accumulation of errors is ground for reversal.

We have decided there was sufficient competent evidence to withstand the motion for a directed verdict of acquittal, but the trial court committed reversible error in at least four particulars: permitting the neighborhood witness to testify after the Commonwealth violated discovery procedures; permitting testimony about the appellant's extramarital affair which had terminated some twenty-one months before trial; permitting hearsay testimony from the victim's son-in-law and former attorney who repeated statements made by the victim about her marital problems; and permitting the Commonwealth's serologist to give expert opinion not included in the copy of his report furnished to defense counsel, testimony to explain the significance of the physical evidence regarding traces of blood.

Only some of this testimony is inadmissible on retrial. The testimony as to the opinion of the expert and the testimony of the witness who claims to have observed the appellant casing the scene during the week before the murder constitute error only because of the Commonwealth's failure to properly provide pre-trial discovery. This classifies as trial error, but we do not exclude this testimony in passing on the sufficiency of the evidence. It will be admissible evidence in the event of a retrial.

It is impossible to detail all of the evidence pointing to the appellant's guilt within an opinion of reasonable length. We have already pointed to some of the more significant evidence against him. On the other hand, there was evidence, which, if believed, pointed to his innocence. This included: the murder weapon was never found although there was a thorough search of the area in which it was reasonable to expect that the accused would have disposed of it; a stranger was seen walking near the truck by several of the witnesses who were passers-by, and a composite drawing made of his description matched a known criminal who was never questioned; the appellant's employment time records indicated the appellant would have been at work when Rose Pierce claims that he was observed casing the scene. As stated by the Commonwealth at oral argument, the evidence against the appellant, if believed, was enough to convict but was "not overwhelming." The oft-stated rule from Commonwealth v. Sawhill, Ky., 660 S.W.2d 3, 5 (1983) is:

"If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal."

The appellant cites us to a very recent decision from the United States Sixth Circuit Court of Appeals, Moore v. Parke, 846 F.2d 375 (6th Cir.1988), which in effect overruled one of our decisions about the sufficiency of the evidence, granting habeas corpus relief on grounds that the proof was constitutionally insufficient to sustain a verdict. This was a 2/1 decision, using the standard established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Jackson holds that under the Due Process Clause the question of constitutional insufficiency turns on "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319, 99 S.Ct. at 2789. We do not believe the standard in Jackson is any different in substance from our own standard as stated in Commonwealth v. Sawhill, supra.

As stated the Commonwealth had given the appellant's counsel the...