Bartley v. Commonwealth

• Decision Date: 20 June 2013
• Docket Number: No. 2011–SC–000683–MR.,2011–SC–000683–MR.
• Citation: 400 S.W.3d 714
• Parties: Donna BARTLEY, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

400 S.W.3d 714

Donna BARTLEY, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2011–SC–000683–MR.

Supreme Court of Kentucky.

June 20, 2013.

Kathleen Kallaher Schmidt, Karen Shuff Maurer, Assistant Public Advocates, for Appellant.

Jack Conway, Attorney General of Kentucky, William Bryan Jones, Assistant Attorney General, for Appellee.

Opinion of the Court by Justice ABRAMSON.

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.¹ 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.

RELEVANT FACTS

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 depressionwhere 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 ². 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.³ 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. ⁴

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...