Napier v. Commonwealth, No. 2006-SC-000745-MR (Ky. 8/21/2008), 2006-SC-000745-MR.
| Decision Date | 21 August 2008 |
| Docket Number | No. 2006-SC-000745-MR.,2006-SC-000745-MR. |
| Parties | Michelle NAPIER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
On Appeal from Whitley Circuit Court, Ron Johnson, Special Judge, No. 02-CR-000035.
V. Gene Lewter, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
Jack Conway, Attorney General of Kentucky, Samuel J. Floyd, Jr., Assistant Attorney General, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
Appellant, Michelle Napier, appeals her September 1, 2006, Judgment and Sentence in the Whitley Circuit Court, as a matter of right pursuant to Ky. Const. § 110(2)(b), of the charge of complicity to commit the murder of Roger Arthur "Cotton" Adams on October 7, 1984, wherein she was sentenced to a term of twenty years. She now asserts that the Whitley Circuit Court erred by (1) overruling her motion for a directed verdict, and (2) in not allowing, or taking appropriate corrective measures regarding two comments by one of the Commonwealth's witnesses, while on cross-examination, that the witness had taken a lie detector (polygraph) test. For the reasons set out herein, we affirm the conviction.
1. Facts
On March 11, 2002, the Whitley County Grand Jury issued an indictment charging James Wesley Napier (Napier) with murder and Appellant, Michelle Napier, with Complicity to Commit Murder, for the October 7, 1984, shooting death of Roger "Cotton" Adams (Adams). At the time of the shooting, Appellant was dating Napier. They were married approximately six months later. At Appellant's request, she and Napier were tried separately, with Appellant having been tried first.
Appellant was twenty-three (23) in October of 1984. Her sister, Sherri Long (Sherri), was nineteen (19). At the time, Sherri was dating Adams and living in a motel room with Adams, Martin Monholland (Monholland),1 and Marvin Luttrell (Luttrell).
According to Monholland, on October 4, 1984, he and Adams were just outside the open door to the motel room working on a car when they heard a gunshot from the motel room. Monholland immediately ran inside and found Sherri, who he believed, had shot herself in the right temple. Luttrell was in the bathroom. Monholland then called the police. Marilyn, Sherri and Appellant's mother, later testified, however, that Sherri was left handed. However, no charges were filed in Sherri's death as it was treated as a suicide.
Shortly after Sherri's funeral, Adams disappeared. His body was found several weeks later by a fisherman in Cabin Creek. He had been shot once in the forehead and his body was wrapped in chains. Years later, on February 19, 2002, Appellant was interviewed by Joie Peters of the Kentucky State Police. The tape of that interview was played in full for the jury during the trial.
In the interview, Appellant acknowledged that she believed someone murdered Sherri, noting that Sherri was left-handed, yet she was shot in the right temple, with no powder burns on her hands and no fingerprints on the gun. She thought that one of the three persons present had killed her. She noted that Adams did not come to the funeral, but admitted that after she and Napier left the cemetery following Sherri's burial, they saw Adams, stopped and asked him if he wanted to see Sherri's grave, which he did, so they drove him back to the cemetery.
When they got to the cemetery, she walked to Sherri's grave. Adams, however, did not follow her. Then, as she knelt by the grave, she heard a "pop," looked back and saw Napier standing by his white Lincoln Town car with the door open. He told her to "come on." When she got to the car, Napier said to her, "are you okay with it?" She looked in the back seat and saw Adams dead. She thought Napier had a .38 caliber pistol.
When the officer asked her again what Napier had said, she repeated that he had asked her if she was "okay with it" because "if you're not, I'll have to do you too." She indicated that she said, "[she] was okay with it, because [she] was afraid." According to her statement, Napier then dropped her off at a woman's house, whose name she could not recall, and she ultimately ended up at her mother's house. She also stated that Napier later got Ed Sizemore (Sizemore) to clean the car up. Sizemore testified at trial as to his attempts to clean the car and the assistance he gave Napier in disposing of Adams' body.
Appellant noted that she was not married to Napier at the time, of the alleged murder, but married him later when she was pregnant and he was in jail. She said they were still married, but she wanted a divorce, so she could have a real marriage, but acknowledged she would then have to testify against him.
She also stated that a few months before the interview, Napier had come to see her and took her to Williamsburg to his sister's house, where his sister tried to get her to say that she had committed the murder, reasoning that since Napier had money, he could take care of her daughter (who was living with him) better than she could; however she refused. She also reiterated that she was afraid of Napier and that when he found out that she had given a statement, "[she] would be dead, or her mother would be, or somebody." Napier did not testify at Appellant's trial.
Officer Powers testified that Appellant did appear to be afraid of Napier during the interview. He also testified that Napier drove up during the interview, but fled before he could arrest him. He was arrested later in 2005, approximately a year before the trial, in August 2006.
Sizemore testified that he drove a truck for Napier and, at various times, had been related to him through several marriages. He testified that in October 1984, Napier brought his white Lincoln Town car to him and asked him if he would clean it up and he agreed. He believed it was late at night. At the time, he noticed that Napier had what appeared to be spots of blood on his pants, which Napier said was rust.
Although he at first testified that "Marilyn" (Appellant and Sherri's mother) was with Napier that night and that it was his "understanding that she had dropped him off, then came back later and picked him up," the Commonwealth pointed out "Marilyn" was Appellant's mother, then reiterated the question, asking if Appellant was with Napier that night when he came to see him. Sizemore then answered, "yes."
Sizemore testified that he left town for a little while, but when he got around to cleaning the car a couple of days later, it was in Napier's mother's driveway. There was a mess in the floor and under the mat. When asked what it looked like, he testified "flesh" and added, "[w]hat was left of a man's head, I guess." He testified he tried to clean it up, but could never get rid of the foul smell and worked on it for two days, but never opened the trunk.
At one point, he overheard Appellant state to Napier's sister, Carol, that there was a body in the trunk, that it was Adams' body and that she had killed him. According to Sizemore, she said she had reached across the back seat and shot him. Napier, however, told Sizemore that he had killed Adams and put him in the trunk.
Sizemore said that Napier later suggested that they get rid of the body and Sizemore suggested the place to dispose of it. He then described how he and Napier had gotten rid of the body, wrapping it with a logging chain and dumping it in the water at a fishing hole in Cabin Creek, where he used to fish.
Monholland, who testified about Sherri's death, also testified that he went to the funeral home the night before her funeral and while there, Napier wanted him to go outside and talk, but he did not go. He became concerned and had his sister bring the car around and they left. He also noted that when he entered the funeral home, he heard Appellant screaming. He assumed it was because he was there. While there, Appellant, however, did not approach him, only Napier.
Monholland did testify, however, that Napier and Appellant followed him and his sister in the white Lincoln Town car when they left. After a while, however, he pulled his car over onto the shoulder and got out holding his gun. Napier drove on by. He acknowledged that he did not attend the funeral for Sherri, since he "knew not to."
The last time he saw Adams was the night before they were supposed to go to court on a public intoxication (P1) charge, which apparently was the Monday following Sherri's Sunday funeral. He went to Adams' motel that morning to get him to go to court, but no one answered the door. Once he got the motel operator to let him in, he looked in the room. Adams was not there and his bed had not been slept in.
Larry Adams, Adams' brother, testified that he also visited the funeral home before Sherri's funeral. When he was leaving, headed for his car, he overheard Appellant tell Napier, "[that's] not [Adams] that's his brother." To him, it was an eerie experience as they were "staring holes through him."
The next day Larry received a phone call from Appellant and Sherri's mother. About halfway through the conversation, based upon what she said, he immediately felt Adams was dead. Larry then tried to locate his brother and the next day called the police. He testified later on rebuttal, that Marilyn, in this tearful telephone conversation had told him "I'm so sorry they have hurt your brother . . . [he] didn't deserve that."
The Commonwealth also called Dr. George Nicholls, a forensic pathologist, who had performed the autopsy on Adams. Dr. Nicholls testified that Adams was killed by a .38 caliber bullet which struck him in the head. He found an additional bullet in Adams' diaphragm, but noted that it had been from a previous shooting, possibly a long time prior to the date of his death. He did not find any corresponding gunpowder residue around the bullet wound to the head nor was there any suet present around the skin. Therefore, he believed the muzzle to target...
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