Partin v. Com.

Decision Date21 March 1996
Docket NumberNo. 94-SC-768-MR,94-SC-768-MR
Citation918 S.W.2d 219
PartiesDelmar PARTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

Appeal from Knox Circuit Court; Roderick Messer, Judge, Action No. 93-CR-158.

S. Clay Bedford, Winchester, for appellant.

A.B. Chandler III, Attorney General, Thomas V. Handy, and Sharon Kay Hilborn, Assistant Attorneys General, Criminal Appellate Division, Frankfort, for appellee.

GRAVES, Justice.

A Knox County jury convicted the appellant Delmar Partin of the murder of his estranged paramour Betty Carnes. From a sentence of life imprisonment he appeals to this court as a matter of right.

Sunday, September 26, 1993, Betty Carnes disappeared from her job site at the Tremco plant in Barbourville. On September 27, 1993, her decapitated body was found in a fifty-five gallon barrel in the plant laboratory. The autopsy disclosed the cause of death was a blunt-force injury to the head consistent with being struck by a metal pipe that was found in the barrel. Also, Ms. Carnes had bruises on her neck caused by a cord encircling her neck. The Knox County Grand Jury indicted the appellant for the murder of Ms. Carnes.

Appellant raises six issues on appeal. Each issue is addressed in the order presented by appellant.

First, appellant asserts the trial court erred in overruling appellant's motion for a directed verdict of acquittal of murder because of insufficient evidence. Appellant claims that there was not sufficient time to perform all the actions alleged by the Commonwealth. In addition, appellant argues that there are no eyewitnesses or forensic evidence to link him to the crime. As a result, he claims that nothing in the evidence exists which points to his guilt more than anyone else having access to the laboratory.

On appellate review, the test of a directed verdict is whether under the evidence as a whole it would be clearly unreasonable for a jury to find guilt. Only if that question is answered in the affirmative is a defendant entitled to a directed verdict. Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991); Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983).

However, "the weight of evidence and the credibility of the witnesses are functions peculiarly within the province of the jury, and the jury's determination will not be disturbed." Jillson v. Commonwealth, Ky., 461 S.W.2d 542, 544 (1970); Leigh v. Commonwealth, Ky., 481 S.W.2d 75, 79 (1972). See also, Owsley v. Commonwealth, Ky.App., 743 S.W.2d 408, 409 (1987). A review of the evidence as a whole indicates that the trial court correctly denied a directed verdict.

Second, appellant argues that the trial court erred in allowing testimony concerning Ms. Carnes' alleged fear of appellant.

Prior to offering witnesses who would testify as to Ms. Carnes' fear of appellant, the Commonwealth advised the court of the nature of the testimony. Defense counsel objected on the grounds that the testimony was hearsay under KRE 802 and not relevant under KRE 403. The trial court ruled that witnesses could not testify as to anything said by the appellant to Carnes or the witnesses. The trial court allowed the witnesses to testify concerning their observations of Carnes exhibiting fear of appellant and her statements about that fear. Witnesses only testified as to observations of Carnes, not to anything she said.

Specifically, Ken Carnes (no relation to Betty Carnes) testified that he observed the victim was afraid of appellant. The fear increased over the last six to eight weeks of her life. Ken Carnes testified that "she ... wanted to talk more and more." Barbara Mason, Carnes' partner on the machine, first noticed that Carnes was afraid of appellant in June of 1993. She observed one incident in which Carnes was visibly shaken, crying, trembling, and scared to death after one meeting with appellant. Robert Cornett stated that Carnes appeared afraid after meeting with appellant. Steve Earls, an employee of a local service station, observed Carnes and appellant meeting about one week prior to her murder. He described Carnes as upset and nervous. George Hamil testified that Carnes' schedule was kept confidential and that she exhibited fear. Burton Wilson testified that he gave Carnes' work schedule directly to her instead of displaying it in the rack with the others.

Defense counsel did not cross-examine Ken Carnes, Robert Cornett, and Steve Earls. The witnesses did not testify about Betty Carnes' statements to them. Their testimony consisted only of observations of fear exhibited by Carnes toward the appellant.

The question before this Court is whether testimony concerning observations made by witnesses of Carnes' alleged fear of appellant is hearsay pursuant to KRE 801 and/or whether such testimony is relevant pursuant to KRE 401 and KRE 403.

KRE 801(c) provides as follows: " 'Hearsay' is a statement, other than one made by declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." A statement pursuant to KRE 801(a) is: "(1) An oral or written assertion; or (2) Nonverbal conduct of a person, if it is intended by the person as an assertion." This testimony did not contain an oral or written assertion made by Carnes. The testimony concerned nonverbal conduct of Carnes. The testimony of the witnesses concerning this observed fear exhibited by Carnes is only considered a statement if it is "[n]onverbal conduct, intended by [Carnes] as an assertion."

"Conduct can constitute hearsay under the federal definition if intent to assert accompanied the conduct. In most instances the existence or non-existence of intent to assert will be obvious from the circumstances surrounding the conduct." Robert Lawson, The Kentucky Evidence Law Handbook, 8.05 at 371 (3d ed. 1993). Examples of conduct with the intent to assert can be found in Souder v. Commonwealth, Ky., 719 S.W.2d 730 (1986), in which a social worker proposed to testify to actions of a child in pointing to and demonstrating on an anatomically correct doll; the actions of the child were clearly assertive and found to constitute hearsay.

We find that the testimony of the witnesses concerning their observations of Carnes' fear of appellant is not hearsay.

However, the admissibility of the above evidence must further be examined pursuant to the guidelines outlined in KRE 401 and KRE 403. Relevant evidence, defined in KRE 401, "means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." A decision by the trial court will not be disturbed in the absence of an abuse of discretion. KRE 403 provides as follows: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence."

According to Lawson, at 2.10.

The following judgments are required by the equation formulated in KRE 403:

(i) assessment of the probative worth of the evidence whose exclusion is sought;

(ii) assessment of the probable impact of specified undesirable consequences likely to flow from its admission (i.e., "undue prejudice, confusion of the issues, or misleading the jury, ... undue delay, or needless presentation of cumulative evidence"); and (iii) a determination of whether the product of the second judgment (harmful effects from admission) exceeds the product of the first judgment (probative worth of evidence.)

Id. at 56.

As stated above, the Commonwealth did not elicit any statements made by Carnes of her fear of appellant. Nor were the witnesses' observations of fear exhibited by Carnes toward appellant assertions. As a result, the Commonwealth has avoided a determination of the above testimony pursuant to the state-of-mind exception, KRE 803(3).

In other jurisdictions, as well as the federal court system, a common thread appears to exist when interpreting whether hearsay statements about the murder victim's fear of a defendant falls under the state-of-mind exception, KRE 803(3), or whether the hearsay statements are relevant. Where a victim's state of mind is not at issue, the testimony is not allowed to be admitted into evidence. Specifically, where a defendant did not claim self-defense, an accidental death, or suicide, such statements usually have "little relevancy except toward providing a strong inference of appellant's intent, actions or culpability." Shults v. Nevada, 96 Nev. 742, 616 P.2d 388, 394 (1980). See also, United States v. Brown, 490 F.2d 758 (D.C.Cir.1973) and Hopkinson v. State, 632 P.2d 79 (Wyo.1981).

The same effect results in the testimony of four witnesses concerning their observations that Carnes exhibited fear of appellant. The testimony has little relevancy "except toward providing strong inference of appellant's intent, actions or culpability." Shults, 616 P.2d at 394. The record establishes that the appellant and decedent recently ended an extra marital relationship. After the relationship ceased the appellant went to extraordinary measures to be with the decedent. An example is appellant's spending up to four hours of his own time to follow the decedent as she performed duties at work. Also on both Thursday and Friday before her death on Sunday, the appellant requested six to eight times to be rescheduled to work with the victim on Saturday. The appellant's post affair behavior frightened the decedent. Her fear was expressed both in behavior and in speech.

Applying the relevancy equation outlined in KRE 401, KRE 403, and Lawson, we find that the probative value of the testimony outweighs the prejudicial effect provided by the testimony. In a murder prosecution, evidence that the victim, a normal adult woman, harbored a fear of her accused killer is probative of the...

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