lMPORTANT NOT|CE
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TH|S OP|N|ON lS DES|GNATED “NOT TO BE PUBL|SHED."
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€),
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C|TED OR USED AS BlND|NG PRECEDENT |N ANY OTHER
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RENDERED: DECEMBER 15, 2016
NOT TO BE PUBLISI-IED

Supreme Tourf of Beniuckg

2015-SC-OOO614-MR
BRENDA HARDIN ' APPELLANT

ON APPEAL FROM MUHLENBERG CIRCUIT COURT
V. HONORABLE BRIAN WIGGINS, JUDGE
NO. 14-CR-00156

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Appellant, Brenda Hardin, and her husband, Ronnie Hardin Were
married in 1971. They have one son, Brent, and two grandsons. In January of
2012, Ronnie separated from Brenda. Her mental and physical health
deteriorated thereafter. She suffered from depression and attempted suicide in
2013. Appellant and Ronnie divorced on July 30, 2013. Appellant’s mental
health continued to decline.

After the divorce, Ronnie maintained a golf shop in a detached building
on the property Where the two once lived. Ronnie continued to use the shop for
golf lessons and to work on golf clubs. Sometime thereafter, Ronnie became

engaged to Betty Rule. Brenda became aware of the planned union shortly

before the wedding date, resulting in an obsession with the prospect of
Ronnie’s remarriage.

Brent cautioned his father to avoid returning to Brenda’s horne due to
her volatile state. On July 7, 2014, however, Ronnie returned to his former
marital residence to use the golf shop. That evening, Brenda killed Ronnie with
one single shot to his upper torso that was fired from a .357 Ruger revolver.
She then ingested copious amounts of prescription medication in an attempt to
commit suicide. However, Appellant managed to drive herself to her sister’s
house, who promptly called 911. While at her sister’s residence, Appellant
admitted to killing Ronnie. Thereafter, Appellant spent several days in the local
intensive care unit. During that time period, officers searched Appellant’s
home, Wherein they discovered several items of evidence including the murder
weapon. As a result, Appellant was indicted for murder and tampering with
physical evidence. When she recovered, she was transported to the
Muhlenberg County jail.

Appellant was tried and convicted of murder by a Muhlenberg Circuit
Court jury. The jury recommended a sentence of life imprisonment, which the
trial court imposed. Appellant now appeals her judgment and sentence as a
matter of right pursuant to § 110(2)(b) of the Kentucky Constitution. Six
issues are raised and addressed as follows.

Fifth Amendment Claim
Appellant argues that the trial court erred in allowing the recorded

statement taken by Detective Brandon McPherson to be played to the jury. The

statement was recorded while Appellant was in the hospital recovering from her
attempted suicide. Appellant contends that she was not free to leave her
hospital bed and, therefore, the recorded exchange constitutes a custodial
interrogation requiring Miranda warnings. Detective McPherson did not
provide Appellant with her Miranda rights.

Our standard of review here is twofold. First, the trial court’s findings of
fact are conclusive if they are supported by substantial evidence; and second,
the trial court’s legal conclusions are reviewed de novo. Commonwealth v.
Marr, 250 S.W.3d 624, 626 (Ky. 2008); RCr 9.78.

After reviewing the fourteen-minute recording and the in-chambers
discussion, the relevant facts are as follows: 1) Detective McPherson was
posted as a guard outside of Appellant’s hospital room; 2) Appellant initiated
the conversation and subsequently informed the detective that she knew he
was there because he was on “suicide watch” of her; 3) Appellant appeared very
coherent and descriptive during the discussion; 4) although prompted by
Detective McPherson to discuss the events that occurred on the night of the
murder, Appellant never mentioned Ronnie or the murder; 5) Appellant did not
know she was being recorded; and 6) when questioned about the incident by
the judge, Detective McPherson informed the judge that Appellant was not free
to leave the hospital room. However, she was not physically restrained.

Lastly, the Uniform Citation stated that Appellant had been arrested at
the hospital on July 8, 2014. The hospital conversation at issue here occurred

on July 11, 2014. Det. McPherson testified that he was unaware that

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Appellant had been charged at that time. However, it appears from the record
that the citation had not been served on Appellant and that she had not
actually been arrested until after her conversation with McPherson. Prior
thereto, Appellant had been unconscious.

The trial court reviewed the entire recording and determined that the
officer’s subjective belief as to custody was irrelevant. The court ultimately
ruled that because Appellant stated that she believed she was on suicide
watch, she was there “not because she was in custody, so to speak, but
because they were watching out and concerned about her well-being.” The
court also noted that its decision to admit the recording was a “close call.”

Our unpublished decision of Griggs v. Commonwealth, is instructive.
2008 WL 1851080, at *5, No. 2006-SC-000846-MR, (Ky. April 24, 2008).
Therein, we observed:

Other courts have held, and We agree, that the restraint giving rise
to “custody” must be restraint instigated by the police, and for that
reason the majority rule is that confinement to a hospital bed does
not, by itself, amount to “custody” for Miranda purposes. Wojj"ord
v. State, 330 Ark. 8, 952 S.W.2d 646 (Ark. 1997); DeJesus v.

State, 655 A.2d 1180 (Del. 1995); State v. Tucker, 131 N.I-I. 526,
557 A.2d 270 (N.H. 1989) (collecting cases); People v. Milhollin, 751
P.2d 43 (Colo. 1988). Rather, hospital questioning, like questioning
elsewhere, is not custodial unless the circumstances would lead a
reasonable person to believe that were he capable of leaving the
hospital, the police Would not allow him to do so. Cf
Commonwealth v. Lucas, supra.

Although in this case the police apparently monitored Griggs while
he was in the hospital staffs care, we cannot say that the trial
court clearly erred when it found that at the time of his
questioning he was not yet in custody. Prior to that time Griggs
had not been confronted by a threatening or demanding police
presence, and the questioning itself was not prefaced by any

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indication that Griggs was not free to leave or to ask the officers to

do so. The trial court did not abuse its discretion, therefore, when

it denied Griggs's belated motion for a mistrial. Id. at *6.

Similar to Griggs, Appellant “had not been confronted by a threatening or
demanding police presence, and the questioning itself was not prefaced by any
indication that [Appellant] was not free to leave or to ask the officers to do so.”
Id.

However, even if we presume that Appellant was in custody and, thus,
entitled to the protection of Miranda rights, any error here may still be
harmless beyond a reasonable doubt. Chapman v. Califomia, 386 U.S. 18, 24
(1967). See also, Moore v. Commonwealth, 2015 WL 4972249, at *5, 2014-SC-
000023-MR (Ky. Aug. 20, 2015) (citing the majority rule provided in Griggs and
holding that any possible error was harmless beyond reasonable doubt); and
Scales v. State, 219 N.W.2d 286, 292 (Wis. 1974).

Nothing in the recording could have prejudicially impacted the jury’s
verdict because Appellant did not inculpate herself in the murder during her
conversation with Detective McPherson. Rather, the recorded dialogue between
the two primarily consisted of a discussion about divorce and Appellant’s
attempted suicide. This evidence was cumulative of additional evidence
presented at trial. And although Appellant conceded that she and Ronnie were
arguing at the golf shop on the night of the murder, she specifically stated that
she went back to the house after they finished arguing. Appellant also
informed the detective that she was not mad at Ronnie about the divorce and

that they had “moved on.” Even if the recording implicated Appellant in her ex-

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husband’s murder, any error was harmless beyond a reasonable doubt. As
previously stated, the murder weapon was found in Appellant’s home and
Appellant’s sister testified that Appellant admitted to killing Ronnie shortly
after the murder occurred.

Pill Bottle Evidence

For her next argument, Appellant contends that the trial court erred by
not admitting the pill bottles she used to attempt suicide into evidence. More
specifically, Appellant alleges that because she maintained an extreme
emotional disturbance defense at trial, she should have been permitted to
introduce physical evidence of the pill bottles. The Commonwealth objected
and claimed the pill bottles were a “biohazard” and that “we can’t give the jury
a bottle of controlled substances.” The trial court sustained the
Commonwealth’s objection. Appellant reiterated her argument to the court
when the jury, while in deliberation, sent out a note requesting to see the pill
bottles. The court declined the request.

The pill bottles at issue here were discussed by Detective Lonnie
Cavanaugh. He testified that he recovered the bottles from Appellant’s
residence, The bottles were marked but not admitted into evidence. Appellant
does not detail her legal foundation for error nor cite any rule requiring
otherwise admissible evidence be submitted to the jury. However, RCr 9.72
provides that “[u]pon retiring for deliberation the jury may take all papers and
other things received as evidence in the case.” Typically, alleged errors under

this rule involve improper evidence that was admitted to the jury and are

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reviewed for an abuse of discretion. Here, we seem to have the inverse
scenario. It appears that the Commonwealth and the trial court were
concerned that the jury would be sequestered with unemptied pill bottles
which were never actually admitted into evidence. We cannot say that the trial
court abused its discretion by refusing to submit narcotics to the jury room.

Moreover, Appellant was permitted to introduce testimony concerning the
pill bottles and their connection to Appellant’s attempted suicide. The court
also responded to the jury’s request to see the bottles in a handwritten note
stating: ‘[t]he actual pill bottles have not been admitted as evidence. True and
accurate photos of the pill bottles have been admitted into the record and are
in your possession at this time.” Therefore, any error that occurred here was
harmless. RCr 9.24.

Letters

Detective Cavanaugh was the lead detective in this case. He testified at
trial that he obtained several letters authored by Appellant, several of which
were suicide notes to various family members and to Ronnie’s fiancé.
Appellant objected, claiming that these letters were not properly authenticated
The court denied the objection. After Detective Cavanaugh read the
anonymous letters to the jury, they were admitted into evidence.

KRE 901 provides various methods for authentication Appellant argues
that the Commonwealth did not comply with these relevant provisions.
However, three of the suicide letters introduced into evidence were signed,

“Brenda.” Appellant only takes specific issue with two anonymous letters that

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appear to have been written by an allegedly anonymous third person. More
precisely, these letters were written about Appellant and Ronnie from the
perspective of an anonymous third party. They were not suicide letters; rather,
they were threatening letters addressed to Ronnie.

Appellant fails to advance her argument here beyond a facial assertion of
error. She provides scant authority in support of her argument and, critically,
she fails to demonstrate prejudice. Several of the letters introduced into
evidence were not objected to, were signed by Brenda, and contained
statements implicating Appellant’s desire to harm herself and Ronnie.
Appellant also introduced additional unsigned letters addressed to Ronnie.
Lastly, the two letters at issue here were provided to the Kentucky State Police
by Appellant’s son, Brent, and Ronnie’s step-father, Clyde Brown. Accordingly,
if there was error here, it Was harmless.

Ju;! Instruction

Appellant complains that the court erred in issuing a guilty but mentally
ill jury instruction (“GBMI”). The Commonwealth requested that instruction
and defense counsel objected. The court agreed with the Commonwealth and
authorized the instruction. However, the Commonwealth stated during closing
argument that “[t]here is no evidence that [Appellant] was ever diagnosed with
a mental illness.” Appellant was not convicted under a GBMI instruction.
Therefore, Appellant has failed to demonstrate prejudice. There is no error

here, certainly no error requiring reversal.

Photog;aghs

Appellant takes issue with photographs introduced by the
Commonwealth during the guilt phase of trial. Appellant claims that these
photos were not provided during discovery. However, Appellant fails to
advance her argument here beyond a facial assertion of error. She provides
boilerplate authority in support of her argument and fails to demonstrate
prejudice. Appellant also fails to indicate the specific photos with which she
takes issue or to even describe their contents. All of the exhibits admitted by
the Commonwealth during the guilt phase are pictures of Ronnie’s friends and
family. These are typical exhibits in sentencing proceedings and certainly not
inflammatory There was no reversible error here,

Change of Venue

For her final argument, Appellant contends that she could not have
received a fair trial in Muhlenberg County and that she was entitled to a
change of venue. This issue is properly preserved and we review for an abuse
of discretion, Foley v. Commonwealth, 942 S.W.2d 876, 881 (Ky. 1996)

“In order for a change of venue to be granted there must be a showing
that: 1) there has been prejudicial news coverage; 2) it occurred prior to trial;
and 3) the effect of such news coverage is reasonably likely to prevent a fair
trial.” Id. (citing Wilson v. Commonwealth, 836 S.W.2d 872 (Ky. 1992)).
Appellant fails to cite to any portion of the record containing what specific
jurors heard about the case prior to trial. Instead, Appellant relies primarily on

a poll alleging that 53% of respondents were aware that Appellant was accused

9

of murdering Ronnie Hardin. Yet, Appellant fails to cite to where that alleged
poll is contained in the record. It also appears that Appellant failed to comply
with KRS 452.220 when raising her change of venue motion. Nevertheless, the
trial court held a hearing on the issue. A Video of that hearing is not in the
record. See Chestnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky. 2008) (“It is
incumbent upon Appellant to present the Court with a complete record for
review.”). However, the record indicates that the trial court considered witness
testimony, statistical data, and other relevant evidence in denying Appellant’s
motion. There was no abuse of discretion here.
Conclusion

For the foregoing reasons, we hereby affirm the judgment of the

Muhlenberg Circuit Court.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Matthew James Baker

COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Matthew Robert Krygiel
Assistant Attorney General

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