STATE OF NORTH CAROLINA IN THE OFFICE
OF ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 07 DHR 0535
Judy E. Pettus, )
Petitioner, )
)
vs. ) DECISION
)
Office of the Chief Medical )
Examiner, Thomas B. Clark, III, Md, )
Pathologist, )
Respondent. )
This contested case was heard before Administrative Law Judge Joe L. Webster on September 25, 2008, and December 14, 2008, in Raleigh, North Carolina.
APPEARANCES
For Petitioner: Mr. Glen D. Bachman
Attorney at Law
714 Ninth Street
Durham, NC 27705
For Respondent: Judith Tillman
Assistant Attorney General
North Carolina Department of Justice
Health and Public Assistance Section
9001 Mail Service Center
Raleigh, NC 27699-9001
EXHIBITS
Petitioner Nos. 1-20
Respondent Nos. 1-14
ISSUE
Whether the Respondent properly came to the opinion that the manner of death of Ms. Michelle Barclay was a suicide?
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interest, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case. Wherefore, the undersigned makes the following Findings of Fact, Conclusions of Law and Decision, which is tendered to the Department of Health and Human Services for a final decision.
Based upon a preponderance of evidence, the undersigned makes the following:
FINDINGS OF FACT
1. The late Ms. Michelle Barclay was found dead at age 34 (T p. 15) in her apartment in Raleigh, N.C., on April 26, 2006.
2. Ms. Barclay was a nurse by profession. (T. pp. 16, 165)
3. At the time of her death in April, 2006, Ms. Barclay had lived in Raleigh approximately two years (T p. 164) and was an employee at Wake Med Health and Hospitals. (T p. 164)
4. Prior to working at Wake Med, Ms. Barclay had worked at Rex Hospital for a three-month assignment, and prior to working at Rex, she had worked at Duke University Hospital in the cardiothoracid intensive care. (T p. 164)
5. Ms. Barclay had been depressed at least as far back as spring 2004, two years before her death in spring 2006, and began to see a psychologist and to take antidepressants. (T pp. 24, 26, 164)
6. At the time of Ms. Barclay’s death, her mother, Ms. Judy Pettis, lived in Pinal County, Arizona.
7. Ms. Pettus testified that she had a close relationship with her daughter, but she also testified that sometimes they would go weeks without talking. (T pp. 15, 16)
8. In October 2005 – just six months before her death – Michelle Barclay told her mother, “Mom, I think I’m losing it. If I keep going like this, there’s going to be thoughts of suicide next. That’s what scares me.” (T pp. 31-32) (Emphasis added.)
9. In response to the comments Ms. Barclay made about thoughts of suicide, Ms. Pettus told her daughter, “You know, I think when people do get stressed out sometimes, they think of suicide as a way out.” (T p. 32)
10. Ms. Barclay responded to her mother, “Well, I don’t want out. I’ve got to keep going, but I can’t deal with the way I’m feeling.” (T p. 32) (Emphasis added.)
11. Ms. Pettus was not concerned that her daughter would commit suicide. (T p. 32) In her last conversation with her daughter, Ms. Petty described her as being upbeat and happy.
12. During roughly the same time period -- six or eight months before her death -- Ms. Barclay talked to her close friend, Melinda Carver Smith, about suicide. Ms. Smith did not take her seriously. Like Ms. Pettus, Ms. Smith was not concerned that Ms. Barclay might actually take her own life. (T pp. 32, 167-68)
13. Ms. Barclay had been depressed for at least two years and had mentioned her consideration of suicide to her mother and her two closest friends.
14. Ms. Barclay’s mother was at home in Arizona at the time of her daughter’s death. She spoke with Raleigh police in the hours after her daughter’s body was discovered, and she spoke to them further when she flew to Raleigh within a day or two of learning of her daughter’s death.
15. One of Ms. Barclay’s closest friends, Noelle Perry, found Ms. Barclay’s body after coming to her home to check on here. Ms. Barclay’s other close friend, Melinda Smith, arrived at her home soon after learning of her death. Police officers at the scene took statements from Ms. Perry and Ms. Smith as part of the investigation to her death.
16. Statements and testimony from Ms. Pettus and from Ms. Barclay’s two closest friends, Noelle Perry and Melinda Smith, reveal that Ms. Barclay had a history of medical problems, some of which caused severe pain; unhappy relationships with men, and depression. (T pp. 21-29, 145, R’s Exhibit No. 13)
17. Ms. Pettus, Ms. Perry and Ms. Smith all testified that Ms. Barclay had been depressed, was taking medication for depression and had talked to them of suicide.
18. Lt. Karen Riggsbee spoke with Ms. Pettus by telephone on the night Ms. Barclay’s body was found. (T p. 317)
19. Ms. Pettus told Lt. Riggsbee that her daughter had been on anti-depressants for about a year. (T p. 318)
20. Ms. Pettus told Lt. Riggsbee that she felt as though her daughter had taken her own life. Ms. Pettus said her daughter had been depressed over a break-up with her boyfriend and had been under a lot of stress with school and her job. (T p. 318)
21. Ms. Noelle Perry, a close friend of Ms. Barclay, had a key to Ms. Barclay’s residence. She is the individual who, on April 26, 2006, went to Ms. Barclay’s house to check on her after having received no response to her telephone calls. (T pp. 96, 157) Ms. Perry found her friend’s body slumped over a computer desk in an upstairs study and called 911. (T pp. 96, 140)
22. Officer David K. Dufault was called to the scene to serve as the crime scene recorder. (T pp. 151-52) He took a statement from Ms. Perry.
23. Ms. Perry told Officer Dufault that she had spent the day with Ms. Barclay on Saturday, April 22, 2006, four days before she found Ms. Barclay’s body on Wednesday, April 26, 2006. Ms. Barclay stated: “She was depressed and fighting with her boyfriend and we would talk about that about every time we talked. She did mention suicide about six months ago, but hasn’t talked about that since then. She would tell me that she is taking medication for being depressed and that she felt better. (T p. 156, R’s Exhibit No. 11.)
24. Ms. Perry also is the friend who notified Ms. Barclay’s mother (the Petitioner Ms. Pettus) of her daughter’s death. (T p. 34)
25. Ms. Perry called Ms. Pettus on April 26, 2006, to tell her the tragic news. (T p. 34) Ms. Perry said, “Michelle is dead. ... Yes. ... She killed herself.” (T pp. 34-35) Ms. Pettus, in her shock, said, “No. Noelle, no.” (T p. 35)And Ms. Perry said, “Yes, she did. She – she did. She killed herself.” (T p. 35)Ms. Perry told Ms. Pettus, “She took pills. She overdosed. She took pills.” (T p. 35)
26. Ms. Perry’s words to Ms. Pettus were spontaneous. They were spoken before an autopsy had been done and before any toxicology analysis had been done. Ms. Perry knew her friend very well, so well that she had a key to her house. (T pp. 96, 140, 157) She knew that her friend had been depressed for a long time and knew that she had considered suicide for a long time.
27. Ms. Melinda Smith was another close friend of Ms. Barclay who arrived at Ms. Barclay’s home soon after her body was discovered.
28. Detective Dale T. Montague also was among the police who responded to the scene. (T p. 9)
29. As part of his investigation, Detective Montague spoke with Ms. Smith. (T pp. 124, 162)
30. Ms. Smith and Ms. Barclay had been friends since seventh grade. (T p. 124)
31. Ms. Smith told Detective Montague that Ms. Barclay had “talked about suicide” more than a year before Ms. Barclay’s death. (T p. 125)
32. Ms. Smith further told Detective Montague that “she felt this was a case of suicide” and indicated that Ms. Barclay’s boyfriend might have had something to do with pushing Ms. Barclay over the edge. (Detective Montague’s report, R’s Exhibit No. 13) Ms. Smith later denied telling Detective Montague that she felt Ms. Barclay’s death was a case of suicide. (T p. 168)
33. In her own testimony, Ms. Smith acknowledged that Ms. Barclay had been depressed since spring of 2004 – two years before her death. (T p. 164)
34. Ms. Smith was aware that Ms. Barclay had been working with a therapist and taking medication for depression. (T p. 166)
35. Ms. Smith further acknowledged that Ms. Barclay had talked to her about suicide some six or eight months prior to Ms. Barclay’s death. Ms. Smith stated: “I didn’t take it as being anything serious.” (T p. 167)
36. Officer S.C. Martin also was among the police who responded to Ms. Barclay’s home after her body was discovered.
37. Officer Martin also spoke with Melinda Smith during the time he was at Ms. Barclay’s home after her body was discovered. (T p. 144)
38. Office Martin took a statement from Ms. Melinda Smith. Ms. Smith told Officer Martin that Ms. Barclay had been taking medication for depression. (T p. 145, R’s Exhibit No. 12)
39. Ms. Noelle Perry, a close friend of Ms. Barclay, had a key to Ms. Barclay’s residence. On April 26, 2006, she went to Ms. Barclay’s house to check on her after having telephoned her several times and having received no response. (T pp. 96, 157)
40. Ms. Perry found Ms. Barclay’s body slumped over a computer desk in an upstairs study. Ms. Perry called 911. (T pp. 96, 140)
41. Officer Steve C. Martin was the first police officer to arrive at the house after the Emergency Medical Service notified police of a death at Ms. Barclay’s address. (T p. 136) Officer Martin had eight years of experience as a police officer at that time. (T pp. 145, 146)
42. Officer Martin searched and secured the residence. According to standard police protocol, the scene of the death was initially treated as a crime scene. (T pp. 104, 139)
43. Officer Martin looked at both sides of Ms. Barclay’s face and her torso – “the whole front of her.” (T p. 146) “She was a little away from the desk. She wasn’t right up on top of it.” (T pp. 146-47)
44. Officer Martin noted in his report, “There does not appear to be anything unusual with the body in terms of … suspicious marks.” (Respondent’s Exhibit No. 12)
45. Officer Martin noted in his report the existence of certain evidence at the residence including: a .357 pistol, rounds and magazines, a cell phone, a Palm PDA, keys to the home and car, a Compaq Presario desktop computer, a bag with containers of injectable medicine in bottles, a best buy bag with blue rubber gloves, and a Pavilion laptop computer. (Respondent’s Exhibit No. 12). Officer Martin testified that he did not remember collecting any evidence at all (T p. 137), even though an inventory of evidence he collected appears on his report. The bag of injectable medications were not taken into evidence and were not disclosed to the Office of Chief Medical Examiner for further investigation, however, empty Ambien bottles along with other prescription medications were turned over to that Office.
46. Based on his experience with crime and death scenes, Officer Martin formed the impression that Ms. Barclay died of a drug overdose or a medical condition. (T p. 145)
47. At the time of Ms. Barclay’s death, Lt. Karen Riggsbee was a sergeant with the Special Victims Unit in the Investigative Division of the Raleigh Police Department. She was a supervisor in the Special Victims Unit. (T p. 313)
48. When Ms. Barclay’s body was found, the police department asked Lt. Riggsbee to go to the scene as supervisor. (T p. 313)
49. Lt. Riggsbee went throughout Ms. Barclay’s townhouse to look for signs of foul play. (T p. 314)
50. There were no indications of foul play – not signs of a break-in, no disarray in the townhouse, and no sign of a struggle. (T p. 314)
51. Raleigh Police Detective Dale T. Montague also was among the police who responded to the scene. (T p. 95)
52. Montague’s job was to go in and work with City/County Bureau of Investigation, to gather information at the scene of Ms. Barclay’s death and to pursue any necessary follow-up.
(T. p. 97)
53. Detective Montague examined the scene where Ms. Barclay’s body was found. At least one member of the City/County Bureau of Investigation, whose members are “very, very well trained” in the processing of crime scenes, accompanied him. (T pp. 112, 121)
54. The investigation revealed nothing to indicate a crime had been committed. The townhouse showed no sign of a forced entry. The interior was neat and orderly. The scene showed no sign of struggle. No furniture was out of place, and nothing was broken. The body had begun to decompose, but showed no signs of trauma. The investigators found no suspicious blood. They found no indication that the body had been moved from one location to another. (T pp. 108, 112, 120, 121, 142 145 )