dissenting:
I respectfully dissent.
Any error which may have been committed by the trial' judge in admitting the taped conversation with Appellant was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
The proof was overwhelming that Appellant and victim had a tumultuous relationship over the course of their long marriage. Appellant became more threatening toward the victim after finding out that he was involved in an affair. On one occasion, the victim called a member of the Kentucky State Police to come to the house over a domestic fight between the two. He even went to the Montgomery County Attorney’s office to inquire about getting an emergency protective order *19against Appellant. She constantly threatened to friends that she was going to kill him. She even threatened to kill the woman engaged in the affair with her husband.
On the weekend before the victim was killed, Appellant told her grandson Dalton, “I’m going to kill him.” She even pulled a gun on the victim in front of their grandchild.
Appellant possessed a .38 caliber pistol which she brandished and fondly referred to as “her baby.” The victim was killed by a bullet to the head which was fired from either a .38 or .357 caliber pistol. Significantly, her weapon was apparently never found after the shooting. On the day of the killing, Appellant withdrew $5,000.00 from a joint account which she shared with her husband, and left town.
What was significant about the taped interview of Appellant that was introduced into evidence? Not much. The trial judge conducted a very extensive, thoughtful, and reflective out of court hearing concerning the admissibility of the tape. It appears that the trial judge listened to the interview — which was over an hour long— twice.
About a month after the killing, Appellant requested Detective Larry Bowling to come to her house. She and Detective Bowling conducted the taped conversation in question in his car in her driveway. She complained that the brother of her late husband’s lover shot at her and her son while they were traveling in her car. She also accused the man, whose name was Thomas Lee, of not only knocking out the back window of her car, but also as being the one who killed her husband.
As in most cases, the quality of this taped interview was not good and it is doubtful how much the jury was able to understand when the tape was played in open court or in the jury room during deliberations. Appellant did most of the talking and was very emotional. There was hardly any “silence” anywhere in the conversation. Although there was much crying and even screaming, the “interview” was largely conversational in tone, including much “give and take.” The trial court correctly noted that the stories of Appellant’s husband’s murder and the alleged attack by Thomas Lee were so intertwined that it made redaction impossible.
It appears from the ragged recording, that prior to their discussion in the car, Bowling advised Appellant of her Miranda rights and that she called her lawyer in the detective’s presence. Her lawyer told her to talk about the incident with Thomas Lee but not about the killing of her husband. As previously noted, there is very little, if any, silence on this tape. Therefore, Appellant’s responses to Detective Bowling’s questions about the murder are more accurately described as refusal to talk, not “silence.” It is impossible for me to perceive the jury penalizing Appellant for following her attorney’s advice in eluding the subject of her husband’s murder. Her conviction was a result of the weight of the evidence presented by the Commonwealth, not the admission of the taped interview.
This was a murder case which ended in a second-degree manslaughter conviction. It covered several days of testimony. The majority reverses and sends back for a new trial on an error which played a very small and inconsequential role in the conviction. The Commonwealth presented overwhelming evidence of Appellant’s guilt. See Green v. Commonwealth, 815 S.W.2d 398, 399-400 (Ky.1991) (holding that prosecutor’s comments concerning defendant’s silence as evidence of guilt was harmless in light of overwhelming evidence). Lastly, the trial judge in the present case literally took hours in wrestling *20with this issue. Any error that may have resulted was certainly harmless beyond a reasonable doubt. Therefore, I would affirm.
SCOTT, J., joins.