JAMES HUNT V. COMMONWEALTH OF KENTUCKY
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MODIFIED: MARCH 18, 2010
RENDERED: NOVEMBER 25, 2009
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APPELLANT
JAMES HUNT
V.
ON APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, JUDGE
NO . 05-CR-00090
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE VENTERS
AFFIRMING
Appellant, James Hunt, appeals from a judgment entered upon a
jury verdict by the Floyd Circuit Court convicting him of murder, firstdegree burglary, and first-degree wanton endangerment. He was
sentenced to death for the murder conviction and twenty years and five
years, respectively, for the burglary and wanton endangerment
convictions . He now appeals his conviction as a matter of right,
pursuant to Ky. Const. § 110(2)(b), raising twenty-four enumerated
arguments. For the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Hunt and the victim, Bettina Hunt, were married in 1991 . During
their relationship, the couple had recurring problems . Bettina had
petitioned for domestic violence protective orders against Hunt in 1998
and 2002 . She filed for divorce in 2002 and again in July 2004 - four
months prior to her murder.
In the months before the murder, the couple was again having
considerable problems . Much of the strain was related to Bettina's
preoccupation with her drug-addicted daughter from a prior marriage,
Veronica Harris, and Veronica's newborn baby, Katrina. Katrina was
born prematurely and suffered from severe health problems requiring
round-the-clock care . After the baby's birth, Bettina gained custody of
the child and, during the months preceding her murder, spent much of
her time taking care of the infant.
In November 2004, Bettina was separated from Hunt and lived
with Katrina at a residence owned by her mother, located on Buck
Branch Road
in Floyd County, Kentucky . Her former sister-in-law, Lula
Dillon, came to the residence five to six days a week to help Bettina take
care of Katrina and was there on Tuesday, November 30, 2004 . Lula
testified that Hunt called several times that day, including a call that
carne in at about 6:20 to 6:25 p.m . Lula noted that the conversation was
argumentative and that Bettina told Hunt she intended to see a divorce
lawyer in a few days and wanted to go through with the divorce . Lula left
the residence just after the phone conversation ended .
Shortly thereafter, Bettina placed a call to her brother.' He was
not home; and Bettina ended up speaking with her sister-in-law, Karen
Chaffins. The two talked at length about a variety of issues involving
Hunt. A few minutes after 7:00 p .m ., Bettina told Karen that "he" meaning Hunt - was at the door, that she would send him away, and
that she would then call Karen right back.2 According to phone records,
that phone call ended at~ 7:05 p .m.
Three minutes later, at 7:08 p.m., Bettina called 911 . A recording
of the call began when emergency dispatch personnel answered the line ;
however, it appears that Bettina was unaware that the call had been
answered as she did not communicate the emergency to the
911 operator.
On the 911 recording, a threatening male voice and a panicked
female voice can be heard . The male voice can be heard saying, "maybe
if I shoot you - you (inaudible) ." The female voice is heard pleading with
the man - stating in a terrified tone - "no, I promise" and "stop please no." After additional inaudible conversation and commotion, the
same threat to shoot the woman is repeated; and again the woman is
Phone records reflect that Bettina's call to her brother was made at
6:27 p.m.
While Bettina did not specifically refer to Hunt by name, Karen knew that
was whom she was referring to because they had been talking about Hunt
when he came to the door.
heard begging for her life. Subsequently, a gunshot is heard. The
woman can be heard crying hysterically and frantically screaming. A
second shot is then heard, followed by silence.
A short time later and only a few hundred feet from the murder
scene, Hunt ran his car off of a bridge. The vehicle landed upside down
and became partially submerged in the creek below. Various passers-by
stopped to assist Hunt. When one of them, Judy Flannery, first observed
Hunt, she noticed that he held something in his left hand . Hunt walked
behind a nearby tree; and when he reemerged, his hands were empty.
The next day, Judy's husband, Rabon Flannery, searched the area near
the tree where Judy believed she saw Hunt leave something. Rabon
found a silver Smith 8v Wesson .357 revolver, later determined to be the
murder weapon, in the creek. The confirmation that the revolver was the
murder weapon was based upon a matching of the revolver to spent
rounds discovered at the murder scene.
Soon after the shooting, police officers arrived at the scene of the
wreck and arrested Hunt, who was visibly intoxicated. He denied any
knowledge of the nearby shooting. His vehicle was pulled from the creek.
While walking around the vehicle, Detective Dwayne Price observed a
shell casing resting on the rubber window seal where the glass for the
passenger-side window opens and closes . Price took possession of the
shell casing . Later testing determined it to have been fired from the
murder weapon. Similarly, ballistics testing of other shell casings found
at the murder scene determined they were fired from the same weapon .
The spent rounds were of a relatively unusual type of .38 caliber
ammunition . It was later determined that Hunt had several unspent
rounds of the same unusual ammunition in his jacket pocket.
Other forensic evidence also linked Hunt to the murder. For
example, the clothing worn by Hunt on the date of the murder was
examined by forensic experts . DNA testing conclusively determined that
blood found in two locations on Hunt's jacket was Bettina's . In addition,
blood taken from a juice bottle located on Bettina's kitchen table was
conclusively linked to Hunt. Similarly, blood from part of a t-shirt
stuffed inside the bottle and a band-aid attached to the bottle were also
matched to Hunt.4
Hunt was originally indicted only for murder and first-degree
burglary. A superseding indictment adding first-degree wanton
endangerment as a charge was later returned . A jury trial was held,
beginning May 15, 2006, and concluding June 1, 2006 . Hunt's defense
was that someone else committed the crimes. Following the presentation
of evidence, the jury returned guilty verdicts on all three charges. Hunt
was sentenced to death on the murder charge and to twenty years and
five years, respectively, on the burglary and wanton endangerment
3
4
The .357 caliber revolver was capable of firing the .38 caliber ammunition .
As discussed elsewhere in this opinion, it was the Commonwealth's theory
that the juice bottle was a makeshift silencer brought to the scene by Hunt;
however, evidence indicates that it was not actually used for this purpose.
Testing showed that no shots had been fired through it .
charges . This appeal followed . We address the twenty-four enumerated
issues raised by Hunt in the order they are presented in his brief.
I . THE TRIAL COURT DID NOT ERR BY FAILING
TO SUPPRESS THE SHELL CASING
RECOVERED FROM HUNT'S VEHICLE.
As Detective Dwayne Price was on his way to the scene of the
shooting, he came upon the accident scene at the bridge . Detective Price
knew that Hunt was the driver of the vehicle and that he was a suspect
in the shooting. After the vehicle was removed from the creek and
turned over, Detective Price performed a cursory search of the passenger
compartment of the vehicle for any evidence that may have related to the
shooting. As he walked around the exterior of the car, he observed a
shell casing located on the rubber seal of the front passenger window.
The window either was rolled down or had shattered in the crash; and
the casing was in plain view to Detective Price, as demonstrated by a
photograph taken of the casing in the position it was originally found.
Prior to trial, Hunt filed a motion to suppress the casing upon the
grounds that it was seized in a warrantless search not subject to any
exception to the warrant requirement. The motion was heard along with
various other pretrial motions. A formal evidentiary hearing was not
held, and no witnesses were called. Instead, the trial court considered
the motion based upon factual representations and arguments made by
counsel for Hunt and the Commonwealth . Ultimately, the trial court
denied the motion to suppress for three reasons: (1) the casing was in
plain view, (2) a cursory search was proper under the totality of the
circumstances, and (3) the casing would inevitably have been discovered
(if it survived the tow-trip) the next day when a search pursuant to a
warrant was made of the vehicle .
Hunt now argues that reversible error occurred as a result of the
trial court's failure to hold an evidentiary hearing as prescribed by
RCr 9 .78. We disagree.
RCr 9 .78 states that upon considering a motion to suppress, "the
trial court shall conduct an evidentiary hearing." The statute uses the
mandatory "shall," and we agree with Hunt that the trial court does not
have discretion to dispense with the hearing. See Mills v.
Commonwealth, 996 S .W.2d 473, 481 (Ky. 1999) (holding that the trial
court was required to hold evidentiary hearing on defendant's motion to
suppress his confession regardless of fact that defendant requested only
in camera review of videotape of arrest and confession) . Nevertheless,
failure to hold an evidentiary hearing on a motion to suppress is subject
to harmless error review, even in a capital case. Id. Because the
subsequent trial testimony of Detective Price and the photographic
evidence establishing the location of the casing make clear the factual
background of the casing's discovery, we are persuaded that the failure
to hold an evidentiary hearing was, under these circumstances,
harmless . See id. (holding that failure to hold suppression hearing was
rendered harmless by a videotaped confession) .
It is undisputed that the casing was found resting on the
passenger side rubber window seal. Detective Price's contemporaneous
photograph makes clear that the casing was easily observable from
outside the vehicle. It is also clear that the glass of the window either
was rolled down or had shattered in the wreck; and, thus, the casing
could, if left in its place while the vehicle was being towed, have fallen
out of the vehicle . It is further undisputed that Detective Price knew of
the nearby murder and that Hunt was a suspect in the shooting. While
there may be other theories justifying denial of the suppression motion,
we believe the plain view and exigent circumstances
doctrines, in combination (if not individually), easily excuse Detective
Price's warrantless seizure of the casing.
Although a warrantless search is presumed to be unreasonable
and unlawful, the presumption can be overcome when evidence is seized
under the plain view doctrine . Commonwealth v. Hatcher, 199 S.W.3d
124, 126 (Ky. 2006). Under this exception to the warrant requirement,
law enforcement officials may seize evidence without a warrant when the
initial entry was lawful, the evidence was inadvertently discovered, and
the incriminating nature was readily apparent . Id. Here, Detective
Price's viewing of the vehicle from the outside while walking around it
was lawful; he inadvertently discovered the casing resting on the seal ;
and its incriminating nature was readily apparent because there had
been a nearby murder, and the driver of the wrecked vehicle was a
suspect in the shooting. As such, the elements of the plain view doctrine
are met.
Moreover, leaving the casing perched on the window seal while it
was being towed was not a reasonable option . "Destruction of evidence
is a recognized exigent circumstance creating an exception to the warrant
requirement." Commonwealth v. McManus, 107 S .W.3d 175, 177 (Ky.
2003) . Where officers have probable cause to believe that a crime has
occurred and that evidence from that crime is in imminent danger of
being destroyed, it is reasonable for law enforcement officers to secure
the place where the evidence is located in order to prevent its imminent
destruction. Id. (citing Segura v. United States, 468 U .S . 796, 810 (1984)
(characterizing the preservation of evidence in danger of imminent
destruction as a "now or never" situation)) . Detective Price knew of the
nearby murder; knew the driver of the vehicle was a suspect; and, thus,
had probable cause to believe the casing was connected to the crime.
Further, exigent circumstances existed because the car was momentarily
scheduled to be towed ; and if the casing were left in its place, it could
have easily fallen outside the vehicle while it was being moved . Thus, the
circumstances were sufficiently exigent for Detective Price to have
immediately seized the casing. Because of the casing's precarious perch
near the vehicle's open window, Detective Price would have been subject
to appropriate criticism had he not taken steps to secure it as evidence .
The trial court properly denied Hunt's motion to suppress the
bullet casing.
II. THE TRIAL COURT DID NOT COMMIT REVERSIBLE
ERROR BY ADMITTING TESTIMONY REGARDING
HUNT'S CLOTHING AND THE FORENSIC TESTS
PERFORMED ON BLOOD FOUND ON THE CLOTHING .
Following the accident, Hunt was taken to the hospital where
Detective Donald Parker collected Hunt's clothing and sealed it in a box.
Later that evening, Parker delivered the clothing to the chief investigating
officer, Detective Terry Thompson. Because it had been raining that
evening and Hunt had wrecked his car in a creek, Detective Thompson
was, aware that Hunt's clothing was wet. He, therefore, opened the box
in a secured wood shop at his residence and placed the clothing on a
rack to dry. After the clothing had dried, Detective Thompson
individually packaged each item and sent them to the laboratory for
analysis. Testing disclosed that blood located in two places on Hunt's
jacket matched Bettina's DNA profile .
Hunt argues that the clothing evidence and the related forensic
testing were improperly admitted because there was a "fatal break in the
chain of custody." He also alleges that because Detective Thompson had
been to the murder scene and may have been exposed to Bettina's DNA,
"there is a substantial possibility of cross-contamination of blood/ DNA
from the crime scene onto the Appellant's jacket ." Hunt concedes this
issue is not preserved . Nonetheless, in light of the death penalty
10
imposed and pursuant to KRS 532 .075(2), we review even unpreserved
allegations of error. The standard of review for such unpreserved errors
is :
Assuming that the so-called error occurred, we begin by
inquiring: (1) whether there is a reasonable justification
or explanation for defense counsel's failure to object, e.g.,
whether the failure might have been a legitimate trial
tactic ; and (2) if there is no reasonable explanation,
whether the unpreserved error was prejudicial, i.e.,
whether the circumstances in totality are persuasive that,
minus the error, the defendant may not have been found
guilty of a capital crime, or the death penalty may not
have been imposed.
Johnson v. Commonwealth, 103 S .W.3d 687, 691 (Ky. 2003) (citing
Sanders v. Commonwealth, 801 S .W .2d 665, 668 (Ky. 1990)) .
With items of physical evidence that are clearly identifiable and
distinguishable, there is no requirement of proof of chain of custody .
Rabovsky v. Commonwealth, 973 S .W.2d 6, 8 (Ky. 1998) . Although the
jacket at issue here was clearly identifiable and distinguishable, the
blood and DNA samples taken from it, which were the incriminating
portion of the evidence, were not. Thus, proof of chain of custody was
required . See id. However,
[e]ven with respect to substances which are not clearly
identifiable or distinguishable, it is unnecessary to
establish a perfect chain of custody or eliminate all
possibility of tampering or misidentification, so long as
there is persuasive evidence that the reasonable
probability is that the evidence has not been altered in
any material respect . . . . Gaps in the chain normally go
to the weight of the evidence rather than to its
admissibility .
Id. (citing United States v. Cardenas, 864 F .2d 1528, 1532 (10th Cir.
1989) ; United States v. Lott, 854 F.2d 244, 250 (7th Cir. 1988)) .
"The requirement of . . . identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that
the matter in question is what the proponent claims." KRE 901 (a) . "All
possibility of tampering does not have to be negated. It is sufficient . . .
that the actions taken to preserve the integrity of the evidence are
reasonable under the circumstances." Thomas v. Commonwealth,
153 S .W.3d 772, 778 (Ky. 2004) .
Hunt's argument that there were deficiencies in the chain of
custody lacks specificity. There appears to be no dispute that Detective
Parker collected the clothing evidence at the hospital and gave it to
Detective Thompson who, in turn, sent it to the lab. There is no realistic
possibility that someone could have broken into Detective Thompson's
wood shop and planted Bettina's blood on it. As such, we believe the
chain of custody itself was properly established.
In any event, rather than deficiencies in the chain of custody itself,
Hunt's principal argument is that because Detective Thompson worked
the crime scene, examined Bettina's body, and collected blood swab
evidence, he may have unwittingly contaminated Hunt's clothing with
blood from the crime scene. We are persuaded that Hunt's contention of
accidental contamination is too speculative to create doubt about the
integrity of the DNA evidence derived from the clothing and, to the
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contrary, that there is persuasive evidence that the evidence was not
altered in any material respect.
At the time of the murder, Detective Thompson was a twenty-year
veteran of the Kentucky State Police and had been a detective for
approximately thirteen years. As such, it stands to reason that he had
the training, skill, and experience to avoid the type of careless, accidental
contamination of evidence suggested by Hunt. The avoidance of
contamination is obviously a fundamental concern in evidence collection;
and, beyond pure speculation, Hunt offers no facts in support of his
theory that proper procedures were not followed to avoid contamination
of the jacket. Under the standard suggested by Hunt, any time a
detective works a bloody crime scene and later in the day comes into
contact with evidence collected elsewhere, that evidence would be subject
to possible exclusion based upon the mere possibility of contamination,
however remote.
The theoretical possibility of contamination was a proper basis
under which Hunt could have attacked, through cross-examination, the
DNA evidence obtained from the clothing. However, he did not and so a
complete account of the precautions taken by Detective Thompson to
avoid contamination is not available . We are persuaded, however, that a
sufficient chain of custody of the clothing evidence was established at
trial and that the speculative challenge now raised by Hunt goes to the
weight that should have been given to the evidence by the jury, and not
its admissibility . Rabovsky, 973 S.W.2d at 8.
In summary, we find no reversible error under this unpreserved
argument .
III .
THE TRIAL COURT DID NOT ERR BY FAILING TO
INSTRUCT THE JURY ON CRIMINAL TRESPASS AS
A LESSER INCLUDED OFFENSE OF BURGLARY .
At the conclusion of the guilt phase of the trial, Hunt tendered an
instruction on first-degree trespass as a lesser included offense to firstdegree burglary. The trial court rejected the instruction as unsupported
by the evidence. Hunt argues that the trial court's failure to give the
instruction was reversible error .
"In a criminal case, it is the duty of the trial judge to prepare and
give instructions on the whole law of the case, and this rule requires
instructions applicable to every state of the case deducible or supported
to any extent by the testimony ." Taylor v. Commonwealth, 995 S.W .2d
355, 360 (Ky. 1999) . However, the trial court has no duty to instruct on
theories of the case that are not supported by the evidence. Payne v.
Commonwealth, 656 S .W.2d 719, 721 (Ky. 1983) . An instruction on a
lesser included offense is required only if, considering the totality of the
evidence, the jury might have a reasonable doubt as to the defendant's
guilt of the greater offense and, yet, believe beyond a reasonable doubt
that he is guilty of the lesser offense. Wombles v. Commonwealth,
831 S .W .2d 172, 175 (Ky. 1992) .
First-degree burglary is defined in KRS 511 .020(1) as follows:
A person is guilty of burglary in the first degree
when, with the intent to commit a crime, he
knowingly enters or remains unlawfully in a
building, and when in effecting entry or while in
the building or in the immediate flight
therefrom, he or another participant in the
crime :
(a)
Is armed with explosives or a deadly
weapon; or
(b)
Causes physical injury to any person who
is not a participant in the crime; or
(c)
Uses or threatens the use of a dangerous
instrument against any person who is not
a participant in the crime .
First-degree criminal trespass is defined in KRS 511 .060(1) as
follows :
A person is guilty of criminal trespass in the first
degree when he knowingly enters or remains
unlawfully in a dwelling.
Thus, first-degree criminal trespass differs from first-degree
burglary, as relevant here, to the extent that the burglary statute
requires "with intent to commit a crime" at the time the defendant enters
or unlawfully remains in a building; whereas, the trespass statute does
not.
Though the doorknob of the carport door had been shot through,
the door split from its frame, and Hunt was armed with a .357 Smith 8s
15
Wesson and equipped with what may have been a makeshift silencer, he
nevertheless argues that there is evidence showing he entered the
residence without the intent of committing a crime . Hunt alleges the
following evidence supports this theory : (1) there was a time lapse
between the end of Bettina's phone conversation with Karen Chaffins
(when Hunt first came to the door) and the 911 call ; (2) the evidence
showed that Bettina may have been sitting in a chair when shot but
could have left by another door if Hunt had been forcing his way in ;
(3) from the foregoing, it could be inferred that despite the damage to the
door, Bettina decided to let Hunt in after the damage occurred and spoke
with him at least a few minutes before the shooting; and (4) that the
discussion, which would have been an emotional one about the
destruction of their marriage, could have escalated and ultimately
resulted in the shooting.
The trial court's decision not to give a jury instruction is reviewed
for abuse of discretion. Williams v. Commonwealth, 178 S .W.3d 491, 498
(Ky. 2005) . In light of the overwhelming evidence that Hunt intended to
commit a crime (if not to murder, then at least to harass, menace, or
wantonly endanger Bettina) at the time he entered the residence, we
must conclude that the trial court did not abuse its discretion in
rejecting the proposed instruction .
Just forty minutes or so prior to the shooting, Hunt and Bettina
had ended a heated telephone call during which she had told him she
16
was going through with the divorce. Hunt arrived armed with a
.357 caliber revolver and what appears to be a makeshift silencer, which
strongly suggests that unlawful intent preceded his entry into the
residence . Based upon the damage to the door, the only realistic
inference is that Hunt entered the residence by force and without
Bettina's permission. Further, Bettina's murder only moments after
Hunt's entry strongly suggest his intent at the time of his entry into the
residence .
Moreover, Bettina called 911 within two or three minutes of Hunt's
initial arrival, so Hunt's proposition that there was a conversation
between the two following Hunt's entry, which alone triggered his
criminal intent, is unconvincing - the timeline does not fit. When the
911 tape recording begins, Hunt is fully engaged in the process of
threatening Bettina as she pleads for her life . Again, this demonstrates
that Hunt's theory is less than plausible .
Finally, we note that Hunt's defense was that an alternative
perpetrator committed the crime . At no time did he affirmatively argue
or present evidence that he lawfully entered the residence and formed the
intent to engage in unlawful conduct only after his entry. In other words,
his defense was that he was not present at all when Bettina was
murdered . Accordingly, this is unlike the line of cases that hold that
even if a defense theory is implausible, an instruction on the theory must
be given. See, e.g., Taylor v. Commonwealth, 995 S .W.2d 355, 360 (Ky.
1999) .
Although we have cautioned that even implausible defense theories
are entitled to instructions if there is an evidentiary basis for them, id.,
we agree with the trial court that in this case, the evidentiary basis was
lacking; and the court did not abuse its discretion in denying the
instruction under the facts of this case .
IV.
THE TRIAL COURT DID NOT ERR BY FAILING TO
QUASH THE SUPERSEDING INDICTMENT.
On December 9, 2004, the initial indictment was returned against
Hunt charging him with murder and first-degree burglary. A
superseding indictment was returned on June 28, 2005, adding the
additional charge of first-degree wanton endangerment . The added
charge addressed Hunt's conduct in endangering the life of Katrina by
firing the several shots that killed Bettina while the infant lay in a
bassinet in the same room.
Hunt filed a motion to quash the superseding indictment on the
assertion that the prosecutor sought the new indictment because Hunt
rejected an offer made by the Commonwealth on May 12, 2005, to plead
guilty to murder in exchange for a sentence of life without parole. At the
motion hearing, the Commonwealth argued that the superseding
indictment was necessary because, in effect, it had been neglectful by
failing to bring the wanton endangerment charge before the original
18
grand jury. After hearing arguments, the trial court denied the motion to
quash .
Hunt argues that the reason offered by the Commonwealth (neglect
in failing originally to seek the charge) was an insufficient reason to
support seeking the superseding indictment ; and, therefore, there should
be a presumption that the second indictment was sought for vindictive
reasons.
However, as pointed out in Commonwealth v. Leap, 179 S .W.3d
809 (Ky. 2005), a presumption of prosecutorial vindictiveness has been
limited to those cases in which a defendant has been subjected to
additional charges or an enhanced sentence following a successful attack
upon a conviction and has not been extended to pretrial prosecutorial
conduct. Id. at 813 . Indeed, we examined the possibility of such an
extension in Leap and concluded "we are not disposed to extend the
presumption of `prosecutorial vindictiveness[]' . . . to the pretrial setting ."
Id. at 814 (citations omitted) . Because the prosecutorial conduct
complained of by Hunt occurred in a pretrial setting, the presumption of
vindictiveness doctrine is inapplicable .
Nor may a claim of actual vindictiveness succeed. No due process
violation occurred even if the Commonwealth had actually decided to
bring the charge to "retaliate" against Hunt for turning down its plea
offer. In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the United States
Supreme Court held that it is not a violation of due process when a
19
prosecutor actually carries out a threat made during plea negotiations to
have the accused re-indicted on more serious charges on which he is
plainly subject to prosecution if he does not plead guilty to the offense
with which he was originally charged. Leap, 179 S .W.2d at 813 . 5 "The
prosecution has an obligation to the Commonwealth to properly charge
and convict persons guilty of criminal conduct as defined in our
Kentucky Statutes." Id. at 814 . The first indictment failed to consider
that the infant Katrina, too, was a victim of Hunt's conduct; and the
superseding indictment appropriately addressed this initial oversight.
V. THE PROSECUTOR DID NOT MISSTATE THE
LAW APPLICABLE TO EXTREME EMOTIONAL
DISTURBANCE IN HIS CLOSING ARGUMENT.
Hunt contends that prejudicial error occurred as a result of
statements made by the prosecutor during closing argument addressing
Extreme Emotional Disturbance (EED) and whether there was an
evidentiary basis for a finding of EED in the present case . In support of
his argument, Hunt directs us to the following statements made by the
prosecutor in his closing argument :
There hasn't been much talk about EED . But I wanted
to go over it with you because it's in the
instructions . . . . [I]t's an element of murder that he
was not acting under the influence of extreme emotional
disturbance. So because this is such a significant
We are unpersuaded that the fact that the prosecutor's failure to actually
threaten Hunt with the additional charge appreciably distinguishes this case
from Bordenkircher. Moreover, we note that the Commonwealth left open its
original offer up until the date of the trial and invited Hunt to make a
counter-offer.
20
element there is a legal definition for it. . . . Extreme
emotional disturbance is a temporary state of mind so
enraged, inflamed or disturbed as to overcome one's
judgment and to cause one to act uncontrollably from
the impelling force rather than from evil or malicious
purposes . . . . [T]hat in no way describes what the
defendant did here . . . it was premeditated.
That he concocted this juice bottle silencer thing and
brought it with him, that he had to be outside the door
for some period of time before he got in . Listen to the
911 tape again . You don't hear the defendant on there
screaming in rage, out of control and overcome by the,
acting uncontrollably from the impelling force of the
extreme emotional disturbance . Look at what the
witnesses said who saw him after he wrecked, only
minutes after she was killed. They didn't describe a guy
that was in a big rage and out of his head and acting
irrationally . They said he was quiet and calm and didn't
have a whole lot to say. Look at what he did. He hid the
gun over in the creek. He lied to the police about where
he had been and what had happened. Are those the acts
of someone who's under some big temporary enraged,
inflamed, disturbed state of mind that would be
described an extreme emotional disturbance? Of course
it's not.
And the reason it's important is when you turn over to
the next instruction for murder, and what you see is
there is a lower degree charge that you can also find him
guilty of instead of murder called first-degree
manslaughter . If you read it you'll see that it is pretty
much the same as murder except when you get down to
this one part about extreme emotional disturbance
whereas with murder you have to find he was not acting
under extreme emotional disturbance . For first-degree
manslaughter you'd have to find that he was acting
under the influence of extreme emotional disturbance .
So if you get to there the effect of that is to lessen the
charge to something less than murder.
I would ask you, look at the evidence, listen to the
911 tape again and ask yourself is this something less
than murder, or is it murder . And I believe what you'll
see is that it is murder. There's no extreme emotional
21
disturbance here . There has been absolutely no
evidence of that.
Hunt argues that the prosecutor misstated the law "by implying
EED has to apply to an `instantaneous' situation; that there is a time
limit." Hunt supports his argument by citing to cases that, for example,
indicate that EED may result from the "cumulative impact of a series of
related events," Holland v. Commonwealth, 114 S.W.3d 792, 807 (Ky.
2003), and that the triggering event need not immediately precede the
commission of the offense, Fields v. Commonwealth, 44 S.W.3d 355, 359
(Ky. 2001) .
However, an examination of the passage cited by Hunt discloses
that the prosecutor did not state that EED must be "instantaneous ." Nor
did he state that EED could not be brought about gradually or that the
triggering event must immediately precede the commission of the offense.
Upon the whole, there is a complete disconnect between what the
prosecutor said and Hunt's characterization of it.
We recently summarized the definition and elements of EED in
Greene v. Commonwealth, 197 S .W .3d 76 (Ky. 2006), as follows:
Although EED is essentially a restructuring of the old
common law concept of "heat of passion," the evidence
needed to prove EED is different . There must be evidence
that the defendant suffered "a temporary state of mind so
enraged, inflamed, or disturbed as to overcome one's
judgment, and to cause one to act uncontrollably from
[an] impelling force of the extreme emotional disturbance
rather than from evil or malicious purposes ." McClellan v.
Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986) .
"[T]he event which triggers the explosion of violence on
22
the part of the criminal defendant must be sudden and
uninterrupted. It is not a mental disease or illness . . . .
Thus, it is wholly insufficient for the accused defendant to
claim the defense of extreme emotional disturbance based
on a gradual victimization from his or her environment,
unless the additional proof of a triggering event is
sufficiently shown ." Foster v. Commonwealth, 827 S .W.2d
670, 678 (Ky. 1991) (citations omitted) . And the "extreme
emotional disturbance . . . [must have a] reasonable
explanation or excuse, the reasonableness of which is to
be determined from the viewpoint of a person in the
defendant's situation under the circumstances as the
defendant believed them to be ." [Spears v.
Commonwealth, 30 S.W.3d 152, 155 (Ky. 2000)] .
Id. at 81-82 .
A comparison of the excerpt from Greene with the comments made
by the prosecutor in closing arguments discloses that there was no
misstatement of the law. It follows that no error occurred .
VI. NO ERROR OCCURRED AS A RESULT OF DETECTIVE
THOMPSON'S CHARACTERIZATION OF THE
J UICE BOTTLE AS A SILENCER .
During his direct testimony for the Commonwealth, Detective
Thompson stated that while examining the crime scene, he discovered a
plastic juice bottle on the kitchen table. As described by Detective
Thompson, the bottom of the bottle was cut out and part of a t-shirt
stuffed inside . Further, there was duct tape attached to the mouth of the
bottle. Detective Thompson was asked what the bottle looked like; and
he replied, "a silencer." Hunt did not timely object to the testimony or
request an admonition to deal with the statement; accordingly, the issue
is not properly preserved .
23
A review of the exchange discloses that it was not the
Commonwealth's intent to portray Detective Thompson as a firearms
expert and establish that the bottle was, in fact, a silencer . The
Commonwealth did not attempt to lay a foundation to qualify him as a
firearms expert. Indeed, at a later bench conference, when Hunt first
voiced objection to the characterization, the Commonwealth stated it was
not its intention to elicit the characterization at all; but, rather, the
comment was spontaneously made by the officer. As such, Detective
Thompson was not testifying in the capacity of an expert witness when
he made the utterance ; rather, he was testifying as a lay witness.
Because of Hunt's lack of a timely objection, the trial court was not
given an opportunity to rule on the admissibility of Detective Thompson's
characterization of the bottle. However, in the context the statement was
made, we conclude the testimony would have been admissible as proper
lay witness testimony.
If the witness is not testifying as an expert, the witness's testimony
in the form of opinions or inferences is nevertheless admissible as long
as it is limited to those opinions or inferences that are: (a) rationally
based on the perception of the witness; (b) helpful to a clear
understanding of the witness's testimony or the determination of a fact in
issue; and (c) not based on scientific, technical, or other specialized6
While perhaps not widely known among the general public, homemade
silencers devised from bottles are not unheard of. See, e.g., Simpson v.
Commonwealth, No . 2007-SC-000253-MR; 2009 WL 1830803 (Ky. Jun 25,
24
knowledge within the scope of expert testimony. KRE 701 . "The degree
to which a witness may give an opinion, of course, is predicated in part
upon whether and the extent to which the witness has sufficient life
experiences that would permit making a judgment as to the matter
involved." Mondie v. Commonwealth, 158 S .W.3d 203, 212 (Ky. 2005) .
The altered juice bottle was discovered at a murder scene involving
the use of a firearm . In this context, we believe Detective Thompson, an
experienced police officer with corresponding life experiences, properly
stated his lay opinion that the bottle "looked" like a silencer (he did not
testify that it was a silencer) . Further, given the notable lack of any
other reasonable explanation for the contrivance, it is a reasonable
inference that the anticipated use of the bottle was to place the barrel of
the murder weapon into the mouth of the bottle, duct tape it on, and
have the t-shirt and hollow of the bottle act as a makeshift silencer.? We,
accordingly, believe the evidence was admissible under KRE 701 .
In any event, even if admission of the statement was error, we do
not believe that it prejudiced Hunt's substantial rights under RCr 9 .24 .
There was an overwhelming amount of evidence to tie him to the murder,
including DNA evidence and the murder weapon . Thus, we can say that
even if this was error, the judgment would not have been "substantially
2009) (2-liter Mountain Dew bottle duct-taped to the end of pistol to make a
homemade silencer) .
It is undisputed that the bottle was not actually employed as a silencer in
the shooting. The evidence was that no bullets were fired through it.
25
swayed" by it. Winstead v. Commonwealth, 283 S.W.3d 678, 84 (Ky.
2006) (citing Kotteakos v. United States, 328 U .S . 750 (1946)) .
VII .
NO IMPROPER COMMENT ON HUNT'S
FIFTH AMENDMENT RIGHT TO
REMAIN SILENT OCCURRED .
Hunt contends that in three respects, his Fifth Amendment right to
remain silent was violated : (1) in the Commonwealth's opening
statement when the prosecutor commented on Hunt's failure to give an
explanation for being in the vicinity at the time the murder was
committed, and his failure to take responsibility for the crime; (2) when
Detective Thompson testified that he attempted to interview Hunt the
night of the murder, and Hunt "declined to make a statement" ; and (3) in
the Commonwealth's closing argument in the penalty phase when the
prosecutor referred on several occasions to Hunt's failure to show
remorse for his crimes. Hunt concedes that this issue is not preserved.
The Commonwealth is prohibited from introducing evidence or
commenting in any manner on a defendant's silence once that defendant
has been informed of his rights and taken into custody. See, e.g.,
Doyle v. Ohio, 426 U.S . 610 (1976) ; Romans v. Commonwealth,
547 S .W.2d 128, 130 (Ky. 1977) . In Romans, we held that it was error to
permit the Commonwealth to elicit from a police detective that at the
time of arrest and interrogation, and after receiving Miranda warnings,
the defendant "did not come forth with the explanation . . . upon which
26
he ultimately relied for his defense." 547 S.W .2d at 130; see also
Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966) . The idea is that
because Miranda warnings implicitly assure their recipient that his
silence will not be used against him, it would be fundamentally unfair to
allow a defendant's post-Miranda silence to be used for impeachment .
However,
it is clear that not every isolated instance referring to
post-arrest silence will be reversible error. It is only
reversible error where post-arrest silence is deliberately
used to impeach an explanation subsequently offered at
trial or where there is a similar reason to believe the
defendant has been prejudiced by reference to the
exercise of his constitutional right. The usual situation
where reversal occurs is where the prosecutor has
repeated and emphasized post-arrest silence as a
prosecutorial tool.
Wallen v. Commonwealth, 657 S .W.2d 232, 233 (Ky. 1983) .
In context, the closing argument statement comments Hunt
objects to are as follows:
and in spite of all this overwhelming evidence, the
defendant, when he was interviewed by the police that
night, he claims to not know anything about it. In fact, I
think what he told one of the officers when they first got
there is that he was, the reason he was there, because
he didn't live there, and had no reason to be in Buck's
Branch, was that he had been coming from Food City in
Prestonsburg and had gone through Spurlock that way,
and that's why he just happened to be there exactly the
moment she was murdered . And you will hear police
officers - that that is as close as he gave to giving aLiy
kind of explanation. So he up to this point has refused
to take responsibility for this. After all the evidence is in,
and after you have had an opportunity to consider all of
it, we are going to ask you to make him take
responsibility for what he did . And hold him
27
accountable. Find him guilty of the murder of Bettina
Hunt . . . .
(Emphasis added.)
An examination of the emphasized text above discloses that the
prosecutor came nowhere near making a direct comment on any
invocation by Hunt of his right to remain silent (which, it is to be
supposed) explains the lack of an objection . In context, the comments of
the prosecutor obviously refer to the implausibility of Hunt's story that
he was in the vicinity of the murder because he was returning from the
grocery (no groceries were found in the vehicle) and that Hunt concocted
the story to mislead the police into believing he was not responsible for
the crime. In sum, the complained of statements were not in reference to
Hunt's right to remain silent and were not otherwise improper .
The second incident complained of occurred during Detective
Thompson's testimony. During his testimony, Detective Thompson was
asked if he attempted to interview Hunt twice the evening of the murder.
Detective Thompson stated that he did attempt to interview Hunt a
second time, but Hunt "declined to make any statement ." In context,
again, we are persuaded that there was no impermissible comment on
Hunt's right to remain silent.
Hunt was first arrested and Mirandized at the accident scene . At
that time, he told Detective Brian Layne that he was in the area because
he was returning home from the grocery and was run off the road by a
red vehicle; he also at this time denied knowledge of the nearby murder.
28
Later, at the hospital, Detective Thompson informed Hunt that his wife
had been murdered . Hunt briefly covered his eyes and asked him who
had killed her. Hunt also stated that he did not know anything about
the murder and could not remember anything before the accident. Hunt
had already given these statements to the police before the comment that
he declined to make any statement . Thus, in context, the question and
response at issue was an explanation of the fact that Hunt had not
added to, or subtracted from, his prior statements. This was proper .
See, e.g., U.S. v. Crowder, 719 F.2d 166 (6th . Cir. 1983) (explaining that
testimony that defendant told FBI agent he did not desire to discuss
matter for which he was arrested and that he chose to stand by his
statement to state police did not violate his Fifth Amendment right to
remain silent and, thus, was admissible because he never exercised his
Fifth Amendment right to remain silent as he was advised he had right to
do) .
In any event, even if Detective Thompson's statement could be
construed as an improper comment on Hunt's right to remain silent,
nevertheless, this would amount to no more than a fleeting comment in a
two-week trial . It was not repeated, emphasized, or used as a
prosecutorial tool . As such, we are not persuaded that the single
reference to Hunt's invoking his right to remain silent resulted in
palpable error.
Hunt's final argument relating to improper comment on his Fifth
Amendment rights involves various comments made by the prosecutor
during his closing arguments during the penalty phase of the trial in
which Hunt's "lack of remorse was referred to." More specifically, Hunt
refers us to the following statements :
(1) Hunt had a "total and complete lack of remorse or regret
over anything that occurred ."
(2) "Has anybody seen any remorse from this defendant
during the trial?"
(3) "He's seen photos of the scene with his wife's body lying
there in a pool of blood, who his family says he loved and got
along with . . . . He's listened to this chilling 911 tape with
his wife crying and pleading for her life and being shot . . . .
He's listened to Bettina Hunt's family and friends get up,
have been devastated by what he did . . . . That's my
question, has anybody even detected even a hint of remorse.
I haven't."
4. "The only remorse this defendant has in this entire thing
is that he got caught, plain and simple."
5 . "In the face of all this harm that he's caused, in the face
of all of the evidence that you have seen, he has come here
expecting you to ignore all of that and give him a break."
6. Hunt "thought he could get away with it when he did it
and I would submit to you that even as we stand here today
he is trying to get away with it by avoiding a just sentence for
what he did ."
Again, we do not construe these statements as commentary upon
Hunt's right to remain silent.8 The last three statements do not even
remotely relate to the invocation of the right. Further, only by an
Hunt does not argue error premised upon the prosecutor's comment upon
his "lack of remorse" alone .
30
exaggerated inference could the first three statements be stretched to
refer to the right; that is, that Hunt failed to take the stand and express
remorse. Rather than a comment on Hunt's silence, we construe the
statements as relating to his courtroom demeanor . A prosecutor is
entitled to comment on the courtroom demeanor of a defendant.
Woodall v. Commonwealth, 63 S.W.3d 104, 125 (Ky. 2001) . We find no
error in the comments cited.
VIII . HUNT WAS NOT ENTITLED TO A DIRECTED
VERDICT ON THE WANTON ENDANGERMENT
CHARGE.
Hunt contends that he was entitled to a directed verdict upon the
charge of first-degree wanton endangerment. He argues that the
evidence demonstrated that Katrina was not in the line of fire and was
never in danger.
On motion for directed verdict, the trial court must draw all fair
and reasonable inferences from the evidence in favor of the
Commonwealth . Commonwealth v. Benham, 816 S.W. 2d 186, 187 (Ky.
1991) . If the evidence is sufficient to induce a reasonable juror to believe
beyond a reasonable doubt that the defendant is guilty, a directed verdict
should not be given. Id. For the purpose of ruling on the motion, the
trial court must assume that the evidence for the Commonwealth is true
but reserving to the jury questions as to the credibility and weight to be
given to such testimony. Id. "On appellate review, the test of a directed
verdict is, if under the evidence as a whole, it would be clearly
31
unreasonable for a jury to find guilt, only then the defendant is entitled
to a directed verdict of acquittal ." Id. (citing Commonwealth v. Sawhill,
660 S .W.2d 3 (Ky. 1983)) . "[T]here must be evidence of substance, and
the trial court is expressly authorized to direct a verdict for the defendant
if the prosecution produces no more than a mere scintilla of evidence ."
Benham, 816 S .W .2d at 186-87 .
KRS 508.060 provides that "[a] person is guilty of wanton
endangerment in the first degree when, under circumstances manifesting
extreme indifference to the value of human life, he wantonly engages in
conduct which creates a substantial danger of death or serious physical
injury to another person."
As previously discussed, the infant Katrina was in a bassinet in
the room where the murder occurred . Her bassinet was next to the chair
that Hunt theorizes Bettina was near at the time of the first shot. Two
bullets were located in the vicinity of the chair - one underneath the
chair embedded in the carpet padding and the other lying next to the
chair. It follows that the bullets flew within a matter of feet of Katrina.
At least three or four bullets were fired during the course of the murder .
It is self-evident that bullets may ricochet. Further, Hunt was
intoxicated while firing the pistol.
Viewing the evidence in the light most favorable to the
Commonwealth and giving it the benefit of all reasonable inferences, the
conduct engaged in by Hunt easily meets the standard for a conviction
32
for first-degree wanton endangerment . See Key v. Commonwealth,
840 S.W.2d 827 (Ky .App . 1992) (holding that the pointing of a gun,
whether loaded or unloaded, at any person constitutes conduct that
creates a substantial danger of death or serious physical injury to
another person in violation of KRS 508 .060, provided there is reason to
believe the gun is loaded and where the wanton conduct also includes
shooting the gun near the victims, either conduct independent of each
other is sufficient to meet the requirements of the statute) .
IX. HUNT'S TELEPHONE BILL WAS PROPERLY EXCLUDED .
During the months preceding the murder, Hunt had a cellular
telephone through Cingular. Hunt's daughter, Kay Miller, received the
bill electronically on her computer and made the monthly payment.
Hunt sought to introduce the bill for the November 2004 time period
through Miller's trial testimony in order to show that Hunt and Bettina
talked frequently by phone, sometimes at great length, to demonstrate
that the couple, by inference, had a congenial relationship . The
Commonwealth objected upon the grounds of failure to establish a
proper foundation, and the trial court sustained the objection. Hunt
alleges the trial court's ruling was error because it deprived him of his
right to present a defense.
"The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims ."
33
KRE 901 (a) . For purposes of authentication, the condition of fact that
must be fulfilled by every offer of real proof is whether the evidence is
what its proponent claims . Johnson v. Commonwealth, 134 S.W .3d 563,
566 (Ky. 2004) . Part of the identification of evidence is a demonstration
of its integrity - that it is, in fact, what its proponent claims it to be.
Rogers v. Commonwealth, 992 S.W.2d 183, 187 (Ky. 1999) .
Hunt attempted to introduce the telephone billing records for the
truth of the matter contained therein; and, thus, the records must clear
the hurdle for the admission of hearsay evidence. KRE 803(6) addresses
the admissibility of business records under the hearsay rules. The rule
states, as relevant here, as follows:
The following are not excluded by the hearsay rules, even
though the declarant is available as a witness:
(6) Records of regularly conducted activity . A . . . record, or
data compilation, in any form, of acts, events, [or]
conditions, . . . made at or near the time by, or from
information transmitted by, a person with knowledge, if kept
in the course of a regularly conducted business activity, and
if it was the regular practice of that business activity to make
the memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other qualified
witness, unless the source of information or the method or
circumstances of preparation indicate lack of
trustworthiness . . . .
Similarly, Professor Robert G. Lawson'discusses the issue as follows :
Business records are writings . Writings must be
authenticated, i.e ., accompanied by preliminary evidence
sufficient to support a finding that they are what their
proponents claim. This preliminary proof is commonly
referred to as `foundation .' KRE 803(6) requires `testimony
34
of the custodian or other qualified witness' concerning the
prerequisites for admitting business records . . . . [I]t is
`essential' testimony without which business records `must
be excluded .'
It is also well-settled that the foundation witness need not
be the custodian of the records nor the person who made
them. Anyone who can testify from personal knowledge
about the circumstances surrounding the making and
keeping of the records can qualify as a foundation witness .
As stated by one authority, `in the end the requirement may
be satisfied by the testimony of anyone who is familiar with
the manner in which the record was prepared, and even if
he did not himself either prepare the record or even observe
its preparation.'
THE KENTUCKY EVIDENCE LAw HANDBOOK § 8.65 at 463 (3d ed . 1993) .
Here, Hunt did not introduce the bill through the testimony of the
custodian of Cingular's telephone bill, nor was Miller an "other qualified
witness ." Miller had no personal knowledge of how Cingular prepared
the bill, its billing procedures, or any other competent knowledge that
would allow her to testify to the verity of the content of the bill . While
she was generally aware that Hunt and Bettina talked frequently on the
phone, she had no knowledge of specific calls or the length thereof. Nor
were the self-authentication provisions of KRE 902(11) followed .
Because the bill was not properly authenticated, the trial court did
not abuse its discretion by excluding it.9
We further note that extensive testimony was presented at trial that Hunt
and Bettina talked frequently, and often at length, on the telephone. Thus,
the point was made without admission of the bill.
35
X.
THE PHOTOGRAPHIC EVIDENCE WAS PROPERLY
ADMITTED .
During the testimony of Katrina's mother, Veronica Harris, various
circumstances relating to Katrina's premature birth, health, special
needs, and custody arrangements were discussed. In connection with
the testimony, a picture of Katrina was introduced . The picture was
taken in the hospital and showed her hooked up to monitoring devices .
Because of the health problems related to her premature birth, Katrina
was required to be on the devices after her release from the hospital,
though not the same ones seen in the photograph . Hunt contends that
the picture should have been excluded because "the emotion evoking
nature of the photo made it more prejudicial than probative ."
The Commonwealth is not permitted to introduce evidence that
serves little or no legitimate evidentiary purpose other than to engender
sympathy for the victim and his or her family. See, e.g., Ice v.
Commonwealth, 667 S .W.2d 671, 676 (Ky. 1984) . In interpreting this
general prohibition, we have explained a "victim can be identified as more
than a naked statistic[ .]" Bowling v. Commonwealth, 942 S.W .2d 293,
302 (Ky. 1997) . Katrina was the victim of the first-degree wanton
endangerment charge . Her fragile state of health, as depicted in the
photograph, was relevant to the charge of wanton endangerment . She
was absent from the courtroom, and the photograph assisted in the
identification of her as something more than an anonymous victim. The
36
trial court did not abuse its discretion by permitting the photograph to be
introduced .
Hunt also claims that it was error to introduce, over his objection,
the autopsy photographs of Bettina. The autopsy photographs depicted
the wounds inflicted by Hunt. Hunt alleges that the introduction of the
photographs was unnecessary because there was no challenge to the
testimony that Bettina was shot or the medical examiner's testimony
about her wounds, and the location of the wounds could have been
established by the use of a diagram.
In determining admissibility of the photographs, we must first
consider whether the photos are relevant. Relevant evidence is defined
as "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." KRE 401 . The
autopsy photographs of Bettina's fatal injuries were relevant to
demonstrate that Bettina was, indeed, killed by gunshot wounds as
stated in the indictment. Hunt argues that the wounds could have been
demonstrated by diagrams illustrating where the bullets entered and
exited. However, the photographs were the best evidence to show
the location of the wounds and demonstrate to the jury that Bettina was
killed by gunshot injuries .
Next, the admissibility of photos must be examined under
KRE 403, which states: "Although relevant, evidence may be excluded if
37
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." KRE 403 (emphasis added) . More specifically, we must
discern whether the photographs were sufficiently gruesome so as to find
the probative value "substantially outweighed" by the prejudicial effect.
As a general rule, photographs do not become inadmissible simply
because they are gruesome . Foley v. Commonwealth, 953 S.W .2d 924,
936 (Ky. 1997) . Such evidence loses its admissibility when the
photographs begin to depict a body that has been "materially altered by
mutilation, autopsy, decomposition or other extraneous causes, not
related to commission of the crime, so that the pictures tend to arouse
passion and appall the viewer." Clark v. Commonwealth, 833 S .W.2d
793, 794 (Ky. 1991) . We agree with Hunt that the autopsy photographs
were gruesome ; however, the threshold is much higher than mere
gruesomeness for a photo to be inadmissible . For example, a photograph
of a young child victim, where his scalp was pulled back to show there
was an intent to kill, was not gruesome enough to preclude the photo
evidence from the jury. Quarels v. Commonwealth, 142 S .W .3d 73 (Ky.
2004). In another case, a videotape of the murder scene showing burned
bodies of victims, as well as numerous photographs depicting the same
were an accurate description of the crime scene and were properly
admissible . McKinney v. Commonwealth, 60 S .W.3d 499 (Ky. 2001) . The
38
autopsy photographs were properly admitted because they depicted
Bettina's injuries accurately and were not so gruesome so as to preclude
the photograph from evidence . There is no error here.
XI . NO ERROR OCCURRED DURING VOIR DIRE AND
JURY SELECTION .
Hunt alleges a wide array of errors occurred during voir dire and
the jury selection process. These errors break down into three groups:
questioning jurors on whether they could sign a death sentence verdict,,
jurors who should have been excused but were not, and jurors who were
improperly excused . We address the alleged errors under these
subheadings.
A . Voir Dire Questioning About Serving as Foreperson .
During voir dire, various prospective jurors were asked by the
prosecutor if he or she could sign the jury verdict form if selected as
foreperson and the death penalty were imposed. Hunt cites us to
thirteen instances where this question was asked. Various responses
were given. Three of the thirteen members who were asked the question
served on the jury. Hunt argues that it is prejudicial to permit the
Commonwealth to use such questioning to gauge jurors' views on the
death penalty and then use the views espoused to obtain a hyper-death
qualified jury. He states the Commonwealth is not entitled to excuse
those who could not serve as foreperson and sign the death verdict.
Hunt concedes that this issue is not preserved .
39
Again, we review unpreserved allegations of error in death penalty
cases under the standard established in Cosby v. Commonwealth,
776 S.W .2d 367 (Ky. 1989) (overruled on other grounds by St. Clair v.
Roark, 10 S .W.3d 482, 487 (Ky. 1999)), and Sanders v. Commonwealth,
801 S.W.2d 665 (Ky. 1990), that is,
(1) whether there is a reasonable justification or
explanation for defense counsel's failure to object, e.g.,
whether the failure might have been a legitimate trial
tactic; and (2) if there is no reasonable explanation,
whether the unpreserved error was prejudicial, i.e.,
whether the circumstances in totality are persuasive that,
minus the error, the defendant may not have been found
guilty of a capital crime, or the death penalty may not have
been imposed .
Id. at 668.
We first note that there is no allegation that any juror was actually
excused for cause based upon his or her answer to the jury foreperson
question, be it whether they would or would not have a problem with
signing a death sentence verdict. Further, it could just as easily be said
that the question was equally instructive to the defense in evaluating the
leanings of an individual juror and, thus, whether its strategy should be
to keep or exclude the juror. Thus, even if asking the question was error,
it is difficult to identify any prejudice as a result of it being asked. It
follows that absent the asking of the question, there is not a reasonable
possibility that the verdict or sentence would have been different.
In any event, the Ohio Supreme Court recently addressed this
same issue in State v. Davis, 880 N.E.2d 31 (Ohio 2008) . It answered the
question as follows:
Such questioning was proper because the relevant
inquiry during voir dire in a capital case is whether the
juror's beliefs would prevent or substantially impair his
or her performance of duties as a juror in accordance
with the instructions and the oath. Wainwright v. Witt,
469 U.S . at 424, 105 S.Ct. 844, 83 L.Ed .2d 841 .
"Clearly, a juror who is incapable of signing a death
verdict demonstrates substantial impairment in his
ability to fulfill his duties ." State v. Franklin,
97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, 34
(Ohio 2002) .
We believe the rule, as stated in State v. Davis, is sound; and,
accordingly, no error occurred in questioning jurors upon the issue of
whether he or she could sign a death penalty verdict. Moreover, it is
absolutely necessary in all criminal cases, both capital and non-capital,
that someone signs the jury verdict as foreperson. It is, therefore,
reasonable for either party to inquire of the prospective jurors to
determine if any have a conscientious objection to performing that
function, lest the court seat a jury that will not return a proper verdict.
B. Jurors Who Should Have Been Excused For Cause.
"In Kentucky, the right to an impartial jury is protected by
Section 11 of the Kentucky Constitution, as well as the Sixth and
Fourteenth Amendments to the [United States] Constitution ." Fugett v.
Commonwealth, 250 S .W .3d 604, 612 (Ky. 2008) ; see also Fugate v.
Commonwealth, 993 S.W.2d 931, 939 (Ky. 1999) . "RCr 9 .36(1) provides
41
that the trial judge shall excuse a juror [for cause] when there is
reasonable ground to believe that the prospective juror cannot render a
fair and impartial verdict." Smith v. Commonwealth, 734 S.W.2d 437,
444 (Ky. 1987) (quoting Peters v. Commonwealth, 505 S.W .2d 764, 765
(Ky. 1974)) .
We have:
long recognized that `a determination as to whether to
exclude a juror for cause lies within the sound discretion
of the trial court, and unless the action of the trial court
is an abuse of discretion or is clearly erroneous, an
appellate court will not reverse the trial court's
determination .'
Fugett, 250 S .W.3d at 613 (quoting Pendleton v. Commonwealth,
83 S.W.3d 522, 527 (Ky. 2002)) ; see also Soto v. Commonwealth,
139 S .W.3d 827, 848 (Ky. 2004) . That determination, however, "is based
on the totality of the circumstances . . . [and] not on a response to any
one question." Fugett, 250 S .W .3d at 613. This must be so where "the
duty of the trial court" is to "`evaluate the answers of the prospective
jurors in context and in light of the juror's knowledge of the facts and
understanding of the law .'
d. (quoting Stopher v. Commonwealth,
57 S .W. 3d 787, 796 (Ky. 2001)) .
If an abuse of discretion is found in failing to strike a juror for
cause, the trial court will not be reversed unless "the party had to use a
peremptory challenge to strike the juror and, in fact, used all his
peremptory challenges ." Fugett, 250 S.W.3d at 613 (citing Stopher,
42
57 S.W .3d at 796) . We have held that this requirement exhausting one's
peremptory challenges "is predicated on the idea that peremptory strikes
are a substantial right given to the defendant" because "if the defendant
had to use all of his peremptory strikes to remove a juror that should
have been stricken for cause, a juror that he otherwise would have
stricken would have been impaneled on the jury." King v.
Commonwealth, 276 S.W.3d 270, 279 (Ky. 2009) (citing Shane v.
Commonwealth, 243 S .W.3d 336, 341 (Ky. 2007)) . For this reason, "the
jury could never be completely fair to the defendant since he was not
able to effectively exercise his right to choose jurors ." Id.
The established "test for determining whether a juror should be
stricken for cause is whether . . . the prospective juror can conform his
views to the requirements of the law and render a fair and impartial
verdict.' Thompson v. Commonwealth, 147 S.W.3d 22, 51 (Ky. 2004)
(quoting Mabe v. Commonwealth, 884 S .W.2d 668, 671 (Ky. 1994)) . "[T]he
party alleging bias bears the burden of proving that bias and the
resulting prejudice." Cook v. Commonwealth, 129 S.W.3d 351, 357 (Ky.
2004) (citing Caldwell v. Commonwealth, 634 S.W.2d 405, 407 (Ky.
1982)) . Where there is such a showing, "[t]he court must weigh the
probability of bias or prejudice based on the entirety of the juror's
responses and demeanor." Shane, 243 S.W.3d at 338; Walker v.
Commonwealth, 288 S . W.3d 729, 736-37 (Ky. 2009) .
Hunt contends that the trial court erred by failing to sustain his
challenge to remove Juror 87 10 and Juror 60 for cause because they
expressed an inability to consider mitigating evidence . "In promulgating
KRS 532 .025(2) the legislators of Kentucky recognized the dire necessity
of having jurors consider mitigating circumstances when the death
penalty might be imposed ." Smith v. Commonwealth, 845 S.W.2d 534,
539 (Ky. 1993) .
Hunt alleges that Juror 87 expressed an inability to consider
Hunt's prior record and emotional state as mitigating circumstances .
However, in both instances, when initially asked the question of whether
he could consider these factors, Juror 87 responded, "Yes." Defense
counsel then followed up with the question, "Would it make any
difference to you?"; and the juror responded, "No ." Accordingly, his
answers were ambiguous . Juror 87 otherwise stated that he could
consider mitigating evidence and could impose the minimum twenty-year
sentence on the murder charge. The trial court did not abuse its
discretion in denying the challenge.
Hunt contends that the trial court erred in denying his challenge to
Juror 60 because he expressed that a person's life history should not be
considered in mitigation and that he would not so consider it even if
instructed by the court to do so. A review of the video transcript,
to We note that Hunt erroneously referred to this juror in his brief as Juror 84.
The record discloses that the Juror referred to was actually Juror 87 .
44
however, again demonstrates that the question and juror's response were
ambiguous and that the juror did not flatly state that a person's life
history should not be considered in mitigation. On the other hand,
Juror 60 testified that he could consider "anything to do with the case"
and that he could consider the full range of penalties . The trial court did
not abuse its discretion in denying the challenge .
Hunt next contends that the trial court erred by failing to excuse
Juror 39 and Juror 42 for cause on the basis that they both expressed
that they would be biased against a defendant who did not testify.
In voir dire questioning, Juror 39 was asked if he could think of a
situation in which he would require a defendant to put on evidence; and
he responded to the effect that if the defendant was innocent, he would
think he would present a defense . Upon follow-up questioning, however,
the juror acknowledged that he would not hold it against a defendant if
he did not testify at trial. When asked about a defendant not putting on
evidence, the juror stated that "it would be their choice," although he
personally would if he could. He also stated that it would be "easier" if a
defendant put on evidence if he had any but that he would understand
why a defendant may not put on a defense. The juror also stated that he
would follow the trial court's instructions. Upon examination of the voir
dire as a whole, Juror 39 did not express that he would hold it against a
defendant if he did not testify and present evidence. In fact, to the
contrary, he expressed that he would not hold it against the defendant .
45
The trial court did not abuse its discretion by denying Hunt's challenge
to Juror 39 .
During his voir dire questioning, Juror 22 was asked if the
defendant did not put on evidence, would that tend to make him think
the defendant might be guilty. Juror 22 responded, "It would put a
thought in my mind anyway, as to why he would not try to defend
himself." After the trial court explained the concepts of presumption of
innocence and burden of proof, however, the juror stated that he would
follow the trial court's instructions and place the burden of proof on the
Commonwealth . Despite the juror's initial statement, once set straight
on the basic principles at issue, he committed himself to not holding the
failure of a defendant to put on evidence against him .
Hunt also challenges Juror 22 on the grounds that the juror "said
he could be fair but not impartial because he had read or heard about
the case." A review of the voir dire, however, discloses that the juror had
merely remembered hearing about the case and reading about it in the
newspaper. He stated that he had not formed an opinion about the case;
that if he were on the jury, he would be fair and impartial; and that he
could put aside anything he had read and would follow the court's
instructions. Mere exposure to pretrial publicity does not automatically
disqualify a prospective juror. Maxie v. Commonwealth, 82 S .W.3d 860,
862 (Ky. 2002) . The trial court did not abuse its discretion by failing to
strike Juror 22 for cause based upon his voir dire answers.
46
C . Jurors Alleged to be Improperly Excused.
Hunt contends that three jurors were excused for cause because
they expressed that they could not impose the death penalty when,
actually, they had only imposed hesitancy to impose the penalty and,
accordingly, should not have been excused . The three jurors were
Juror 96, Juror 42, and Juror 24 .
The leading United States Supreme Court cases on "death
qualification," i.e., Witherspoon v. Illinois, 391 U.S . 510 (1968) ; Adams v.
Texas, 448 U.S . 38, (1980) ; Wainwright v. Witt, 469 U.S . 412 (1985) ; and
Lockhart v. McCree, 476 U.S. 162 (1986), address the circumstances
under which a potential juror may be excused for cause because of the
juror's bias against imposition of the death penalty. Witherspoon held
that strikes for cause could not be employed to empanel a jury
predisposed to return a verdict of death, 391 U.S . at 521-23, and that
"[u]nless a venireman states unambiguously that he would automatically
vote against the imposition of capital punishment no matter what the
trial might reveal," id. at 515 n .9, it cannot be assumed that such is that
person's position simply because the juror expressed reservations or
scruples about the death penalty. Id. Although Witherspoon also states
"[t]hat the most that can be demanded of a venireman in this regard is
that he be willing to consider all of the penalties provided by state law,"
id. at 522 n.21, Adams, supra, explained that "Witherspoon is not a
ground for challenging any prospective juror. It is rather a limitation on
47
the State's power to exclude ." 448 U.S. at 47-48 . "[T]he proper standard
for determining when a prospective juror may be excluded for cause
because of his or her views on capital punishment . . . is whether the
juror's views would `prevent or substantially impair the performance of
his duties as a juror in accordance with his instructions and his oath ."'
Witt, 469 U .S. at 424 (quoting Adams, 448 U .S. at 45) . If so, the removal
of so-called "`Witherspoon-excludables' serves the State's entirely proper
interest in obtaining a single jury that could impartially decide all the
issues in [a death penalty] case." McCree, 476 U .S . at 180; Caudill v.
Commonwealth, 120 S .W.3d 635, 654 (Ky. 2003) .
During his voir dire questioning, Juror 96 stated on several
occasions unequivocally that he could not give the death penalty . Under
questioning by defense counsel, the hypothetical was posed that if he
were on the jury and the judge ordered him to consider the death
penalty, would he; and the juror responded that he would consider it but
would not vote for it. However, under further questioning, he again
stated he could consider it. Because of the inconsistency, the trial court
followed up with a question again asking the juror if he could impose the
death penalty; and he stated that he could not. In light of Juror 96's
plainly expressed firm conviction against the death penalty, the trial
court did not abuse its discretion by striking him for cause .
During her voir dire questioning, Juror 42, when asked if she
would have problems voting for any of the possible punishments,
48
responded, "I don't know about death." When asked if she could impose
the death penalty under any circumstance, she responded, "I don't know,
I don't know"; and "I would struggle with death," and "I don't think I
could." Under further questioning, she responded, "I don't think I could
do death . . . I just don't think I could," and again, "I just don't think I
could ." Under later questioning, she again stated that she would have a
problem considering death; and she would "really struggle" if required to
consider death . Nevertheless, Hunt points to Juror 42's response to the
hypothetical question of what would she do if she were on the jury and
the trial court ordered her to consider the death penalty. The juror
responded, "Well if I am in that room, I am going to have to." Though her
response to the hypothetical question could be interpreted as a
willingness to give proper consideration to the death penalty, in light of
the overall tone and tenor of her other answers expressing severe
difficulties in giving consideration to the death penalty, the trial court did
not abuse its discretion in striking Juror 42 for cause .
In her voir dire questioning, Juror 24, on several occasions, ,
expressed straightforwardly that she could not consider the death
penalty as a possible sentence . Upon questioning by defense counsel,
she answered to a hypothetical question that "maybe" she could consider
it. She then reverted to her position that she could not consider the
death penalty. The trial court did not abuse its discretion by striking
this juror for cause.
49
In summary, we find no reversible error occurred as a result of the
various claims raised by Hunt relating to voir dire and jury selection
issues .
XII . BURGLARY WAS PROPERLY USED AS AN AGGRAVATING
CIRCUMSTANCE IN IMPOSING THE DEATH PENALTY.
Hunt next contends that it was error for the first-degree burglary
charge to be used as the aggravating circumstance that qualified Hunt as
death penalty eligible . He argues that his entry into the residence with
the intent to murder Bettina was, alone, what elevated the entry to firstdegree burglary and that it would, therefore, be improper to use the
completion of the murder (the very reason for the entry) as an
aggravating circumstance for death penalty purposes . Restated, he
observes that under the present state of the law, any time someone
unlawfully enters a building to commit murder and does, he is
automatically eligible for the death penalty. He also notes that there is
an inequity in that if the murder had occurred on the other side of the
door, he would not have been death penalty eligible .
We begin by noting that KRS 532 .025(2)(a)(2) specifically provides
that first-degree burglary is an aggravating circumstance in a murder
prosecution. Further, the defendant in McClellan v. Commonwealth,
715 S.W.2d 464 (Ky. 1986), made substantially the same arguments
made by Hunt in the present case. In McClellan we squarely rejected
that argument, stating:
50
[w]e hold that an unlawful entry into a building while
armed, with an intent to commit a crime, is a
substantially aggravated circumstance to be considered
by a jury in determining the appropriate punishment
for homicide . The consideration of the aggravated
circumstance in this case was in accord with the
procedures approved by the United States Supreme
Court in Zant v. Stephens, 462 U .S . 862, 103 S .Ct.
2733, 77 L.Ed.2d 235 (1983) .
Id. at 472.
Thus, McClellan is dispositive of this issue ; and we, accordingly,
reject Hunt's argument. Hunt acknowledges that McClellan is controlling
but asks that we reconsider the holding. We remain convinced in the
soundness of the holding, however, and decline Hunt's invitation to
revisit the issue.
XIII . THE USE OF THE BURGLARY CONVICTION AS
AN AGGRAVATING CIRCUMSTANCE DOES NOT
VIOLATE DOUBLE JEOPARDY .
Hunt next contends that convicting him of first-degree burglary
and then using that same conviction in the same proceeding as an
aggravator to increase the punishment for murder to the death penalty
constitutes a second prosecution for the same offense after conviction .
As previously discussed, McClellan, supra, addressed and rejected
substantially this same argument . In addition, in Bowling v.
Commonwealth, 942 S .W.2d 293 (Ky. 1997), we stated:
[s]imply because the aggravating circumstance duplicates
one of the underlying offenses does not mean that the
defendant is being punished twice for the same offense .
The underlying offenses were only factors to be
51
considered as to whether the punishment for murder
should be death . Appellant was not subjected to double
jeopardy or multiple punishment for the same offense .
.Id. at 308; see also Fields v. Commonwealth, 274 S .W.3d 375, 419 (Ky.
2008) .
Hunt contends that Bowling, along with McClellan, should be
overruled. However, we remain convinced of the soundness of the
holding in Bowling and will decline Hunt's invitation to revisit the
decision.
XIV. THE VICTIM'S MOTHER PROPERLY TESTIFIED
DURING THE SENTENCING PHASE PURSUANT
TO KRS 532.055 AND KRS 421 .500.
During the sentencing phase of the trial, Bettina's mother, Betty
Derossett, was called to provide the victim impact statement as
authorized by KRS 532.055(2)(a)(7) . Hunt argues that pursuant to the
definitional provisions of KRS 421 .500(1), Bettina's daughter, Veronica
Harris, was the only person authorized to be called to present the victim
impact statement.
At the time of Hunt's trial, KRS 532 .055(2)(a)(7) authorized the
Commonwealth in the penalty phase to present evidence concerning
"[t]he impact of the crime upon the victim, as defined in KRS 421 .500,
including a description of the nature and extent of any physical,
psychological, or financial harm suffered by the victim[.]" (emphasis
added) ." In turn, at the time of trial, KRS 421 .500(1) defined a victim, as
relevant here, as follows :
. . . If the victim is deceased and the relation is not the
defendant, the following relations shall be designated as
"victim" for the purpose of exercising those rights contained
in KRS 421 .500 to 421 .575 :
(a)
The spouse;
(b)
An adult child if paragraph (a) of this subsection does
not apply;
(c)
A parent if paragraphs (a) and (b) of this subsection do
not app1Y;
(d
A sibling if
subsection do not apply ; and
(e)
A grandparent if paragraphs (a) through (d) of this
subsection do_ not apply .
(Emphasis added.) 12
Hunt argues that the language of the statute (as in effect at that
time) provides that if an adult child of the murder victim is alive and
available to testify, then only she may be properly classified as a victim
under KRS 421 .500(1) ; and, in turn, only she may give the victim impact
statement in the sentencing phase of the trial. Bettina's daughter,
Veronica, fits that description.
12
The statute has since been amended to read, "The impact of the crime upon
the victim or victims, as defined in KRS 421 .500, including a description of
the nature and extent of any physical, psychological, or financial harm
suffered by the victim or victims[ .]" Thus, under the amended language,
more than one person may give a victim impact statement; and Betty's
testimony would have been proper even if Veronica did not testify.
The definitional statute has since been amended.
53
In Terry v. Commonwealth, 153 S.W.3d 794 (Ky. 2005), Theodore
Suggs was murdered by Terry. Suggs's widow, his adult daughter, and
his sister were all present in the courtroom during the penalty phase of
the trial. The widow chose not to testify. Over Terry's objection, the trial
court permitted both the daughter and the sister to present emotionally
charged victim impact evidence.
We held that it was improper for the trial court in Terry to have
permitted both Suggs's daughter and sister to give victim impact
statements . However, in addressing the appropriateness of skipping
down the list even though Suggs's widow was alive and present in the
courtroom, we stated:
Appellant contends that since the secondary victim, the
widow, was present and declined to testify, neither the
daughter nor the sister should have been permitted to
testify in her place. We disagree. Paragraph (1) (b) of
the statute states, "if paragraph (a) of this subsection
does not apply[";] it does not state, "if there is no
spouse." When the widow declined to testify, paragraph
(a) did not apply and the adult daughter became the
secondary victim who was entitled to present victim
impact evidence. If she had declined to testify, the
sister would have become the secondary victim.
Id. at 805 .
In the present case, Veronica, Bettina's daughter, is placed ahead
of Bettina's mother, Betty, on the victim priority list contained in
KRS 421 .500(1) . The record does not disclose why Betty testified instead
of Veronica . If Veronica declined, then this case would fall squarely
within Terry; and her testimony would be deemed proper without further
question.
Assuming, however, that Veronica did not specifically decline and,
thus, would have been the definitional "victim" under the plain language
of KRS 421 .500(1), we believe any error was harmless . See RCr 9 .24 ("No
error in either the admission or the exclusion of evidence and no error or
defect in any ruling or order, or in anything done or omitted by the court
or by any of the parties, is ground for granting a new trial or for setting
aside
a verdict or for vacating, modifying or otherwise disturbing a
judgment or order unless it appears to the court that the denial of such
relief would be inconsistent with substantial justice. The court at every
stage of the proceeding must disregard any error or defect in the
proceeding that does not affect the substantial rights of the parties.") . Be
it Veronica or Betty, the Commonwealth was entitled to put on victim
impact testimony. Hunt refers to Betty's testimony as being "very
personal and emotional testimony . . . particularly about the impact of
the loss of Bettina on her grandchild[.]" But if Veronica had taken the
stand, she would have been testifying about the loss of her mother and,
also, it stands to reason, would have noted how Bettina's murder
deprived Katrina of her primary caregiver. No doubt Veronica, too, would
have become emotional as she told the jury about the loss of her mother
with whom she had prior difficulties but with whom she had reconciled
prior to the shooting. In light of this and the overwhelming evidence of
55
Hunt's guilt, we believe any error resulting from Betty testifying instead
of Veronica was harmless .
XV.
LETHAL INJECTION AND ELECTROCUTION ARE
CONSTITUTIONAL .
Hunt contends that imposition of the death penalty by lethal
injection or electrocution is unconstitutional pursuant to the Eighth
Amendment of the Federal Constitution and Section 17 of the Kentucky
Constitution . The issue is unpreserved .
We have consistently held that neither lethal injection nor
electrocution is an unconstitutional violation of the Eighth Amendment's
proscription against cruel and unusual punishment . Wheeler v.
Commonwealth, 121 S .W.3d 173, 186 (Ky. 2003) ("Wheeler argues that
the death penalty is unconstitutional under the federal and Kentucky
constitutions because the method used to carry out the sentence, lethal
injection, is cruel and unusual punishment. Wheeler's claim that lethal
injection is a violation of the Eighth Amendment against cruel and
unusual punishment is without any case law support from Kentucky or
elsewhere . . . . Certainly, it is not cruel and unusual punishment.
Death by electrocution also does not violate either federal or Kentucky
law. Stanford v. Kentucky, 492 U.S . 361 (1989), overruled on other
grounds by Roper v. Simmons, 543 U.S . 551 (2005) . Wheeler has also
failed to demonstrate that either method of execution conflicts with any
societal norms .") ; see also Baze v. Rees, 217 S .W.3d 207, 211-12 (Ky.
56
2006) ; Epperson v. Commonwealth, 197 S .W.3d 46, 64 (Ky. 2006) .
Chapman v. Commonwealth, 265 S.W .3d 156 (Ky. 2007) ; Baze v. Rees,
U .S .
, 128 S .Ct. 1520 (2008) .
Hunt has not presented anything causing us to doubt our
conclusion that imposition of the death penalty by either lethal injection
or electrocution is constitutional .
XVI. THE PENALTY PHASE INSTRUCTIONS WERE PROPER .
Hunt alleges six errors in connection with the penalty phase
instructions: (1) that there was a failure to instruct on non-statutory
mitigation factors, (2) that the jury was not instructed they could
consider any mitigating factor they individually believed to be true even if
all the other jurors did not find the factor to be true, (3) that the
reasonable doubt instruction was flawed, (4) that the instructions did not
require the jury to make any findings with respect to non-statutory
aggravators, (5) that the instructions did not require the jury to make
written mitigation findings, and (6) that a flawed verdict form forced the
jury to impose the death penalty if it found an aggravating factor. Hunt
concedes that only the first issue is preserved .
A. Non-Statutorv Mitigation.
The jury was instructed on four statutory mitigating
circumstances: (1) that Hunt had no significant criminal history; (2) that
the crime was committed while Hunt was under the influence of extreme
emotional disturbance; (3) that at the time of the crime, Hunt lacked the
57
capacity to appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law as a result of intoxication ; and
(4) the age of the appellant. In addition, the standard mitigating "catch
all" instruction was given . In addition to the foregoing, Hunt requested
that the jury be instructed on two additional mitigating factors, (1) that
he did not go to Bettina's residence to kill her but to force her to talk
with him and (2) that Hunt and Bettina were in an unstable relationship .
Hunt contends that the trial court erred by failing to give the requested
instructions.
The instruction on mitigating circumstances included the catch-all
provisions, "any other circumstance or circumstances arising from the
evidence which you, the jury, deem to have mitigating value," and "those
aspects of the defendants' character, and these facts and circumstances
of the particular offense . . . about which he has offered evidence in
mitigation . . . ." Due to the catch-all provisions, there was no need to
instruct on any specific nonstatutory mitigators . Haight v.
Commonwealth, 938 S .W .2d 243 (Ky. 1996) ; Perdue v. Commonwealth,
916 S.W .2d 148 (Ky. 1995); Mills v. Commonwealth, 996 S .W.2d 473, 492
(Ky. 1999) .
B . Non-Unanimous Mitigation .
Hunt contends that the trial court's instructions required the jury's
verdict to be unanimous but did not instruct them that they could
individually consider mitigating circumstances . He alleges that a
58
reasonable juror could have believed the whole jury had to agree
unanimously upon a mitigating factor before it could be weighed against
the alleged aggravator in arriving at a sentence.
A similar argument was made in Mills, supra. "The instructions
did not imply that unanimity was required on mitigators and there is no
requirement that a jury be instructed that their findings on mitigation
need not be unanimous ." 996 S .W.2d at 492 (citing Bowling, 873 S .W .2d
at 180) . We accordingly find no error in the instructions as phrased.
C . Reasonable Doubt Instruction.
The reasonable doubt instruction stated as follows: "If upon the
whole case you have a reasonable doubt whether the Defendant should
be sentenced to death, you shall instead fix his punishment at a
sentence of imprisonment." Hunt contends that this instruction told the
jury that Hunt could be sentenced to a lesser punishment than death
only if there were a reasonable doubt that death was the proper penalty.
We addressed this same issue in Parrish v. Commonwealth,
121 S .W.3d 198 (Ky. 2003) . Therein, we stated :
These instructions do not violate the statutory system,
nor do they invade the province of the jury. Instruction
No . 7 followed the one in 1 COOPER, KENTUCKY
INSTRUCTIONS TO JURIES (CRIMINAL) § 12 .08 (4th ed . 1999) .
We find this to be a proper statement of the law. The
instructions allowed the jury to consider options other
than death, even when a finding is made as to
aggravating circumstances . Wilson v. Commonwealth,
Ky., 836 S .W.2d 872 (1992) . There was no error and no
violation of either the federal or state constitutions .
Instruction No . 7 did not, as Parrish asserts, instruct the
jurors that they should impose the death penalty unless
59
they had a reasonable doubt that death was the
appropriate penalty.
Id. at 207 .
Similarly, no error occurred in the present case.
D . Non-Statutory Aggravator Findings.
Hunt contends that it was error for the instructions to fail to
include an instruction requiring the jury to make findings concerning
non-statutory aggravators. Citing Jacobs v. Commonwealth, 870 S .W.2d
412 (Ky. 1994), he contends that because a non-statutory aggravating
circumstance can support the imposition of the death penalty, the jury
has to be instructed that it must find any such aggravator beyond a
reasonable doubt.
Hunt's argument is based upon a faulty premise . The death
penalty may not be imposed without a finding of a statutory aggravating
factor beyond a reasonable doubt. As we stated in Young v.
Commonwealth, 50 S.W.3d 148 (Ky. 2001), "[a]bsent a statutory
aggravating circumstance specifically applicable to the defendant or the
defendant's own conduct, he/she cannot be subjected to the death
penalty." Id. at 162 . This argument is accordingly without merit.
E . Written Mitigation Findings.
Hunt contends that the penalty phase instructions were erroneous
because they failed to require the jury to prepare written mitigation
findings . In Smith v. Commonwealth, 599 S.W.2d 900 (Ky. 1980), defense
60
counsel tendered an instruction along these lines. We held it was not
error for the trial court to reject the instruction. Id. at 912 . Recognizing
this, Hunt argues that Smith should be overruled. However, we find no
compelling need to reconsider this settled issue.
F. Verdict Form.
Hunt asserts that he was denied due process because the penalty
phase verdict form directed the jury to fix an aggravated sentence if it
found aggravating circumstances. He maintains that the penalty verdict
forms presented to the jury made it impossible for the jury to find
aggravating circumstances without fixing an aggravated penalty.
The verdict forms used by the trial judge with respect to the offense
of murder left a blank space for the jury to write in which aggravating
circumstance, if any, it found existed beyond a reasonable doubt and
listed instructions to circle one of the following: (1) life without the
possibility of parole ; (2) life without the possibility of parole for twentyfive years; or (3) death. The court provided verdict forms without
aggravating circumstances to impose a sentence for a term of years or a
sentence of life in prison . The trial judge used a verdict form found in
Section 12 .1 OA of
1 COOPER, KENTUCKY INSTRUCTIONS TO JURIES (CRIMINAL)
(4th ed. 1993) . This form had been previously approved by this Court in
Hodge v. Commonwealth, 17 S.W .3d 824, 854 (Ky. 2000) . The verdict
form wherein aggravating circumstances could be and were found did
not require the jury to impose any particular sentence. The instructions,
61
when considered as a whole, make it clear that the jury was not required
to impose a death sentence merely upon a finding of aggravating
circumstances . Pursuant to the standards set out by the United States
Supreme Court in Boyde v. California, 494 U.S . 370, (1990), the verdict
forms did not result in an unconstitutional death sentence.
XVII . HUNT'S DEATH SENTENCE IS NOT ARBITRARY
AND DISPROPORTIONATE.
Hunt next contends that his death sentence is arbitrary and
disproportionate considering the mitigating factors in his case, the
specific facts of his case, and other cases in which death was not
imposed for similar or worse crimes with significantly less compelling
mitigation . He notes that he maintains a good relationship with his exwife Regina Mosier, and his half-brother and sister-in-law; that he was
gainfully employed his entire adult life until he was severely injured in a
coal truck accident; that his only prior criminal conviction was a single
DUI conviction ; and that he was remorseful over his wife's death .
The Commonwealth, through its death penalty statutes, has
established a proportionality review process. KRS 532 .075(3)(c) . Under
KRS 532 .075(1), "[w]henever the death penalty is imposed for a capital
offense . . . the sentence shall be reviewed on the record by the Supreme
Court." Further, Subsection (3)(c) provides that "with regard to the
sentence, the court shall determine . . . [w]hether the sentence of death
is excessive or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant."
Pursuant to KRS 532 .075, we have reviewed the record and have
determined that the death sentence was not imposed under the influence
of passion, prejudice, or any other arbitrary factor. Furthermore, the
sentence is not disproportionate to the penalty imposed in similar cases
since 1970 considering both the crime and the defendant. Rather than
belaboring this opinion with a string cite containing the cases we
examined during the course of our proportionality review, we incorporate
by reference the list found in Hodge v. Commonwealth, 17 S .W .3d 824,
855 (Ky. 2000). We have incorporated that list in other cases, such as
Parrish v. Commonwealth, 121 S .W.3d 198, 208 (Ky. 2003) . We have also
reviewed the applicable cases rendered after Hodge. See, e.g., Fields v.
Commonwealth, 274 S.W .3d 375, 420 (Ky. 2008) (giving "particular
attention" to other cases involving single murders in performing
proportionality review of death sentence in case involving murder in the
course of burglary) .
We have conducted an independent review of all the circumstances
and conclude they justify the imposition of capital punishment .
XVIII . KENTUCKY'S METHOD OF PROPORTIONALITY
REVIEW IS CONSTITUTIONAL .
Hunt contends that this Court's proportionality review process, as
prescribed by KRS 532 .075(1), is unconstitutional . He states that "[t]he
problem with Kentucky's review process is this Court does not compare
cases in which the death penalty was imposed to `the penalty imposed in
similar cases.' He alleges that this Court's universe of cases has been
limited solely to those cases in which the death penalty was imposed and
not to other "similar cases" in which death was not imposed ; and,
further, has been limited to only those cases that have been affirmed on
appeal . He also contends that he is entitled to access this Court's
KRS 532.075(6) data.
"Kentucky's proportionality review is constitutional and comports
with statutory requirements and the federal Constitution ." Fields,
274 S.W.3d at 419 (Ky. 2008) . We discern no reason to reevaluate this
settled issue.
Moreover, "[t]here is no right to access this Court's KRS 532 .075
review data." Id. (citing Ex parte Farley, 570 S .W.2d 617, 624 (Ky. 1978)) .
See also, e.g., Epperson v. Commonwealth, 197 S .W .3d 46, 63 (Ky. 2006)
("The concerns expressed by Epperson about his inability to access the
data are without merit . This Court does not use any secret data but
simply compares one death penalty case with all the other cases in which
the death sentence was imposed after January 1, 1970 .") ; Harper v.
64
Commonwealth, 694 S.W .2d 665, 670-71 (Ky. 1985) ("For some reason,
obscure to us, the Public Advocate keeps insisting on access to the data
collected by this court under the provisions of KRS 532 .075(6) . We had
thought that [Ex Parte Farley] settled this question. There is no
articulated reason why the Public Advocate cannot assemble this data for
use in capital cases . We state in our opinions all matters considered by
us, and in no way are mysterious and secret records or data taken into
account in our deliberations. The time and effort expended in arguing
this point would suffice to compile all the data we consider.") ; Stopher v.
Commonwealth, 57 S.W.3d 787, 807 (Ky. 2001) ("Failure to provide
access to data collected by this Court pursuant to KRS 532 .075(6) did
not deny Appellant due process of law.") .
XIX.
THE PROSECUTOR DID NOT IMPROPERLY TELL THE
THE VENIRE THAT IT WOULD MERELY "RECOMMEND"
A SENTENCE .
Hunt contends that error occurred because during individual voir
dire, the prosecutor stated to the prospective juror that in the event of a
conviction, she would "recommend" a sentence. Hunt cites us to six
occasions where this occurred. Two of the six eventually sat on the jury
that heard the case and imposed the death penalty. The issue is
unpreserved .
In Caldwell v. Mississippi, 472 U .S. 320, 328-29 (1985), the U .S .
Supreme Court held that "it is constitutionally impermissible to rest a
65
death sentence on a determination made by a sentencer who has been
led to believe that the responsibility for determining the appropriateness
of the defendant's death rests elsewhere ." See also Ice v. Commonwealth,
667 S.W.2d 671, 676 (Ky. 1984) (holding that prosecutor's emphasis in
closing argument that jury's sentence of death was only recommendation
was improper for it conveyed message that jurors' awesome responsibility
was lessened by fact that their decision was not final one); Tamme v.
Commonwealth, 759 S.W .2d 51, 53 (Ky. 1988) (holding that in capital
cases, word "recommend" may not be used with reference to jury's
sentencing responsibilities in voir dire, instructions, or closing
argument) .
However, in Romano v. Oklahoma, 512 U.S. 1, (1994), the United
States Supreme Court discussed the scope of Caldwell, as follows :
The prosecutor in Caldwell, in remarks which "were quite
focused, unambiguous, and strong," misled the jury to
believe that the responsibility for sentencing the
defendant lay elsewhere . Id. at 340, 105 S .Ct. at 2645 .
The trial judge "not only failed to correct the prosecutor's
remarks, but in fact openly agreed with them." Id. at 339,
105 S .Ct. at 2645.
[W]e have since read Caldwell as "relevant only to certain
types of comment - those that mislead the jury as to its
role in the sentencing process in a way that allows the
jury to feel less responsible than it should for the
sentencing decision ." Darden v. Wainwright, 477 U.S .
168, 184 n.15, 106 S .Ct. 2464, 2473 n .15, 91 L.Ed .2d
144 (1986) . Thus, "[t]o establish a Caldwell violation, a
defendant necessarily must show that the remarks to the
jury improperly described the role assigned to the jury by
66
local law." Dugger v. Adams, 489 U .S. 401, 407,
109 S.Ct. 1211, 1215, 103 L .Ed .2d 435 (1989) ; see also
Sawyer v. Smith, 497 U.S . 227, 233, 110 S.Ct. 2822,
2826-27, 111 L.Ed.2d 193 (1990) .
Id. at 9 .
Moreover, we stated in Matthews v. Commonwealth, 709 S.W .2d
414 (Ky. 1985),
we conclude that although in this area the court and
prosecutor must be extremely careful to avoid leaving the
jury with any impression that would diminish its `awesome
responsibility' in imposing the death sentence, use of the
word `recommend' is not per se constitutionally
impermissible. It is not incorrect as long as the context in
which it is used does not mislead the jury as to its role in
the process or its responsibility in exercising its sentencing
function.
Id. at 421 .
Here, the use of the term "recommend" occurred in individual voir
dire and then in the case of only two of the venire who eventually served
on the trial jury. The prosecutor's use of the term "recommend" was
isolated and occurred some fifteen days prior to the jury's sentencing
verdict. The prosecutor did not use the term in any of his presentations
before the jury as a whole . As such, we do not believe the isolated
instance of the prosecutor's use of the term "recommend" left the jury
with any impression that would diminish its "awesome responsibility" in
imposing the death sentence . No reversible error occurred .
XX.
DEATH QUALIFICATION OF JURORS IS
NOT UNCONSTITUTIONAL.
Hunt argues that the process of death qualification of jurors is
unconstitutional because the qualification process has a prejudicial
effect on jurors who end up sitting on the jury.
We have considered, and rejected, this argument before . There is
no error in the removal of jurors who cannot consider the entire range of
penalties, including the death penalty . See Hodge v. Commonwealth,
17 S.W.3d 824, 838 (Ky. 2000) ; Fields v. Commonwealth, 274 S.W.3d at
419.
XXI .
HUNT WAS NOT DENIED DUE PROCESS BY USE
OF AN AGGRAVATOR NOT CONSIDERED BY A
GRAND JURY OR ALLEGED IN HIS INDICTMENT.
Hunt alleges that he was denied due process because the issue of
whether there was an aggravating circumstance to make him death
eligible was not presented to the grand jury and nor was such alleged in
the indictment . The issue is unpreserved.
Under Kentucky law, a person is not eligible to receive the death
penalty unless at least one of the statutory aggravators set forth in
KRS 532 .025(2)(a) is found to apply. See KRS 532 .025(3) ("In all cases
unless at least one (1) of the statutory aggravating circumstances
enumerated in subsection (2) of this section is so found, the death
penalty, or imprisonment for life without benefit of probation or parole,
or the sentence to imprisonment for life without benefit of probation or
68
parole until the defendant has served a minimum of twenty-five (25)
years of his sentence, shall not be imposed.") .
Hunt's indictment did not describe the aggravators the
Commonwealth believed made Hunt eligible to receive the death penalty.
Instead, the Commonwealth filed a notice under KRS 532 .025 that it was
seeking the death penalty. KRS 532 .025(1) (a) provides that the
Commonwealth may introduce at a capital sentencing hearing "only such
evidence in aggravation as the state has made known to the defendant
prior to his trial . . . ." That notice set forth the aggravating
circumstance that the Commonwealth believed made Hunt eligible to
receive the death penalty - that is that the murder occurred during the
course of a first-degree burglary. Hunt now contends that his
constitutional rights were violated because the issue of aggravating
circumstances was not presented to the grand jury and because the
indictment did not cite the aggravating circumstance making him death
eligible .
We have rejected arguments along these lines many times before .
See, e.g., Soto v. Commonwealth, 139 S.W .3d 827, 841-43 (Ky. 2004) ;
Ernst v. Commonwealth, 160 S .W .3d 744, 752 (Ky. 2005) ("Finally,
although Appellant argues that the indictment did not set forth the
essential elements of the capital kidnapping offense, we also note that
the indictment is not required to recite the aggravating circumstance
necessary to seek capital punishment so long as the Commonwealth
69
.For similar
.")
.025(1)(a)
satisfies the notice requirement in KRS 532
reasons, the issue of aggravating circumstances need not be presented to
the grand jury.
We have been shown no compelling reason to depart from our
settled position that the indictment need not recite the aggravating
circumstances or, for reasons similar to those as stated above, to impose
now a requirement that the aggravating circumstances in a particular
case must be presented to the grand jury.
XXII . THE DEATH PENALTY IS CONSTITUTIONAL .
Hunt contends that the death penalty, as implemented and carried
out in Kentucky, is unconstitutional because it does not narrow the class
of persons eligible for the death penalty; because there is insufficient
statutory guidance for imposition of the death penalty; because the death
penalty, as applied in Kentucky, is discriminatory ; because prosecutorial
discretion makes arbitrariness inherent; and because there is a danger of
executing the innocent.
"The constitutionality of the death penalty statute
is well settled .
Appellant's assertion that Kentucky's death penalty statute operates in a
discriminatory and arbitrary fashion is without merit." Thompson v.
Commonwealth, 147 S .W.3d 22, 55 (Ky. 2004) . "Further, KRS 532 .025
provides adequate standards to guide the jury in its consideration and
imposition of the death penalty. Finally, the death penalty is not
imposed arbitrarily or capriciously in Kentucky ." Fields v.
70
Commonwealth, 274 S.W.3d at 419 . We have repeatedly ruled that
Kentucky's death penalty statute is not unconstitutional, and Hunt has
presented nothing new that causes us to change that conclusion .
Chapman v. Commonwealth, 265 S .W.3d 156, 163 (Ky. 2007) .
XXIII . RESIDUAL DOUBT DOES NOT BAR THE
DEATH SENTENCE .
Hunt contends that residual doubt bars the death sentence. We
have addressed this issue on prior occasions, and we see no reason to
depart from our consistent holding that residual doubt plays no role in
appellate review . See, e.g., Tamme v. Commonwealth, 973 S .W.2d 13, 40
(Ky. 1998) ; Epperson, 197 S . W.3d at 65 ("The United States Supreme
Court and this Court have held that residual doubt is not a mitigating
circumstance for the death penalty. See Franklin v. Lynaugh, 487 U.S.
164, 108 S .Ct. 2320, 101 L .Ed .2d 155 (1988), accord Tamme v.
Commonwealth, supra. A finding of guilt as to aggravating circumstances
in a death penalty case is considered under the reasonable doubt
standard. Here, the evidence presented was sufficient to establish guilt
beyond a reasonable doubt so as to meet the legal standards and
constitutional requirements .") .
XXIV. CUMULATIVE ERROR .
Hunt finally contends that if we do not find any individual issue
sufficient to require reversal, then we should set aside his convictions
and sentences on the basis of the cumulative errors he has identified .
Our review of the entire case reveals that the appellant received a
fundamentally fair trial and that there is no cumulative effect or error
that would mandate reversal. See Funk v. Commonwealth, 842 S .W .2d
476 (Ky. 1992) ; Bowling v. Commonwealth, 942 S.W .2d 293, 308 (Ky.
1997) .
CONCLUSION
For the foregoing reasons the judgment of the Floyd Circuit Court
is affirmed .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Shelly R. Fears
Randall Wheeler
Julia Karol Pearson
Assistant Public Advocates
Department of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, Kentucky 40601-1133
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General of Kentucky
Matthew Robert Krygiel
Assistant Attorney General
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601
,$ixyxrMr Courf of ~rufurhv
2006-SC-000634-MR
APPELLANT
JAMES HUNT
V
ON APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, JUDGE
NO . 05-CR-00090
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER DENYING PETITION FOR REHEARING
AND MODIFYING OPINION
The Appellant having filed a Petition for Rehearing of the Opinion
of the Court by Justice Venters, rendered November 25, 2009, and
corrected January 6, 2010 ; and the Court being otherwise fully and
sufficiently advised;
The Court ORDERS that the Petition for Rehearing is DENIED . On
the Court's own motion, the Opinion of the Court by Justice Venters,
rendered November 25, 2009, and corrected January 6, 2010, is
MODIFIED ; and the attached opinion is SUBSTITUTED in lieu of the
original . Said modification does not affect the holding.
All sitting. All concur.
ENTERED : March 18, 2010.
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