Dunlap v. Commonwealth, 2010–SC–000226–MR.

• Decision Date: 20 February 2014
• Docket Number: No. 2010–SC–000226–MR.,2010–SC–000226–MR.
• Citation: 435 S.W.3d 537
• Parties: Kevin Wayne DUNLAP, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

435 S.W.3d 537

Kevin Wayne DUNLAP, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–SC–000226–MR.

Supreme Court of Kentucky.

June 20, 2013.

As Modified Feb. 20, 2014.

Rehearing Denied Feb. 20, 2014.

Shannon Renee Dupree, Assistant Public Advocate, Roy Alyette Durham, II, Assistant Public Advocate, Kathleen Kallaher Schmidt, Assistant Public Advocate, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, David Bryan Abner, Assistant Attorney General, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

Appellant, Kevin Wayne Dunlap, pled guilty to three counts each of capital murder, capital kidnapping, and tampering with physical evidence, and one count each of attempted murder, first-degree kidnapping, first-degree rape, first-degree arson, and first-degree burglary. The Livingston Circuit Court sentenced Appellant to death for each of the six capital crimes; life imprisonment for kidnapping, rape, and arson; twenty years' imprisonment for attempted murder and burglary; and five years' imprisonment for each of the tampering convictions. He now appeals as a matter of right. Ky. Const. § 110(2)(b). We affirm.

I. BACKGROUND.

On October 15, 2008, Appellant approached Kristy Frensley while she was working in her yard. Kristy's house was for sale and Appellant asked if she would show it to him. Once inside, Appellant put a gun to her head, zip tied her hands and ankles, and moved her to her bedroom. Shortly thereafter, Kristy's three children, Kayla Williams, 17, Kortney Frensley, 14, and Ethan Frensley, 5, returned home from school. Appellant pushed all three children into the bedroom and tied Kayla and Kortney with zip ties and Ethan with pantyhose. He then took the children to a different part of the house.

Appellant returned to Kristy's bedroom and raped her. After giving her a shower, he placed Kristy in her bed, began to strangle her, and attempted to smother her with a pillow. After that, he began cutting her neck. He briefly left the room; when he returned he stabbed Kristy in her left ear and twice in her lower back. Kristy later learned that Appellant had broken off a butter knife in her neck at the handle that had to be surgically removed. Kristy pretended that she was dead by lying still and slowing her breathing. Appellant covered her with a blanket and left the room. Feeling smothered by the blanket, Kristy moved so that her nose was uncovered and she could see.

Appellant poured flammable liquid on the floor of the bedroom and set the bedroom on fire. From her position, Kristy could see Ethan across the hall lying on a pile of pillows. Kristy attempted to rescue him but before she could do so her foot caught fire. She then discovered her legs were not functioning properly and rolled off of her bed to the bedroom's French doors which led to the pool deck. She pulled one of the door handles with her foot but her legs failed her again and she got stuck in the doorframe. Eventually, with her hands still tied, she managed to roll into the pool where a Sheriff's deputy later found her.

The fire caught the attention of neighbors and passers-by and Kayla's body was seen through a window; they punched out the window with their fists and pulled her body outside. The fire was so hot that when they pulled her body out her skin came off in their hands. Kayla's hands were still tied and her mouth was gagged with pantyhose; her throat had been cut from ear to ear, deep enough that her trachea was visible. A steak knife blade was protruding from her back through her sweater. Remarkably, Kayla was still alive, gasping for breath and gurgling. Two women attempted CPR, but Kayla died in the yard from her wounds.

The fire destroyed the home, burning Kortney and Ethan's bodies. An autopsy revealed that Ethan had two stab wounds to the chest (including one that penetrated his heart), six stab wounds to his back and one to his stomach. Kortney had three stab wounds to her chest that penetrated the left lung and one stab wound to the right side of the neck. The doctor who performed the children's autopsies testified that all three children died from the stab wounds.

Based on an eyewitness description of a vehicle seen at the Frensley's house that day, a search warrant was issued for Appellant's home. Law enforcement officers seized several items linking him to the Frensley massacre. Forensic analysts at the Kentucky State Crime Lab examined the seized items and a “rape kit” that medical personnel had performed on Kristy. A vaginal swab revealed that DNA inside Kristy matched Kevin Dunlap.¹ The analyst also discovered DNA on the driver's side seatbelt of Appellant's truck that matched Kristy's.² Additionally, Kortney's DNA was found on Appellant's tennis shoes.³

Appellant was indicted by a Trigg County Grand Jury for three counts each of capital murder, capital kidnapping, and tampering with physical evidence; and one count each of attempted murder, first-degree burglary, first-degree arson, and first-degree rape. Upon joint motion by the Commonwealth and Appellant, the Trigg Circuit Court granted a change of venue to the Livingston Circuit Court. Thereafter, the Commonwealth's Attorney gave notice that he was seeking the death penalty.

Two months prior to trial, Appellant was sent to the Kentucky Correctional Psychiatric Center (KCPC) for a thirty-day evaluation of his competency to stand trial and criminal responsibility. The Livingston Circuit Court held a competency hearing on January 22, 2010, approximately three weeks prior to the trial date. The court heard the testimony of Dr. Amy Trivette, the psychiatrist supervising Appellant's evaluation at KCPC, who testified that Appellant understood the nature and consequences of the charges against him and had a general understanding of the courtroom proceedings and the individuals involved. Consistent with this testimony, the trial court found Appellant competent to stand trial.

About one month prior to trial, a CT scan revealed two non-specific hyper-attenuated punctuate foci—essentially, abnormal spots—on the right frontal lobe of Appellant's brain. Defense counsel requested a PET scan and an MRI, and moved the trial court for a continuance so the results of these tests could be fully examined. The trial court permitted the tests but denied the continuance. About a week before trial was to begin, the tests revealed that Appellant had an arterial venous malformation (AVM) on his right frontal lobe, measuring approximately one cubic inch—a tangle of arteries and veins existed where cortical matter would be on a normally-developed brain.

The day before jury selection was to begin, Appellant informed the court that he wanted to change his plea from Not Guilty to Guilty but Mentally Ill (GBMI). He also informed the court that if it did not accept his GBMI plea then he wished to enter a plea of Guilty. In light of the newly discovered AVM, defense counsel moved to stay the proceedings and have Appellant reevaluated. After hearing testimony from Appellant's expert witness, Dr. Michael Nicholas, the trial court denied counsel's request to stay the proceedings, rejected Appellant's request to plead GBMI, and accepted his Guilty plea.

Appellant reserved his right to be sentenced by a jury for his capital convictions, and a capital sentencing proceeding began on February 10, 2010, lasting two weeks. After deliberating for three hours, the jury recommended a death sentence on each of the capital offenses; the trial court adopted its recommendation. Appellant waived jury sentencing on the non-capital charges, and the trial court sentenced him to life imprisonment for kidnapping, rape, and arson; twenty years' imprisonment for attempted murder and burglary; and five years' imprisonment for each of the tampering convictions. The twenty-year sentences and the five-year sentences were to run consecutively to one another, for a total of fifty-five years, and concurrently with the life sentences which, by law, must run concurrently with one another. Mabe v. Commonwealth, 884 S.W.2d 668, 673 (Ky.1994) ( citing Bedell v. Commonwealth, 870 S.W.2d 779, 783 (Ky.1993)). Additional facts will be provided where relevant to our analysis.

II. STANDARDS OF REVIEW.

Appellant seeks review of twenty-one related issues (plus a separate “cumulative error” argument), “some of which comprise numerous sub-issues, and many of which were not preserved for review pursuant to RCr 9.22 or 9.54.” Sanders v. Commonwealth, 801 S.W.2d 665, 668 (Ky.1990). “Indeed, more than a few ... were not even raised below.” Id. Thus, in other instances they would be treated as unpreserved. However, “[w]here the death penalty has been imposed, we nonetheless review allegations of these quasi errors.” Id.

[If] 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; [but] (2) if there is no [such] reasonable explanation, [we then address] 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. All unpreserved issues are subject to this analysis.

Id. (internal citations omitted); see also Johnson v. Commonwealth, 103 S.W.3d 687, 691 (Ky.2003).

“The rationale for this rule is fairly straightforward. Death is unlike all other sanctions the Commonwealth is permitted to visit upon wrongdoers.” Rogers v. Commonwealth, 992 S.W.2d 183, 187 (Ky.1999). Thus, the invocation of the death penalty requires a more expansive standard of review than is normally necessary in the criminal justice process. Id.; see alsoKRS 532.075(2) (“The Supreme Court shall consider ... any errors enumerated by way of appeal.”).

Preserved errors are reviewed under normal...