Hunt v. Com., No. 2006-SC-000634-MR.

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtOpinion of the Court by VENTERS
Citation304 SW 3d 15
Docket NumberNo. 2006-SC-000634-MR.
Decision Date18 March 2010
PartiesJames HUNT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
304 S.W.3d 15

James HUNT, Appellant,
COMMONWEALTH of Kentucky, Appellee.

No. 2006-SC-000634-MR.

Supreme Court of Kentucky.

November 25, 2009.

As Corrected January 6, 2010.

As Modified on Denial of Rehearing March 18, 2010.

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Shelly R. Fears, Randall Wheeler, Julia Karol Pearson, Assistant Public Advocates, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, Matthew Robert Krygiel, Assistant Attorney General, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice VENTERS.

Appellant, James Hunt, appeals from a judgment entered upon a jury verdict by the Floyd Circuit Court convicting him of murder, first-degree 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.


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

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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 came 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.1 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 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 & 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

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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 that they were fired from the same weapon. The spent rounds were of a relatively unusual type of.38 caliber ammunition.3 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 charges. This appeal followed. We address the twenty-four enumerated issues raised by Hunt in the order they are presented in his brief.


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 was either 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

304 SW 3d 27

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 have 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 video taped 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...

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