Hunter v. Com.

• Decision Date: 31 January 1994
• Docket Number: No. 91-SC-430-MR,91-SC-430-MR
• Citation: 869 S.W.2d 719
• Parties: James D. HUNTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 719

869 S.W.2d 719

James D. HUNTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 91-SC-430-MR.

Supreme Court of Kentucky.

Jan. 31, 1994.

Marie Allison, Margaret F. Case, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for appellant.

Chris Gorman, Atty. Gen., Ian G. Sonego, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.

STEPHENS, Chief Justice.

This is a direct appeal from the judgment of the Clark Circuit Court which sentenced appellant, James D. Hunter, to death following a conviction of murder. He also received a life sentence for his conviction on the charge of arson in the first degree.

FACTS

In the early morning hours of June 25, 1990, Debbie Sue Stratton Hunter burned to death in a fire that began in the bedroom of her home. Three days later appellant, her husband of approximately five weeks, was arrested and charged with capital murder and arson. The Commonwealth's case against appellant consisted of strong circumstantial evidence. Consistent with his story of awakening to fire and running through it to get out of the house, appellant suffered second and third degree burns on his legs and feet. However, expert testimony at trial indicated that the placement of some of the burns, the absence of burns on the bottom of appellant's feet, as well as the lack of any upper body burns, singed hair, and/or respiratory damage was consistent with neither appellant's version of events nor the conclusions that arson investigators reached about the intensity and course of the fire after analyzing physical evidence at the scene.

In addition, appellant was unable to explain how his burned blue jeans, which tested positive for the same "weathered gasoline" found at the crime scene, were found in a trash can at a nearby laundromat. There was also undisputed testimony that appellant's car was seen going in the direction of the victim's home about 2:30 or 2:45 a.m. on June 25, shortly before the witnesses heard sirens and saw the smoke and light from the fire. The fire was reported at 3:05 a.m. Finally, there was evidence of the couple's turbulent relationship, accounts of infidelities, the victim's plans to seek an annulment, and a volatile argument the night of the fire.

ASSIGNMENTS OF ERROR

In this appeal appellant raises twenty-six assignments of error. The majority of this Court has concluded that the error which has occurred with reference to two issues, so substantially and prejudicially violates appellant's right to a fair trial, that the verdict and judgment must be reversed and the case remanded for a new trial. The first issue is the trial court's denial of defense motions for continuances, resulting in insufficient time for appellant to be examined thoroughly by a mental health expert. This violation of due process deprived appellant of the opportunity to explore fully (a) present competency, (b) possible guilt phase defenses, (c) penalty phase mitigation evidence, and/or (d) possible exemption from the death penalty because of mental retardation. The second ground for reversal is the trial court's refusal to instruct the sentencing jury to consider as a mitigating factor, "evidence of extreme emotional disturbance not sufficient to constitute a defense," under KRS 532.025(2)(b)(2). Because we deem it necessary to reverse this case on these two issues, which will be fully discussed below, we decline to address the remaining allegations of error.

I. WHETHER THE TRIAL COURT'S DENIAL OF DEFENSE MOTIONS FOR CONTINUANCES CONSTITUTED REVERSIBLE ERROR.

It is quite settled that whether to grant a motion for continuance is well within the sound discretion of the trial court. Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616-17, 75 L.Ed.2d 610 (1983), Crawford v. Commonwealth, Ky., 824 S.W.2d 847 850-1 (1992). Thus, a trial court's ruling on a continuance motion will remain undisturbed unless it appears to the appellate court that, in overruling the motion, there was a clear abuse of judicial discretion such as to deny the accused substantial justice. Brashear v. Commonwealth, Ky., 328 S.W.2d 418, 419 (1959), Williams v. Commonwealth, Ky., 644 S.W.2d 335, 336 (1982). "Under some circumstances, however, the facts may be so plain and demanding that a denial of a continuance will be deemed an abuse of discretion ..." and will require reversal. 17 Am.Jur.2d, Continuance Sec. 37 citing Wilson v. Commonwealth, 134 Ky. 669, 121 S.W. 614 (1909). We believe that the facts of the present case in light of the factors set forth in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) and Snodgrass v. Commonwealth, Ky., 814 S.W.2d 579, 581 (1991), compel this Court to reverse.

A. Facts Supporting Motions For Continuance.

On September 6, 1990, the nineteen year old appellant was arraigned on charges of capital murder and first degree arson. A trial date was scheduled for November 5, 1990. On October 9, defense counsel filed a motion for a Kentucky Correctional Psychiatric Center (hereinafter, KCPC) competency evaluation, and two days later, his first motion for a continuance. A formal order granting both motions and continuing appellant's trial date until January 7, 1991 was entered into the record on November 2, 1990.

On December 7, the Commonwealth filed the required thirty days notice that it intended to seek the death penalty. By December 27, less than two weeks before trial, the results of the court-ordered competency evaluation had still not been completed. The trial judge granted defense counsel a second continuance. In the same motion, counsel requested the court to order that the KCPC evaluation include information as to the availability of any defenses or mitigating factors based upon defendant's mental health. On January 10, 1991, the trial court ordered additional evaluation and rescheduled the trial for March 11, 1991.

On December 14, 1990, the KCPC examining psychologist, Dr. Donald Beal, Ph.D., spent three hours evaluating appellant to determine his competency to stand trial. Thus far the court had ordered evaluation with respect to only this question. After the trial court's order of January 10, Dr. Beal spent an additional thirty minutes with appellant, for the purpose of determining the availability of mental health-related defenses and/or mitigating factors.

The first and final KCPC report regarding appellant's criminal responsibility was not filed until February 27, 1991. The report concluded that appellant was competent to stand trial, and was sane at the time of the offense. It did not, however, address either the issue of possible guilt phase defenses or the issue of any mitigating factors that might indicate the impropriety of the death penalty in this case.

While the report was silent as to possible defenses or mitigating factors, the author of the report was not. The court-ordered psychologist contacted defense counsel to report his view that appellant might have some form of extreme emotional disturbance defense. He explained to counsel that he was unable to pursue this possibility in his evaluation because of "[appellant's] vagueness during the clinical interview and ... a tendency to carefully censor his responses to this examiner." It was his opinion that appellant's unwillingness to cooperate was due to his own admonition to appellant (at the start of the interview) that whatever appellant said to him would not be confidential and could be used against him at trial.

This set of circumstances, one week before trial, prompted defense counsel again to move for a continuance based on appellant's mental condition. At a non-evidentiary hearing on March 4, 1991, counsel elaborated to the trial court the basis of his request: (1) that for seven months he had personally observed the steady deterioration in appellant's mental and emotional state, to the extent that counsel seriously doubted appellant's ability to assist in his own defense or to testify in his own behalf; (2) that even the court-ordered psychologist, Dr. Beal, had expressed discomfort with his inability to assess completely appellant's mental condition. Beyond the questions of competency and sanity, Dr. Beal felt that there may be "some problems" that he was not able to reach and explore because appellant was not forthcoming; and (3) that for the above reasons, counsel had been trying for weeks to locate a private psychiatrist to evaluate appellant, ¹ and had finally secured the services of Dr. David Shraberg who was scheduled to evaluate appellant the very next day.

The trial judge overruled appellant's motion. He stated that counsel's observations of "depression, apprehension, or lethargy" were not enough to give grounds for a continuance. Indeed, appearing to dismiss any need for further evaluation of appellant's mental state with respect to possible defenses or mitigating factors, the court stated that the only further evidence it would consider would be testimony that appellant was, in fact, at that time, incompetent to stand trial.

Appellant was tried as scheduled and found guilty on Friday, March 15, 1991. Beginning at this point, there were three further requests for continuances, each citing the critical need for time so that appellant might be examined by Dr. Shraberg. ² Immediately after the jury's finding of guilt, defense counsel moved to postpone commencement of the penalty phase, which was to begin the next working day. The motion was denied. On March 18th, the penalty phase began with a motion for a twenty-four hour continuance, as Dr. Shraberg was immediately available to examine appellant, and could possibly give testimony as to his mental state the following day. Again the motion was denied. Appellant was sentenced to death later that day.

Finally, on April 11, the day of formal sentencing by the Court, defense counsel informed the judge that appellant, in the interim, had been examined by Dr. Shraberg. As grounds for his final...