Hunter v. Commonwealth

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JOHN HUNTER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

No. 2022-SC-0186-MR

Supreme Court of Kentucky

April 27, 2023

NOT TO BE PUBLISHED

ON APPEAL FROM PIKE CIRCUIT COURT HONORABLE EDDY COLEMAN, JUDGE NO. 20-CR-00350

COUNSEL FOR APPELLANT Molly Mattingly Assistant Public Advocate

COUNSEL FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Thomas Allen Van De Rostyne Assistant Attorney General

MEMORANDUM OPINION

AFFIRMING

John Hunter was convicted in the Pike Circuit Court of one count of first-degree rape and one count of incest by forcible compulsion. These convictions involved sexual acts against his adult biological daughter, R.A. Hunter was sentenced to twenty years in prison consistent with the jury's recommendation and he now appeals as a matter of right. After careful review, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

In large part, there is little dispute regarding the underlying facts of this case. R.A. is the biological daughter of John Hunter. Hunter separated from R.A.'s biological mother at the time of her birth. Hunter saw R.A. relatively few times throughout her life. His counsel stated in opening he had seen her approximately nine times in her life. Similarly Detective Chase Maynard with the Kentucky State Police testified that R.A. told him she had only seen her father approximately six times in her life. According to R.A., she did not see him often; however, he did send her birthday cards which caused her to long for a further relationship with her father.

By all accounts, R.A. reached out to her father in early 2020 to request his help with the remodel of her home in Pike County. R.A.'s father was in the construction business, and she believed it was a good idea for him to help her with the project. Further, she had an idea that perhaps the two of them could start a construction business. Hunter agreed to come help with the remodel and subsequently stayed in a camper in the backyard of R.A.'s residence.

On the evening of July 2, 2020, R.A. and Hunter went together in a Chevy Blazer to look for a rose bush planted by Hunter's great-grandmother. Hunter drove the vehicle. Hunter told R.A. that they could replant the bush in R.A.'s yard. The two of them had gotten into an argument the night before over a domain name for their company. The excursion to obtain the rose bush was also characterized as a peace mission between father and daughter.

The record also established on the evening of the assault both had been drinking. Hunter was drinking "Twisted Teas" and R.A. also acknowledged drinking vodka shots. While looking for the rose bush, both parties state that Hunter stopped the truck and said they were stuck. At this point the parties' stories differ. R.A. states when she exited the vehicle, Hunter came up to her from behind and grabbed her shorts by the belt loops. He pulled off her pants, and R.A. was scared and startled. She pleaded with him to look at her, hoping it would make him realize what he was doing. R.A. testified that he performed oral sex on her as well as penetrated her vagina with his penis. She stated that he commented "of course she had the best pussy because he made it." (VR 02/07/22; 03:03:49). R.A. was burned by a cigarette on her wrist and between her breasts during the incident. Eventually, the assault stopped when R.A.'s phone rang with her sister calling. She answered the phone but did not tell her sister what was going on at that point because she did not feel safe to do so.

At that time, the assault stopped. Hunter took R.A. home. She testified that he told her she "better wash that thing." (Id. at 03:08:20). R.A. stated her body hurt and she wanted to get her kids out of the house. She further stated she wanted to get warm in a hot bath. Later, she took her kids to her grandmother's, and her sister took her to the hospital. R.A. had her sister pull over at a McDonald's where she called the police to report the incident. She then went to the emergency room.

At the hospital, a specifically trained sexual assault nurse examiner, "SANE," performed an examination. Nurse Cindy Adkins with the Pikeville Medical Center performed the exam and testified at trial. Nurse Adkins had been a nurse for sixteen years and had a sexual assault certification. R.A. testified the exam was very hard for her. She told a story of medical personnel pulling her open and pouring dye on her so photographs could be taken. She testified that she was in pain, her back hurt, and she felt like she had rocks thrown at her.

Nurse Adkins detailed the examination of R.A. She took a blood sample, a vaginal swab, and a buccal swab to preserve any DNA evidence. The nurse also testified she took hair samples. She explained a diagram of the vagina like a clock and noted blunt force trauma and tearing to R.A.'s vagina at twelve-o-clock and six-o-clock. She further photographed the victim's injuries. The vaginal swab tested positive for semen. The DNA analyzed from the swab was consistent with three individuals and both Hunter and R.A.'s DNA were present. The testimony did not indicate if the DNA was from saliva or semen. Notwithstanding the uncertainty of which type of fluid, the father's DNA appeared on the vaginal swab from his daughter.

Kentucky State Police Trooper Chase Maynard also testified at trial. Maynard went to the hospital to interview R.A. after the incident. He also collected the rape kit. Trooper Maynard said that R.A. was banged up, upset, and scared. He stated he took pictures of her injuries. Trooper Maynard testified that R.A. indicated the perpetrator was her father. As a result of his investigation, he obtained an arrest warrant for Hunter. During his testimony, Trooper Maynard also played an interview he conducted with defendant Hunter at the jail. Hunter's Miranda rights were read to him at the beginning of the interview. The jury heard Hunter repeatedly deny the incident. He stated his truck had gotten stuck that day on Bear Fork. He acknowledged he was with R.A., and they were both drinking. Later in the interview, he stated that R.A. was dancing on him. He also testified she said, "spit on it, Daddy, spit on it for me." (Id. at 02:01:25) Hunter stated he suffered from erectile disfunction and did not believe he could have had his penis go inside her. He also stated he could not remember if he took Viagra that day.

Hunter did not testify at trial and the defense did not call witnesses. In arguing jury instructions, the defense requested a lesser-included instruction of sexual misconduct. The trial court ruled it would give a lesser-included instruction of sexual abuse but declined to give an instruction on sexual misconduct. After deliberation, the jury found Hunter guilty of first-degree rape and incest by forcible compulsion. Defense counsel argued that sentencing on both would violate double jeopardy as they arose from the same incident. As a result, the Commonwealth dismissed the incest charge. This left the first-degree rape conviction on the table for the penalty phase. During the penalty, the defense asked for the minimum sentence and the Commonwealth did not make an argument. The jury recommended a penalty of twenty years in prison on the first-degree rape conviction.

Importantly for this review, on February 10, 2022, two days after trial, Hunter's counsel filed a motion to set aside the verdict and for a new trial. In the motion, defense counsel stated the day after trial, counsel for the Commonwealth informed defense counsel that Hunter's statement should have been subject to suppression. The record reflects that Hunter was assigned an attorney on July 6, 2020. Trooper Maynard's interview with the defendant was July 7, 2020. Despite having counsel at the time, Hunter was alone during the interview. Hunter did not make a motion to suppress his statement prior to the trial. Further, Hunter did not object to the statement when it was introduced at trial by the Commonwealth.

Judge Coleman held a hearing on the motion for a new trial. At the hearing, defense counsel argued that the statement influenced her advice to her client not to take the stand. Counsel argued the trial would have proceeded differently without the statement. The Commonwealth argued that there was significant other evidence in the case and the jury's finding did not hinge on defendant's statement. To wit, the jury also heard testimony from the victim and saw photographs of her injuries. The Commonwealth cited the DNA results and testimony from witnesses. The trial court overruled defendant's motion for a new trial. Ultimately, the trial court imposed the maximum sentence of twenty years on the conviction for first-degree rape. This appeal follows.

ANALYSIS

On appeal, Hunter argues two errors. First, the trial court erred by denying his motion for a new trial. This is based upon the argument that Hunter's recorded statement should have been suppressed. Second, the trial court erred in denying the defense's requested instruction for sexual misconduct. We address each argument in turn.

I. The trial court properly denied Hunter's motion for a new trial.

Hunter first argues that the trial court erred in denying the defense's motion for a new trial because the Commonwealth's case relied heavily on a recorded statement that was taken in violation of Hunter's due process rights.

Counsel argues the contents of the recorded statement should have been suppressed because it likely angered the jurors. Rule of Criminal Procedure (RCr) 10.02 governs the trial court's authority to grant a new trial. The rule states "[u]pon motion of a defendant, the court may grant a new trial for any cause which prevented the defendant from having a fair trial, or if required in the interest of...