ON APPEAL FROM UNION CIRCUIT COURT. HONORABLE C. RENÈ WILLIAMS, JUDGE. NO. 10-CR-00017.
COUNSEL FOR APPELLANT: Brandon Neil Jewell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Kentucky.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General, Jeanne Deborah Anderson, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals, Frankfort, Kentucky.
Appellant, James Hedgepath, was convicted of the murder and repeated sexual
assault of his girlfriend. On appeal, he claims the trial court erred by refusing to suppress evidence against him, by refusing to sever some of his charges, and by excluding recorded statements of the victim's minor children, who could not be found to testify at trial. Finding no error, this Court affirms.
On January 17, 2010, around 10:00 a.m., Hedgepath called 911 and reported that his girlfriend, Mary Reyes, would not wake up. When emergency medical services and police arrived, they found Reyes unconscious, and she was airlifted to the hospital.
The medical staff at the hospital discovered that Reyes had suffered blunt-force trauma to her head that caused a subdural hematoma, respiratory failure caused by lung contusions, fractured ribs, a lacerated spleen, a lacerated liver, and severe bruising all over her body. These findings indicated that Reyes had been severely beaten. She was placed on life-support and eventually died from her injuries.
Meanwhile, Hedgepath told police at the scene that an ex-boyfriend of Reyes had come over when he was not home and had beaten her. Soon after talking to police, Hedgepath left the apartment with Reyes's two young children, supposedly to go to the hospital. But they never arrived at the hospital. It was later discovered that instead of going to the hospital, he took the children to Reyes's mother, Mary Powell, who then took them to their father, Felipe Reyes.
Kentucky State Police Detective Bryan Whittaker went to the hospital to meet Hedgepath for an interview. Detective Whittaker was concerned when Hedgepath did not arrive, in part because he knew that Reyes's children were with Hedgepath and he was suspicious about Hedgepath's involvement in the assault on Reyes. He tried to call Hedgepath on his cell phone, but Hedgepath did not answer. He then contacted AT& T to " ping" Hedgepath's cell phone and find its location. The next morning, January 18, he learned that Hedgepath's cell phone was at a specific apartment complex. He went to the complex and found Hedgepath's vehicle (a Nissan Pathfinder SUV). At that time, Hedgepath called the Kentucky State Police, and the call was patched through to Detective Whittaker, who asked Hedgepath to go to the Kentucky State Police Post in Henderson, Kentucky. Hedgepath did so, driving there in his own vehicle.
Hedgepath was interrogated by Detective Whittaker. He denied any involvement in Reyes's assault, saying repeatedly that he was not at the apartment when Reyes was beaten, that his cell phone could confirm this (presumably referring to call records on the phone), and that the police should check his phone to confirm his story. He claimed that when he arrived at the apartment the night before Reyes was taken to the hospital, she told him that a man named " Bobby" had beaten her but that " everything was cool." He claimed that he and Reyes had a meal together and then engaged in consensual anal, vaginal, and oral sex. He claimed not to have noticed anything unusual, despite extensive bruising on Reyes's buttocks, though he said he saw a bruise on her toe (two of her toes were apparently broken in the assault). Hedgepath was arrested at the end of the interrogation.
As part of the subsequent investigation, discussed in more detail below, police seized Hedgepath's cell phone from his vehicle. The SIM card was missing from
the phone. On the phone, police found ten highly incriminating videos that had been made on January 15, 2010. Though copies of the videos do not appear to have been included in the appellate record, according to the Commonwealth's brief and filings with the trial court, the videos depicted Hedgepath sexually assaulting Reyes (with his penis, mouth, and a bottle), verbally abusing her, lifting her by her nipples, and slapping her on multiple occasions. According to those documents, in several of the videos, Reyes can be heard asking Hedgepath to stop, saying that " it hurts," and asking him not to put the bottle in her.
Hedgepath was indicted on two counts of first-degree rape and two counts of first-degree sodomy, all occurring on January 15, 2010, based on the videos from his phone. He was also indicted for first-degree rape with serious physical injury, first-degree sodomy with serious physical injury, and first-degree sodomy based on his admissions in his interrogation by Detective Whittaker to having had sexual contact with Reyes on January 16, 2010. He was also indicted for murder, tampering with physical evidence, and being a first-degree persistent felony offender.
He moved multiple times to suppress evidence, primarily that found on his phone, and each time the trial court denied the motion. He eventually entered a plea of guilty to murder under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), conditioned on his being able to appeal the issues raised in this case. The other charges were dismissed under the plea agreement. Hedgepath was sentenced to fifty years in prison.
Hedgepath now appeals to this Court as a matter of right, see Ky. Const. § 110(2)(b), as allowed by his conditional guilty plea. Additional facts will be developed below.
Hedgepath raises three claims of error: (1) that the evidence against him, particularly the contents of his cell phone, should have been suppressed; (2) that the charges for the sexual assaults on January 15 should have been severed from those for the sexual assaults and murder on January 16; and (3) that the trial court erred by ruling that recorded statements of Reyes's children that " Bobby Jo" had assaulted their mother could not be introduced at trial. We address each claim in turn.
A. The trial court properly denied Hedgepath's suppression motions.
Hedgepath's suppression claim consists of three sub-claims, each related to a separate suppression motion: (1) that all evidence gathered after the police " pinged" his cell phone should be suppressed as fruits of the poisonous tree; (2) that his SUV was unconstitutionally seized and any evidence discovered from it should be suppressed; and (3) that the search of his cell phone was unconstitutional and evidence from it should be suppressed.
1. The fruit-of-the-poisonous-tree doctrine does not require suppression.
When Hedgepath failed to show up at the hospital, Detective Whittaker contacted
AT& T to initiate a " ping" of Hedgepath's cell phone to determine its real-time location. AT& T required him to submit an affidavit under 18 U.S.C. § 2702, which allows a cell phone provider to divulge information about a customer in various circumstances, including " if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency." 18 U.S.C. § 2702(c)(4). Detective Whittaker complied with this request by filing an " exigent circumstance form" describing the emergency as " 2 missing juveniles ages 5 and 7 in the company of James Matthew Hedgepath who is not their father. Hedgepath is a possible suspect in ...