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Commonwealth v. HInton

Court of Appeals of Kentucky

April 28, 2017

COMMONWEALTH OF KENTUCKY APPELLANT
v.
REX HINTON APPELLEE

         APPEAL FROM HARLAN CIRCUIT COURT HONORABLE KENT HENDRICKSON, JUDGE ACTION NO. 14-CR-00080

          BRIEF FOR APPELLANT: Andy Beshear Attorney General of Kentucky S. Parker Boggs Jonathon C. Lee Special Assistant Attorneys General Frankfort, Kentucky.

          BRIEF FOR APPELLEE: Russell D. Alred Harlan, Kentucky.

          BEFORE: J. LAMBERT, NICKELL, AND TAYLOR, JUDGES.

          LAMBERT, J., JUDGE:

         The Commonwealth of Kentucky has appealed from the order of the Harlan Circuit Court granting Rex Hinton's Kentucky Rules of Evidence (KRE) 504 motion to assert the spousal privilege in his criminal prosecution for Torture of Dog or Cat in violation of Kentucky Revised Statutes (KRS) 525.135. Because we agree with the Commonwealth that the trial court erred as a matter of law in granting Hinton's motion, we vacate the order on appeal.

         In April 2014, Kentucky State Police Trooper Jimmy Halcomb filed a criminal complaint against Hinton, stating that the previous month Hinton had burned the family's cat alive "by throwing it into a burning wood stove" and that "[t]his conduct constitutes the intentional infliction of intense physical pain, injury and ultimate death to the cat. The manner of torture was motivated by the intent to increase, maximize and prolong the pain of the family pet." Hinton was arrested pursuant to a warrant, and the matter was waived to the grand jury. The Harlan County grand jury returned a one-count indictment against Hinton charging him with Torture of Dog or Cat causing serious injury or death pursuant to KRS 525.135, a Class D felony. A trial date was scheduled for early 2016.

         Prior to the trial date, Hinton filed a notice and motion to assert the spousal privilege pursuant to KRE 504(a) and KRE 511(b) in order to prevent his wife, Brenda Schoonover, from being compelled to testify against him. In its response, the Commonwealth objected to the motion, citing an exception to the privilege set forth in KRE 504(c) because the subject of the prosecution was the personal property of the other spouse and arguing that the statements were not confidential pursuant to KRE 504(b) and therefore not subject to the privilege. Schoonover made statements to Trooper Halcomb that Hinton had grabbed the cat and threw it into the wood burning stove. She got the cat out of the stove, but the cat had died.[1] Hinton later filed an affidavit from Schoonover stating that the cat was not a family pet, but belonged to Hinton, who had rescued the cat from a gas station. Hinton also filed a marriage certificate establishing that he and Schoonover were married in September 2013 in Virginia.

         By order entered March 23, 2016, the trial court granted Hinton's motion, holding as follows (emphasis in original):

Defendant has filed notice of his intent, and a motion, to assert the spousal testimonial privilege provided in KRE 504(a). The Commonwealth has filed a response and objection, arguing that the exceptions to the spousal communications privilege in KRE 504(b) apply. They do not. The KRE 504(a) testimonial privilege states:
(a) Spousal testimony. The spouse of a party has a privilege to refuse to testify against the party as to events occurring after the date of their marriage. A party has a privilege to prevent his or her spouse from testifying against the party as to events occurring after the date of their marriage.
The testimonial privilege is absolute. A defendant may invoke it and prevent his spouse from testifying, period. Whether a third party may testify to what a non-defendant spouse has said, pursuant to the exceptions to the communications privilege listed in KRE 504(b), is not before the Court at this time.
Therefore, IT IS HEREBY ORDERED that, pursuant to KRE 504(a), Defendant's wife shall not be allowed to ...

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