FROM HARLAN CIRCUIT COURT HONORABLE KENT HENDRICKSON, JUDGE
ACTION NO. 14-CR-00080
FOR APPELLANT: Andy Beshear Attorney General of Kentucky S.
Parker Boggs Jonathon C. Lee Special Assistant Attorneys
General Frankfort, Kentucky.
FOR APPELLEE: Russell D. Alred Harlan, Kentucky.
BEFORE: J. LAMBERT, NICKELL, AND TAYLOR, JUDGES.
LAMBERT, J., JUDGE:
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.
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.
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. 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.
order entered March 23, 2016, the trial court granted
Hinton's motion, holding as follows (emphasis in
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 ...