Attorneys argue evidence validity in Dunlap case
by Franklin Clark --
May 27, 2009 | 0 0 comments | 4 4 recommendations | email to a friend | print
SMITHLAND – It will be some time before Judge C.A. “Woody” Woodall decides whether to exclude audiotapes depicting a law enforcement interview with Roaring Springs triple-murder suspect Kevin Wayne Dunlap. At the heart of the defense’s argument Friday was a question asked of Dunlap during the execution of a search warrant on his Hopkinsville residence.

At an evidence suppression hearing held Friday at the Livingston County Justice Center in Smithland, Woodall gave Trigg Commonwealth’s Attorney G.L. Ovey 10 days, which started on Tuesday, May 26, to prepare a written case explaining why the tapes shouldn’t be suppressed, and gave Dunlap’s defense council, James Gibson, 10 days after that to prepare a written case for suppressing the tapes.

Woodall said he will make a ruling on the matter by the next pre-trial conference, to be held at the same place at 9 a.m. Friday, July 17. However, Ovey said he thinks the ruling will probably be made shortly after the 20 days.

Three Kentucky State Police detectives testified that when the KSP’s Special Weapons and Tactics team and the other officers searched Dunlap’s residence, a KSP Detective Sergeant Sam Steger asked him one question, asking if he knew why they were there. According to them, Dunlap said they were there because of “the Roaring Springs incident.”

However, Steger and KSP Detectives Jerry Jones and Steven Silvies also testified that Dunlap hadn’t been Mirandized prior to being asked that question. Steger said Dunlap was then restrained with flex cuffs and taken to the Christian County Sheriff’s Office.

Gibson argued that asking that question without reading Dunlap his rights was a “taint” on the entire line of questioning, including the five-hour interview at the CCSO, even though he was Mirandized prior to being interviewed there.

As legal precedent for his argument, Gibson cited the 1980 U.S. Supreme Court case Rhode Island vs. Innis. Ovey later disputed Gibson’s interpretation of that ruling.

“I don’t believe that is an interrogation, what was asked,” Ovey said of the question in contention after the hearing.

Jones testified that he read Dunlap his rights prior to taking him to the interview room, and then Dunlap signed a waiver that stated he understood his rights.

When Ovey asked Steger if the question he asked during the execution of the search warrant was typical and he said yes. Gibson asked him if he was required by law to ask that question. Steger said he wasn’t, but did routinely ask it during a search warrant situation.

Ovey, and the detectives that testified, argued that the one question asked during the execution of the search warrant didn’t count as an interrogation, and as a result it wasn’t necessary to read Dunlap his Miranda rights at that point.

“Anytime a statement is suppressed, it’s always significant, because you always want to have the flexibility to use any type of statements,” Ovey said when asked about the possibility of the tapes being suppressed. “But, in the final analysis, if the court was to suppress, we can still proceed.”

Ovey also said that Gibson is an “outstanding” attorney, and added that he wouldn’t have filed any kind of motion unless he thought that motion was legally valid.

Dunlap, 37, was charged in November last year with the Wednesday, Oct. 15, murder of Kayla Elayne Williams, 17, Kortney Lan McBurney-Frensley, 14, and Ethan Zane Frensley, 5, and the attempted murder of their mother, Kristy Frensley, as well as rape, kidnapping, burglary and tampering with evidence.

According to police, Dunlap not only murdered the three children but raped and tried to kill the mother, left her for dead and then set the house on fire in order to destroy evidence and cover up his actions.

Paramedics reportedly found Frensley in a pool screaming for help; she had tripped and fallen into the pool while trying to leave after the house was set on fire.

Reporters, law enforcement and a few family members were present, but Frensley, who had been at a pre-trial hearing last month, did not attend.

The location of all proceedings in the case was changed from Trigg to Livingston County on Monday, March 30, according to a document that was signed by Woodall, Ovey and Gibson.

The criminal trial will be begin at the same place at 9 a.m. on Monday, Nov. 9. Ovey has said that he will seek the death penalty in this case.

Dunlap is being held in Christian County Jail.
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