LOUISVILLE, KY. — A former helicopter mechanic with an elite Army special operations unit was competent to plead guilty and face a death sentence for killing three children and attacking a woman before setting a house on fire, the Kentucky Supreme Court ruled Thursday.
The justices, in a unanimous 140-page ruling, turned away a bid for a new trial by 41-year-old Kevin Wayne Dunlap. Dunlap pleaded guilty in March 2010 to attacking Kristy Frensley at her home in Roaring Springs near Fort Campbell 18 months earlier and killing three children at the home before burning it to the ground. A jury recommended a death sentence.
Dunlap served as a helicopter mechanic with the Army’s 160th Special Operations Aviation Regiment, known as the “Night Stalkers,” based at Fort Campbell, the sprawling military installation on the Kentucky-Tennessee line. Dunlap raised multiple issues on appeal, including challenging the judge’s handling of his guilty plea and the presence of a brain defect discovered just before the scheduled trial date.
The justices found one error by the trial judge, C.A. Woodall III. Woodall asked Dunlap to admit to multiple aggravating circumstances — including kidnapping and arson — along with the murders. Jurors usually are asked to find if aggravating circumstances exist. Aggravating circumstances must be present for a person to be sentenced to death in Kentucky.
Justice Will Scott, writing for the court, found that the error did not affect the outcome of Dunlap’s sentencing.
“The aggravating circumstances were part and parcel of the crimes which he had already pled guilty,” Scott wrote. “Thus, we believe that even if the trial court had not asked (Dunlap) to admit to the aggravating factors, the jury would have easily concluded that these aggravators were satisfied by (Dunlap’s) guilty pleas to the charges underlying them, and still would have imposed the death penalty for each capital conviction.”
Dunlap’s attorneys argued that his capacity to control impulses and make rational judgments was likely impaired by the lack of a right frontal lobe in his brain. Instead of the lobe, Dunlap has a tangle of blood vessels.
The justices were not swayed by the argument.
“There is no evidence that (Dunlap) ever had an issue with impulsivity or judgment,” Scott wrote.
Dunlap approached Kristy Frensley as she worked in the yard and asked to see the house, which was for sale, on Oct. 15, 2008. Once inside, he pulled a gun and zip-tied Frensley’s hands and ankles. When the children came home, he tied them up and put them in a different part of the house.
Killed in the attack were 5-year-old Ethan Frensley, 17-year-old Kayla Williams and 14-year-old Kortney Frensley. A medical examiner determined each of the children died from multiple stab wounds.
After being raped and stabbed, Frensley faked her own death and escaped after Dunlap set the house on fire. The Associated Press does not identify victims of sexual assault, but Kristy Frensley gave her permission during the legal proceedings for her name to be used.
On the eve of trial, Dunlap sought to plead guilty but mentally ill, but also told a judge if that were not possible he would simply plead guilty. Dunlap underwent a competency test and hearing before a judge accepted the guilty plea and was found competent to stand trial.
The justices also ruled that Woodall properly denied Dunlap’s guilty-but-mentally ill plea and in accepting the guilty plea.
The decision makes Dunlap eligible to be executed. Kentucky last carried out an execution in November 2008 and has executed three people since the reinstatement of the death penalty in 1976.
A judge in Frankfort is weighing whether the state has properly adopted a new lethal injection method and if the process passes constitutional muster.