The Court of Criminal Appeals of Tennessee
At Knoxville

Cunningham gets four years for fatal shooting

Wate.com

Jury finds Cunningham guilty of lesser murder charge

By Catharyn Campbell - Wate.com

October 28, 2005

MARYVILLE (WATE) -- A Blount County mother charged in the shooting death of a man she said raped her young daughter was found guilty of a lesser charge Friday.

The jury deliberated for seven hours Thursday and Friday before finding Kimberly Cunningham guilty of voluntary manslaughter in the death of Coy Hundley.

The jury said she was not guilty of second-degree murder.

Voluntary manslaughter carries a sentence of three to six years in prison or probation. Sentencing is scheduled for December 19.

The jury was handed the case Thursday morning in the trial that began Wednesday. It was the second time she had been on trial on murder charges in Hundley's death.

In April, she was acquitted on a charge of first degree murder. The jury couldn't decide on the lesser charge of second degree murder, prompting a retrial.

Cunningham admitted in both trials she shot Hundley, but said it was in a moment of rage after she had just learned her youngest daughter had been raped twice by her uncle, Coy Hundley, when she was just nine years old.

Wednesday, Cunningham told the jury when she confronted Hundley, 39, he just laughed at her and asked what she was going to do about it.

"I lost myself," she said, but also said she doesn't remember pulling the trigger.

Cunningham's lawyer, Bruce Poston, said he believed the most severe verdict the jury would reach was involuntary manslaughter.

Jury acquits woman of first-degree murder

Knoxville News Sentinel

April 17, 2005

MARYVILLE - After more than 14 hours of deliberations, a Blount County jury on Friday acquitted a mother who killed her daughter's alleged rapist of first-degree murder.

But Kimberly E. Cunningham, 33, of Knoxville is not in the clear. Jurors deadlocked on whether she should be convicted of a lesser charge.

"They're relieved because Mom goes home tonight," defense attorney Bruce Poston said of the Cunningham family's reaction to the jury's announcement. "It was huge that they rendered a (not guilty) verdict on first-degree murder. By eliminating first, a new trial starts at (a charge of) second-degree (murder)."

The difference is vast. A conviction on first-degree murder would have netted Cunningham a minimum 51-year prison term. The maximum sentence for second-degree murder is 25 years.

Cunningham shot Coy Calloway Hundley eight times in the parking lot of Slide Lock Tool Co. on Topside Road in Alcoa in October 2003. Four of those gunshot wounds were to his head.

Blount County Assistant District Attorney General Robert Headrick argued that Cunningham went to Hundley's workplace armed and planning to kill him. He pointed to the fact that she emptied her five-shot revolver and then reloaded and emptied the gun a second time in the fatal shooting.

Headrick could not be immediately reached for comment Friday evening. Hundley's relatives have declined during the trial to comment.

Cunningham has testified that on the day of the fatal shooting she learned that Hundley had allegedly raped her youngest daughter. She contended she only went to his workplace to confront him.

She testified Hundley laughed at her and mocked her. She insisted she did not remember killing him.

She testified that she was already grappling with allegations that Hundley's teenage son had molested that same daughter and her son, and she had gotten a permit to carry a gun after Hundley allegedly threatened her over those allegations.

Poston had urged jurors to acquit Cunningham of any homicide charge, arguing that she was in a "trance-like" state and unaware of what she was doing.

The trial, presided over by Judge Kelly Thomas, was an emotional one, with Cunningham's youngest daughter and son both testifying about alleged molestation. Her husband of 18 years buried his head in his hands during his children's testimony.

Emotions ran even higher when, just two hours after deliberations began Thursday, jurors told Thomas they had a question.

"Does Tennessee have a death penalty?" they wrote to the judge.

The question unnerved Poston and left the Cunningham family in tears.

Thomas answered the panel by saying, "Tennessee does have the death penalty, but the state is not seeking the death penalty in this case."

The jury announced their decision around 6:30 p.m. Friday.

Although Poston said he considered the acquittal a victory, he was shocked the issue of premeditation was even up for debate. At worst, Poston has argued, Cunningham could be convicted of voluntary manslaughter, which is the killing of a person in the heat of passion.

"It still stuns me that when a mother is told her daughter was raped that a jury wouldn't consider that in the heat of passion in terms of the shooting," he said.

Under Tennessee law, there is no one-size-fits-all definition of murder. Instead, there are degrees with each carrying different penalties. The differences revolve around how culpable a person is for a death.

A person who plots to kill someone - the so-called cold-blooded killer - rates the highest charge and the toughest penalty. Next comes second-degree murder, in which a person did not plan a slaying but knew exactly what he or she was doing when committing the murder.

Voluntary manslaughter is the killing of someone in the heat of passion. The man who finds his wife in a compromising position with his best friend and kills them in an eruption of fury is the most familiar example.

Reckless homicide and criminally negligent homicide involve cases where a person's conduct causes death, though that person did not intend to kill anyone.

Thomas set a May 17 status conference on Cunningham's case to determine if prosecutors will seek a trial on second-degree murder charges or if the case can be resolved with a plea agreement.

Knoxville lawyer Bruce Poston and the family of Kimberly Cunningham gather for a hug in the front of a Blount County courtroom. Cunningham was acquitted Friday of first-degree murder in the slaying of Coy Callaway Hundley.

Karns woman on trial for murdering long-time friend

WBIR.com

April 14, 2005

Kimberly Cunningham of Karns says she knew Coy Hundley for 18 years and thought she knew him well until her daughter told her Hundley (her uncle) and his son (her cousin) molested her.

"I wanted to know why he betrayed us," said Cunningham on the stand.

Cunningham's 16-year old daughter testified her uncle and cousin started molesting her when she was 9-years old. In open court, she recounted the first time Coy Hundley touched her.

"I was in his trailer when he asked me to take off my clothes," says the now 16-year old. He took my pants off but left my shirt on. I was wearing a Little Mermaid t-shirt."

Afraid to tell anyone what happened, the teen kept it to herself until her mother pressed her as to why she seemed upset all the time. On October 7, 2003, Cunningham went to where Hundley worked to tell her what her daughter told her. Her attorney Bruce Poston says Hundley's reaction led to his death.

"I told him, 'You raped my daughter,' and he laughed and stepped back and said, 'What are you going to do about it,'" said Cunningham.

Cunningham shot him 8 times.

Murder or Vigilante Justice?

By Chris Francescani - ABCNews.go.com

October 19, 2007

Amanda Cunningham said she vividly recalls the day her Uncle Coy raped her.

"I remember I had my purple Little Mermaid shirt on," she told ABC News. "He told me to take my clothes off, and I said no, so he took them off me."

She was 9 years old. Coy Hundley was drunk, Amanda said, but that wasn't unusual. He would rape her again a few months later, she testified in court.

Nearly five years later, in the fall of 2003, Amanda's mother, Kimberly Cunningham, finally learned of the alleged attacks. What happened next was the talk of Knoxville, Tenn., for years.

Kimberly got into her car and drove to the tool company where Hundley worked. She called him out into the parking lot. Cunningham said that she was praying he would deny the rape. Instead, she said Hundley, 39, laughed at her.

"What are you going to do about it?" he allegedly said.

Kimberly shot him five times, reloaded the weapon and fired five more rounds, killing him.

"I'll never forget him laughing at me," she testified at trial, according to court transcripts.

Witnesses said that after Kimberly shot Hundley, she got back into her car, pulled out of the parking lot and up to the road, put her blinker on and calmly drove away. Forty-five minutes later, she was in the Alcoa, Tenn., Police Department, turning in her nickel-plated revolver and telling police there had been a shooting.

"The person who is a good mother and in control — and I'm a compassionate person — was completely gone," Kimberly told ABC News. "You wouldn't believe how tiny she was," Kimberly said, her voice cracking. "This little thing, she wasn't more than 42 pounds, and for someone to do such vulgar things to her … there [sic] is simply no words to describe what happened … I just totally lost control."

On an audiotape of the police interrogation obtained by ABC News, Kimberly can be heard sobbing. "He raped my baby!" she told police.

In her first trial in April 2005, a Knoxville jury acquitted her of first degree murder, but deadlocked on second degree murder. In a second trial in October 2005, the jury acquitted Kimberly of second degree murder, but found her guilty of voluntary manslaughter. She was sentenced to four years in prison, a sentence that was recently reduced on appeal to six months in prison.

"If she hadn't reloaded that gun," said Carl Eppolito, a juror from the second trial, "I would have let her walk."

For the tight-knit town of Knoxville, nestled in the shadow of the Smoky Mountains, the case posed the thorniest of questions: What would you do if you believed your child had been raped?

He Said They'd 'Never Find My Body'

Kimberly had obtained a gun permit, taken lessons at a firing range and carried a loaded gun in a black purse in her car since August 2003, when she learned that Hundley's eldest son had allegedly molested her son Shane, now 15, as well as Amanda.

After Kimberly reported this to police, the Hundleys threatened her, Kimberly testified. Hundley was the common-law husband of Kimberly's sister Rhonda.

"I was scared of their family," Kimberly said. "They wanted me to drop it, kept telling me that 'it's gonna come out of my a--' if I didn't drop it." She said that Hundley and his friends repeatedly told her that they'd "never find my body."

Feeling helpless and angry, she said, she smashed the windows in Hundley's son's car. When she called Hundley at work, she testified, he told her the vandalism made the two families "even."

Repeated attempts by ABC News to interview Hundley's son were unsuccessful. Evelyn Hundley, Hundley's mother, denied that any molestation or rapes had occurred.

"I just think it's unjust," she said. "I don't believe in the justice system no more. Because she got away with cold-blooded murder."

Though Kimberly contacted police after her children told her they'd been molested, no charges were filed against Hundley's eldest son, according to Evelyn.

Listless and Withdrawn

For nearly five years, Amanda had harbored her secret, and it was beginning to wear on her. Her mother said that the A student had become listless and withdrawn. She remembers Amanda lying on the floor outside her bedroom door, "screaming and crying" until her mother would let her come in and sleep in her bed with her.

"I knew there was something wrong with her, but I didn't know what it was," Kimberly said. Mother and daughter began to fight bitterly, until one day in the early fall of 2003, in utter frustration, Kimberly put her daughter in the backseat of the car and told her she was taking her to the juvenile detention center.

"Why are you acting like this?" her mother pleaded with her. Then she had a thought. "Who is bothering you?" she asked her daughter.

The mother began ticking off the names of the people in town.

"When she got to [Coy's son's] name, I shook my head, yes," Amanda said. Her mother went to the police and then took her young son Shane to McDonald's. He, too, said that Coy's eldest son had been "touching" him.

Kimberly continued to press Amanda, but Amanda couldn't bring herself to tell her mother everything. "I didn't want to tell her because that was more embarrassing to me because he was an adult," Amanda told ABC News. But the secret distressed her, she said.

On Oct. 6, 2003, while her mother was putting Shane to bed, Amanda asked her to come into her bedroom. She said that she had something she wanted to talk about.

'Every Parent's Nightmare'

"I told her I had been having dreams about Coy," Amanda said. "She told me she knew there was more to what I was trying to say."

Amanda finally broke down and told her mother that Hundley had forced her to perform oral sex on him when she was 9 and then raped her. She said he had raped her again after that and threatened her not to tell anybody.

Finally, it all made sense to Kimberly. As Amanda got dressed for school, her mother slowly absorbed the enormity of what her daughter had told her.

"She wasn't like, psychotically out of it or anything," Amanda said. "She just seemed zoned out, like she was thinking about a lot of things."

By the time Amanda got to school, the man she said raped her lay dead in a parking lot, with four bullets in his head and four more scattered throughout his body.

"It's every parent's nightmare," Kimberly's attorney, Bruce Poston, told ABC News. "This case came down to the defense saying, 'What would you do if you were in her shoes?'"

'It Got … Meaner and Meaner'

Linda King, 58, a retired secretary from a General Motors purchasing department in Tennessee, was the final holdout against a first degree murder conviction for Kimberly in the first trial. She told ABC News that she was pressured by the 11-mother, one-father jury to convict Kimberly of first degree murder.

She said that she was called stupid "and worse things," and that at one point the male foreman pounded his fists on the table in front of her and threatened to write a note to the judge saying that she was "illogical, uncooperative and couldn't see the light of day."

"And that's exactly what he ended up doing," King said.

What began as a cordial deliberation in which several of the women felt Kimberly had acted in a moment of extreme passion and should not be charged with murder, devolved into a tense, 11-versus-1 contest of wills.

"It kind of got meaner and meaner," King said, adding that as time passed several of the other jurors became "nasty."

Two other jurors had held out with her into the second day of deliberations, but eventually sided with the others, she said. King said the other jurors told her they "would come down from first degree murder, and so now I had to come up from voluntary manslaughter."

"I told them, 'That's not how this works. It's not a compromise. This is someone's life we're talking about,'" said King. "I said I felt this family had been victimized enough and they needed a chance to recover themselves, and that mother needed to be with those kids."

The rest of the jury appeared to be deeply skeptical of Kimberly's family.

"The jury kept saying to me, 'That man is not here to defend himself,' but I believed what those kids went through," King said. "I really felt that when this had happened the first time, with [Kimberly's] nephew, that she had followed the law. She had tried to go through the system the first time, and I think she would have gone through the system again the second time unless Coy Hundley had reacted the way he did, laughing at her."

Eventually, King said, the tide began to turn. The jury finally voted to acquit Cunningham of first degree murder, but became hopelessly deadlocked on second degree murder. A second trial was ordered.

'It's Wrong to Kill Somebody, but You Want to Protect Your Family'

The first vote during deliberations in the second jury trial was relatively evenly split between convicting on second degree murder and voluntary manslaughter.

"About the only thing we did have an issue with was whether it was premeditated or a spur-of-the-moment thing," said juror David Miles, an electrical engineer.

He said the jury generally agreed from the start that vigilante justice had to be punished, but it was vexed when it came to deciding exactly how to punish a woman who had apparently been through what Kimberly had.

"I think the main feeling was that you shouldn't take justice into your own hands," Miles said of the jury deliberations, before adding, "but on the other side of the coin, if you were thrust into that situation, how would you react? You are brought up that you're supposed to protect your family at all costs, so it's really kind of a mixed thing."

He said he felt that what swayed the second jury toward a voluntary manslaughter charge was the mitigating factor that Kimberly feared Hundley, who had allegedly threatened Kimberly after she went to police to complain that Hundley's son had molested her children.

"Being a father myself, it was very difficult because I wasn't sure I wouldn't have done the same thing," said Miles. "You know, it's wrong to kill somebody, but you want to protect your family and I felt that's where she was at. She felt she was at the end of her rope. She had been dealing with [threats and intimidation] for several months, and when she got that latest piece of news it just broke her spirit. And she felt she had to take care of it."

The Letter of the Law

Another juror from the second trial, Brenda Newman, who retired three years ago from her job in a bank, said she knew from the start that she would have to force herself to put her personal feelings aside and follow the letter of the law.

"I knew the law would be the first priority," she told ABC News. "And that I could not act on my own feelings. I knew that I had to separate the way I felt as to what I might have done from what the law is, so I focused in on that the entire time."

"And it was very difficult,'' she said. "I could relate to her, especially as a mother. But like I said I wanted everything to be completely fair because I knew I had to live with it afterwards. I thought she felt helpless and that she was trying to protect her children. I did not feel like it was planned out. I felt like it was just a moment of passion."

Like Miles and other jurors from the second trial who spoke to ABC News, Newman said the jurors were adamant that they reach a conclusion on the charges in order to spare Kimberly's obviously damaged children from having to take the stand a third time in a third trial.

"Everyone in there agreed that we needed to come to a decision, but we agreed that it had to be one everyone could live with," said Newman.

Kimberly is expected to begin serving her sentence next month. With good behavior, she hopes to be home with her family by January.