LEXINGTON — A Fayette circuit judge denied a motion by Steve Nunn’s defense attorneys Thursday to exclude consideration of the death penalty in his trial on charges he shot and killed his former fiancée.

Nunn, a former legislator, candidate for governor and the son of former Gov. Louie B. Nunn, is charged with the shooting of 29-year-old Amanda Ross last Sept. 11. At the time, Nunn was under a protective domestic violence order that prohibited contact with Ross and that is considered an aggravator under Kentucky’s death penalty law.

Ironically, Nunn was a co-sponsor of the measure that made violation of a DVO an aggravating offense in the commission of murder.

But his attorney, Bette J. Neimi, argued a domestic violence order requires only a “preponderance of evidence,” a much lower standard than “beyond reasonable doubt,” the standard for criminal offenses.

“I do not believe an aggravating circumstance, which would allow a jury to take a life based on only preponderance, carries the degree of reliability required under the constitution,” Niemi said.

But Kathy Phillips of the Fayette County Commonwealth’s Attorney’s office argued the aggravating factor is the alleged perpetrator’s violation of a valid court order. Whether the order was right does not remove the knowledge of the person under it that he cannot violate the court’s order. Judge Pamela Goodwine agreed.

The ruling ended a day-long hearing on a series of motions by the defense to suppress evidence gathered in searches of the vehicle Nunn was driving the day of Ross’ death, a search of his home in Glasgow and statements he made to a Kentucky State Police detective while he was being treated for self-inflicted wounds at the Bowling Green Medical Center following his capture.

Goodwine delayed her ruling on the motions to suppress until attorneys on both sides submit follow-up briefs.

At issue are photographs and digital documents contained in a box Nunn left with a Glasgow friend, Johnny Hutchinson; a folder found on the passenger seat of the car Nunn was driving, and information on a computer hard drive seized from Nunn’s house.

The defense wants them excluded, contending the search warrants were invalid.

Ross was found shot outside her Lexington townhouse early on Sept. 11, 2009. Police began searching for Nunn, subsequently finding him in the small rural Hart County cemetery where his parents are buried. He had cut his wrists and he was covered in blood. KSP officers testified Nunn fired a pistol when they confronted him and they initially thought he had shot himself but the bullet missed his body.

“I guess I’m not a very good shot,” Nunn told KSP Trooper Lonnie Hodges, according to Hodges’ testimony Thursday.

Hodges, KSP Detectives Tim Adams and Todd Combs, who interviewed Nunn at the hospital, said Nunn was informed of his constitutional right to remain silent and said he did not want to make a statement. He didn’t request an attorney.

Niemi questioned Combs at length about his interview with Nunn in the emergency room of the hospital and the prosecution played a digital recording made by Combs of the conversation.

“I tried to end my misery today and was unsuccessful,” Nunn told Combs. Nunn did not confess to shooting Ross.

Seated in the gallery was Diana Ross, the mother of the victim. Nunn sat with his attorneys, Warren Scoville and Niemi. He was clean-shaven and dressed in a dark blue, pinstriped suit, a suit once worn by his father and in which Steve Nunn announced he was running for governor in 2007.

He wore ankle shackles and listened intently to testimony from six witnesses, one of whom portrayed Nunn as “truly hopeless” in the days leading up to the events of Sept. 11.

Lisa Wright works for the Cabinet for Health and Family Services. Nunn was deputy secretary of the cabinet and Wright’s second line supervisor when Ross obtained the protective order against Nunn. He resigned his position after having been placed on administrative leave.

Wright said she spoke frequently with Nunn after that, “just trying to lift up a person you respect and care for.” She said he became depressed and felt like he had lost everything – status, power, reputation, and income – and thought he hadn’t gotten a fair hearing in the domestic violence dispute.

She said Nunn displayed “hopelessness and an overpowering loneliness” and told her he “might be worth more dead to his daughters than alive.”

As she left the courtroom after testifying, Wright reached out and patted Nunn on his hand as she passed the defense table.

Ronnie Ellis writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/ cnhifrankfort.