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Commonwealth v. Bennett

Court of Appeals of Kentucky

June 22, 2018



          BRIEFS FOR APPELLANT: Andy Beshear Attorney General of Kentucky Dorislee Gilbert Special Assistant Attorney General Louisville, Kentucky

          BRIEF FOR APPELLEE: G. Murray Turner Louisville, Kentucky



          NICKELL, JUDGE.

         The Commonwealth of Kentucky appeals from a Jefferson Circuit Court order entered January 18, 2017, granting William Bennett's motion to dismiss charges and grant immunity from prosecution under KRS[1] 503.085. After careful consideration, we reverse the dismissal and grant of immunity and remand for reinstatement of the charges.

         The events of this case stem from a shooting following an altercation involving several people. Both parties rely primarily on a video produced from an unrelated ongoing arson investigation. Despite attempts to enhance this video, it is of poor quality and lacks audio. Bennett and the Commonwealth each contend the video supports their respective arguments.

         The relevant facts of this case are described in the Bill of Particulars:

[William Bennett] was involved in a verbal altercation with the victim [sic] Shelby Deutsch. [Bennett] became involved in a physical altercation with Michael Turner. [Bennett] fired a gun and Shelby Deutsch was shot in the face. Michael Turner and another witness, Tiffany Jecker, were standing between [Bennett] and Deutsch and were placed in substantial danger when the gun was fired.

         Bennett and Deutsch began arguing during the latter's birthday celebration at his home. The argument revolved around Bennett's relationship with Deutsch's daughter. Bennett left the party and returned with his cousin an hour later, at Deutsch's request. Soon after his return, Bennett and Deutsch resumed arguing. The altercation moved to the front yard. Eventually a heated verbal exchange took place when three other family members joined Deutsch and his daughter and surrounded Bennett's car. The verbal altercation turned physical when Turner rushed at Bennett, shoving him against the side of his car and punching him. At some point, Bennett drew his gun and fired. The bullet struck Deutsch in the face, grazing his cheek. After the shot was fired, one of the participants, possibly Turner, wrestled Bennett to the ground and pinned him down for about five minutes until police arrived.

         After the initial police investigation, a Jefferson County grand jury indicted Bennett on one count of first-degree assault[2] and two counts of first-degree wanton endangerment.[3] He was arraigned in circuit court on the direct submission indictment. Bennett then filed a motion to dismiss, claiming immunity on self-defense grounds under KRS 503.085. The trial court heard arguments and set an evidentiary hearing on the issue. The Commonwealth moved the trial court to reconsider. After hearing argument on whether to hold an evidentiary hearing, Senior Status Judge Steve Mershon entered an order denying immunity and the motion to dismiss. Bennett then moved the court to reconsider the order denying immunity. After an additional hearing, the trial court set aside the order denying immunity, and again set the motion for an evidentiary hearing.

         The Commonwealth sought a writ of prohibition in this Court to prevent the evidentiary hearing. Deciding the Commonwealth had an adequate remedy by appealing from the trial court's interlocutory order, the writ was denied. The Supreme Court of Kentucky reversed denial of the writ and prohibited the trial court from setting an evidentiary hearing and allowing Bennett to present his defense and introduce new witness testimony on his behalf. Commonwealth v. Eckerle, 470 S.W.3d 712 (Ky. 2015). On remand, the trial court heard arguments on Bennett's motion to dismiss, then entered an opinion and order finding immunity and granting dismissal. This appeal followed.

         The standard of review for immunity claims under KRS 503.085 is whether a substantial basis supports the trial court's findings of fact. Commonwealth v. Lemons, 437 S.W.3d 708, 715 (Ky. 2014). On appellate review, this Court must establish whether the trial court, after using a totality-of-the-circumstances analysis, had a substantial basis for finding probable cause. Id. (citation omitted). The prosecution has the burden of proving "there is probable cause to conclude that the force used was not legally justified." Rodgers v. Commonwealth, 285 S.W.3d 740, 754 (Ky. 2009). Probable cause has been defined as "reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion." Lemons, 437 S.W.3d at 715 (citation and internal quotation marks omitted).

         KRS 503.085 requires the Commonwealth establish probable cause of unlawful use of force using the then-existing evidence of record. "The burden is on the Commonwealth to establish probable cause and it may do so by directing the court's attention to the evidence of record including witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record." Rodgers, 285 S.W.3d at 755. There is no corresponding right for the defendant to oppose the Commonwealth's proof of probable cause with his ...

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