FROM JEFFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE,
JUDGE ACTION NO. 12-CR-003414
FOR APPELLANT: Andy Beshear Attorney General of Kentucky
Dorislee Gilbert Special Assistant Attorney General
FOR APPELLEE: G. Murray Turner Louisville, Kentucky
BEFORE: DIXON, NICKELL, AND THOMPSON, JUDGES.
OPINION REVERSING AND REMANDING
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 503.085. After careful consideration,
we reverse the dismissal and grant of immunity and remand for
reinstatement of the charges.
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.
relevant facts of this case are described in the Bill of
[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.
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.
the initial police investigation, a Jefferson County grand
jury indicted Bennett on one count of first-degree
assault and two counts of first-degree wanton
endangerment. 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.
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.
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).
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 ...