Commonwealth v. Eckerle, 2014–SC–000027–MR

• Decision Date: 24 September 2015
• Docket Number: 2014–SC–000027–MR
• Parties: Commonwealth of Kentucky, Appellant v. Hon. Audra J. Eckerle, Judge, Jefferson Circuit Court, Appellee and William Bennett, Real Party In Interest
• Court: United States State Supreme Court — District of Kentucky

470 S.W.3d 712

Commonwealth of Kentucky, Appellant

v. Hon. Audra J. Eckerle, Judge, Jefferson Circuit Court, AppelleeandWilliam Bennett, Real Party In Interest

2014–SC–000027–MR

Supreme Court of Kentucky.

RENDERED: SEPTEMBER 24, 2015

Counsel for Appellant: Jack Conway, Attorney General for Kentucky, Dorislee J. Gilbert, Special Assistant Attorney General, Hon. Audra J. Eckerle, Judge, Jefferson Circuit Court.

Counsel for Real Party in Interest: G. Murray Turner, Turner Coombs & Malone, PLLC, Louisville.

Opinion

OPINION OF THE COURT BY JUSTICE ABRAMSON

This writ action arises from the criminal prosecution of Real Party in Interest William Bennett for first-degree assault and wanton endangerment. Bennett, contending he acted in self-defense and is immune from prosecution under Kentucky Revised Statute (KRS) 503.085, moved for dismissal of his indictment on immunity grounds and requested an evidentiary hearing. A review of the record reveals that Bennett was merely requesting a hearing so that the circuit court judge could view an enhanced videotape of the encounter that led to the criminal charges and not that he be allowed to call witnesses. A senior judge, presiding in Respondent's stead and acting pursuant to Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009), reviewed evidence of record, including a videotape, and concluded that there was probable cause to believe that the force Bennett used was not legally justified. Hence, he denied the motion to dismiss. On reconsideration and without reviewing the videotape or other evidence of record, the Respondent set aside the senior judge's order and scheduled an evidentiary hearing on immunity, indicating her belief that Bennett was entitled to such a hearing and her interest in hearing from the witnesses. After asking Bennett's counsel if he would be issuing subpoenas and receiving an affirmative response, the Respondent scheduled a hearing at which witnesses, including the victims, are to appear and testify.

The Commonwealth promptly sought a writ, which the Court of Appeals denied, concluding that the Commonwealth had an adequate remedy by appeal. We find that the Respondent erred in not first considering the evidence of record (numerous witness statements from the victims, the defendant, and other witnesses as well as a videotape of the incident) to determine if there was probable cause to believe the force Bennett used was unlawful. In cases where the evidence of record is too limited for a circuit court to make that threshold determination, then a probable cause hearing may be appropriate but courts are not at liberty to bypass summarily the procedure outlined by this Court in Rodgers, a procedure designed to balance the important immunity shield with the equally important interest in having the elements of a criminal charge decided by a jury where probable cause is present. Under our writ jurisprudence, there is no adequate remedy by appeal where the trial court's erroneous action will result in a “substantial miscarriage of justice,” and “correction of the error is necessary and appropriate in the interest of orderly judicial administration.” Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961). As outlined below, that standard is met here and a writ is appropriate. Because a full understanding of this matter entails appreciating the relevant facts in the criminal prosecution, we begin with a statement of those facts.

RELEVANT FACTS

On September 1, 2012, a group of people gathered at the home of Shelby Deutsch in celebration of his birthday. Bennett, who dated Deutsch's daughter Jericka Deutsch, was in attendance. Before the evening was over, an altercation ensued involving several people. Bennett fired a shot from his gun and the bullet struck Shelby Deutsch in the mouth, exiting his ear. A Louisville Metro Arson camera on a utility pole across the street recorded the incident. These basic facts are not in dispute.

Approximately two months later, Bennett was indicted for first-degree assault as to Shelby Deutsch and two counts of first-degree wanton endangerment as to Michael Turner and Tiffany Jecker, individuals present at the Deutsch home that night. In his motion to dismiss on immunity grounds and request for evidentiary hearing, Bennett contended that “police made the decision to charge the Defendant with little or no investigation and prior to viewing the video which clearly shows that Defendant acted in self protection.” After discussing this Court's Rodgers decision and the applicable probable cause standard, Bennett's motion concluded with the following: “A simple view of the video of the events in this case clearly shows that the Defendant was under attack and acted in self-protection and thus the force used herein [was] legally justified.” In response, the Commonwealth noted that it had filed discovery in the case, including the videotape as well as statements from victims and witnesses taken shortly after the shooting, and requested that the trial court determine the immunity issue on the evidence of record as directed in Rodgers.

The trial court initially scheduled an April 22, 2013 hearing. At that hearing, the Commonwealth and the defense were both prepared to play videos of the incident, with the Commonwealth apparently relying on the original unenhanced videotape and the defense having an enhanced videotape of higher quality. A review of the hearing reveals that both counsel intended to rely on their respective videos and arguments regarding the evidence of record. Without viewing either videotape, Respondent opined that an evidentiary hearing with live testimony was necessary in order for the Commonwealth to meet its burden of proof and scheduled a hearing for July 22.

The Commonwealth made a motion to reconsider, and at a May 31 hearing on that motion Senior Judge Steve Mershon, sitting in Respondent's stead, heard arguments of counsel. Three days later, after reviewing “all discovery, particularly including the videotape,” Judge Mershon issued a five-page order denying Bennett's motion to dismiss. His factual findings were as follows:

Having reviewed the discovery, the Court finds that there is probable cause to believe, in fact, that on or about September 1, 2012, William Bennett and his girlfriend, Jericka Deutsch, were at a family gathering celebrating the victim's birthday. Following a gathering for pizza, the parties returned to the Deutsch residence. At some point in the early evening, Mr. Deutsch and Mr. Bennett began arguing about Mr. Bennett's relationship with Jericka Deutsch. The two men stepped outside and the verbal argument continued. Mr. Bennett left the gathering and came back with a gun a short time later with another male, Brandon Haycraft.

Mr. Deutsch and Mr. Bennett began verbally arguing again. The argument moved out to the front of the house. At some point, a group was gathered in front of the house around William Bennett's car. Mr. Bennett was standing outside the car, and Brandon Haycraft was sitting in the front passenger seat of the car. The group out front consisted of Mr. Deutsch, Jericka Deutsch, Justin Deutsch, Michael Turner, Tiffany Jecker and Brandon Haycraft (in the car). At some point, Michael Turner lunged toward the Defendant and grabbed him by the shirt collar. William Bennett produced a gun and fired a shot. The bullet hit Shelby Deutsch. The bullet traveled into his mouth and exited his ear with minor damage. By pure coincidence, Louisville Metro Arson had a camera on the telephone pole across the street, and it was able to capture the incident. The Court has watched the video several times. Although the video is grainy and shot from a distance, witness statements seem to confirm that in the seconds before Michael Turner lunges towards Mr. Bennett, the situation seems relatively calm. The video shows one individual with his hands folded behind his head. The victim appears to be seen with both hand casually in his pockets, and there is a woman standing close to Mr. Bennett casually smoking a cigarette. Shortly after Michael Turner lunges towards William Bennett, it appears that the victim, Shelby Deutsch, can be seen trying to pull Mr. Turner off of Mr. Bennett. Shortly thereafter, it appears that Mr. Bennett pulls out a gun and shoots Mr. Deutsch. It appears that someone disarms Mr. Bennett and holds him on the ground until the police arrive.

(emphasis in original). Following a discussion of Rodgers, the order concludes with the following analysis:

The Court understands that Mr. Bennett may have a different version of the facts recited above. He could well argue that some of the witness statements do not comport completely with the video. However, this Court's role is only to determine if there is probable cause to believe that: (1) a crime was committed; (2) Mr. Bennett committed the crime; and (3) the force used by Mr. Bennett was not fully justified under the controlling provisions of KRS Chapter 503. Based upon a review of the discovery, the Court finds probable cause as to all three.

The Court reaches these conclusions even before viewing the videotape. Several witnesses confirm that Mr. Bennett left the Deutsch residence after the initial confrontation. He was obviously in no danger and left without harm. However, he returned to the Deutsch home sometime later with another individual and with a gun .¹ There is probable cause to believe that any claim to self defense would have ended when Mr. Bennett safely exited after the original verbal altercation.

Even if the altercation had happened immediately upon his leaving, and immediately during or following the verbal altercation, the Court would reach the same conclusion. The videotape appears to show brief pushing and shoving and maybe a fist thrown for at most several seconds before the gun is pulled and Mr. Deutsch is shot. As reflected above, the videotape seems to reflect (there is no audio) that the situation was relatively calm just seconds before the

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