Opinion
NO. 2017-CA-001521-MR
11-30-2018
MARDY JONES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: John Gerhart Landon Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HART CIRCUIT COURT
HONORABLE CHARLES C. SIMMS III, JUDGE
ACTION NO. 16-CR-00171 OPINION
AFFIRMING
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BEFORE: COMBS, D. LAMBERT, AND SMALLWOOD, JUDGES. COMBS, JUDGE: Mardy Jones entered a conditional guilty plea to reckless homicide and reserved his right to appeal the order of the Hart Circuit Court denying his motion to dismiss the indictment. After our review, we affirm.
Kentucky Revised Statutes (KRS) 507.050.
On December 6, 2016, Mardy was indicted for first-degree murder. He was charged with causing the death of his half-brother, Ronald West (Ron), by shooting him seven times on August 7, 2016. This incident occurred at Mardy's residence in Horse Cave, Kentucky, where he lived with his brother, Ralph Jones, and Ralph's girlfriend, Colleen Stovall. Mardy's half-brothers, Ron and Ernie West, lived next door.
Mardy and Ron had a contentious relationship with one another. Members of law enforcement were often dispatched to de-escalate arguments between the two, and there was a history of Mardy's and Ron's seeking emergency protective orders against one another from the Hart District Court.
On August 6, 2016, Ron used the washing machine at Mardy's residence and refused to compensate Mardy for the use of his utilities. Mardy subsequently threw Ron's washed clothes onto Ron's driveway. Mardy claims that Ron later knocked on Mardy's door and stated, "I'll get you mother . . ."; Mardy refused to answer the door.
Later that evening, Mardy rode with Brian Ash and his daughter, Patience Nunn-Doyle, to a liquor store to purchase beer. During this car ride, Mardy allegedly stated to Ash: "When I found Ron hanging, I should have left him hanging." Mardy returned home and consumed twelve beers before going to sleep on the couch in his living room.
This statement refers to Mardy's coming to Ron's aid when he had attempted suicide by hanging.
The following morning, Mardy was awakened by Ron, who was strangling him. According to Mardy, Ron stated, "one way or another, I'm going to kill you mother...." During this struggle, Mardy retrieved his 9 millimeter firearm from a nearby table and fired multiple shots, causing Ron's death. Mardy also sustained a self-inflicted gunshot wound on his arm. During the investigation that ensued, it was discovered Ron's postmortem blood toxicology was 0.269% and that the postmortem vitreous ethanol concentration was 0.298%. Hence, Ron was highly intoxicated at the time of this incident. Mardy was not apprehended until January 17, 2017.
On April 28, 2017, Mardy moved for the trial court to dismiss the indictment pursuant to KRS 503.085, which allows for immunity from prosecution if the physical force used was justified. After the parties submitted arguments to the court and upon review of the evidence of record, the trial court entered an order denying Mardy's motion to dismiss. The trial court found that the Commonwealth established probable cause that the force used by Mardy was unlawful, and that, therefore, Mardy was not entitled to statutory immunity from prosecution on the basis of self-defense. Mardy then entered a conditional guilty plea to reckless homicide, and the trial court sentenced him to five years of imprisonment. This appeal followed.
KRS 503.085 provides that a person who uses force in self-defense is immune from criminal prosecution unless "there is probable cause that the force that was used was unlawful." Therefore, the Commonwealth bears the burden of proof. The Commonwealth can satisfy this burden through the available evidence of record, "including witness statements, investigative letters prepared by law enforcement officers, photographs[,] and other documents of record." Rodgers v. Commonwealth, 285 S.W.3d 740, 755 (Ky. 2009). Upon appellate review of immunity claims under KRS 503.085, "this Court must establish whether the trial court, after using a totality-of-the-circumstances analysis, had a substantial basis for finding probable cause." Commonwealth v. Bennett, 553 S.W.3d 268, 270 (Ky. App. 2018) (citing Commonwealth v. Lemons, 437 S.W.3d 708, 715 (Ky. 2014)). Probable cause has been defined as "reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion." Lemons, at 715 (citation and internal quotation marks omitted).
KRS 503.050, 503.055, 503.070, and 503.080 set forth the types of physical force that are justified.
In denying the motion, the trial court specifically found that: (1) the Commonwealth had evidence that Mardy may have wanted Ron dead and so stated within twenty-four hours preceding the incident; (2) there was no evidence that Ron brandished a weapon or mentioned that he had one; (3) other than the self-inflicted gunshot wound, there were no other injuries to Mardy; (4) there were four bullet holes in the floor under Ron's body, and there was a statement that a delay was heard between two or three gunshots and the remaining gunshots; (5) Mardy made incriminating statements to law enforcement, referencing his anger toward Ron; and (6) Mardy fled the Hart County area following this incident.
Mardy argues that the unlawful presence of Ron in his home justified his use of force. This contention rests upon KRS 503.055 and 503.080. But the question before the court was not whether Mardy acted in self-defense; it was whether the Commonwealth had established probable cause that the force was unlawful. The Commonwealth met its burden on that issue. Thus, the defendant was not statutorily immune from prosecution. Rodgers, 285 S.W.3d at 754-55. Furthermore, the Supreme Court has stated that a finding of immunity is precluded even when faced with "conflicting evidence as to whether [the] use of deadly force was justified." Id. at 754. At this stage in the proceeding, any counterarguments from Mardy should have been made at trial and submitted to the trial court in the form of a motion for a directed verdict or to the jury under the proper jury instructions. Ragland v. Commonwealth, 476 S.W.3d 236, 246 (Ky. 2015) (citing Rodgers, 285 S.W.3d at 754).
KRS 503.055 provides that "[a] person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm" if the person against whom the defensive force was used unlawfully and forcibly entered into a dwelling or residence where he did not have the right to be. Subsection (2) of KRS 503.080 makes the use of deadly physical force justifiable if the person against whom such force is used is committing or attempting to commit a felony. --------
In the case before us, the trial court reviewed the evidence of record and had a substantial basis for concluding that there was probable cause that Mardy used unlawful force against Ron. Mardy chose to accept a plea offer from the Commonwealth. Accordingly, the trial court did not err in denying Mardy's motion to dismiss the indictment.
We affirm the judgment of the Hart Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: John Gerhart Landon
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky