BRIAN J. LEMONS V. COMMONWEALTH, 2010-CA-001942-MR, 2012 WL 2360131,
To-be-published, June 22, 2012,
Reversing with directions to dismiss the indictment.
Reviewing the witness statements and police reports underlying Lemons’ KRS 503.085 claim of immunity from prosecution because he acted in self-defense, the Court of Appeals found that “the Commonwealth failed to present sufficient evidence to establish probable cause that Lemons’s use of force was unlawful.” The Court went on to say that “the Commonwealth cannot meet this burden simply by asserting that a jury could reject the defendant's version of the facts. Otherwise, KRS 503.085 would not result in any meaningful change in the law in circumstances where a change was clearly intended.”
Witnesses here disagreed on many things. But several witnesses corroborated that the so-called victim and his two brothers initiated the violence by knocking out Lemons’ friend (chipping three teeth and causing him to bleed profusely from his mouth), and picking up and throwing Lemons’ girlfriend to the ground. No one but Lemons saw what happened next, when the so-called victim swiftly pinned Lemons against a car and Lemons defended himself by sticking him in the shoulder and back with his pocketknife.
Lemons pled to manslaughter and accepted a 14-year sentence conditioned on the appeal of his immunity motion. Had he gone to trial, asserted self-defense, and lost, he could have raised on appeal both the denial of his immunity motion and insufficiency of the Commonwealth’s evidence controverting his claim of self-defense. But a negative jury verdict on self-defense might have clouded the KRS 503.085 issue and made it harder to win.
TRIAL TIP: This case is not final and may well be reviewed by the Kentucky Supreme Court. Meanwhile, even if your case involves complex facts and witnesses who contradict each other, you should be filing pretrial motions under KRS 503.085 to dismiss the indictment when your client has a self-defense/defense of others claim.
Kudos to trial counsel Aaron Currin for raising and preserving this issue.
Contributed by Tom Randell