IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4}(C}, THIS OPINl01'1 IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY16, 2017 NOT TO BE PUBLISHED
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TEVIN DEVON WRIGHT APPELLANT
ON APPEAL FROM FAYETIE CIRCUIT COURT V. HONORABLE KIMBERLYN. BUNNELL, JUDGE NO. 14-CR-00436
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Tevin Wright, conditionally pled guilty to first-degree
manslaughter, tampering with physical evidence, and being a first-degree
persistent felony offender. He was sentenced to 38 years' imprisonment and
now appeals as a matter of right, Ky. Const.§ 110(2)(b). At trial, Appellant
claimed immunity from prosecution pursuant to KRS 503.085 (which provides
criminal and civil immunity for the use of permitted force). However, the trial
court found probable cause existed to conclude Appellant used unlawful deadly
' physical force. In entering his guilty plea, Appellant reserved his right to
appeal the immunity claim. Appellant now raises that claim as the sole issue
on appeal to this Court. For the reasons that follow, we affirm. I. BACKGROUND
One evening, Appellant patronized Diva's Gentlemen's Club with several
friends. Curtis Simmons was also at the club with friends, including Eric
Adams.
At some point in the night, Appellant encountered Adams in the
bathroom. Appellant sold cocaine, and he allowed Adams a sample as a
prospective buyer. After arguing over the cocaine's quality, Adams robbed
Appellant of the drugs at gunpoint. It is unclear exactly what happened
thereafter, but an altercation apparently ensued in the club between Appellant,
Adams, Simmons, and others. Diva's bouncers ejected Appellant and his
friends, who then drove to a different gentlemen's club across town.
However, Appellant did not stay away. Instead, he and his friends
returned to Diva's a few hours later, near closing time in the early-morning
hours. Shortly before Appellant's return, surveillance footage showed Adams
and his girlfriend exit the club and enter their car. The footage then showed
Appellant parking his car next to a black SUV and exiting his car. It turned
out Simmons had parked in front of the same SUV, as the footage next shows
Simmons leaving the club and approaching his car. Appellant and Simmons
appeared to exchange words, and Simmons took off his jacket and placed it on
the hood of his car.
Appellant can then be seen on the footage holding a handgun and
moving behind the black SUV in a crouched position. He rounded the SUV and
shot at Simmons, who retreated behind his own car. Appellant followed and
2 continued shooting until Simmons collapsed behind his car. Appellant and his
friends then returned to Appellant's car and left the parking lot.
In the meantime, Adams left his car and crouched by the fallen
Simmons. Adams then shot a handgun toward Appellant's fleeing car.
Simmons died from the gunshot wounds.
Appellant was arrested about two weeks later in Muncie, Indiana. He
spoke with investigators and was charged with shooting and killing Simmons
and disposing of the gun.
He claimed self-defense and sought immunity from prosecution under
KRS 503.085. The trial court conducted a hearing on his motion to dismiss the
indictment. At this hearing, the Commonwealth called the lead investigator,
Detective Franz Wolff, to testify and introduced the video surveillance footage of
the shooting. The Commonwealth also played portions of the audio recording
of Appellant's statements to police. Following the hearing, the court found
probable cause existed to believe Appellant's use of deadly force was unjustified
and denied the motion to dismiss.
Appellant entered a conditional guilty plea to first-degree manslaughter,
tampering with physical evidence, and being a first-degree persistent felony
offender, and the court sentenced him to a total of 38 years' imprisonment.
The guilty plea was conditioned on his retaining the right to appeal the trial
court's ruling on his claim to immunity under KRS 503.085. He now appeals
that ruling to this Court as a matter of right. See Ky. Const.§ 110(2)(b).
3 II. ANALYSIS
When a claim of immunity is raised under KRS 503.085, the prosecution
may proceed if the court believes "there is probable cause to conclude that the
force used was not legally justified" under the controlling provisions of KRS
Chapter 503. Rodgers v. Commonwealth, 285 S.W.3d 740, 754 (Ky. 2009). The
standard of review of such a determination is whether the trial court had a
"substantial basis" for finding probable cause that the defendant's use of force
was unlawful. Commonwealth v. Lemons, 437 S.W.3d 708, 715 (Ky. 2014).
Probable cause is "a fluid concept-turning on the assessment of
probabilities in particular factual contexts-not readily, or even usefully,
reduced to a neat set of legal rules." Rlinois v. Gates, 462 U.S. 213,232
(1983). It has been defined as "reasonable grounds for belief, supported by less
than prima facie proof but more than mere suspicion." Commonwealth v.
Jones, 217 S.W.3d 190, 200 (Ky. 2006) (quoting United States v. Bennett, 905
F.2d 931, 934 (6th Cir. 1990)) (internal quotation marks omitted). Judges
must consider the totality of the circumstances then known to determine
whether probable cause exists to conclude that a defendant's use of force was
unlawful. Rodgers, 285 S.W.3d at 754-55.
Based on the evidence of record, the trial court had a substantial basis
for finding probable cause existed to believe Appellant's use of force was not
legally justified. The video-surveillance evidence alone provided a substantial
basis for the trial court's finding. It showed Appellant acting as the apparent
initial aggressor and shooting at Simmons, who appeared on the footage to be
4 unarmed. Even after Simmons retreated, the footage showed Appellant follow
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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4}(C}, THIS OPINl01'1 IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY16, 2017 NOT TO BE PUBLISHED
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TEVIN DEVON WRIGHT APPELLANT
ON APPEAL FROM FAYETIE CIRCUIT COURT V. HONORABLE KIMBERLYN. BUNNELL, JUDGE NO. 14-CR-00436
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Tevin Wright, conditionally pled guilty to first-degree
manslaughter, tampering with physical evidence, and being a first-degree
persistent felony offender. He was sentenced to 38 years' imprisonment and
now appeals as a matter of right, Ky. Const.§ 110(2)(b). At trial, Appellant
claimed immunity from prosecution pursuant to KRS 503.085 (which provides
criminal and civil immunity for the use of permitted force). However, the trial
court found probable cause existed to conclude Appellant used unlawful deadly
' physical force. In entering his guilty plea, Appellant reserved his right to
appeal the immunity claim. Appellant now raises that claim as the sole issue
on appeal to this Court. For the reasons that follow, we affirm. I. BACKGROUND
One evening, Appellant patronized Diva's Gentlemen's Club with several
friends. Curtis Simmons was also at the club with friends, including Eric
Adams.
At some point in the night, Appellant encountered Adams in the
bathroom. Appellant sold cocaine, and he allowed Adams a sample as a
prospective buyer. After arguing over the cocaine's quality, Adams robbed
Appellant of the drugs at gunpoint. It is unclear exactly what happened
thereafter, but an altercation apparently ensued in the club between Appellant,
Adams, Simmons, and others. Diva's bouncers ejected Appellant and his
friends, who then drove to a different gentlemen's club across town.
However, Appellant did not stay away. Instead, he and his friends
returned to Diva's a few hours later, near closing time in the early-morning
hours. Shortly before Appellant's return, surveillance footage showed Adams
and his girlfriend exit the club and enter their car. The footage then showed
Appellant parking his car next to a black SUV and exiting his car. It turned
out Simmons had parked in front of the same SUV, as the footage next shows
Simmons leaving the club and approaching his car. Appellant and Simmons
appeared to exchange words, and Simmons took off his jacket and placed it on
the hood of his car.
Appellant can then be seen on the footage holding a handgun and
moving behind the black SUV in a crouched position. He rounded the SUV and
shot at Simmons, who retreated behind his own car. Appellant followed and
2 continued shooting until Simmons collapsed behind his car. Appellant and his
friends then returned to Appellant's car and left the parking lot.
In the meantime, Adams left his car and crouched by the fallen
Simmons. Adams then shot a handgun toward Appellant's fleeing car.
Simmons died from the gunshot wounds.
Appellant was arrested about two weeks later in Muncie, Indiana. He
spoke with investigators and was charged with shooting and killing Simmons
and disposing of the gun.
He claimed self-defense and sought immunity from prosecution under
KRS 503.085. The trial court conducted a hearing on his motion to dismiss the
indictment. At this hearing, the Commonwealth called the lead investigator,
Detective Franz Wolff, to testify and introduced the video surveillance footage of
the shooting. The Commonwealth also played portions of the audio recording
of Appellant's statements to police. Following the hearing, the court found
probable cause existed to believe Appellant's use of deadly force was unjustified
and denied the motion to dismiss.
Appellant entered a conditional guilty plea to first-degree manslaughter,
tampering with physical evidence, and being a first-degree persistent felony
offender, and the court sentenced him to a total of 38 years' imprisonment.
The guilty plea was conditioned on his retaining the right to appeal the trial
court's ruling on his claim to immunity under KRS 503.085. He now appeals
that ruling to this Court as a matter of right. See Ky. Const.§ 110(2)(b).
3 II. ANALYSIS
When a claim of immunity is raised under KRS 503.085, the prosecution
may proceed if the court believes "there is probable cause to conclude that the
force used was not legally justified" under the controlling provisions of KRS
Chapter 503. Rodgers v. Commonwealth, 285 S.W.3d 740, 754 (Ky. 2009). The
standard of review of such a determination is whether the trial court had a
"substantial basis" for finding probable cause that the defendant's use of force
was unlawful. Commonwealth v. Lemons, 437 S.W.3d 708, 715 (Ky. 2014).
Probable cause is "a fluid concept-turning on the assessment of
probabilities in particular factual contexts-not readily, or even usefully,
reduced to a neat set of legal rules." Rlinois v. Gates, 462 U.S. 213,232
(1983). It has been defined as "reasonable grounds for belief, supported by less
than prima facie proof but more than mere suspicion." Commonwealth v.
Jones, 217 S.W.3d 190, 200 (Ky. 2006) (quoting United States v. Bennett, 905
F.2d 931, 934 (6th Cir. 1990)) (internal quotation marks omitted). Judges
must consider the totality of the circumstances then known to determine
whether probable cause exists to conclude that a defendant's use of force was
unlawful. Rodgers, 285 S.W.3d at 754-55.
Based on the evidence of record, the trial court had a substantial basis
for finding probable cause existed to believe Appellant's use of force was not
legally justified. The video-surveillance evidence alone provided a substantial
basis for the trial court's finding. It showed Appellant acting as the apparent
initial aggressor and shooting at Simmons, who appeared on the footage to be
4 unarmed. Even after Simmons retreated, the footage showed Appellant follow
and shoot him several more times before returning to his car and leaving the
Diva's parking lot in haste. This video evidence alone provides the necessary
basis for upholding the trial court's denial of Appellant's motion to dismiss.
That basis is only strengthened by the evidence of the altercation between the
parties earlier that night and Appellant's apparent post-shooting flight to
Indiana.
Although Appellant highlights other evidence he maintains supports his
immunity claim, he cites no authority mandating that we rule in his favor. We
see no need to list that evidence in detail, other than to note that, at best, it
may support an inference that Simmons had also been armed with a handgun
in the parking lot, thus supporting Appellant's self-defense claim. (There was
other evidence refuting this inference as well.)
As this Court made clear in Rodgers, the immunity determination under
KRS 503.085 is to be made based on the then-existing evidence of record, with
the burden being on the Commonwealth to establish probable cause to believe
the defendant's use of force was unlawful. 285 S.W.3d at 755. Furthermore,
Rodgers directly rejected the argument that the statute created a right for the
defendant to counter the Commonwealth's probable-cause showing with his
own proof supporting his claim that the use of force was justified. Id. In other
words, once the Commonwealth meets its probable-cause burden under
KRS 503.085, that ends the inquiry and the prosecution may go forward.
5 Because the trial court had a substantial basis for finding that burden met
here, we uphold its rejection of Appellant's claim to immunity.
III. CONCLUSION
Because the Fayette Circuit Court had a substantial basis for finding
that Appellant's use of deadly physical force was unlawful, it correctly
overruled Appellant's motion to dismiss under KRS 503.085. The judgment of
conviction and sentence on Appellant's conditional guilty plea is therefore
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Robert Chung-Hua Yang Assistant Public Advocate
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
James Daryl Havey Assistant Attorney General