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April 5, 2013

Davenport DUI case dismissed

People involved appear in court for jury trial Thursday

CORBIN — By John L. Ross / Staff Writer

At 9 a.m. Thursday, most of those involved in a nearly three-year-old DUI case stood in the Whitley County District Courtroom for the latest appearance — the jury trial.

Commonwealth’s Attorney Allen Trimble was there, as special prosecutor, as was Judge Fred White, and former Whitley County Jailer Lloyd Davenport.

White stood at the defense’s table, speaking with Trimble.

No jury was in sight.

Davenport sat in the gallery.

At 9:15 a.m., Davenport’s defense attorney, Jane Butcher, arrived.

After a few moments, Butcher and Trimble left the courtroom, using a door off the gallery.

Members of the Williamsburg Police Department were on hand, including Chief Wayne Bird and the arresting officer, Brandon White.

At 9:25 a.m., Butcher and Trimble emerged, and after a few moments, Butcher took Davenport to the same back room.

At 9:30 a.m., the case began.

Several minutes were spent discussing potential motions, and White said he wanted to hear everything.

With that, Butcher gathered a thick red folder, while Trimble gathered a standard folder, and the two attorneys met at White’s bench.

The first order of business heard by the court was a motion to vacate or amend an order entered March 22.

Butcher explained she never received discovery from the Commonwealth until Trimble was assigned to the case as a special prosecutor in December 2011. “There was no usable discovery,” she said, adding the disks used for discovery were “blank.”

Because of that, and former County Attorney Don Moses’ recusal, White dismissed the case that day, Butcher said, adding “thereafter he signed the order, confirming the ruling.”

According to Butcher, Trimble’s attempt to continue with the case was “outside the 10-day time” limit.

After Moses recused himself, White dismissed the case, despite attempts to enter evidence by Officer White that discovery had been delivered to Butcher’s office. Judge White told Officer White to request the special prosecutor.

That’s how Trimble got involved — he was appointed to this case after a phone call to the Kentucky Attorney General’s office by the Williamsburg Police Department.

Butcher added that Judge White had “no jurisdiction to entertain” any motions on the case because the deadline had been missed by several days that December. “(You) lost jurisdiction (over) this case or to hear this motion,” Butcher said.

She explained that affidavits had been filed proving her point — she had no discovery to assist her in defending Davenport.

The discovery in question is the audio/video recording of Davenport’s arrest captured by the arresting officer’s dashboard camera.

There is an affidavit that Williamsburg Police Chief Wayne Bird gave a copy of the discovery disk to then-Whitley County Attorney Paul Winchester. Butcher said that copy of the discovery disk was blank, which she added is also in her affidavit.

She also said that Winchester’s version of the disk had the video but was without sound — “but I had nothing (on my copy) — it was blank.”

She said that Bird sent another copy of the discovery disk, this one via certified mail.

“(There was) nothing on it again,” she said.

“What I had said (was) I have no ‘usable’ discovery,” Butcher said. “Now I ask that finding be vacated (because) there was no basis to support it.”

She agreed that since she had no usable discovery by the December 2011 trial date, the case should be dismissed. She felt reinstatement was not proper, despite the recusal of the attorney before Trimble, Don Moses, prior to her receipt of the discovery.

With Moses out of the courtroom that day, no attorney was present to represent the state of Kentucky — and Judge White then dismissed the case.

After Trimble was appointed by the state a few days later, Trimble filed paperwork to get the case reinstated — but Butcher contends that filing was after the deadline. “Clearly under the law, it’s not timely,” she added. “(White has) no jurisdiction in the case — we firmly believe that.”

But Trimble felt that decision to dismiss was made without the Commonwealth’s presence. “(We had) no opportunity to present,” Trimble said.

He added the reinstatement order was entered within 10 days of the date of the judge’s dismissal order. “That’s what we went by,” Trimble said. “In (our) motion, we attached where the discovery had been sent (and then) received by Ms. Butcher’s office in August.”

He added that “as a practical matter, it is a benefit to the Commonwealth to provide discovery as early” as possible. “There’s no advantage in not providing or withholding discovery,” he said. “If (the discovery disks) were blank, it was unintentional.”

He said the court’s ruling to reinstate the case was “correct” because the Commonwealth “had no chance to dispute” any of the court findings from the December 2011 dismissal.

“This court retains jurisdiction,” Trimble said.

But Butcher disagreed, and provided White case studies backing that claim. “Mr. Trimble seems to rely on the fact that the Commonwealth wasn’t represented,” she said, adding that the case law was clear — White no longer had jurisdiction over Davenport’s case.

Trimble countered, saying that the case examples Butcher provided were not relevant to Davenport’s case. When Moses recused himself, the court proceeded with dismissing the DUI case.

He added that after his state appointment, his motion to reinstate the case came days later.

“It’s an odd set of circumstances,” Trimble said. “Clearly the court cannot proceed when one side is not represented.”

“There’s no exception to the rule,” Butcher countered, handing copies of the cases to the judge.

As he began to review the papers, Trimble attempted to call the Commonwealth’s first witness.

But White stopped him, saying he wanted to read Butcher’s handout.

Several minutes passed as White reviewed the documents. Then those papers were handed to Trimble for review. A few moments passed, and Trimble said, “This is a brief — it’s not going to do any good here.”

Butcher told him, “the case laws are attached.”

After several minutes, Trimble spoke first. “I can’t see what that case has to do with this case here,” he said.

He then offered the court an alternate way to view the situation. “Look at it in reverse,” he said, suggesting that if the rights of the defendant were possibly violated, the final decision would be different.

“When actions are taken that affects the rights of either (side in a case), (then the actions) are subject to (the) court’s review and interpretation,” Trimble said, adding he filed within the required 10 days of his appointment and the judge’s order.

“I want this (case) resolved today,” White told the attorneys. “This case has (gone) on way too long.”

It was added that Trimble’s argument was based on procedure and what went on in the case. White said that Butcher’s argument is jurisdiction. “That’s not just my argument,” Butcher said. “That was the rule.”

Trimble reiterated that the Commonwealth had no representation in court that day, as Moses had suddenly recused himself from the case.

Moses recused himself because he claimed he “was 15th cousins with the defendant or something like that,” according to White.

Trimble also maintained that the defense team had received discovery. “Many, many times the nature of discovery came from the police department,” Trimble said.

“(That’s) the duty of the prosecutor — to provide discovery,” Butcher said, adding there were two and a half years where the defense was “not provided usable discovery.”

White added that Winchester on two occasions had attempted to provide discovery, and that “the city police department went beyond the call of duty” concerning providing discovery — but reiterated Butcher’s point that discovery must come from the prosecutor’s office.

He said on those two occasions, while Moses had the case, Butcher had received blank disks as discovery. Then Moses “walked in and recused himself,” which likely hurt the case.

“(Davenport) has a right to a speedy trial,” White said. “I (may have) dismissed this case in haste (in December 2011).”

“I can’t see any way around this case,” White added, offering Trimble an hour to find another case to refute Butcher’s argument.

“I can’t tell the court I can find a case,” Trimble said. “But if a judge signs a docket by mistake, (is there) no recourse?”

“I lost jurisdiction,” White said. “As much as I hate to admit it, Ms. Butcher’s right.”

White said he should have made a different decision. “I don’t have the ability to reinstate the case,” he said. “In hindsight I should’ve given a continuance (instead of dismissing it).”

He admits he was frustrated with Moses’ handling of the case and his last-minute announcement to recuse himself, and “it was a way to get out of the case on that day.”

He added that Moses, as county attorney, kept “dropping the ball” on this case during the seven months he had it.

With that, Butcher’s motion to dismiss Davenport’s case was sustained.

On May 9, 2010, Officer White pulled over Davenport for a traffic stop on Beck’s Creek Road after alleged complaints about his driving were received.

Prior to that stop, White reported that he observed Davenport driving slowly and crossing into opposing lanes of traffic.

White approached the vehicle, and according to his citation, there was “a strong smell” of alcohol and Davenport had “red, glossy, bloodshot eyes.”

Field sobriety tests were conducted, which Davenport failed, according to the citation. That same citation states that Davenport told White “he would blow over the limit” if he took a breathalyzer test, which he ultimately refused to do.

According to Bird, Davenport was booked at 12:23 a.m. May 10, 2010.

Thirty-four minutes later, Davenport left the jail on a $2,500 surety bond.

At the time of his arrest, Davenport was a Whitley County jailer and, according to records at the county clerk’s office, had a bond at that time as a special, unpaid deputy for former Whitley County Sheriff Lawrence Hodge.

Hodge remains jailed in federal prison for money laundering, extortion and drug distribution. He was sentenced to 15 and a half years for those crimes.

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