Jan 23, 2010.pdf

By Adam S. Sulfridge & Samantha Swindler / Times-Tribune Staff

A survey of felony drug cases handled by the Whitley County Sheriff’s Department in recent years shows the majority of them did not end in felony convictions — often because charges were dismissed or pleaded as misdemeanors in district court, or because deputies failed to seek indictments from the grand jury.

The man who had been accused of operating a methamphetamine lab near Corbin Primary had his charges dismissed in December after deputies failed to present the case to the grand jury within 60 days.

On Sept. 23, Michael Hardesty, 37, of Corbin, was arrested on charges of manufacturing meth, first-degree possession of a controlled substance, possession of marijuana, and public intoxication after neighbors called 911 to report a possible explosion at Hardesty’s residence. Because of a strong odor in the air, volunteer firefighters requested assistance from Whitley sheriff deputies.

According to the arrest citation, a search of Hardesty’s storage building found a working meth lab, an unknown quantity of meth, and an unknown quantity of a green leafy substance believed to be marijuana.

After the arrest, Sheriff Lawrence Hodge stated, “People need to be aware that we aren’t going to tolerate this kind of activity anywhere, but especially this close to a school.”

Yet Hardesty’s charges were dismissed Dec. 18 after deputies failed three times to present the case to the monthly grand jury when it met Oct. 5, Nov. 2 or Dec. 7.

In an interview Nov. 30, Sheriff Hodge said, “That’s going to be presented next month.”

It was not.

According to Hardesty’s file, his charges were dismissed Dec.18 because no “further action” had been taken by law enforcement officials.

The arresting officer, Deputy Ben Hodge, was contacted by phone this month and asked if he or others had presented evidence in the case. He replied, “Not at this time.” When asked why deputies allowed the case to be dismissed he said, “You’ll have to talk to (Sgt.) Denny (Shelley) about that,” and promptly hung up.

Shelley did not return a phone call seeking comment. The Times-Tribune was told on Friday he was on medical leave.

LAB TESTING

The sheriff’s department also never submitted any drug evidence from the Hardesty case to the Kentucky State Police Southeastern and Central Forensic Laboratory branches, which conduct all evidence analyses for law enforcement agencies in Whitley, Knox and Laurel counties.

Open records requests to those laboratories found that the sheriff’s department had not only failed to submit evidence against Hardesty, but had submitted only once narcotic or drug evidence for testing in 2009. One request concerning drug evidence was completed Jan. 16, 2009. The only other requests for testing last year came from 16 blood-alcohol tests for intoxication and one rape case — the department had submitted no suspected marijuana, meth, pills, or other illicit substances.

The Laurel County Sheriff’s Department, by comparison, submitted 97 analysis requests of suspected drugs to the lab in 2009. The Knox County Sheriff’s Department requested analysis of suspected drugs 20 times in 2009.

During the Nov. 30 interview, Hodge was asked about the handling of suspected drugs. Concerning substances believed to be meth, Hodge said his officers “send it to the lab.” Asked about marijuana, Hodge replied, “Lab.” He went on to say the entire quantity of seized, suspected drugs would be sent to the KSP lab, whether it was “two ounces” or “five pounds.”

State monies, not local departments, fund the testing, said Lieutenant Mike Smith with the Southeastern forensics lab.

Since Sheriff Hodge said the drugs were sent to the lab, but no lab records prove this, it’s unclear where drug evidence seized in any arrests from 2009 has gone.

During the Nov. 30 interview, Sheriff Hodge hinted that drug cases weren’t being prosecuted because those arrested may be working as informants. But he did not return repeated calls for comment seeking to determine where drug evidence he claimed was going to the KSP lab was ultimately ending up.

Commonwealth’s Attorney Allen Trimble, who is responsible for prosecuting those charged with felonies in Whitley and McCreary counties, was asked whether a lack of evidence affected his prosecution efforts.

“In the cases which have been presented to the grand jury, generally speaking, we don’t have evidentiary problems,” he said. “The problem is… we’ve had no drug cases presented (by the sheriff’s office) in 2009. I know they have made drug arrests. That’s the problem.”

According to Trimble, analysis of seized drugs is necessary to prove beyond a reasonable doubt a defendant was in possession of an illicit drug, and not a simulated substance.

“In any controlled substance case, Kentucky evidence law requires the Commonwealth to prove by expert evidence, not opinion or belief, that the substance in question is a controlled substance,” he said. “That’s why controlled substances have to be sent to the lab.”

He added, “If an officer has any intention of proceeding with a criminal case, then, as a matter of course, they will send it after arrest to the KSP crime lab.”

DISTRICT COURT

In Kentucky, all criminal cases start in district court. With few exceptions, only misdemeanors can be pleaded or tried in district court; and Trimble said Whitley County does not have the docket system that allows for those exceptions. Therefore, felony charges must be tried in circuit court, where Trimble or an assistant commonwealth attorney would prosecute.

A district judge can either amend felony charges down to misdemeanors, waive the case to the grand jury, or dismiss the charges without prejudice. The latter still allows complaining witnesses to seek an indictment by presenting the case to the grand jury.

“In Kentucky, our laws are such that a grand jury has to return an indictment before any matter can be prosecuted in circuit court,” Trimble explained.

When law enforcement officials fail to present a case to the grand jury after it has been waived, he said, “There’s no way of resolving it other than dismissing it.”

In court on Jan. 4, District Judge Jason Price dismissed felony drug trafficking charges against 37-year-old Daryl Wilson because deputies failed to appear in court for Wilson’s preliminary hearing.

“When a person is arrested on a felony charge, he, by rule, is required to have a preliminary hearing within 10 days,” Trimble said. “The hearing conducted by the district judge is to determine whether or not there is probable cause to send the case to the grand jury. Arresting officers or deputies need to appear in district court to present the evidence, otherwise the case is dismissed. Of course, it can still be presented to the grand jury, but the defendant must be released from jail if it is dismissed by the district court.”

According to his arrest citation, Wilson was arrested Sept. 22 by Sgt. Denny Shelley for first-degree trafficking in a controlled substance following a “controlled buy” and search of his residence. Shelley indicated on search warrant documents that three and a half Oxycontin 80-miligram pills were removed from Wilson’s residence, along with two notebooks and one pill cutter.

Wilson’s attorney, Paul Croley, noted that Wilson had appeared in court previously without having evidence presented against him. Croley told Judge Price, “I think they (deputies) had sufficient time to either appear or present the case to the grand jury,” and requested the case be dismissed. Judge Price granted that request, and the official court document states, “1/4/09 officers not present” and “11-24-09 officer not present.”

Price said judges are placed in difficult situations when officers do not appear in court as witnesses for preliminary hearings.

“The preliminary hearing is for the benefit of the defendant, not the victim,” he said. “...We have to have a preliminary hearing if they’re incarcerated, within 10 days; if they’re not incarcerated, 20 days.”

Though an officer’s appearance is not necessary in district court for a felony case to proceed to the grand jury, Price said a defendant’s bond will be reduced without any witnesses for the prosecution.

“In theory, an officer could say, ‘we’ll I’m not going to go to court because I’m going to take him on to the grand jury anyway,’” Price said. “...Even if you see it’s dismissed without (prejudice), it means the victim or the officer could still take it to the grand jury.”

But that does not appear to be the case for the Whitley sheriff’s department.

THE GRAND JURY

In 2009, the Whitley County grand jury handed down 220 indictments. Six of those indictments were from sheriff’s department cases, but none of those were for drug-related offenses. The six indictments involved charges related to two assaults, three burglaries, and one arson.

“You can count up the cases they’ve presented,” Trimble said. “The sheriff’s office in McCreary County will average 60, 70 cases a year or more….This year, in Whitley, we’ve had less than 10, and we’re two and half times the size of McCreary, population-wise.”

Trimble admitted there may be circumstances where cases are dismissed in district court for “good reason or just cause” but said the Whitley sheriff’s office has persistently failed to follow through with arrests.

“It’s been a problem,” he said. “Criminal cases are serious matters… the very worst thing law enforcement or anyone else can do is to do nothing… If you do nothing, a lot of times you have people who are terribly afflicted with drugs who then proceed with various dangerous conduct, which endangers not only the person but other people in the community.”

Asked specifically about the Hardesty case, Trimble said, “I saw it in the newspaper. I had some interest from parents since it was near the school... We asked the sheriff’s department to bring the case to the grand jury. As of yet they have not.”

According to court documents, Sheriff Hodge, Deputy Ben Hodge, and Sgt. Denny Shelley were subpoenaed to appear in Whitley District Court on Oct. 5 “to testify on behalf of Commonwealth” in the Hardesty case, but failed to appear.

No documents suggest action was taken against the three officers.

Trimble said court officials don’t often take formal actions against the sheriff or his deputies.

“There’s just a basic presumption that law enforcement will follow through on their cases,” he said.

Hardesty’s charges were dismissed without prejudice, meaning prosecutors could re-file the charges within the statute of limitations.

Trimble said he would still like to pursue prosecution of Hardesty, adding that, “I think the grand jury will issue subpoenas” for Sheriff Hodge, Deputy Hodge, and Sgt. Shelley.

Subpoenas can be issued requesting witnesses to present evidence against the accused. If they fail to comply, a show-cause order may be filed which requires the subpoenaed persons explain why they failed to appear in court. Based on their explanations, Trimble said they could be held in contempt of court.

Trimble was asked if he will attempt to prosecute alleged offenders who had their cases dismissed after deputies failed to appear in court or seek indictments.

“Our office will prosecute every case wherein the evidence is still available,” he said.

Since a Dec. 21 break-in of the department’s evidence locker, authorities may never know exactly how much evidence and seized items are missing. Investigators with KSP and the Bureau of Alcohol, Tobacco, Firearms & Explosives were unable to determine how many guns or the quantity of drugs that were taken from the office because supporting paperwork was either stolen or never existed.

KSP Det. Bill Correll, who is investigating the break-in, said Hodge did not report any meth evidence as stolen, but did list that “several small bags” of suspected marijuana were missing.

“I don’t know if that means it totaled five pounds or an ounce,” Correll said.

The sheriff’s department also reported that 665 prescription pills were missing from the evidence locker.

“I don’t know how he (Chief Deputy Tim Shelley) got the list, he just gave me a list of drugs he said were missing,” Correll said.

Correll said he did not inventory evidence remaining in Hodge’s evidence locker.

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