By Sarah Hogsed
Register News Writer
A hearing Thursday in Madison Circuit Court revealed that some evidence collected by the Kentucky State Police in a first-degree assault case may have gone missing.
Denver Rearick, 28, was charged June 21, 2011, by the KSP who allege he was twirling a .45-caliber pistol when his friend, Matthew C. Richie, was shot in the face. First-degree assault is a Class B felony punishable by 10 to 20 years in prison.
The shooting had occurred more than six months earlier on Jan. 22, according to the KSP. Both men were intoxicated at a Waco Loop Road home while playing with the guns, the KSP reported then.
Richie survived the wound but faced a long-term recovery and rehabilitation, according to the KSP report.
Rearick's attorney, Michael Eubanks, told Circuit Judge Jean C. Logue on Thursday that he did not have all the evidence in the case.
“I’m convinced I don’t,” Eubanks said.
Assistant Commonwealth’s Attorney Tom Smith said he had turned over everything given to him by the KSP to Eubanks concerning the case. Smith said he also had subpoenaed the investigating officer, Trooper Toney Allen, to appear in court Thursday so Eubanks could question him about the evidence he believed was missing.
Allen was sworn in, and Smith questioned him first. Smith asked him about two interviews, one conducted March 1, 2011 with Richie, and another interview conducted April 29, 2011 with Rearick.
Allen confirmed both those interviews were taped, but he did not have the tapes with him.
“There’s been a couple of tapes I've been unable to locate,” Allen said.
Allen said the policy for filing a taped interview was to attach the case number to it and then request that a clerk at the officer’s KSP post place the tape with the case file.
Allen also testified that for other types of evidence, a form is filled out and attached to it, but this is not done for tapes.
Allen admitted that he could've misplaced the tapes or put the wrong case number on them.
“I'll be honest with you, I just don't know,” Allen said.
Eubanks also questioned Allen, and he pressed the trooper about the whereabouts of the tapes and also what tests had been done on the firearm.
Eubanks confirmed that the gun had been returned to Rearick just a few days after the shooting, and he asked if a ballistics or test-fire report had been performed on the gun. Allen said no.
The documents that the attorneys did have indicated another trooper was asked to gather gunshot residue evidence, but the test kit and test results had not been produced by the KSP.
“You don't know where they're at?” Eubanks said. Allen said the kit, if it had been done, could have been sent to the KSP forensics lab in Frankfort.
“I can’t even tell if they did this GSR based on these records,” Eubanks said.
At that point in questioning, Judge Logue said she was confused about whether the KSP trooper simply didn't have the evidence with him in court or the evidence didn't exist.
“How do we get that evidence if you do not have it?” Logue asked Allen.
Logue ordered that Allen go to the post, retrieve the original investigation file and return to meet with Eubanks and the assistant commonwealth’s attorney at 3 p.m.
“That’s very concerning to me that (the evidence) is missing,” Logue said.
Logue said the KSP had been ordered in March to turn over all evidence to the attorneys.
Rearick is free after posting a partially secured $50,000 bond last year.
Last month, a burglary case against Joshua and Amy Newby was declared a mistrial after it was revealed that the KSP had not turned over a tape and a written summary of an interview in which one of the defendants reportedly implicated the other.
The trial was rescheduled for Oct. 8.
Sarah Hogsed can be reached at firstname.lastname@example.org or 624-6694.