The Richmond Register

Local News

September 3, 2012

Attorney files motion to dismiss shooting case

KSP unable to locate key evidence

RICHMOND — The family of a man who is still recovering from a gunshot wound to the face is outraged that the person charged in the shooting may have his case dismissed.

Denver Rearick, 28, is accused of first-degree assault after Matthew C. Richie was shot Jan. 22, 2011, at a Waco Loop home. Police initially ruled the shooting accidental, but Rearick was indicted by a grand jury in August 2011.

First-degree assault is a Class B felony that carries a penalty of 10 to 20 years in prison.

Rearick’s attorney, Michael Eubanks, filed a motion Tuesday to dismiss the case citing the “negligent manner” with which Kentucky State Police have handled key evidence. A KSP trooper testified earlier this summer that he has not been able to find taped statements made by both Rearick and Richie after the shooting. It is also unclear from police records if a gunshot residue test was performed even though a trooper had requested it, testimony revealed.

Family believes        shooting intentional

Richie’s mother, Wendy Richie, is angry that the case may be dismissed.

“It’s been a cover-up from the beginning,” she said.

She contends that Rearick intentionally shot her son in the mouth although initial KSP reports said the two men were “twirling” guns when Rearick’s .45-caliber pistol went off.

Rearick and Richie were both intoxicated at the time, the KSP reported.

“(Rearick)’s told five different stories about what happened,” Wendy Richie said, noting Rearick was able to present his version of events first because her son was unconscious and fighting for his life after the shooting.

Rearick and Richie are Army veterans who served in the 101st Airborne Division (Air Assault) out of Fort Campbell. Both men served a tour of duty in Iraq together, Wendy Richie said.

The gunshot wound caused severe injuries to Matthew Richie’s head and neck that he is still recovering from more than a year and a half later. Wendy Richie said he had to relearn how to talk, walk and eat with a fork after the shooting. Matthew also has lost a good deal of weight.

She said her once strong, heroic son is in a “fragile” state.

Despite his injuries, Wendy Richie said Matthew remembers everything that happened that night on Waco Loop Road. He claims Rearick was acting aggressively toward him throughout the night and had pulled a gun on him several times.

Wendy Richie said she and her family plan on being at the Sept. 13 Madison Circuit Court hearing when the judge will consider the motion to dismiss.

“We’re going to do everything we can do to keep this from getting thrown out,” Wendy Richie said.

Court records show Richie, along with his parents, filed a civil suit against Rearick and his parents, who owned the property on Waco Loop Road.

The suit asks for past, present and future costs for medical expenses, pain and suffering, psychiatric care, care-giving costs, attorney fees and punitive damages.

The complaint alleged Rearick’s parents, Randy and Becky Rearick, were negligent because they were aware their son was handling firearms that night while he was under the influence of alcohol.

The Rearicks responded to the complaint, denying they were responsible for the wrongful act alleged in the civil suit. They also allege Richie was negligent, and his own “unlawful actions” were a “substantial factor” in causing his injuries.

KSP unable to             produce evidence

Eubanks based his dismissal motion on the fact the KSP has been unable to produce evidence that had been used to charge and indict Rearick. If his client can’t examine that evidence himself in order to mount a defense, that violates his right to a fair trial, Eubanks wrote.

The investigating officer, Trooper Toney Allen, was questioned under oath July 12 about evidence he collected in the case.

Allen testified he could not find two taped interviews — one conducted March 1, 2011, with Richie, and another interview conducted April 29, 2011, with Rearick.

Allen testified a form is filled out and attached to every piece of evidence collected in a case, however, this was not done for audio tapes.

Eubanks contended in his motion that Allen did not complete or file evidence or chain-of-custody logs for any of the evidence collected in the case.

Allen also was unable to tell the court if gunshot residue tests had been performed in the investigation, although written records indicated another trooper was asked to gather gunshot residue evidence.

The gun was returned to Rearick a few days after the shooting, and no ballistics or test-fire reports were performed on the weapon, according to Allen’s testimony.

At one point during the hearing, Judge Jean Chenault 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.

Logue ordered Allen to return to Post 7, retrieve the original investigation file and return later that day to meet with the attorneys in the case.

“That’s very concerning to me that (the evidence) is missing,” Logue said at the hearing.

Eubanks argued in the dismissal motion that the KSP handled the evidence in a “negligent manner,” adding that Rearick’s rights have been “trampled”upon.

In the motion, Eubanks asked that if the case is not dismissed, the judge suppress testimony from Allen and any statements made by Rearick, and also exclude all evidence in the case because of the KSP’s failure to properly catalog and satisfy chain-of-custody requirements.

Sarah Hogsed can be reached at shogsed@richmondregister.com or 624-6694.

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