GLASGOW – It will be approximately two months before he makes a decision on it, according to Circuit Judge John T. Alexander, but he heard arguments Thursday about whether a murder case should be dismissed.
Defense attorney Johnny Bell had filed a motion to dismiss the case against his client, Bobby Conatser, and Alexander explained the law on which Bell's motion was based talks about how people can have immunity under certain circumstances for an act that injures or causes the death of someone else.
Conatser, now 53, was arrested almost a year ago and charged with murder in the shooting death of Kevin M. Miller, 40.
"There's some recent case law that there cannot be any evidence produced at any immunity hearing, that the court has to only review the record as it stands at the time of the arrest," the judge said.
Alexander specified, “This is not a question about whether or not Mr. Conatser can assert a defense of self-defense or defense of others or [other doctrines]. This is just a question about the propriety of the arrest in light of the KRS 503.085 immunity provision.”
Bell began by reading related statutory language in what is commonly known as a stand-your-ground law, that says, “A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another person or to prevent the commission of a felony involving the use of force.
“A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.”
Using that as the standard for his argument, Bell said disputes involving Miller and Conatser started back around Dec. 26, 2016, and there was a history of numerous calls to law enforcement asking for intervention and a history of Miller's physically trespassing into the residence, including the garage, and vehicle. The night in question, the window screen had been removed from its casing. He said Miller had also physically assaulted Conatser's daughter and had been physically aggressive with other family members, including children.
Bell said it was a situation that had been drawn out over a long time.
He began to describe circumstances leading up to the shooting, but Commonwealth's Attorney John Gardner objected, saying he was introducing new evidence into the record.
Bell said evidence of prior domestic violence was admissible, but Alexander said that's an example of where they need to discern the purpose of that hearing versus using defense of self or others as a defense at trial.
“The purpose of this hearing," Alexander reminded, "is, basically, what did the authorities know about at the time of arrest and should they have concluded that he was exercising defense of himself or defense of others, or the Castle Doctrine, you know, no-duty-to-retreat idea."
Bell said he believed that the police had responded to enough calls there to have had knowledge of the alleged domestic violence, so that's why he mentioned it.
Bell contended that Miller approached Conatser, and his client did not “chase him down.” He said Miller's was a “classic case of stalking,” using different tactics to coerce and scare people – using “a fear tactic that culminated into a terrible situation that's had a terrible impact on two families.”
Gardner said the commonwealth does not believe Conatser is immune from prosecution. In the interviews with law enforcement officers, Conatser said the shooting took place half a mile from his house and Miller was on a motorcycle going away from the house, the prosecutor said, and Conatser was “so mad,” and he hit Miller with the gun and the shot went off.
“During this hourlong recorded interview, he does not raise at any point that he felt like his life was in danger,” Gardner said. Conatser said Miller was trying to get into his house, Gardner said, and “Mr. Conatser states that he went out looking for Mr. Miller after he saw him get on his bike. He drove up toward Glasgow to the church and did not see Mr. Miller, turned back, returned to his house and then went back out again to find Mr. Miller. They meet on the roadway, again, approximately half a mile from Mr. Conatser's residence. Mr. Conaster states the two of them argued back and forth. He tells Mr. Miller that he shouldn't be at his house, not to come around his house, and then he states that Mr. Miller cusses him and then turns to leave, and as he turns to leave, he attempts to strike him with a gun, and Mr. Miller is shot, square in the back.”
Gardner said that, as Conatser put it, “he 'gassed' on him, meaning he was revving up his motorcycle, going away from Conatser and his house.
When Miller was shot, he left the roadway and fell over on his bike.
“No aid was rendered. No law enforcement was called by Mr. Conatser,” the prosecutor said.
After some concluding comments, Alexander gave Bell until July 25 to submit his written brief in support of the motion, and Gardner has until Aug. 8 to file his response.
Another pretrial conference was set for Aug. 26.