Results of toxicology tests on blood and urine samples from murder defendant Glenn Doneghy will not be allowed as evidence at his trial, Fayette Circuit Judge James Ishmael ruled Tuesday.
The ruling was one of two Tuesday that seem to benefit to the defense.
Doneghy, 34, who is to go on trial Monday, is accused of deliberately striking Lexington police Officer Bryan Durman with his vehicle on April 29, 2010, while Durman was investigating a noise complaint on North Limestone. Durman, 27, died a short time later at University of Kentucky Chandler Hospital.
The judge also ruled that two 2007 incidents, which prosecutors said showed Doneghy had a history of violent contact with people he perceived to be police officers, also will not be allowed to be introduced at the trial. Prosecutors wanted to present the 2007 incidents as proof of motive or intent in the incident that resulted in Durman's death.
"We are very pleased with the judge's rulings on the case," said Kate Dunn, one of Doneghy's attorneys. She credited co-counsel Sally Wasielewski, who crafted legal documents pertaining to the issues, for presenting the law to Ishmael in "a very convincing fashion."
"I'm pleased, but not surprised because Judge Ishmael followed the law as we expected him to do," Wasielewski said.
Commonwealth's Attorney Ray Larson had a different take.
"We're very disappointed in Judge Ishmael's rulings," he said.
Doneghy's attorneys did not want the results of the toxicology test allowed as evidence at the trial because the blood and urine samples were taken nearly seven hours after Durman was struck — too late to be pertinent, they maintained.
Both defense attorneys and prosecutors had no serious disputes about the timeline that began with Durman's being struck — about 10 p.m. April 29 — and ended with blood and urine samples being taken from Doneghy — about 4:55 a.m. April 30. Prosecutors blamed Doneghy for the delay in getting the samples, saying he barricaded himself inside his home for more than four hours just after the incident on North Limestone. But more than two hours passed between Doneghy's arrest and the taking of the samples.
Ishmael, in his ruling disallowing the toxicology-test results, relied on statements made by defense expert witness Harry Plotnick at an April hearing, as well as case law. Plotnick, who had seen the test results, testified about a similar, but hypothetical, case involving identical test results.
Plotnick said the defendant's body was in the process of "detoxing" itself from marijuana and cocaine at the time the blood and urine samples were taken. But he said there was not enough information to determine whether the defendant was impaired by the drugs at the time of the fatal incident. He said that the drugs probably had been ingested within 24 hours before the samples were taken, and that he couldn't be sure whether the cocaine was used before or after the fatal incident.
"All these lab results would show to a jury is that the defendant is a drug user in general and had used cocaine and marijuana within 24 hours of the samples being taken," Ishmael said.
Prosecutors called no witnesses at the April hearing, saying the burden was on the defense. And prosecutors had no objection to Plotnick being qualified as an expert witness, Ishmael said.
"There was no testimony at the evidentiary hearing or known to this court that any person was an eyewitness to any alleged impact or collision between a vehicle being driven by the defendant and the person of Officer Durman in this case. There is also no testimony or any person known to this court that can testify that allegedly the defendant was intoxicated or impaired in his driving at the time of the alleged incident," Ishmael said.
"No one can say with definitiveness that the defendant allegedly used or consumed the drugs before or after the impact," Ishmael said. "Who is to say that the defendant did not return to his residence and use these drugs while he was barricaded inside and before his arrest?" he said.
As for the 2007 incidents, the judge said one did not result in criminal charges placed against Doneghy. In that incident, prosecutors alleged, Doneghy spat at and kicked a Fayette County Detention Center officer who was in uniform at a service-station convenience store.
The judge said that while Doneghy was charged in the other incident, he was not convicted. During that incident, prosecutors said, Doneghy began to "fight, scuffle and kick" at officers responding to a stalled motorist call. The officers found empty beer cans around the car, which was registered to Doneghy; the vehicle's license tags were expired; and Doneghy had no proof of insurance, prosecutors said. According to prosecutors, Doneghy told one officer who attempted to frisk him that he would "blow him away" and that he had "people who would take care of him."
The judge said neither incident involved Durman or the operation of a motor vehicle and that neither incident met the test for admissibility.
On Monday, Dunn said authorities and a defense investigator had talked to a man who claimed to have a video recording of a woman who said she was driving the vehicle when it struck Durman. Apparently, there were no new developments on that issue Tuesday.