DANVILLE — Attorneys for a former Baptist preacher charged with three counts of murder say any conversations he had with a Michigan clergyman are privileged and should not be heard by a trial jury.
Defense attorneys Sam Cox and Teresa Whitaker, who represent accused murderer Kenneth Allen Keith, want a Boyle Circuit Court judge to order Michigan resident Tracy Herald's appearance at a future suppression hearing. On Tuesday, Judge Darren Peckler scheduled Oct. 5 as the date to hear the motion to procure Herald's appearance. The date for the suppression hearing has not been scheduled.
Keith, 50, former pastor of Main Street Baptist in Burnside, has pleaded not guilty to shooting Michael Hockensmith, 35, and his wife, Angela, 38, both of Stanford, and Daniel Snith, 60, of Richmond, in the Danville pawn shop co-owned by the Hockensmiths in September 2013. The Hockensmiths formerly worked for Keith at the store before assuming ownership and changing the business name.
Four days after the shootings, Herald told Danville police that he knew the Hockensmiths and that he was familiar with them and Keith through church ties. Herald also knew them from when he lived in Danville.
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Herald, pastor of a Baptist church in Warren, Mich., learned of the homicides through the Facebook posts of acquaintances in the Danville area and had contacted Keith for more information.
Herald told police that Keith knew that Smith, a gold broker, would come to the pawn shop on Fridays, "and it was not uncommon for the broker to have $30,000 to $40,0000 in a briefcase," according to a police detective's affidavit filed in the court record shortly after Keith's arrest. The detective said in the affidavit that Smith had a briefcase containing an estimated $40,000 that was missing from the shooting scene.
Furthermore, in the conversation with Herald, Keith offered a scenario that he thought the shootings started as a "hit" on the gold buyer "and the Hockensmiths happened to be there," the affidavit said.
When Herald asked Keith whether he thought the Hockensmiths were innocent bystanders, Keith responded that the couple had "cost him a lot of money," the affidavit said. The document said Keith had entered into an agreement with another co-owner of the pawnshop to buy the building or form a partnership, but the deal fell through and the man formed a partnership with the Hockensmiths instead.
Herald was not identified in the 2013 affidavit, but Cox said Tuesday that Herald is the man who spoke with Keith. Under state law, confidential communications between a person and a clergyman are "privileged" and should not be used against a defendant.
A motion filed in March by Keith's former defense attorney, Bethany Stanziano, said Keith consulted Herald "as his clergyman and the communications between them were believed by Mr. Keith to have been privileged in that Mr. Keith believed Mr. Herald to be acting as Mr. Keith's spiritual adviser."
The defense intends to pursue that motion to suppress all statements made by Keith to Herald, and to suppress "any fruits of the discussion," Cox said.
If the motion to suppress is successful, it might be damaging to the prosecution's case because important evidence would be thrown out. Herald told police that Keith owned a pawn shop in Somerset, where police executed a search warrant and seized evidence. In the Somerset pawn shop, police found a .22-caliber shell casing that matched the casings found in the Danville pawn shop where the shootings took place.
A Danville detective had also testified at a December 2013 hearing that money bands and a receipt that had belonged to Smith were found at the Somerset store.
Each of the four money bands was used to bind $10,000 in cash. Police learned that Smith had received $40,000 in cash from Fifth Third Bank in Lexington the day before the Danville shootings.
Each band had a stamped date and a unique number identifying the vault from which the cash was withdrawn, according to testimony at that 2013 hearing.
Cox's motion to procure attendance of an out-of-state witness explains that Herald's testimony at a suppression hearing is "indispensable" because he is needed to testify to the nature of his relationship with Keith. "Mr. Herald is also needed to testify regarding the circumstances surrounding his conversations with Mr. Keith and law enforcement," the motion says.
The motion filed Aug. 27 also says Herald is an essential witness "because his absence would deny the defendant his constitutional rights to a fair hearing, due process of law ... and his right to present a defense."
To get Herald to come to Danville for a suppression hearing, Judge Peckler would have to say Herald's appearance is necessary, and a Michigan judge would have to order Herald to appear in Kentucky.
Keith could face the death penalty if convicted of murder. He is also charged with robbery and burglary.