A Fayette judge said he does not think state law will allow him to release from evidence vehicles that were linked to the hit-and-run death of Lexington police officer Bryan Durman.
During a hearing Wednesday, Fayette Circuit Judge James Ishmael said he was sympathetic to the owners, but he ordered that the vehicles "be maintained in their present status quo." Ishmael said the vehicles, including the maroon 1998 Chevrolet Tahoe that struck Durman, need to be kept for DNA purposes. That vehicle was owned by Glenn Doneghy, who was convicted in Durman's death.
Assistant Fayette Commonwealth's Attorney Lori Boling asked the court last week to determine whether the impounded vehicles could be released from police custody.
Boling said that Crystal Price, the owner of a green 1996 Chevrolet Tahoe that Durman was standing near when he was struck, had contacted the commonwealth's attorney's office and the police department several times, asking when she would be allowed to have her vehicle back.
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John Tackett, Doneghy's attorney, filed a motion earlier this week, saying the vehicles should not be released because they need to be kept as evidence in the event that Doneghy is granted a new trial. Doneghy's conviction and sentence have been appealed to the Kentucky Supreme Court.
Durman, 27, was struck by the maroon Tahoe on North Limestone while investigating a noise complaint on the night of April 29, 2010. Durman died a short time later. Doneghy, 35, was convicted in June of second-degree manslaughter and other charges. He was sentenced in August to 20 years in prison.
In addition to the two Chevrolet Tahoes, a red 2010 Pontiac G6 that was parked in front of the green Tahoe and was damaged is sitting in the police department's impound lot. The Pontiac is a rental car.
On Wednesday, Boling said the commonwealth's attorney's office was not trying to take a position in the matter. But she said that cars in an impound lot depreciate in value and that the situation was "unfortunate" for Price.
Tackett, in his motion, argued that the court's obligation to protect Doneghy's liberty interest must outweigh the property interest of the vehicles' owners until the appellate process is completed.
"This is serious stuff. We all know it's very serious stuff," Tackett said Wednesday. He said that if Doneghy is granted a new trial, a different defense accident reconstructionist than the one who testified in the June trial would probably be used. Tackett said a new accident reconstructionist would prefer to look at the vehicles involved in the case rather than rely on photos that were taken of the vehicles after Durman was struck.
Ishmael said none of the vehicles were introduced as evidence at trial, but that photos of them, extensive testimony about them and evidence gathered from them were introduced.
Ishmael said the vehicles need to be kept on hand because of a state law dealing with the disposal of evidence that might be subject to DNA testing. He also said that it's "part of the nature of our business" that evidence is kept.
Boling said DNA evidence taken from the vehicles was introduced at the trial. She said that the vehicles have been sitting in the impound lot unguarded and unprotected, and she indicated that because of that, no additional DNA evidence could be gathered from them.
"That's kind of an academic discussion," Ishmael said.
Tackett said he and his client were just asking the court to keep the status quo, pending the outcome of the appeal to the Supreme Court.