An attorney for Glenn Doneghy, convicted in the April 2010 death of Lexington police officer Bryan Durman, has filed a document with the Kentucky Supreme Court outlining several reasons he thinks Doneghy deserves a new trial.
Lexington attorney John Tackett, in the appellate brief filed this month, says there was no scientific evidence or testimony presented during Doneghy's June trial in Fayette Circuit Court indicating that the driver of the vehicle that struck Durman, causing his death, was "under the influence, speeding or consciously violating traffic laws" at the time of the incident.
Tackett says scant evidence suggesting Doneghy was intoxicated hours before Durman was struck came from witnesses who conceded they did not know or were barely familiar with Doneghy.
The attorney says the driver "hit a man where a motorist would not reasonably expect to find a person; standing still, in the street, not at a crosswalk, wearing no reflective clothing, at an open truck door which extended more than three feet (39) inches into a poorly lit, narrow, one-way road."
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Doneghy, 35, was convicted and sentenced to 20 years in prison on second-degree manslaughter and other charges after the hit-and-run death of Durman on the night of April 29, 2010. Durman, 27, was struck by Doneghy's vehicle on North Limestone while the officer was investigating a noise complaint, according to Fayette Circuit Court and police records. Durman died a short time later at University of Kentucky Chandler Hospital. Doneghy was initially charged with murder.
In the appellate brief, Tackett also says that Doneghy was denied a fair trial in circuit court because the judge did not grant his motion to separate criminal charges dealing with the motor vehicle incident from charges — including drug and assault counts — stemming from his arrest at his home several hours later.
The failure to sever charges "opened a floodgate of otherwise inadmissible bad character evidence used against Doneghy," the document says.
Prosecutors were allowed to use "post-accident" drug possession counts to prove wanton behavior by Doneghy five hours earlier to seal a conviction for Durman's death, the brief maintains. "After the prosecution was permitted to brand Doneghy a 'known drug user,' the resulting Manslaughter Second conviction was nothing but a foregone conclusion," the brief says.
Tackett's brief also says Fayette Commonwealth's Attorney Ray Larson, during his closing argument in the circuit court trial, used evidence previously ruled inadmissible. The brief says Larson referred to conclusions and opinions pertaining to Doneghy's alleged state of intoxication which were made by two witnesses and ruled inadmissible at the time by the judge.
The document says prosecutors used evidence inadmissible under Kentucky Rules of Evidence, including "a plethora of bad character evidence against Doneghy through the testimony of Melanie "Juicy" White, a self-described "crack-whore."
And the brief says that the trial court allowed prosecutors to present "cumulative" evidence to exact emotional response that resulted in undue prejudice. The judge allowed seven police officers and two firefighters to testify about the collision's aftermath. None witnessed the "run" vehicle or had any involvement in Doneghy's arrest, the brief says.
"We know the emotional impact was extreme and substantial because the trial judge, trial clerk and jurors were ... crying throughout the testimony of the 'first-responders,'" the brief says.
Judge James Ishmael's crying, the brief says, "validated any visceral emotional response from the jury and distracted from the material issues."