Daily Independent (Ashland, KY)

Local News

December 13, 2013

Witness recants key portion of statement

Prosecution moves to impeach testimony of Heath Toney

GRAYSON — One of the main witnesses in a Carter County manslaughter trial recanted a key portion of the story he had previously told police and prosecutors when he took the stand on Friday.

In at least two previous interviews, Bryan Rice had said the defendant, Clifford “Boomer” Cathey, 36, of Grayson, kicked the victim, Heath Toney, 42, in the head during an early-morning altercation on New Year’s Day 2012. The kick came, he said, after Toney was driven to the ground by a pair of punches to the head by Rice.

That account squared with those of other witnesses to the fight, including Toney’s girlfriend, Madeline Couvertier, who earlier testified there was also a second kick, but she couldn’t recall who delivered it.

However, on Friday, Rice said neither he nor Cathey ever kicked Toney, and that as far as he knew, he was the only one who struck the victim.

Under cross-examination by Cathey’s attorney, public defender Brian Hewlett, Rice said he lied in his earlier statements because he’d been led by police to believe that Cathey was attempting to shift the blame for Toney’s death to him. He also said his memories of the events of that night were clouded due to his consumption of alcohol and marijuana.

Rice, 40, of Grayson, was originally charged with first-degree manslaughter, the same offense Cathey is on trial for, in Toney’s death, but he pleaded guilty in February to a lesser charge of facilitation to first-degree manslaughter. In so doing, he agree to accept a five-year sentence and to testify against Cathey.

The prosecution maintains it was the kick to the head by Cathey — which Commonwealth’s Attorney Brandon Ison likened in his opening remarks to kicking a football — that caused Toney’s death. Couvertier testified on Wednesday that Toney was knocked unconscious by the kick and never woke up. He died 12 days later at Cabell Huntington Hospital after his family made the decision to have him removed from life support.

Under direct examination by Assistant Commonwealth’s Attorney Derrick Willis, Rice testified he and Cathey were at the home of a friend of Cathey’s on Stinson Road when he received a phone call inviting him to a New Year’s Eve at the home of Couvertier and her roommate, Margaret Nelson, on Robert and Mary Avenue in Grayson. He said he asked Cathey if he wanted to come, too, and Cathey said he did.

About 1 a.m., Rice said, a van carrying three women and one man — Toney — arrived at the house and picked up him and Cathey.

“If seemed to me like everyone in the van but the driver was already intoxicated,” he said. “It was late and I was intoxicated when they picked us up.”

At the party, Rice said he and Toney hung out together in the laundry room, which was the only place in the house smoking was allowed, and drank and smoked cigarettes. At one point, he said, Toney left the room, and when he returned, he told Rice he needed to “go get” Cathey because he was dancing “really close” with Couvertier.

Rice said he went out and pulled Cathey aside and told him what Toney had said. Cathey apologized to Toney, and there were no further problems, he said.

About 4 a.m., Rice said he said he, Toney, Couvertier and Nelson left the party on foot to go purchase marijuana from a source Rice knew. They were unsuccessful, but, on their way back, they ran into three women who were out smoking marijuana, he said.

Rice said Toney began talking to one of them women, which apparently struck a raw nerve with Couvertier. She stormed off, and Toney stayed for another moment before saying he’d better go catch up with her, he said.

A short time later, Toney and Couvertier became involved in a heated argument, Rice said. The two were cursing and calling each other names and Toney “was handling her pretty rough,” he said.

Rice said he told Toney to leave Couvertier alone and Toney told him to mind his own business. The two argued briefly, and, Rice said, Toney reached into his pocked and came out with a pocket knife. At that point, he said he punched Toney twice, first with a left and then with a right. Toney staggered backward and went to the ground, he said.

Rice said he and Cathey then took off on foot in opposite directions. But Rice said he later returned and hid across the road and watched as police and paramedics arrived.

Rice said he had no idea Toney was seriously injured and that he felt guilt over his role in Toney’s death.

“I feel like if I hadn’t stuck my nose where it didn’t belong, this never would have happened,” he said.

Rice’s recantation of his earlier statements regarding Cathey kicking Toney put prosecutors in the unusual position of having to impeach the testimony of their own witness. They did so by calling Grayson Police Detective Travis Steele, the lead investigator in the case, and James West, a former Kentucky State Police detective now with the city of Covington. Both said Rice had told them unequivocally that Cathey had kicked Toney in the head.

The trial was recessed at midday Friday due to Hewlett having a scheduled court appearance in Lexington. Testimony will resume at 9:30 a.m. on Tuesday.

KENNETH HART can be reached at khart@dailyindependent.com or (606) 326-2654.

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