Daily Independent (Ashland, KY)

February 3, 2011

Robbery case ends in mistrial

Defendant pleads guilty to lesser charge

Kenneth Hart
The Independent

CATLETTSBURG — A Boyd County man’s robbery trial ended in a mistrial on Thursday.

However, the defendant, Billy Joe Davis, wound up pleading guilty to a lesser charge of felony theft. In so doing, he agreed to accept a two-year prison sentence, of which he has already served nearly eight months.

Davis, 38, of Westwood, was charged with first-degree robbery in an incident April 2 at the Speedway station on U.S. 60 at Summit. He was accused of taking 58-year-old Judy Kitchen’s purse after she pulled into the station and hitting her in the face with a rock as he was making his getaway.

 Boyd Circuit Judge C. David Hagerman was forced to declare a mistrial after Boyd Commonwealth’s Attorney David Justice inadvertently told jurors Davis had a prior felony conviction while cross-examining the defendant.

Under Kentucky law, prior convictions are admissable as evidence in criminal trials, but only if they are less than 10 years old. Davis’ conviction, for auto theft, occurred in Arizona in 1992.

During his cross-examination, Justice made the statement, “You’ve been convicted of a felony before,” which prompted Davis’ attorney, Michael Curtis, to move for a mistrial. After a hearing and a recess, Hagerman granted the motion. The plea bargain also was worked out in Hagerman’s chambers during the recess.

Hagerman said he had no choice but to declare the mistrial.

“The jury now knows Mr. Davis has a prior felony conviction,” he told the attorneys after jurors had filed out of the courtroom. “Under (Kentucky law), they’re not supposed to know that. There’s no way I can imagine that would not bleed over into their deliberations.”

Justice said he didn’t mean to bring up Davis’ prior conviction, and that he’d done so as the result of a simple mental error.

“For some reason, I’ve had it in my mind all the way through this trial that this was a 2002 conviction,” he said.

Hagerman told Justice he believed the mistake was an honest one and there was no ill intent on his part.

Had he allowed the trial to continue and had Davis been convicted, Hagerman said it was “a cinch” his conviction would have been reversed on appeal. He also said there was a “high likelihood” Davis would not be able to be retried because of the constitutional prohibition against double jeopardy.

Curtis said after court he would have argued that trying Davis again would have amounted to double jeopardy — trying an individual twice for the same offense — and would have appealed that issue if necessary. That process likely would have kept the case in limbo for months, he said.

“He (Davis) wanted it done and over with,” he said. “He’s truly sorry for what he did.”

Davis has been in the Boyd County Detention Center since May 10. Under state sentencing guidelines, he will be eligible to meet with the parole board immediately after his final sentencing March 4. However, recent studies have shown that in Kentucky, offenders rarely make parole the first time they seek it.

Also, Justice said he was hopeful the circumstances of Davis’ crime, and the fact he has a prior conviction, would influence the parole board to make Davis serve his entire sentence.

Justice said after court he regretted his error, but was glad to have salvaged something out of the case. He also said Kitchen, the victim, approved the plea deal.

Had he been convicted of first-degree robbery, Davis would have faced a minimum sentence of 10 years and could’ve gotten up to 20 years.

Davis was charged in the robbery after Boyd Sheriff’s Deputy Steve Lake spotted a vehicle matching the description of the one used in the crime on West Central Avenue about three weeks after the crime. The vehicle, a red Plymouth Voyager minivan, was being driven at the time by Davis’ stepfather, Dennis Meier.

Lake testified he spoke with Meier and with Davis’ mother, Linda Meier. They, in turn, contacted Davis, who was in Tennessee at the time. After learning he was a suspect in the robbery, Davis returned to Kentucky and turned himself in.

Jurors were played a recorded phone conversation between Lake and Davis in which Davis confessed to the robbery and also indicated he had struck Kitchen with a rock he’d found in the Speedway parking lot.

However, testifying in his own defense, Davis said he never picked up a rock. Asked by Curtis to explain the facial abrasion Kitchen suffered during the robbery, Davis said it must have been caused by his wristwatch as he was reaching across her to grab her purse from the front passenger seat of her car.

Davis also testified he’d committed the robbery to get money to purchase crack cocaine, to which had developed an addiction. He said he’d gotten paid that day and had already spent nearly his entire paycheck on crack, but wanted more.

However, Davis told Lake during his phone conversation with the deputy that the robbery had netted him less than $20.

Davis also tearfully apologized to the victim, who had testified earlier and was seated at the prosecution’s table.

“If you knew me, you would like me,” he said.

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