Deandre Lamont Ford v. Commonwealth of Kentucky ( 2021 )


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  •                     RENDERED: NOVEMBER 5, 2021; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2020-CA-1062-MR
    DEANDRE FORD                                                          APPELLANT
    APPEAL FROM FAYETTE CIRCUIT COURT
    v.                  HONORABLE LUCY A. VANMETER, JUDGE
    ACTION NO. 19-CR-00174-001
    COMMONWEALTH OF KENTUCKY                                                APPELLEE
    OPINION
    AFFIRMING
    ** ** ** ** **
    BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.
    DIXON, JUDGE: Deandre Lamont Ford appeals from the order of the Fayette
    Circuit Court, entered on May 31, 2019, denying his motion to dismiss the charge
    of assault in the first degree as immune from prosecution under KRS1 503.085.
    Following a careful review of the record, the briefs, and the law, we affirm.
    1
    Kentucky Revised Statutes.
    FACTS AND PROCEDURAL BACKGROUND
    The underlying facts of this case concern two men—Deandre Lamont
    Ford and Justin Ingguls2 – who were once friends. Their friendship ended because
    of their overlapping relationships with McKenzie3 Lewis. Ingguls dated Lewis
    first. He was abusive toward Lewis, causing her to seek and obtain a domestic
    violence order against him. Ingguls was very unhappy when the relationship ended
    and began calling and texting Lewis multiple times a day threatening to find and
    kill her. Consequently, Lewis moved from Frankfort, Kentucky, to Lexington,
    Kentucky, to distance herself from Ingguls, without informing him of the move.
    Even so, the phone calls and texts persisted.
    A few months after the breakup, Lewis began dating Ford, who
    eventually moved in with Lewis. When Ingguls found out Ford and Lewis were
    dating, he began making similar calls and texts to Ford.
    On September 7, 2018, Ford and Lewis visited a drive-thru window at
    a tobacco store in Frankfort. Ingguls was inside the store. When he saw the two,
    Ingguls exited the store and approached their vehicle, making threats to Ford and
    Lewis. Ford and Lewis drove off, and Ingguls threw a drink he had been holding
    2
    At times in the record, below, Ingguls’s last name is spelled “Inguls.” We choose to use the
    spelling “Ingguls” because this appears to be the most prevalent in the record, below.
    3
    At times in the record, below, Lewis’s first name is spelled “McKenzi.” We choose to use the
    spelling “McKenzie” because this appears to be the most prevalent in the record, below.
    -2-
    at the vehicle. Ford and Lewis returned to their apartment and fell asleep that
    evening around 7:00 p.m.
    Around midnight that same evening – then September 8, 2018 –
    Ingguls arrived at Lewis’s and Ford’s corner apartment. A surveillance camera
    recorded the view of the door and the area in front of the window but provided no
    video coverage of the window itself. Due to the lighting, however, shadows were
    cast portraying Ingguls’s activity at the window. Ingguls approached the window,
    then went to the parking lot to open the doors of Lewis’s car. He then returned to
    the window and knocked on it. Ford exited the apartment with a gun in one hand
    and his cell phone in the other. He spoke to Ingguls, told him to leave, and
    returned inside the apartment. Ingguls attempted to follow Ford inside the
    apartment but the door was locked. Ingguls then approached the window again
    and may have slid it open. As he stood at the window, Ingguls was struck with a
    bullet, after which he jumped back and fled the vicinity. Ford and Lewis left the
    apartment shortly after the shooting.
    A warrant for Ford’s arrest was issued and executed. Subsequently,
    Ford was indicted on the following charges: first-degree assault,4 convicted felon
    4
    KRS 508.010, a Class B felony.
    -3-
    in possession of a handgun,5 trafficking in methamphetamine,6 possession of drug
    paraphernalia,7 trafficking in marijuana,8 and being a persistent felony offender,
    first-degree.9
    Ford moved to dismiss the charge of first-degree assault, claiming he
    was immune pursuant to KRS 503.085. An evidentiary hearing was held at which
    Ford, Lewis, and Detective Jordan Tyree testified. After the matter was briefed,
    the court entered its order denying Ford’s motion to dismiss. Ford entered a
    conditional guilty plea to attempted second-degree assault, convicted felon in
    possession of a handgun, possession of methamphetamine, and being a persistent
    felony offender in the second-degree, specifically reserving his right to appeal the
    immunity ruling. A final judgment and sentence was entered, and this appeal
    followed.
    STANDARD OF REVIEW
    The standard of review for immunity claims under KRS 503.085 is
    whether a substantial basis supports the trial court’s findings of fact.
    5
    KRS 527.040, a Class C felony.
    6
    KRS 218A.1412, a Class C felony.
    7
    KRS 218A.500(2), a Class A misdemeanor.
    8
    KRS 218A.1421(2)(a), a Class A misdemeanor.
    9
    KRS 532.080.
    -4-
    Commonwealth v. Lemons, 
    437 S.W.3d 708
    , 715 (Ky. 2014). On appellate review,
    this Court must establish whether the trial court, after using a totality-of-the-
    circumstances analysis, had a substantial basis for finding probable cause. 
    Id.
    (citation omitted). The prosecution has the burden of proving “there is probable
    cause to conclude that the force used was not legally justified.” Rodgers v.
    Commonwealth, 
    285 S.W.3d 740
    , 754 (Ky. 2009). Probable cause has been
    defined as “reasonable grounds for belief, supported by less than prima facie proof
    but more than mere suspicion.” Lemons, 437 S.W.3d at 715 (internal quotation
    marks and citation omitted).
    KRS 503.085 requires that the Commonwealth establish probable
    cause of unlawful use of force based upon the then-existing evidence of record.
    “The burden is on the Commonwealth to establish probable cause and it may do so
    by directing the court’s attention to the evidence of record including witness
    statements, investigative letters prepared by law enforcement officers,
    photographs, and other documents of record.” Rodgers, 285 S.W.3d at 755. There
    is no corresponding right for the defendant to oppose the Commonwealth’s proof
    of probable cause with his own proof supporting his justification. Id. Prosecution
    must proceed when the Commonwealth meets its probable cause burden. Id. at
    754-55.
    Although we defer to the trial court’s findings of fact, choosing the
    -5-
    correct standard to apply is a legal conclusion. The standard of review for
    conclusions of law is de novo. Adcock v. Commonwealth, 
    967 S.W.2d 6
    , 8 (Ky.
    1998) (citing Ornelas v. United States, 
    517 U.S. 690
    , 697, 
    116 S. Ct. 1657
    , 1662,
    
    134 L. Ed. 2d 911
     (1996)).
    LEGAL ANALYSIS
    On appeal, Ford argues the trial court erred in failing to find him
    immune from prosecution for first-degree assault under the provisions of KRS 503.
    Ford addresses many provisions contained in this chapter. For brevity, we need
    not address his arguments concerning each of these provisions since the outcome is
    the same.
    Unfortunately, the bulk of Ford’s arguments focus on the wrong
    question. While Ford asserts the trial court’s determination regarding his motion to
    dismiss should have focused upon whether he was justified in his actions and/or
    acted in self-defense,10 defense of another,11 or defense of property,12 the critical
    question that needed to be – and was – addressed by the trial court was whether the
    Commonwealth could prove probable cause existed that Ford’s use of deadly force
    was unlawful. Stated another way, the proper standard is whether the trial court,
    10
    KRS 503.050.
    11
    KRS 503.070.
    12
    KRS 503.080. This statute permits use of deadly force immediately necessary to prevent
    burglary, robbery, or other felony involving the use of force.
    -6-
    based on the record before it, had a substantial basis for finding probable cause to
    believe Ford’s use of deadly force was unlawful – not whether Ford’s self-defense
    was justified. Ford’s and Lewis’s explanations of events may have led a jury to
    find probable cause for justification. However, because the Commonwealth
    proved Ford’s actions were unlawful under a probable cause standard, Ford is not
    immune from prosecution.
    Probable cause is a relatively low standard based on the “practical
    considerations of everyday life on which reasonable and prudent men, not legal
    technicians, act.” Illinois v. Gates, 
    462 U.S. 213
    , 241, 
    103 S. Ct. 2317
    , 2333, 
    76 L. Ed. 2d 527
     (1983). It is not enough for the defendant to insist his actions were
    justified: a defendant’s subjective belief in his “assertion of self-protection is not
    absolute.” Gribbins v. Commonwealth, 
    483 S.W.3d 370
    , 374 (Ky. 2016) (citation
    omitted). The prosecution may overcome this low threshold by providing
    substantial evidence of imperfect self-defense or the existence of conflicting
    evidence in the record to show potential unlawful conduct.
    The unlawful force alleged in the charge for which Ford was indicted
    and contests is assault in the first degree. KRS 508.010 establishes the elements
    which must ultimately be proven at trial and defines the applicable probable cause
    standard. The statutes relating to the unlawful use of force are distinct from the
    statutes allowing for justification of self-defense.
    -7-
    Self-defense is an affirmative defense described in KRS 503.050(1),
    which allows for justification “when the defendant believes that such force is
    necessary to protect himself against the use or imminent use of unlawful physical
    force by the other person.” The statute also establishes deadly physical force is
    justifiable only when the defendant believes he is in danger of death or serious
    physical injury. KRS 503.050(2). Although there is no duty to retreat before using
    deadly force pursuant to KRS 503.050(4), there are limitations on justification,
    e.g., when the defendant resists arrest, provokes the use of physical force, or
    initiates the aggression as set forth in KRS 503.060. Immunity from prosecution is
    provided when the explicit conditions described in KRS 503.085 are clearly met.
    Even if a defendant acts in self-defense, under KRS 503.120,
    immunity is unavailable when he is wanton or reckless in believing his use of force
    is justified, or when he injures or creates a risk of injury to innocent people. A
    defendant may not avoid liability and may be convicted of a crime:
    (1) When the defendant believes that the use of force
    upon or toward the person of another is necessary for
    any of the purposes for which such belief would
    establish a justification under KRS 503.050 to
    503.110 but the defendant is wanton or reckless in
    believing the use of any force, or the degree of force
    used, to be necessary . . . the justification afforded by
    those sections is unavailable in a prosecution for an
    offense for which wantonness or recklessness, as the
    case may be, suffices to establish culpability.
    -8-
    (2) When the defendant is justified under KRS 503.050 to
    503.110 in using force upon or toward the person of
    another, but he wantonly or recklessly injures or
    creates a risk of injury to innocent persons, the
    justification afforded by those sections is unavailable
    in a prosecution for an offense involving wantonness
    or recklessness toward innocent persons.
    
    Id.
     This statute qualifies justification in cases of imperfect self-defense when the
    defendant’s use of force harms an innocent third party or when the defendant is
    unreasonable in believing he was justified in the level of force used to defend
    himself. 
    Id.
    The Supreme Court of Kentucky has recognized “conflicting evidence
    as to whether [the] use of deadly force was justified” supports the preclusion of a
    pretrial finding of immunity. Rodgers, 285 S.W.3d at 754. The evidence in the
    record upon entry of the order denying Ford’s motion to dismiss was, at best,
    inconsistent and ambiguous. Even assuming that Ford’s interpretation of the video
    and version of the events are truthful, he could not be justified for purposes of self-
    defense immunity in any wanton or reckless actions. KRS 503.120.
    Video of the altercation appears to show Ingguls standing outside the
    residence at or near the bedroom window. The video is unclear as to whether
    Ingguls was touching the window or trying to enter through it. Witness statements
    about that night, even some of Ford’s own statements, differ from Ford’s version
    presented to our panel in his brief. According to some of Ford’s prior statements,
    -9-
    he did not shoot Ingguls but, rather, threw a frying pan at him, or only shot at the
    ground. Further, Ford never testified that he saw Ingguls with a weapon that night.
    It is unlikely that shooting a person who only talks to, yells at, or verbally threatens
    the shooter could be justified as self-defense. There is also substantial evidence
    that Ingguls did not physically attack Ford or enter the residence; yet, he is the one
    with the gunshot wound. The court properly considered the effect of this
    conflicting evidence in providing probable cause as to whether Ford’s use of
    deadly force was unlawful.
    Although the trial court did not refer to this statute by name, it is clear
    it analyzed imperfect self-defense as defined in KRS 503.120. The court found
    that Ford’s use of force was unreasonable and unjustified, particularly when it
    found that Ingguls did not appear to be armed or entering the residence at the time
    he was shot. The court decided probable cause existed that Ford’s use of deadly
    force was unlawful. It further determined Ford’s belief concerning the need for
    deadly force was unreasonable. Therefore, although the video footage, testimony,
    and evidence in the record may have provided probable cause of justification had
    this matter proceeded to trial, the court did not erroneously deny Ford’s motion to
    dismiss the assault charge based on its determination there was probable cause
    Ford’s use of deadly force was unlawful.
    -10-
    In summation, the ultimate question presented to the trial court was
    not whether there was probable cause to show Ford was justified and, therefore,
    whether a defense of self-protection was reasonable, but rather, whether there was
    probable cause to believe Ford acted unlawfully and, consequently, was not
    entitled to a complete defense to avoid prosecution at that stage in the proceeding.
    A defendant may avoid prosecution entirely only when there is no substantial
    evidence to prove the defendant acted unlawfully. It is possible to establish
    probable cause of unlawfulness despite the fact evidence justifying self-defense
    exists. However, after such probable cause is shown, the prosecution must
    proceed, and the fact-finder must weigh the evidence of self-defense to decide
    whether it is a complete defense, an imperfect defense, or not justified.
    CONCLUSION
    Therefore, the order and judgment entered by the Fayette Circuit
    Court are AFFIRMED.
    ALL CONCUR.
    -11-
    BRIEFS FOR APPELLANT:     BRIEF FOR APPELLEE:
    Julia K. Pearson          Daniel Cameron
    Frankfort, Kentucky       Attorney General of Kentucky
    Thomas A. Van de Rostyne
    Assistant Attorney General
    Frankfort, Kentucky
    -12-
    

Document Info

Docket Number: 2020 CA 001062

Filed Date: 11/4/2021

Precedential Status: Precedential

Modified Date: 11/12/2021