HAZARD Charges were dismissed last week against a Perry County man accused of attempting to murder two people.
Citing a lack of evidence and a statement made by a co-defendant that he acted alone, Commonwealths Attorney Teresa Reed moved to dismiss charges against 40-year-old Johnny McIntosh during a hearing in Perry Circuit Court on September 22.
McIntosh was indicted on two counts of attempted murder in October 2010 along with 27-year-old Garfield Herald, who was sentenced this month to serve 15 years in prison after admitting to shooting Albert Jent and Shawn Mobelini inside a residence on Montgomery Creek in May of last year.
As part of Heralds plea deal, he was re-interviewed by police and signed a statement in which he says that he acted alone during the shooting that left both Jent and Mobelini with serious injuries and ongoing complications. Both are continuing the recovery process more than a year later.
Despite Mobelini claiming to have heard his voice after she was shot, McIntosh has maintained his innocence throughout the progression of the case. Commonwealths Attorney Reed noted on Thursday that while it is regrettable, there is very little evidence, none of which is physical, that connects McIntosh to the shooting.
Mr. Jent is unable to communicate as to what he remembers about the night, Reed explained. Ms. Mobelini can remember seeing Mr. Garfield Herald, and she has always maintained that she heard the voice of Mr. Johnny McIntosh, but she does not remember seeing him.
And despite repeated attempts by police to uncover additional evidence in the case, those efforts have been fruitless, Reed added, while Herald has signed a sworn statement that he acted alone.
Mr. Herald said that no one was involved except him, Reed said. He said that he alone was there, and he alone pulled the trigger, and he alone was responsible.
Therefore, the Commonwealth has, I believe, little choice, actually no choice, except to dismiss the case without prejudice as to Mr. Johnny McIntosh.
Reed noted that were the case to go to trial with what little evidence she has, the defense could simply call Herald to the stand, and with no physical evidence linking McIntosh to the shooting, a conviction would not be likely.
Kentucky State Police Detective Randy Combs noted during the hearing that in addition to Mobelinis statement, the totality of the evidence against McIntosh includes two other statements from people who can place McIntosh at the scene hours before the incident took place. But he has nothing other than Mobelinis statement that can place McIntosh at the scene during the crime.
They (the statements) dont testify to any direct action by Mr. McIntosh, Combs said.
Despite the lack of evidence, and with McIntosh standing only feet away, Mobelini told Judge Bill Engle that she knows McIntosh was involved and Heralds statement was a bold face lie.
Just like when you hear your mom and dads voice, there are some voices that you never forget, she said. Ill never forget that voice as long as I live.
Justin Jent, Albert Jents son, said while his father is confined to a wheelchair and continues to recover is a nursing home, he has yet to recover his ability to speak, though he is undergoing speech therapy. He said his father has progressed since the last time police visited him with a lineup, and urged Engle to continue the case and allow authorities to meet with Albert Jent again and show him a fresh lineup.
My dad is laying in a nursing home, his whole right side is paralyzed, Jent said. So you might as well say hes 52 years old theyve taken the whole rest of his life.
Following discussion of the case, Engle explained that his role as judge is to ensure that the case progresses by the letter of the law and the constitutional rights of both the victim and the defendant is upheld. And when a prosecutor makes a motion to dismiss a case, he has very little discretion as to what he can do. Based on the law and the motion before him, he granted the dismissal of charges against McIntosh.
McIntosh, who had been in jail for nearly a year, was released from the Kentucky River Regional Jail on Thursday. Though the charges against him were dismissed, they can be brought up again if new evidence is uncovered in the future.