Commonwealth v. Eckerle

KELLER, J.

CONCURRING:

I concur with the result reached by the majority; however, I write separately to clarify what procedure I believe trial courts should follow going forward. As noted in the majority opinion, the Commonwealth bears the burden of showing that a defendant’s use of force was not justified. To meet that burden, the Commonwealth may direct “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. I agree with the majority that the trial court’s first step should be to consider the evidence of- record. However, I also agree with Justice Venters that Rodgers does not . “categori-r cally bar a trial judge from -conducting an evidentiary hearing,” a hearing that should be the last step, and a step that should not be taken lightly. ■

As the majority states, the Commonwealth’s burden is to establish that there is probable cause to believe that the force used was not justified. This is not a significant evidentiary burden, arid it can be met by reference to the evidence of record. Thus, much like the procedural aspects of a Kentucky - Rule of Criminal Procedure (RCr) 11.42 motion, the trial court should first look to the record before undertaking to conduct any hearing. If, as in an RCr 11.42 proceeding, the court determines that the record is sufficient to make a determination, the court should rule on the defendant’s entitlement to immunity based on that record. If the record is not sufficient, the court may then conduct a hearing. However, in doing so, the court must keep firmly in mind that it is -the Commonwealth that bears the burden of -proof; Thus, the court should not, as it appears the court did here, sua sponte determine that a hearing is necessary prior to reviewing the record. In other words, if neither party requests a hearing, the court must decide the issue' of immunity on the record before it. Furthermore, if it conducts a hearing,' the court must also be mindful that the purpose of a hearing is simply to establish probable cause.

Barber and Noble, JJ., join.