Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
09/26/2023 02:16:37
PM COMMONWEALTH OF KENTUCKY
BARREN CIRCUIT COURT NEWS@WBKO.COM
INDICTMENT NO. 23-CR-00150

COMMONWEALTH OF KENTUCKY PLAINTIFF

VS. ORDER

JAMES EDWARD CAMPBELL DEFENDANT

This matter is before the Court on the motion to dismiss filed by the Defendant, James

Campbell (hereinafter “Campbell”) on July 18, 2023. The motion asserts immunity from

prosecution and was filed pursuant to KRS 503.085. A hearing was held on July 31, 2023. The

parties were given until August 31, 2023 to file memorandums, and they have done so.

Therefore, both parties have had the opportunity to direct the Court’s attention to evidence of

record supporting their respective positions. The Court having considered the arguments of the

parties, the evidence of record, and applicable law, and the Court being otherwise sufficiently

advised,

IT IS HEREBY FOUND, ORDERED, AND ADJUDGED as follows:

Campbell fatally shot Roger Noland (“Noland”) in the chest on February 10, 2023 in

Glasgow, Kentucky. He was indicted for murder and two counts of first-degree wanton

endangerment by a Barren County grand jury on April 19, 2023. Campbell has moved for

dismissal of the charges, asserting that his use of force was justified and, therefore, he is immune

from prosecution.

One is entitled to use of physical force when he believes that such force is necessary to
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protect himself against the use, or imminent use, of unlawful physical force by another.1 A

person whose use of force was legally justified is immune from criminal prosecution for the use

1
Kentucky Revised Statutes (KRS) 503.050(1).

Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk

 Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
09/26/2023 02:16:37
PM of such force.2 In the context of this immunity provision, the term “criminal prosecution”
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includes arresting, charging, and prosecuting a person.3

Because the law provides for immunity from prosecution, and not merely a justification

defense at trial, one who asserts that the use of force was justified has a right to seek dismissal of

the charge prior to trial.4 Upon the filing of a motion to invoke this statutory immunity, a

criminal defendant is entitled to an expeditious hearing.5 At this hearing, the burden is on the

Commonwealth to establish probable cause that the use of force was not legally justified.6

However, the hearing contemplated by this statutory scheme is not a full evidentiary

hearing. While the trial court is to consider information of record in existence, the accused is not

entitled to introduce testimony or produce new evidence.7 “Evidence of record” includes

“witness statements, investigative letters prepared by law enforcement officers, photographs, and

other documents of record.”8 In this matter, the hearing was conducted during the pretrial

conference, and the record was left open for the parties to submit arguments and cite to evidence.

2
KRS 503.085(1).
3
KRS 503.085(1).
4
Generally, when a defendant has been indicted by a grand jury, the trial court’s consideration of a motion to
dismiss the indictment “[i]s limited to a determination of whether the indictment was valid on its face and whether it
conformed to the requirements of RCr 6.10.” Hancock v. Commonwealth, 998 S.W.2d 496, 498 (Ky.App.1998).
There is no authority for the use of summary judgment procedure in a criminal prosecution, and the sufficiency vel
non of evidence cannot properly be considered on a motion to dismiss. Commonwealth v. Hayden, 489 S.W.2d
513, 516 (Ky.1972). But see Rodgers v. Commonwealth, 285 S.W.3d 740, 754 (Ky.2009): “Because the statute
defines the ‘criminal prosecution’ from which a defendant justifiably acting in self-defense is immune to be
‘arresting, detaining in custody and charging or prosecuting,’ we can infer that the immunity determination is not
confined to law enforcement personnel. Instead, the statute contemplates that the prosecutor and the courts may also
be called upon to determine whether a particular defendant is entitled to KRS 503.085 immunity.” Thus, KRS
503.085 creates a special statutory exemption to the general prohibition against dismissal of charges prior to trial by
the trial court.
5
Rodgers, 285 S.W.3d at 754.
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6
Rodgers, 285 S.W.3d at 756; Commonwealth v. Bushart, 337 S.W.3d 666, 668 (Ky.App.2011).
7
Rodgers, 285 S.W.3d at 756; Bushart, 337 S.W.3d at 668–69. See also Commonwealth v. Eckerle, 470 S.W.3d
712, 724 (Ky.2015).
8
Rodgers, 285 S.W.3d at 756; Eckerle, 470 S.W.3d at 724.

Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk

 Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
09/26/2023 02:16:37
PM Once the issue of immunity has been raised by the accused, the trial court “must dismiss
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the case unless there is probable cause to conclude that the force was not legally justified.”9 A

person is generally entitled to use of physical force (i.e., the use of force is “legally justified”)

when he believes that such force is necessary to protect himself against the use, or imminent use,

of unlawful physical force by another.10 As stated above, the burden of proof in this regard rests

on the Commonwealth. The trial court must consider the totality of the circumstances known at

the time the accused is charged to determine whether there is probable cause that the use of force

was unlawful.11

Given this standard, the Court cannot say that the Commonwealth has failed to meet its

burden. While it is a common standard in criminal jurisprudence, “probable cause” resists easy

definition. It is a “fluid concept—turning on the assessment of probabilities in particular factual

contexts—not readily, or even usefully, reduced to a neat set of legal rules.”12 Probable cause is

found when there are “reasonable grounds for belief, supported by less than prima facie proof

but more than mere suspicion.”13 The Kentucky Supreme Court has stated that probable cause

requires “a practical, common-sense decision whether, given all the circumstances…, there is a

fair probability” of a particular fact or set of facts.14 It is based on the “practical considerations of

everyday life on which reasonable and prudent men, not legal technicians, act.”15 Thus, probable

9
Rodgers, 285 S.W.3d at 754.
10
KRS 503.050(1) (emphasis added).
11
Rodgers, 285 S.W.3d at 754–55.
12
Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 76 L.Ed.2d 527 (1983).
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13
Commonwealth v. Lemons, 437 S.W.3d 708, 715 (Ky.2004), quoting Commonwealth v. Jones, 217 S.W.3d
190, 200 (Ky.2006).
14
Commonwealth v. Pride, 302 S.W.3d 43, 48 (Ky.2010).
15
Illinois v. Gates, 462 U.S. 213, 241, 103 S.Ct. 2317, 2333, 76 L.Ed.2d 527 (1983).

Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk

 Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
09/26/2023 02:16:37
PM cause “is a very low evidentiary threshold.”16 As it pertains to assertions of immunity from
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prosecution on the basis of self-defense (or any other recognized justification under KRS Ch.

503), “the proper standard is whether [there is] probable cause to believe [the defendant]’s use of

deadly force was unlawful—not whether … self-defense was justified.”17

Apropos of Campbell’s focus on his “subjective belief” that it was necessary to use

deadly force, “[i]t 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.’”18 The

prosecution may satisfy its low burden “by providing substantial evidence of imperfect self-

defense or the existence of conflicting evidence in the record to show potential unlawful

conduct.”19 If there is some evidence of justification, the trial court is required to “analyze

imperfect self-defense as defined in KRS 503.120.”20 Moreover, “deadly physical force is

justifiable only when the defendant believes he is in danger of death or serious physical injury.”21

This requires some inquiry into the nature of any real or perceived threat. “‘Serious physical

injury’ means physical injury which creates a substantial risk of death, or which causes serious

and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment

of the function of any bodily organ.”22

In the present cause, there is at least a “fair probability” that Campbell’s use of force was

not legally justified. The evidence of record suggests that Noland was unarmed when Campbell

16
Sims v. Commonwealth, No. 2014-SC-000332-MR, 2015 WL 4980474, at *2 (Ky. Aug. 20, 2015).
17
Commonwealth v. Bennett, 553 S.W.3d 268, 271 (Ky.App.2018).
18
Gribbins v. Commonwealth, 483 S.W.3d 370, 374 (Ky.2016) (citation omitted).
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19
Bennett, 553 S.W.3d at 271.
20
Bennett, 553 S.W.3d at 272.
21
Bennett, 553 S.W.3d at 271 (citing KRS 503.050(2)).
22
KRS 500.080(17). See also Anderson v. Commonwealth, 352 S.W.3d 577, 581 (Ky.2011).

Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk

 Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
09/26/2023 02:16:37
PM shot him in the chest. He had arrived at Campbell’s residence with his girlfriend, Felicia Nelson
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(“Nelson”), to drop off the children Campbell and Nelson shared. It is further apparent that

Campbell and Noland had engaged in a back-and-forth over Facebook Messenger in the hours

leading up to the shooting, and that this continued when Noland and Nelson got to Campbell’s

home.

According to witness statements, Noland was attempting to leave the parking lot when

Campbell ran towards his vehicle. He was yelling. Nelson got out of the car, then Noland exited.

He remained behind Nelson as she and Campbell argued. Although the ensuing events are not

clear, there is evidence from which a jury could find that Noland put his hands in the air and

asked Campbell what the problem was, at which point Campbell shot him.

Campbell asserts that he reasonably feared, or at least subjectively believed, that his use

of force was immediately necessary to protect himself against the imminent use of unlawful

physical force to cause him death or serious physical injury. In support of his argument, he

focuses on Nelson’s lack of credibility. However, the credibility of a witness is generally a

matter for the jury.23 Even when a witness appears to be biased or otherwise lack credibility,

“[t]he rule is not … that testimony admitted into evidence must be disregarded due to the

witness’s extraordinary lack of credibility as demonstrated by the usual manifestations of

untrustworthiness.”24

23
“The jury are the sole judges of the credibility of the witnesses.” Davis v. Commonwealth, 270 Ky. 53, 109
S.W.2d 2, 3 (1937). Assessing the credibility of a witness and the weight given to her testimony rests “within the
unique province of the jury [or finder-of-fact].” McDaniel v. Commonwealth, 415 S.W.3d 643, 654 (Ky.2013).
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The power to disqualify witnesses “should be applied grudgingly, only against the ‘incapable’ witness and never
against the ‘incredible’ witness, since the triers of fact are particularly adept at judging credibility.” Robert G.
Lawson, The Kentucky Evidence Law Handbook § 3.00[2][b] at 239 (5th ed. 2013).
24
Ross v. Commonwealth, 531 S.W.3d 471, 476 (Ky.2017).

Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk

 Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
09/26/2023 02:16:37
PM In his statement to investigators, Campbell did not say that he observed Noland with a
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gun or any other weapon. While the fact that a victim was unarmed is not determinative, it would

be relevant in considering the totality of the circumstances. Moreover, Campbell did not claim

that Noland actually struck him. One does not have to have been physically harmed to fear for

his safety, but whether there was actual violence prior to the use of force by the accused is

relevant to a determination of that question.

The information contained in various Facebook Messenger comments by Campbell

would also be pertinent to his state of mind and might suggest that he did not have either an

objectively reasonable or a subjective fear for his own safety when he shot Noland. For example,

a few weeks prior to the shooting he told someone that he would “put[ ] one between [Noland’s]

eyes and then [Nelson’s] for being a witness,” and stated that he hoped the kids were present so

he could “say he was scared for their safety, lol.” He also discussed claiming self-defense, which

a jury might interpret as an indicator that Campbell did not fear for his safety but instead planned

to harm Noland and try to escape the consequences.

The immunity issue is related to but distinct from the question of whether one may assert

a justification defense at trial. An accused who is not immune from prosecution under KRS

503.085 may still present a self-defense theory to the jury. “Self-protection is, of course, a

privilege—that is to say, it is a complete defense to the infliction of bodily or deadly injury.”25

The trial court must instruct the jury on matters that are justified by the evidence presented at

trial, including self-protection, even if it has previously found probable cause that the accused’s
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25
Barker v. Commonwealth, 477 S.W.3d 583, 587 (Ky.2015).

Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk

 Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
09/26/2023 02:16:37
PM use of force was unlawful.26 “It is possible to establish probable cause of unlawfulness at the
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same time 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.”27

Because a jury is entitled to assess credibility, it may believe all or part of any witness’s

testimony in this matter. If Nelson testifies consistently with her statement to authorities, and if

the jury accepts her testimony as true, it could reject Campbell’s defense. It could, for example,

find that Noland was not threatening Campbell; that it was unreasonable for Campbell to think

that he was; that Campbell provoked Noland by not allowing the vehicle to leave the premises;

and that Campbell lacked a reasonable belief that he needed to defend himself, his property, or

any other person.

Of course, the jury could also reject the testimony of the Commonwealth’s witnesses, or

choose to believe some but not all of it. Determining what evidence to believe and what to reject

is the province of the jury. For the purposes of the instant motion, there is probable cause that

Campbell was not compelled to “protect himself against the use, or the imminent use of unlawful

physical force” by Noland when the shooting incident occurred. Stated another way, there is

probable cause to conclude that the force used by Campbell was not legally justified. Thus, a

finding of immunity is not compelled. The Motion to Dismiss is denied.

26
See Stepp v. Commonwealth, 608 S.W.2d 371 (Ky.1980). “[C]onflicting 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.
In such case, the accused may still present his argument to the jury under the proper jury instructions. Ragland v.
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Commonwealth, 476 S.W.3d 236, 246 (Ky.2015), citing Rodgers, 285 S.W.3d at 754. An accused has the “right to
have every issue of fact raised by the evidence and material to his defense submitted to the jury on proper
instructions.” Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky.1999).
27
Commonwealth v. Bennett, 553 S.W.3d 268, 273 (Ky.App.2018).

Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk

 Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
09/26/2023 02:16:37
PM IT IS SO ORDERED this the 14th day of September 2023.
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__________________________________
HON. JOHN T. ALEXANDER
JUDGE, BARREN CIRCUIT COURT
Clerk to send copies to:
Resa Gardner
Johnny Bell

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Entered 23-CR-00150 09/15/2023 Krissie Coe Fields, Barren Circuit Clerk