PADUCAH – The special judge overseeing the case of a Murray man accused of injuring Black Lives Matter protesters and police officers with pepper spray last summer has denied a motion to dismiss the charges.
David Frymire, 54, of Murray, is accused of releasing a type of pepper spray from inside his car on the evening of June 2, 2020, after he came to be in the middle of some of the estimated 100 people who were participating in a Black Lives Matter protest on U.S. 641/North 12th Street. The Murray Police Department said some of the department’s officers and protesters came into contact with the cloud of spray, and police charged Frymire with three counts of assault in the fourth degree (no visible injury) and five accounts of assault in the third degree -police/probation officer.
Calloway County Circuit Court Judge James T. Jameson stepped away from the case in January after Frymire’s attorney, Marc Wells of Princeton, filed a motion for recusal. McCracken County Circuit Court Judge Tony Kitchen subsequently took over the case, and a pretrial conference was held over Zoom on Tuesday afternoon.
Wells had filed a motion to dismiss his client’s charges, which Assistant Commonwealth’s Attorney James Burkeen asked Kitchen to deny. Wells’ motion stated that the Commonwealth had failed to comply with the discovery requirement, and Burkeen admitted that he had not met the 30-day deadline to which he agreed on April 14, but he said he did not think that was reason enough for dismissal.
“We did agree to 30 days to comply with the discovery, and unfortunately, it took longer for me to get that to the police department and get them to be able to get everything back,” Burkeen said. “I have received a vast majority of the items back and placed those in the mail to Mr. Wells today. So I will concede that our agreed-upon timeline was not met by the Commonwealth; however, dismissal of an indictment for failure to meet a discovery compliance deadline, I think, would be rather unprecedented and extreme.”
In his motion to dismiss, Wells cited Kentucky Revised Statute 503.055, which lists reasons a person would be justified in using defensive force. Wells said his client was on the way home from work and had no idea there was a protest going on before his vehicle became “engulfed by protesters.” He said one particular protester kicked the panel of Frymire’s car, doing about $1,700 worth of damage, and other protesters joined in screaming and yelling and hitting the car.
“To his credit, there was a pistol in the car that (Frymire) did not pick up, but he took what we call a ‘pepper spray’ and the Commonwealth has characterized as ‘bear spray,’ and discharged it for a couple of seconds outside his car,” Wells said. “… At that point, the police came and they arrested him. Your honor, the reason I point out the statutory language in KRS 503.055 is he clearly had the right to use reasonable force.
“The Commonwealth said ‘deadly force’ – there was no deadly force in this. The police officers were not even in the vicinity of the car when it was discharged, but they came up there after the commotion and I’m sure they got some of the spray that was looming in the air in their eyes. Obviously, one of the elements would have to be that (Frymire) knew there were police officers. They weren’t even there when he let the spray out, but yet they charged him with five counts Class D felonies assaulting police officers.”
Wells said he believed the MPD had failed to thoroughly investigate the incident before Frymire’s case was taken to the grand jury. He said he thinks it is obvious that the incident started with the young man who allegedly began kicking Frymire’s car, and he said he has identified that man to police.
Kitchen listed the reasons he was deciding to deny Wells’ motion for dismissal.
“Mr. Wells, you’re asking the court to make factual determinations as to what happened that day, and that’s really the province of the jury,” Kitchen said. “As you’re well aware, there is no summary judgment for criminal cases in Kentucky. The Commonwealth is entitled to prove its case if it can; of course, the Commonwealth must prove Mr. Frymire’s guilt beyond a reasonable doubt before he can be found guilty of any offense.”
Kitchen added that dismissal was also not the proper remedy for a delay in the Commonwealth getting discovery materials to the defense.
Wells said he recently had a discussion with Commonwealth’s Attorney Dennis Foust in which Foust asked him if Frymire would be willing to enter into mediation to resolve the case.
“I have discussed it with my client, and we are willing to mediate,” Wells said. “If we could get an early mediation date, I would just as soon mediate before we set up a trial.”
“Frankly, I don’t know how you do mediation down there; I don’t practice mediation in criminal cases in McCracken County,” Kitchen said. “So if you all want to mediate it, I won’t stand in your way. I’m not particularly in favor of it, but if the case can be resolved, that would suit me just fine, so I’ll just set another pretrial conference date.”
Wells clarified that he would not object to setting a trial date, but if the case could be successfully mediated, that would avoid taking up the court’s time. Kitchen set another pretrial conference for 1:30 p.m. Thursday, Aug. 12, in the event that the case is not resolved by then.
Individuals facing charges are presumed innocent until proven guilty in a court of law.