Frymire hearing

Calloway Circuit Judge James T. Jameson, top left, speaks Thursday morning during an evidentiary hearing in the case of Murray's David Frymire, during a session that was conducted by virtual communication. Also appearing were Calloway Assistant Commonwealth's Attorney James Burkeen, lower left, and Frymire's attorney, Marc Wells.

MURRAY — The judge in the case of a Murray man accused of releasing pepper spray that infiltrated a group of protesters and accompanying law enforcement officers providing security in June met with the opposing sides Thursday to discuss a series of defense motions.

David Frymire, 53, is accused of releasing what has been reported as mace from inside his car on the evening of June 2 after he became to be in the middle of some of the estimated 100 people who were participating in a Black Lives Matter protest on North 12th Street. Some protesters and Murray Police Department officers came into contact with the cloud of the material that went airborne, which accounts for Frymire facing three counts of assault in the fourth degree no visible injury and five accounts of assault in the third degree-police/probation officer.

Discussed Thursday were 25 motions that were filed by Frymire’s attorney in the case, Marc Wells of Princeton. And while no actions were taken during Thursday’s almost hour-long session by Calloway Circuit Judge James T. Jameson, there were several interesting moments.

Most of those came during the first several minutes of the session, which was conducted by virtual means due to the ongoing COVID-19 pandemic, where Wells’ first few motions dealt with what kind of policies the City of Murray has in regard to events, such as marches, parades and other forms of expression.

“My client worked at Kenlake Foods (downtown) and he had gotten off work that day and he knew nothing about the protest or that there would be people marching until he got caught up in the middle of it,” Wells said, adding that the group, which had gathered to protest incidents in which they had said blacks had been mistreated by officers nationwide, was blocking both the northbound and southbound lanes of traffic on North 12th.

“That’s when he first became aware of this and I think it’s pertinent to know what the City of Murray requires for people to know this. I shared with (Calloway Assistant Commonwealth’s Attorney James) Burkeen that I had talked to (Mayor Bob Rogers), who said that (the city) doesn’t have any policies. They leave it up to the chief of police and I could find no ordinances that address that, which is the underlying thing that caused the tension in this case.

“I think it’s very germane to our defense.”

Most of Wells’ motions appeared to be asking for the prosecution to turn over any pieces of evidence that may be in its possession. This is known in legal terms as “discovery,” which is classified as evidence that is required to be viewed by both the prosecution and defense, thus ensuring a fair trial.

No trial date has been set in this case, but Wells has indicated that he believes that will be the ultimate destination.

Throughout, Burkeen seemed to question the motions because he said his office has honored every request for discovery from the defense so far. This includes videos, audio recordings and photographs that reportedly were taken or recorded during the march, as well as captured the incident as it occurred near the intersection of Olive Boulevard in the area of the Cookout restaurant.

“We have provided several videos that were provided from the Murray Police Department to Mr. Wells through discovery,” Burkeen said, addressing Wells’ fourth motion that called for anything the prosecution could receive before the trial, whenever that is set.

“I certainly acknowledge that there is a possibility, through additional investigation, revealing additional photos, audios, anything like that, and I would acknowledge that discovery is an ongoing process and the Commonwealth has an ongoing obligation to provide discovery and will comply with that.”

One of Wells’ motions asked for the names and addresses of the people that shot such footage and provided these items to MPD.

“I don’t think (the footage) has, for lack of a better term, prominence to them, where we can say, ‘Oh, this was taken by so-and-so at 11:42 a.m. on June 2 on a Samsung Galaxy phone. I don’t know if that exists. Now, if there were documents that have all of that information, then sure, that would be discoverable and the Commonwealth would have a duty to turn that over, but I don’t know if there is any obligation on the Commonwealth to investigate and turn over something that doesn’t exist.

“Once, if and when, that becomes discoverable and once, if and when, that comes into existence, I think we do have an obligation. I don’t mind turning over everything that’s discoverable that we have. It’s just that a lot of these things are things that are not in existence right now.”

Wells indicated that he is trying to cover all of his bases as far as trying to establish identities of the people who produced audios and videos, to make sure that they are, in fact, the people who produced these recordings and that they were not doctored or altered in any way.

In addition, Wells said he is also hoping to interview MPD officers named as victims in the indictment against Frymire that was issued by a Calloway County grand jury earlier this year. However, Jameson used his previous experience as a defense attorney to remind Wells that witnesses, be it police officers or ordinary citizens, are not obligated to talk to attorneys prior to a trial.

Jameson will rule on these motions in the coming weeks. In the meantime, a new status hearing was set for 1:30 p.m. Jan. 7, 2021 in Calloway Circuit Court.

Individuals facing charges are presumed innocent until proven guilty in a court of law.

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