August 9, 2012
HAZARD – The charges against a Perry County man accused of murder were dismissed this week after the prosecution’s key piece of evidence was ruled inadmissible.
Cory Carroll, 21, of Busy, was indicted on the charges in May, nine months after a head-on collision on Highway 15 in Bonnyman that killed 28-year-old Arizona Vires and injured Carroll and two others. He had been facing charges of murder, assault and wanton endangerment, and was accused of driving under the influence at the time of the crash.
During a hearing in Perry Circuit Court on Thursday, Carroll’s attorney, Kevin Johnson, argued that the results of a urine test taken from Carroll following the crash should not be admissible as evidence.
The sample was taken at the University of Kentucky hospital, and the results in question showed that Carroll had marijuana in his system at the time of the collision. The original sample, however, was not preserved or sent to the state lab for certification before being discarded. Johnson argued that since there was never a confirmation as required by law, and the sample no longer exists, the preemptive results should be thrown out.
“They were never sent to the State Police lab. They were destroyed at the hospital,” Johnson said, later adding that those initial results are “not reliable.”
Commonwealth’s Attorney Teresa Reed agreed with Johnson’s argument, noting that while the preemptive results showed that Carroll had marijuana in his system, the sample should have been tested at a certified lab.
“Those test results must be excluded in this case,” she said.
Circuit Judge William Engle asked why the sample was discarded and not preserved as evidence. Reed responded that it had been discarded seven days after it was taken, “pursuant to their ordinary protocols” at the UK hospital.
Engle eventually granted the motion to suppress the results, but noted that he couldn’t understand why the sample was not preserved.
Following Engle’s ruling, Reed argued that the case against Carroll should be dismissed. As she explained, the results of his urine test constituted the primary evidence supporting the allegation that Carroll was under the influence at the time of the crash. She also noted that a witness to the collision was recently located who could testify that another vehicle had veered into Carroll’s lane, forcing him by no fault of his own into the oncoming lane of traffic, where his pickup collided head-on with the other vehicle in which Vires was a passenger.
“The commonwealth, regretfully, moves at this time to dismiss the case because the commonwealth believes that without the lab report, the commonwealth cannot sustain its burden of proof beyond a reasonable doubt,” Reed said.
Several members of Arizona Vires’ family were present in the courtroom on Thursday, including her mother, Marilyn Vires, who called the incident “unfair” during a short but emotional statement.
“She’ll never be back again,” Vires said of her daughter. “I just don’t think it’s fair. What else can I say?”
Also given an opportunity to speak was Wesley Napier, the driver of the second vehicle who sustained serious injuries in the crash, though he declined to make a statement.
Before making his ruling to dismiss the case without prejudice, Judge Engle noted that his knowledge of the case had been limited to the information on the indictment and the arguments before him in the court, but that a motion to dismiss made by the prosecutor gives him little leeway. He did note, however, that he still could not understand why medical records from a motor vehicle accident in which someone was killed were not immediately preserved as an important piece of evidence.
He went on to dismiss the indictment against Carroll and release him from home incarceration.