Journal-Times (Grayson, KY)

December 18, 2013

Surprises abound in manslaughter trial

By Leeann Akers - Editor
Journal-Times

Dec. 18, 2013 — A jury trial began last Tuesday in the case of Clifford “Boomer” Cathey, the Grayson man accused of manslaughter in the 2012 New Years' Day beating death of Heath Toney.

Throughout one day of jury selection and two and a half days of testimony, stories changed, a star witness accused the prosecution of intimidation, and the accused rejected a plea agreement.

Madeline Couvertier, who was Toney's girlfriend at the time of his death, was the first to take the stand.

She testified that she had been at a party in her home with Toney on New Year's Eve. After ringing in the new year, they had gone with friends to pick up Cathey and Brian Rice.

Couvertier testified that Cathey and Toney had immediate tension because Cathey had been “disrespectful and flirtatious.”

She testified that Rice had tried to diffuse the situation between Cathey and Toney and that he (Rice) had accompanied the couple and another woman, Margaret Nelson, on a walk after a confrontation at the party.

During the walk she and Toney began arguing, she told the jury, at which point they were approached by Cathey.

According to Couvertier, Rice “sucker punched” Toney and then Cathey kicked him in the head.

“Heath looked at Brian and said 'really dude?',” Couvertier said, breaking down in tears. “Those were the last words he ever spoke. When Mr. Cathey kicked him in the head, Heath made the most God-awful sound I have ever heard in my life and he never woke up.”

Couvertier said Toney was kicked a second time, but couldn't say for sure which man dealt the blow.

“I put my body over his to try and keep them from hurting him more,” she said. “He was convulsing and making a horrible noise. After the second kick I looked up and they were both running away.”

Upon cross examination by defense attorney Brain Hewlett, it was revealed that although Couvertier claimed during testimony and during her initial interview with police that she didn't know who had dealt the second kick, she had told Commonwealth's Attorney Brandon Ison that she believed that Rice had been the second kicker.

Rice took a plea bargain in February in exchange for his testimony against Cathey in this case.

Grayson Police Sgt. Tony Cantrell testified to his observations as the first officer on the scene.

Cantrell said that while on scene, dispatch told him that Cathey had called 911 and asked to speak with an officer. Cantrell said he took a statement from Cathey after he cleared the scene.

Cathey said in his statement that he and Rice had encountered a couple fighting on the street. When he approached them, according to the statement, the man, presumably Toney, pulled a knife out. Cathey stated that Rice hit the man and they ran away.

When court resumed on Thursday, Cathey rejected a last minute plea agreement offered by the Commonwealth's Attorney.

“I do not allow offers to be made during the course of a trial under normal circumstances,” Judge Rebecca Phillips said. “However, it seems the offer has already been presented to Mr. Cathey.”

Ison told the court that he offered Cathey 10 years and dismissal of the persistent felony offender charge if he were to plead guilty.

Cathey declined the offer, which was the same counter offer that Ison had rejected earlier in the pretrial process.

Grayson Police Det. Sgt. Travis Steele was the lead officer on the case and the first witness to take the stand on Thursday.

Steele testified that he found a pocket knife on the scene several hours after the incident but that the scene was never secure.

He said that both Cathey and co-defendant Rice had been brought to the police station for questioning before their arrests.

Rice, during a recorded interview with Steele, claimed that Toney had swung a knife at him and Cathey.

Steele said that Toney's family confirmed that he did carry a pocket knife that matched the description.

Both the neurosurgeon who treated Toney in the hospital and a state medical examiner testified that Toney died as a result of blunt force trauma.

Both also said that the trauma was covering the entire brain, which is consistent with the way the brain sits inside a skull.

A hit from one side could cause damage to the other side because of the brain rebounding off the inside of the skull.

“The brain was attempting to go down into the narrow opening of the spinal column because it was so swollen,” said Dr. Victoria Graham, the medical examiner who performed the autopsy. “It had nowhere else to go.”

Nechelle Burns of the state forensic laboratory, testified that no blood had been found on the boots of either Cathey or Rice, nor on the clothing of Rice and the knife found at the scene.

On Friday, Rice took the stand for testimony.

During his time in the witness chair, he stated that Cathey did not assault Toney on the night in question.

“I felt that Mr. Toney was a threat to me so I struck him,” Rice said. “He staggered and fell partly in the grass and partly near a drain in the road.”

Rice said he felt intimidated into testifying against Cathey as part of his plea agreement.

“They told me that if I didn’t testify that Mr. Cathey struck and kicked Mr. Toney that I would get six months added consecutively onto my sentence for contempt of court,” he said.

Asstistant Commonwealth's Attorney Derrick Willis vehemently denied that Rice had been coerced to give false testimony.

“I never, ever once threatened Mr. Rice. We had a very pleasant conversation. I never said he had to testify that Mr. Cathey kicked Mr. Toney in the head. I asked him to tell the truth,” said Willis. “I fight hard in court but I play by the rules,” he added.

Rice’s recantation of his earlier statements regarding Cathey kicking Toney put prosecutors in the unusual position of having to impeach the testimony of their own witness.

They did so by calling Steele, the lead investigator, and James West, a former Kentucky State Police detective now with the City of Covington. Both said Rice had told them unequivocally that Cathey had kicked Toney in the head.

Testimony on Tuesday was expected to conclude the trial.

Leeann Akers can be reached at lakers@journal-times.com or by phone at 474-5101. Journal-Times staff writer Joe Lewis and Ashland Daily Independent Staff Writer Ken Hart both contributed to this story.