Oct. 23, 2013 — Although the issue has been fixed, some emergency calls coming into 911 in Carter County were not recorded for more than a year.
A hearing for a Brady motion was held in Carter Circuit Court on Monday in the case of Clifford Cathey, who is accused of first degree manslaughter, a Class B felony, in the 2011 New Year’s Day beating death of Heath Toney.
A Brady motion is a defendant's request for evidence concerning a material witness which is favorable to the defense and to which the defense may be entitled.
Favorable evidence includes not only evidence that tends to exculpate the accused but also evidence that may impeach the credibility of a government witness.
A Brady violation occurs where the failure to disclose evidence to the defense deprives the defendant of a fair trial.
The motion asked for a missing evidence instruction at trial because the phone call that Cathey made to 911 was not recorded.
County E911 Director Tommy Thompson testified that calls made to 911 from cell phones were not recorded for several months due to a repair error.
“AT&T contracted Windstream to move some of the lines,” Thompson said. “When they moved the lines they didn't move the part that allowed it to be recorded. We were not aware of the problem until call recordings were subpoenaed in another case.”
Thompson said the computer system gave no indication that any calls were not being recorded.
Thompson told the Journal-Times that there is no regulatory requirement that states 911 calls must be recorded. He said they are recorded as a courtesy.
Circuit Judge Rebecca Phillips overruled the motion, saying there was no missing evidence.
“If something should have been preserved and wasn't, that would be a violation of due process,” Phillips said. “However, both the dispatcher that took the call and Mr. Cathey can testify as to what was said during the call.”
Toney was in an unresponsive condition in the neuro- intensive care unit at Cabell-Huntington Hospital for 13 days before he died as a result of his injuries.
Cathey's co-defendant, Bryan Rice, pleaded guilty to facilitation to manslaughter, a Class D felony, in February and will serve five years.
Trial is set in Cathey's case for Dec. 10.
Leeann Akers can be reached at firstname.lastname@example.org or by phone at 474-5101.