Defense asks for death penalty to be excluded in murder trial

Mar. 10—With a trial date less than three months away, defense attorneys for Cylar M. Shemwell argued Wednesday that prosecutors shouldn't be able to pursue the death penalty in Shemwell's case.

The defense motion prompted Commonwealth's Attorney Bruce Kuegel to present at least some of his evidence against Shemwell to the court.

Shemwell, 35, of the 1600 block of Wisteria Gardens, was charged with murder and first-degree assault in the deaths of Robert D. Smith, 35, Jay Michael Sowders, 43, and Christopher Carie, 18, on Jan. 17, 2019, at a home on Audubon Avenue. A fourth victim, Carmen Vanegas, was shot in the head in the incident, but survived.

Arnett B. Baines, 33, of the 0-100 block of Dixiana Court, was also charged with murder, first-degree assault, tampering with evidence and other charges in connection with the shooting. A video taken from the scene shows a man believed to be Baines shooting Smith, Sowders and Carie while a person believed to be Shemwell sits nearby and watches.

Leigh Jackson, supervising attorney for the Owensboro public defender's office, argued that the video does not show Shemwell taking any action during the shootings.

"He takes no active steps in furtherance of these crimes," said Jackson, adding that evidence prosecutors have provided to the defense show no other evidence of Shemwell participating in the shootings.

"I don't think there is anything they are going to present that is going to change what's on this video," Jackson said.

Subjecting Shemwell to potentially facing the death penalty would be disproportionate, Jackson said.

Kuegel told Circuit Judge Jay Wethington that video from the scene shows someone matching Baines' description coming to the door of the Audubon Avenue home. "Someone lets Mr. Baines in," while the video showed the home's occupants in the basement, Kuegel said. Court documents filed by Kuegel previously said Shemwell lived at the home prior to the incident.

"It's going to be our argument you are going to see Mr. Shemwell and Mr. Baines entering the basement" on video, Kuegel said. The video also shows that "Mr. Shemwell takes a position on a stool, blocking the only exit from the basement by anyone," Kuegel said.

Shemwell was "arguably armed" at the time, Kuegel said.

After the shootings, the videos show the men leaving the basement. Other videos from around town show Shemwell and Baines together the rest of the day and into the night, when they were arrested, Kuegel said.

Of the shooting, Kuegel said, "our argument is this could not have happened unless Mr. Shemwell assisted. Somebody let Mr. Baines into the house."

Jackson said the videos from the home don't show who let Baines into the home.

A person found complicit to murder can be subjected to the death penalty in Kentucky.

Jackson said "the person who drove (Baines) there wasn't charged with complicity," and that the defense would also argue against Kuegel's characterization that Shemwell blocked the exit to the basement.

Wethington tabled the motion for now.

"We will revisit this after I have seen the evidence presented to the jury," Wethington said.

Jackson told Wethington the defense will not present a defense nat trial that Shemwell was mentally ill. The defense does plan to join with Baines' defense in a motion that Vanegas, who was shot in the head, be evaluated for competency before being allowed to testify, Jackson said.

A plea offer has been extended, and Wethington said he wouldn't require the defense to make a decision on the offer by the next hearing. Kuegel said the prosecution reserves the right to withdraw its offer at any time.

A hearing to schedule any additional steps before trial will be held next week.

James Mayse, 270-691-7303, jmayse@messenger-inquirer.com, Twitter: @JamesMayse