Defense says Baines' statements were coerced

Jul. 30—Attorneys for Arnett B. Baines, the Owensboro man charged with fatally shooting three men and seriously injuring a woman in a 2019 shooting on Audubon Avenue, argued Friday that Baines gave statements to police after he had been coerced and threatened with the arrest of the mother of his children.

Baines' defense team argued an Owensboro Police Department detective forced Baines to give a statement by telling Baines if he didn't waive his right to remain silent, officers would charge Baines' girlfriend, the mother of his two children, with complicity to commit murder.

Baines, 34, and Cylar M. Shemwell, 35, were charged with murder and first-degree assault in the Jan. 17, 2019, shooting deaths of Robert D. Smith, 35, Jay Michael Sowders, 43, and Christopher Carey, 18, at a home on Audubon Avenue. A fourth person, Carman Vanegas, was also shot in the head, but survived.

Baines and Shemwell potentially face the death penalty if found guilty at trial.

A video from cameras around the home shows a man believed to be Baines shooting Smith, Sowders and Carey while a man believed to be Shemwell sits nearby and watches.

A hearing on the motion to suppress the statements was heard Friday morning.

Baines was interviewed around 12:30 a.m. on January 18, and again at 10:41 a.m. the same day. In the first interview, Baines is questioned about his whereabouts that day, but is not told he is a suspect. At that time, Baines was being held on a warrant for receiving a stolen firearm. During that interview, Baines waived his right to remain silent and denied any involvement in the shootings.

Baines was booked in the detention center and brought back to OPD in the morning around 10:30 a.m. Officers tried to interview him in an interview room, but Baines became agitated and said, "I don't want to do this. I'm not talking to you," the defense motion says.

Baines was put in a OPD holding cell and kept there for 90 minutes, while Detective Todd Wilkerson prepared the document charging Baines with murder and assault. By that time, OPD officers had copies of the video from the home and believed Baines was involved.

The motion to suppress, filed by state Capital Trials Branch attorney Sara Zeurcher, says "it appears that Mr. Baines had some conversation with an officer" while he was in the holding cell. At one point, Wilkerson comes down to give Baines the charging documents. A few minutes later, Baines tells Officer Heath Stokes he wants to talk to Wilkerson about the case.

"(T)he discovery indicates (Baines) was approached by both Officer Stokes and Detective Wilkerson" while Baines was in the holding cell, Zeurcher says in the motion.

Baines was taken to an interview near the holding cell, and the interaction was recorded by Wilkerson. In her motion, Zeurcher said Baines initially refused to sign a form waiving his rights and asks "what it means if he can have an attorney."

The motion says Wilkerson says officers can call a public defender for him, and Baines seemed to start to restate he is not going to talk, but was told by Wilkerson a public defender would "probably advise you to remain silent."

Stokes then tells Baines this is his "opportunity to talk," the motion says. At one point, Baines mentioned his family. The motion says Wilkerson "almost immediately theatens to charge Mr. Baines' long-term girlfriend and the mother of his children, Coralee Hester, with being complicit in the murder, and tells Mr. Baines that his children will have no parents if he doesn't give a statement."

At that point, Baines became upset and agreed to sign the form waiving his right to remain silent and to a lawyer. The document says Baines then immediately said Hester was not involved.

Hester was not charged in the incident. A vehicle Hester was known to drive was seen dropping two men off at the Audubon Avenue home shortly before the incident, but the vehicle is not owned by Hester.

"When he was not telling them what they want (and saying), 'I got family, I got kids,' Wilkerson and Stokes jump on that and said, 'we are going arrest Coralee Hester," Zeurcher told Circuit Judge Jay Wethington.

Wethington noted police can lie to suspects during interviews, but Zeurcher said the officers can't threaten a person's family in order to elicit a statement. Zeurcher's motion says a statement made by officers threatening a person's family, particularly a child, could be considered an involuntary statement.

"He was speaking calmly until they brought up Coralee," Zeurcher said. After that, Baines was "almost in tears, thinking his children won't have a mother."

When Baines invoked his right to remain silent after being brought over from jail, detectives should have observed that, Zeurcher said.

She said officers kept him at OPD to see if he would talk.

Commonwealth's Attorney Bruce Kuegel said during that interview, Baines told officers Shemwell, not himself, did the shooting. At that point, Baines did not know of the video inside the home.

"It's the Commonwealth's position the police did it right" and that "they went overboard to make sure Mr. Baines was informed" of his rights, Kuegel said. The first 10 minutes of the third interview Baines is asking questions while Wilkerson attempts to read Baines his rights.

Having Baines in a holding cell at OPD for 90 minutes wasn't unreasonable, Kuegel said. Wethington noted that officers could have been busy and there was no one immediately available to transport Baines back to jail.

When asked the purpose of the interview, Kuegel said, "What did Mr. Baines have to give to the detectives? What he had to give was, 'I wasn't the shooter, Cyler was.' "

Wethington said Baines' statement "showed he had the presence of mind" to try to potentially mislead detectives.

Wethington said law enforcement threats to family members would be coercion and is prohibited. Kuegel said, "that didn't happen."

In his response to the motion, Kuegel says, "Baines did not request an attorney and did not refuse to talk to Detective Wilkerson" and says, "in fact, Baines was (the one who) initiated the interview. Baines gave voluntary statements," Kuegel argues.

Baines is quoted as saying, "I did cooperate ... I didn't have to come out of that cell without a lawyer."

After that statement, Stokes tells Baines, "It means that Coralee will be home with your — your kids, you know, from what you told Detective Wilkerson so far that he was wanting to find out."

Wethington said he would review the tape of the interview and the transcript and make a ruling on the motion in the near future. The next hearing in the case is set for November.

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