Less than two weeks before his trial is scheduled to start, Denzell Powell appeared in McCracken Circuit Court on Thursday morning as attorneys worked to tie up loose ends.
Charged with murder, Powell, 23, is the first of three defendants to be tried in the death of 46-year-old Gary Johnson. He was shot and killed April 16, 2016, outside the Brickhouse, a nightclub on Boyd Street, near Lower Town.
The two other defendants, Christopher Smith, 34, and Tracell Nunn, 27, are also charged with Johnson's death. They each also face charges of attempted murder and convicted felon in possession of a handgun, and Nunn has an additional charge of persistent felony offender.
During the hearing Thursday, Powell's attorney Brandi Jones, a public defender from Hopkinsville, argued several motions, two of which dealt with what evidence should be allowed at Powell's trial.
In particular, Jones wanted the judge to exclude a cellphone video that the commonwealth intends to introduce, which allegedly shows Powell holding a .45 caliber pistol and bragging about his ability to use it.
"I would argue that that video should be excluded. The video was created about nine days prior to the (Brickhouse) incident," and is therefore irrelevant, she said. The video, she added, would also unduly prejudice a jury against her client.
Assistant Commonwealth Attorney Raymond McGee said the gun in the video is the weapon that was used in the shooting, and that the commonwealth believes Powell made the video in response to a dispute he was having with Smith and Nunn.
"We believe that video was sent in response to (Smith and Nunn)," he said. "And there was another video made about eight or nine minutes earlier in which (Powell) expressed his willingness to use this .45 caliber gunâ ¦ and within nine days of him showing he had the murder weapon, he uses it."
McCracken Judge Tim Kaltenbach denied Jones' request, stating if it can be proved the video shows the gun Powell allegedly fired, it's relevant.
"I think the issue would be if the (video) was not related there would be no point," Kaltenbach said.
"But if it's the exact weapon, I don't think the commonwealth is limited to the least prejudicial evidence they have."
Jones also requested she be allowed to introduce that Smith and Nunn are charged with allegedly attempting to kill her client, stating that information is relevant to proving Powell was shooting in self-defense.
"If I'm not allowed to introduce the fact that they've been charged with attempted murder â ¦ I think that affects our ability to present a defense," she said. "It was the police department's decision to charge Smith and Nunn, and if I'm not allowed to present their reason or rationale for those charges, then that just goes in the face of a complete defense for Mr. Powell."
McGee argued Jones should be allowed to introduce evidence as to what happened that night, but be barred from introducing the indictments against the other defendants.
Kaltenbach split the difference, stating Jones could introduce the facts of the incident and that the two defendants were initially charged with wanton endangerment, but not that they were indicted on attempted murder charges.
Kaltenbach also denied Jones' motion requesting she be allowed to introduce that Nunn and Smith have prior felony convictions, that they were not legally allowed to possess handguns at the time of the shooting, and that Nunn fled to Louisville after the shooting and shot at Louisville police when they tried to arrest him.
Smith and Nunn also made appearances Thursday.
Nunn's trial was scheduled for May 15, and a pretrial conference was set in Smith's case for May 19.
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