

Without witness, case 'fizzled out,' attorney says

Sep. 30, 2006
Nichele Washburn placed a small bouquet of plastic flowers at the grave of her brother, Charles Miller. / By Michael Clevenger, The Courier-Journal


Charles Miller begged for his life, the witness told police, just before a man later identified as Kevin Simms shot him, "and kept shooting and shooting and shooting."

A few weeks after the June 7, 2003, shooting, police found a 9mm gun in Simms' home, wrapped in a sweat shirt a witness said had been worn by the killer, according to police. The gun was the same type used to kill Miller.

Simms was arrested and charged with murder. But despite what the lead prosecutor termed "very compelling evidence," a jury hasn't heard the case -- and most likely never will.

Problems delayed the trial several times, including once because the gun found in Simms' home and a shell casing recovered at the murder scene weren't submitted for testing at the state crime lab for more than a year.

Police said they weren't sure why there was such a delay.

This is just one of those cases where evidence "fell through the cracks," said Lt. Steve Green, commander of the Louisville Metro Police Homicide/Robbery unit.

By the time the ballistics tests came back matching the shell casing to the gun, a key witness, Linwood Deboise, had disappeared. Deboise had been under indictment on drug charges but was offered diversion of a five-year prison sentence in exchange for testifying that he saw Simms at the murder scene right before the shooting.

Prosecutors have no idea where Deboise is now. A warrant was issued for his arrest last year.

"We cannot find the witness, and it's not for a lack of trying," Assistant Commonwealth's Attorney Tom Van De Rostyne told Judge Denise Clayton.

Defense attorney John Stewart said in an interview that the investigation was sloppy and prosecutors indicted Simms, 35, before the case was ready.

"When they started to put their case together, it fizzled out," he said.

By October, when prosecutors still weren't ready for trial -- more than a year after Simms had requested a speedy trial -- a judge dismissed the murder case without prejudice, meaning prosecutors can recharge Simms if they can get the case together.

"It's like it's OK to shoot somebody in the head," said Nichele Washburn, Miller's sister.

Simms recently was arrested on assault and wanton endangerment charges for allegedly beating a woman in May.

Louisville, Kentucky • Southern Indiana

Welcome to Louisville

» Check out our guide to the area.

Courier-Journal Datacenter


Local Deals



See our previous reports:


Get the latest Courier-Journal headlines on facebook and Twitter!