King v. Harwood

SUSAN JEAN KING, Plaintiff, v. TODD HARWOOD, Defendant.

Civil Action No. 3:15-CV-762-CHB

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION

April 1, 2020

MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT*** *** *** ***

This matter is before the Court on Defendant Todd Harwood's Motion for Summary Judgment. [R. 91] Plaintiff Susan King has responded [R. 96], and Defendant filed his reply [R. 104]. Thus, this matter is ripe for decision. For the reasons discussed below, the Court denies Defendant's Motion as to Count I (malicious prosecution under 42 U.S.C. § 1983 and Kentucky state law) and grants Defendant's Motion with respect to Counts VII (emotional distress), Count VIII (civil conspiracy), and Count IX (negligence/gross negligence/recklessness).

I. Background Facts

This case relates to the investigation, arrest, prosecution, and imprisonment of Plaintiff Susan King for the murder of Kyle Breeden. The relevant facts have been laid out in great detail in several previous opinions in this case, including the opinion of the Sixth Circuit. Thus, this opinion will only briefly cover the relevant background facts. Breeden went missing on October 26, 1998, and his body was found in the Kentucky River on November 5, 1998. [R. 1 ¶¶ 24, 30] His legs were bound with a guitar-amplifier cord. [R. 1 ¶ 26] While he was killed by two non- exiting .22 caliber magnum gunshot wounds to the head, [R. 1 ¶ 25], he also had a superficial graze wound on the top of his left shoulder. [R. 97-14]

A. Initial Investigation

At least six Kentucky State Police ("KSP") detectives investigated the murder, including Sergeant Duncan and Detectives Figg and Bess. [Id. ¶ 28] By December 30, 1998, KSP had developed a list of twenty-seven names that KSP considered relevant to the case. [R. 97-9] King's name was included on the list because of her romantic relationship with Breeden. [Id.] She also told Sergeant Duncan that she had at least three serious physical fights with Breeden, and that a judge had issued an Emergency Protective Order (EPO) against both of them. [R. 91-3 Com. Atty 463-64]¹ Between the time that Breeden went missing and time he was found, King had told others that she had a vision that Breeden was in "water and weeds." [Id. Com. Atty. 376] The detectives also knew that King played the guitar. [R. 91-3 Com. Atty. 375]

On October 27, 1999, after nearly a year of investigating, Detectives Figg, Bess, and Bates met with King for several hours and tried unsuccessfully to obtain her consent to search her home. [R. 97-5 Com. Atty. 608] They also attempted, and failed, to obtain a search warrant for want of probable cause. [Id. Com. Atty. 609; R. 1 ¶ 40] One week later, Sergeant Duncan met with King in her home after being invited in by her then live-in boyfriend, Curtis Carruthers. [R. 97-7 Com. Atty. 630] Duncan told King that KSP had received information that a firearm had been discharged in her home. [Id.] King explained that several years prior, "a man named Bo . . . had come uninvited to her home" and "made sexual advances towards her," so "she told him to leave." [Id.] She then "picked up a .22 handgun and fired three shots: one in the kitchen floor, one in the kitchen ceiling and one in the driveway . . . in an effort to make him leave." [Id. Com. Atty. 631] King said that Breeden had since pawned that gun. [Id.] King then showed Duncan two bullet holes in her kitchen floor, one of which she stated was from the "Bo" incident. [Id.] She also stated that the prior residents in the home "had also caused holes in the home by gunfire." [Id.]

King initially granted Duncan permission to search under and around her floor to find the bullets that had caused the holes, but withdrew her permission based on advice from counsel while he was preparing a consent-to-search document. [Id.] As such, Duncan performed more of a "cursory look" than a full-fledged search, since he was there by King's permission. [R. 97-6 pp. 34-35] Nonetheless, Duncan's notes from the encounter do not indicate that he saw other bullet holes on King's floor or any substance (such as blood) on King's floor near the holes, and Duncan stated that he would have included such details in his report. [Id. pp. 18-19, 22] According to Duncan's notes, he informed her counsel that he did not believe that King was responsible for Breeden's death. [R. 91-3 Com. Atty. 631]

After this meeting, Duncan directed Detective Figg to apply for another search warrant. [R. 1 ¶ 39; R. 97-6 pp. 20-21] At this time, the detectives knew that King played the guitar, that King and Breeden had a history of domestic violence (including a domestic violence order), that there were two bullet holes in King's floor, and that King had claimed to have a "vision" that Breeden would be found in the water. [R. 91-3 Com. Atty. 368, 375, 463-64, 467, 631; R. 97-2 pp. 78-81; R. 97-6 pp. 21-22] However, they were again unable to obtain a search warrant for King's residence because the prosecutor determined there was no probable cause. [R. 1 ¶ 40; R. 97-5 Com. Atty. 609]

B. Harwood's Investigation

After the case had been cold for nearly seven years, KSP Detective Todd Harwood was assigned to work it on May 22, 2006. [R. 97-11 p. 11; R. 97-12] Harwood reviewed the case file and met with the original investigators to get up to speed on the investigation. [R. 97-2 pp. 77-78] He also conducted several "initial factfinding" interviews in person and by telephone to try and clear some of the suspects from the original investigation. [R. 97-2 pp. 111-14] However, he did not download the recordings of the interviews conducted over the phone to preserve them, which was good practice in criminal cases according to Harwood's supervisor. [Id.; R. 97-10 pp. 17-18] In fact, much of Harwood's investigation is not documented, including two of the initial conversations he had with King herself. [R. 97-2 pp. 111, 139-41]

On June 12, 2006, Harwood met with the Commonwealth Attorney and requested a search warrant for King's home. [Id. p. 135] When Harwood sought this search warrant, he had essentially the same evidence that was available to the previous detectives, and he knew that the original detectives had been denied a search warrant. [Id. pp. 78-81] Harwood's affidavit in support of the search warrant ("June 12 Affidavit") provided that:

The affiant is the detective presently in charge of the murder investigation of Kyle "Deannie" [sic] Breeden. The cause of death was apparently two gunshot wounds to the head from a 22 caliber firearm using magnum ammunition. The decedent's legs were bound with a guitar amplifier cable. The decedent was found floating in the Kentucky River at the separation point between Henry and Owen Counties. On November 3, 1999, two 22 caliber bullit [sic] holes were seen in King's kitchen floor by a state police detective. This information was provided by Susan King and she stated that the holes were from a 22 caliber weapon and was caused as a result of a domestic altercation with "Bo", a motorcycle guy. This happened according to her three to six years before 1999. King stated that Breeden had sold or pawned the weapon some time before and she has no knowledge of it [sic] location or whereabouts.

Prior to the finding of the decedent's body Susan King told Debbie Jordan, Ronnnnie [sic] Haydon and Mildred Breeden that she had had dreams or premonitions that [sic] Breeden being found in water. These conversations were confirmed by interviews in 1998 and 1999. Susan King and Breeden were good friends and lovers in the weeks prior to his disappearance. Breeden had stated that King had taken $300.00 from him. (See sep. sheet for continuation)

Continuation sheet:

Breeden had stated to individuals that he would get his money back and further that he had told his mother, Mildred Breeden, that King had some of his property and that he would get it from her. Breeden and King were good friends with Ronnie Haydon and Jackie Callahan (now the wife of Ronnie Haydon) who only lived one to two miles from Susan King. A prior boyfriend of Callahan had found large bleach stains in Callahan's car two to three weeks two weeks [sic] or so after Breeden's death. This was confirmed by Detective Bess.

Susan King plays the guitar and this fact was confirmed by interviews with Larry Mobley, Ronnie Haydon and Shawn Wright. Decedent was bound at the legs with a [sic] amplifier/guitar cord.

Fragments of the bullits [sic] that killed Breeden were recovered and are available for comparison with other samples.

Acting on the information received, Affiant conducted the following independent investigation:

May 31, 2006 Susan King was again interviewed and at her residence a guitar, an amplifier and other musical instruments were observed at King's residence.

[R. 91-10] The warrant sought "property or things used as means of committing a crime" and "property or things in possession of a person to whom it was delivered for the purpose of concealing it or preventing its discovery and which is intended to be used as a means of committing a crime." [Id.] The affidavit omitted the fact that the bullets which killed Breeden were non-exiting, meaning they could not have caused the two bullet holes in King's floor. [R. 97-14] It also omitted the fact that King weighed 108 pounds and had only one leg and no prosthetic, which obviously would make it less likely that she would be able to kill Breeden, tie him up, drag his body out of the house to an unknown car, and drive forty miles to dump his body in the Kentucky River. [R. 1 p. 11 ¶ 78-79] It also omitted the fact that King did not have a car, which Harwood knew. [R. 97-26 1:08:15-1:08:18]

Nevertheless, Harwood received the search warrant. [R. 91-11] Harwood went with several other officers to execute the warrant on June 12, 2006, and the search took over six hours. [R. 91-11, R. 97-2 p. 198] King claims that Harwood demanded that she leave her house and...