Attorney for suspect in murder conspiracy asks judge to dismiss case

The attorney for a man charged with conspiracy to commit murder has filed a new motion to get his case dismissed.

Brian Kelley’s attorney, Stephen Wyse, wrote in his motion that the Boone County Sheriff’s Department misplaced “crucial evidence” — a black shirt and a black pair of pants he was wearing when he was booked.

Wyse wrote that they were soaked in a pesticide that could be highly toxic. He was planning to get the clothing tested at a lab to determine the saturation point and toxicity level.

“There’s nothing more powerful than having a scientist be able to testify this chemical was used and was in Mr. Kelley’s clothes and has this potential to have toxic compounds that can affect him and possibly cause him grave harm,” said Wyse. “We’re denied having this expert come in and testify.

According to the court documents, Kelley was sprayed with the “Ultra-Kill Wasp and Hornet Killer” during a fight in which he allegedly assaulted his grandparents.

The victims told deputies in December they believed the attack was premeditated because there was a conversation on social media detailing how Kelley was going to kill the two.

Wyse said that the fight was provoked because his grandfather elbowed Kelley in the mouth first. He said that Kelley reacted to the smack and that there were already tensions between the three.

Wyse wanted to get the clothes tested to see if they were highly toxic because he said that would show his grandparent did try to seriously hurt him.

“Showing that they were using wasp killer on Brian would established that they were not the victims they’re claiming to be,” he said.

He called the misplacement of the clothes an “unfair advantage” for the state.

“The…unexplained loss, concealment and/or destruction of items belonging to Brian Kelley denies him the use of this crucial evidence in support of his theory of the case and irreparably harms his rights,” Wyse wrote in the motion.

If the clothes can’t be found and the judge denies the motion to dismiss, Wyse said the court should still allow the evidence as “findings of fact” and presented to the jury anyway.

“I think those findings will at least give the jury a more fair presentation and level the unfairness of us being denied this evidence,” he said.

The court also turned down Wyse’s request to subpoena Boone County Sheriff Dwayne Carey and he has filed a motion to reconsider. He said the sheriff would be able to better investigate what happened to the clothes at the jail.

“They did a report on the jail side where they did some investigation to try to determine what happened bu t the captain on the corrections side has no authority on the road officers,” he said. “So she didn’t inquire if any of the road officers involved in the investigation had taken the clothing.”

The Boone County Sheriff’s Department said it did not have an official comment on the motion.

Read our previous reporting on Kelley here.