Commonwealth v. Bushart, 337 S.W.3d 666

Bushart was indicted for reckless homicide in Graves County arising from the January 7, 2007 shooting of Michael Clapp.
Bushart sought dismissal claiming immunity under KRS 503.085 for self-defense; he submitted an affidavit asserting Clapp was attempting to break in and Bushart feared for safety.
The Graves County circuit court dismissed the indictment, finding Bushart had probable cause to claim immunity from prosecution.
The Commonwealth appealed, arguing the court improperly considered Bushart's affidavit and that probable cause existed to show the force was not legally justified.
The trial court relied on Bushart's affidavit, effectively conducting a mini-trial on an element of the offense contrary to Rodgers v. Commonwealth guidance.
The Kentucky Court of Appeals reverse the dismissal and remand for a proper probable cause determination excluding the affidavit.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court may consider the defendant's affidavit on immunity at the probable cause stage.	Bushart argues the affidavit should be considered to establish immunity.	Commonwealth contends the affidavit should not be considered and that probable cause suffices from record evidence.	Palpable error; affidavit improperly considered; reverse and remand for probable cause review without the affidavit.
Whether there was probable cause that Bushart's use of deadly force was not legally justified.	Bushart claims immunity bars prosecution absent lack of probable cause.	Commonwealth contends probable cause exists that force was not justified.	Remanded for proper probable cause determination; original dismissal reversed.

Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009) (court may dismiss unless probable cause exists; immunity not to be decided via mini-trial)
Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006) (palpable-error review; standards for review of unpreserved issues)