Police say a white gunman opened fire at a Kentucky grocery store, killing two African-Americans, after he tried and failed to enter a predominantly black church nearby.
Gregory Bush, 51 was indicted on five counts Wednesday, including murder and attempted murder; none of them were hate crime charges, despite comments from authorities that the shootings appear to be racially motivated.
CNN has reached out to a public defender for Bush and is waiting to hear back.
Prosecutor Tom Wine said that because Kentucky's hate crime statute does not include homicides, Bush was not charged with a hate crime for the deaths.
"A hate crime designation only occurs when the judge makes such a determination at sentencing. If the judge finds a hate crime designation is appropriate, it doesn't add any additional time. The designation is only useful if the judge wishes to deny probation or the parole board wants to defer parole," Wine said in a statement.
Hate crimes are considered more difficult to charge and prosecute than other criminal charges, largely because they require law enforcement to prove a specific motivation of bias.
Additionally, federal investigators are looking into potential civil rights violations, including hate crimes, said Russell M. Coleman, the US attorney for the Western District of Kentucky.
Bush faces two counts of murder for the shooting deaths of Maurice Stallard, 69, and Vickie Jones, 67, inside the Kroger grocery store in Jeffersontown, and in the parking lot outside, Wine said.
Bush is also charged with one count of attempted murder stemming from what authorities described as an exchange of gunfire with an armed civilian. The indictment identifies the armed civilian as Dominic Rozier. Bush is charged with two counts of wanton endangerment for firing shots in the directions of two more people, Kiera Rozier and an unidentified juvenile.
Jeffersontown Mayor Bill Dieruf said on Monday that the shooting is being investigated as a hate crime based on the circumstances, including the race of the victims and the defendant.
Dieruf said investigators are looking into reports that Bush told a bystander before he was captured that "whites don't shoot whites."
Bush remains jailed on five million dollars bond. His next court appearance is Friday, he said.