West Virginia Criminal Law Blog

Although I stated in a previous post/rant about magistrate court in West Virginia that I do everything in my power to prevent having a bench trial in magistrate court (rather than a jury trial), I was forced yesterday to try a case in magistrate court.

The reason I was forced was this: my client initially requested a jury trial, but the court was dragging it’s feet in scheduling one and she wanted to get the matter over with. Against my advice she requested a bench trial instead. The good news was that most of the State’s witnesses did not show up, so I got two of the three charges dismissed. The bad news was that the officer could still testify to one charge. So we went for it.

We didn’t even get through the first witness’ testimony. The prosecutor objected to one of my questions on cross examination. As he was arguing his objection, the magistrate made the final ruling in the case. I was shocked. I hadn’t even had the opportunity to finish my cross examination, or the opportunity to call any witnesses, or the opportunity to have a closing statement, or the opportunity to discuss the case law. I think the prosecutor was dumbfounded as well.

Unfortunately for my client, it was the same magistrate as was featured in my last post, and my client never stood a chance. It was a kangaroo court - a farce - a miscarriage of justice. In short, it was a formality, a box to check. Well, at least you have the opportunity to appeal to circuit court…

Moral of the story? Request a jury trial. Unless of course, you want to be convicted.

- John H. Bryan, West Virginia Attorney.

Although this was in Australia, what would any government expect when you make jurors sit for a trial for 66 days? What kind of crime is worth spending a million dollars to prosecute? Drug conspiracy? If as the prosecutor, you reach day 66 of your drug conspiracy trial, you have officially bored the hell out of the jurors - not to mention put them out of business and caused their families to lose their home in foreclosure. Who can afford two months of jury duty?

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

From his Blog, Simple Justice, by New York criminal defense attorney Scott Greenfield posted about instances of federal judges in New York who made actual findings that certain cops had committed perjury before them.

Instead of publicly reprimanding them, the judges seemed more concerned with preventing damage to their careers. As Mr. Greenfield points out, “welcome to the real world of criminal law.” But why would cops risk losing their job and their pension to lock up any individual criminal? Mr. Greenfield replies, “tell it to all the people that cop’s put away before. Tell it to all the judges who defaulted into finding the cop credible, because he’s a cop, or the juries who bought into the prosecutor’s argument that “there’s no reason why the cop would lie…” There’s a very good reason; that’s just what they do. It’s their job. The courts are a big joke, and they say the magic words that put the bad guys in jail. No big deal, just another day’s work.”

Mr. Greenfield posits that “if there were ramifications for getting caught lying, such as jeopardizing a cop’s career (or more importantly, his pension), they would stop. No perp is worth losing a pension. But cops testily with impunity, and everyone in the system, except the criminal defense lawyer, is there to protect that cop from the consequences of committing the crime of perjury.”

And yes, it is no different in West Virginia.

Read the post here.

- John H. Bryan, West Virginia Attorney.

From the Register-Herald today:

Its no big surprise that after just under two hours of deliberations, the jury of seven women and five men found Gary D. Martin, 57, of Stringtown Road, guilty of two counts of first-degree murder and one count of second-degree murder.

Obviously the jury didn’t buy the self defense argument. However, they did find Martin guilty of second-degree murder for killing the victim that had the gun in the holster. Thus, the jury was not convinced beyond a reasonable doubt that Martin killed that particular victim with premeditation. They were convinced with respect to the other two victims however.

This result is no surprise given the evidence. However, I was surprised to read what Fayette County Prsoecutor Carl Harris “thundered” in his closing argument. The Register-Herald quoted him saying as follows:

“Only two people are alive at the end of that day because the other three are dead,” Harris thundered in closing arguments. “This is a weapon for killing,” he added, holding up the AK-47. “This is not a weapon for target practice. This is a military weapon. You don’t pull out a pistol when you’re facing a weapon like this. Self-defense (as a legal defense) doesn’t work when you shoot someone in the back.”

According to Carl Harris, an AK-47 is only a “weapon for killing” and cannot be used for target practice as it is purely a “military weapon.” Carl Harris should be ashamed of himself. Law-abiding citizens across the State of West Virginia own so-called “assault weapons” such as AK-47s and AR-15s, which they do use for target practice, self defense, or just to collect. It is just a semi-automatic rifle, similar to many others that West Virginians and other Americans own and use across the country every single day. Attention Fayette County residents: hide your guns because Carl Harris is probably looking to prosecute you for harboring “weapons for killing.” Don’t try to get some target practice in, you may end up in prison. Carl Harris needs to realize that it is perfectly legal to own that particular gun, as well as many others, and he needs to keep his anti-gun feelings to himself, and out of the courtroom.

Read the full article here.

- John H. Bryan, West Virginia Attorney.

From the Register-Herald today:

Fayette County prosecutors presented 16 witnesses Monday and explained that they plan to call just one more today in the triple-murder trial of a Hico area man accused of gunning down three young men with an AK-47 semi-automatic rifle last Memorial Day on the road in front of his home.

Gary D. Martin, 57, of Stringtown Road, is charged with three counts of first-degree murder in the May 28 shooting deaths of Dustin Tyler Hughes, 22, of Hico, Christopher Lee Legg, 23, of Hico, and Carl Blaine Cox Jr., 24, of Edmond.

The defense is claiming that since a Glock pistol in a holster was found one one of the victims, that the shootings were justifiable homicide - or self defense. However, there are some problems with that defense; namely, that the pistol was found shot and damaged with the holster. The article doesn’t say whether the gun was actually still in the holster or not. If it was, then self defense would be a tough row to hoe. If the gun was not in the holster, then self defense would be an easier case. Reportedly, there were seven rounds in the magazine, which holds nine. So it is possible that the victim shot two rounds. However, none were found at the scene (but that still doesn’t mean they weren’t there). I wonder if they tested the Glock for gunshot residue - or the victim’s hands for gunshot residue. That could prove almost conclusively whether or not he fired a gun. I would hit hard on that if I were one of the defense attorneys. You will see a pattern of sloppy investigative work and repeated failure by the State to do all of the forensic testing or evidence collection that could have been done. Your theory almost has to be that it was self defense, and the State cannot prove beyond a reasonable doubt that it was not self defense, because they failed to do all of the testing that could have proven it.

Of course, all of this is assuming you have a fair and impartial jury. See my earlier posts regarding motions for change of venue. This would have been a good case for one.

Another problem with the defense is that there were three victims shot to death. Even if one of the victims had threatened or shot at the defendant, it would not have been justifiable to shoot all three to death. Yet another problem is the statements made to the passing motorists and EMT workers afterwards.

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

Yesterday Richard Workman, 40, of Summersville, West Virginia, was acquitted on charges of first-degree sexual abuse and sexual abuse by a parent guardian or custodian after a jury trial. The jury deliberated less than an hour before returning the not guilty verdict.

Reportedly, there was no physical evidence corroborating the testimony of the alleged victim. The alleged victim, who testified, was ten years-old. Assistant prosecutor Kelly Hamon said during closing arguments the girl had no reason to lie or to make up a story about Workman. Hamon also said Workman had two years to work on his story and was unable to testify without the aid of a written time line.

These are the most frightening cases imaginable. These charges will put people in prison for the same amount of time as first or second degree murder. However, unlike murder cases, the State does not collect a large amount of evidence. Prosecutors often rely solely on the testimony of alleged victims. The problem is, that without corroborating evidence, how can that be evidence beyond a reasonable doubt? Prosecutors like to rely on the argument that the alleged victim “had no reason to lie or to make up a story” about the defendant. The fact is, that it has been documented time and time again that some children will lie and make things up. Does it matter why they are doing it? No, it only matters that they could be making it up and there is no corroborating evidence.

In these types of cases (in West Virginia), the defense can give a special instruction to the jury - called a “Perry Instruction” informing the jury that if they believe that the testimony of the alleged victim is uncorroborated, they should scrutinize that testimony with “care and caution.”

This case is very similar to a case that I tried earlier this month, after which my client was also found not guilty. People don’t realize that in order to be found “not guilty,” all 12 jurors have to unanimously return a verdict of “not guilty.” Needless to say, it can be very difficult to get 12 people to agree on anything. The goal of the defense attorney in these cases is to pound into the jurors’ heads the fact that the prosecution has the burden of proof to prove the defendant guilty “beyond a reasonable doubt.” This is not always an easy job, because jurors want to listen to the alleged victim testify, and then listen to the defendant testify (which, by the way, the defendant almost always has to testify in these cases) and then compare the two. They tend to choose the one they most believe. Their duty, however, is to compare the alleged victim’s testimony and the state’s lack of evidence against the “reasonable doubt” standard - which in reality should be a difficult burden for the state.

However, for every acquittal, there are probably several others who are wrongfully convicted on evidence that was far less than a “reasonable doubt.”

Read the entire article from the Register-Herald here.

- John H. Bryan, West Virginia Attorney.

Part of the reason that I have not posted lately is because I was preparing for a jury trial in Summers County, West Virginia, in a third-degree sexual assault case - basically a “he said - she said” situation. I am pleased to note that the trial went extremely well. It lasted for about a day and a half. After the jury deliberated for about an hour and twenty minutes on Friday, they came back with a unanimous verdict of not guilty.

It is interesting to note that the investigating officer in the case testified on the witness stand during cross examination that trace evidence disappears after 3 weeks. I asked him if he ever watches “Cold Case Files”…. He replied that he did not. I have a feeling however that the jurors had seen it.

- John H. Bryan, West Virginia Attorney.

From today’s Beckley Register-Herald:

Note: Apparently the judge reversed his prior ruling denying the defense the ability to call an expert witness to testify about proper undercover procedure. The reason for the reversal was that the State called their own witness solely to testify as to the “ins and outs of undercover investigations.” Thus, the defense should be permitted to have their own witness testify as to the impropriety of the supposed undercover operation on the night of the killing. This could form the basis for a self-defense claim. Regardless, if the judge is going to allow the prosecution to present pictures of the defendant posing with guns and old targets painted as police officers, which are extremely prejudicial, he should allow the defense to fully develop his self defense theory. This requires looking at the situation through the eyes of the defendant - which requires testimony regarding the victim’s actions that night.

Another thing which stuck out to me was the testimony regarding having girlfriends or wives in an undercover vehicle while performing a drug buy. Both Trooper Van Meter and their expert, Trooper Davis, testified that “in case of an emergency, they could not swear they would not take their wives along.” What a load of garbage. They were obviously coached by the prosecution to say that. Since when is buying drugs an emergency? Obviously anything can happen in an emergency - what is important here is policy and procedure. This is what is scary about our criminal justice system in West Virginia - even WV State Police officers are willing to slant their testimony and lie on the stand in order to help the prosecution obtain a conviction. Maybe no one cares in this case. But, as I always say, you will care when your brother or son is wrongly accused of a crime and the State puts the conviction machine to work against them. - John H. Bryan, West Virginia Criminal Defense Attorney.

State Police Cpl. D.C. Eldridge shows the jury in the Thomas Leftwich murder trial a photo, recovered from Leftwich’s computer, of the defendant posing with weapons. Eldridge testified in Raleigh County Circuit Court that the computer contained digital images of narcotics, money, various weapons on display and the defendant posing with the weapons.
Rick Barbero / Register-Herald Photographer

Defense to begin in Leftwich trial

Michelle James
Register-Herald Reporter

Following the testimony of three State Police officers, the defendant’s brother and a taped recording of the defendant himself, the state rested its case Wednesday against 25-year-old Thomas Leftwich, charged with first-degree murder, conspiracy and felony use of a firearm in the Aug. 29, 2006, shooting death of Beckley Police Detective Cpl. Chuck Smith.

“I heard him screaming, so I figured I hit him in the leg,” Leftwich said on the tape, adding he was “trying to aim low.”

“I didn’t want to kill the man or nothing.”

The defense will begin presenting its case when the trial resumes this morning. Leftwich is expected to testify at some point in the defense’s case.

Leftwich, in a statement recorded just hours after Smith’s death, was heard explaining what happened in the minutes before and after the fatal shooting of the man he said he did not know was a police officer.

After receiving a phone call shortly after 4 a.m., Leftwich agreed to meet a man he referred to as “Mike,” now known to be Michael Martin, as well as a second person who, in Martin’s words, wanted to buy drugs. Martin was convicted of murder in December and sentenced to life in prison.

Leftwich, who lived in a house atop a hill at the corner of Willow Lane and South Fayette Street, said Martin called and said he was outside waiting. When Leftwich reached the steps leading from his yard to the street below, he said he saw Martin and a “white dude.”

After handing the drugs over, Leftwich said, the person told him “today was my bad day.”

Leftwich told police he feared he was about to be robbed, and when he saw the man reach for what he thought to be a gun, he “pulled out my gun as quick as I could and started firing.”

After firing “three, possibly four” shots, Leftwich said he ran, placing the gun underneath a porch and hiding in his basement.

He told police he knew the person he shot at had been hit.

“He kind of turned around screaming …, ” Leftwich said. “I knew from the screaming that he was hit.”

Leftwich said he decided to confess when he saw his family, including a younger brother, being led from the house in handcuffs after police obtained a search warrant based on information from an eyewitness, Beckley Police Cpl. Will Reynolds.

Earlier in the trial, both Reynolds and Smith’s then-girlfriend, Jasminda (Gonzalez) Curen, testified they saw Smith show Leftwich his badge just before he was shot.

In his statement, however, Leftwich said something different.

“I didn’t see no badges,” he said, adding later, “He could have been reaching for a badge or something, but he didn’t say he was a policeman.”

In his statement, Leftwich said he picked up the loaded Smith & Wesson .357 revolver at the last second because of a bad feeling or “gut instinct.”

Kenneth Leftwich testified he could not remember if he ever told police his brother was a crack cocaine dealer, but said he “told the troopers he might have sold a little bit of marijuana.”

When asked by chief deputy prosecutor Kristen Keller if his brother was a crack dealer, Kenneth Leftwich responded, “I’m not sure.”

Kenneth Leftwich testified he was awakened by multiple gunshots just after 4 a.m. on Aug., 29, 2006, adding there were 15 to 20 shots fired and that he later saw 15 to 20 shell casings in the road.

After hearing the gunshots, Kenneth Leftwich said, he called his brother’s cell phone to “make sure he was OK.”

Keller asked him about additional phone calls and Leftwich said he did not know his brother had shot and killed Smith.

State Police Capt. Scott Van Meter testified that based on phone records there were seven calls between the brothers the morning of Smith’s death.

When shown by Keller a painted picture of a police officer riddled with bullet holes, Kenneth Leftwich admitted he and his brother had used it for target practice, writing their initials, either “T.L.” or “K.L.,” beside each hole. He told his brother’s attorney, Mark Hobbs, the “paint by color” picture had been completed by another brother several years earlier and was the only target he and Thomas ever used.

Although the target depicts a police officer and was marked with a scoring system, awarding different points for different hits, Kenneth Leftwich said he and his brother never discussed or planned to shoot a police officer.

Van Meter told Hobbs the target “looks to me like the rehearsal to doing it (killing an officer),” adding he believed it demonstrated there was an anger toward police.

When asked by Hobbs if he believed that anger was enough to kill an officer, Van Meter responded, “Could be.”

State Police Cpl. D.C. Eldridge testified about photographs recovered from a computer seized from the Leftwich residence the morning Smith was killed.

Eldridge said he recovered 231 photo files, many of which featured narcotics, weapons or money.

In some of those pictures, which were shown to the jury, Leftwich is shown posing with various weapons, including the gun used to shoot Smith.

Hobbs argued the importance of the picture, asking Eldridge if the weapons shown in the photos could be purchased by the general public at a sporting goods store.

“They can be,” Eldridge replied, adding the purchases would be contingent on the buyer’s background and the intended use for the weapon.

State Police Cpl. Jason Davis, who has worked undercover for seven years, testified about the ins and outs of undercover investigations.

When questioned by Hobbs about using his police car as a personal vehicle, as Smith is said to have done, Davis testified his work car was his primary car, and, as an undercover officer, it would look suspicious if he was seen by drug contacts in multiple cars.

Responding to Hobbs’ references and questions regarding Smith’s girlfriend’s presence at the time of the shooting, both Davis and Van Meter testified they, in the case of an emergency, could not swear they would not take their wives along.

Because of Davis’ testimony, Judge H.L. Kirkpatrick reversed a pre-trial ruling, advising Hobbs he would be permitted to produce his own witness to testify about undercover protocol.

— E-mail:

mjames@register-herald.com

From today’s Beckley Register-Herald:

Note: A couple of things stick out here: One, the victim officer and his fellow officer, Reynolds, both had been drinking according to the testimony at trial. Then they drove the murder scene where the victim attempted to make an undercover buy. Who was driving? The article didn’t say, but the obvious conclusion is that someone was drinking and driving. If Reynolds was the driver, then why wasn’t he investigated for DUI? I think we all know the answer to that. Had it been you or I, we would have been arrested.

Lastly, there needs to be accountability for the police. Is it good policy to have these undercover narcotics officers roaming around in police vehicles drinking, driving and making undercover buys with their girlfriends present? Does anyone see a problem with this? Having previously investigated pattern or practice police misconduct for the Department of Justice, it disturbs me that the Beckley PD didn’t turn the investigation of this incident over to the FBI, or at least the WV State Police. Once more, what sucks (for lack of a better term) for this guy, Leftwich, and for his co-hort who was already convicted, the judge is not allowing the defense to make an issue of these questions. If you are going to try someone for murder, at least let them have a shot at defending themselves. Again, I’m not defending either of these guys, but what if it was you, or your son or daughter, on trial? Believe it or not, innocent people do get charged with crimes - especially in West Virginia. - John H. Bryan, West Virginia Criminal Defense Attorney.

Raleigh County chief deputy prosecutor Kristen Keller displays a photograph of the area where Beckley Police Detective Cpl. Chuck Smith was shot to death on Aug. 29, 2006. Cpl. Will Reynolds, left, was one of two witnesses.
Rick Barbero / The Register-Herald

“After I saw him take out his badge, my reaction was, ‘Something’s gone wrong’”

LEFTWICH MURDER TRIAL

By Michelle James
Register-Herald Reporter
A Beckley police officer who witnessed the shooting death of Detective Cpl. Chuck Smith testified Tuesday he sensed something was wrong just seconds before his friend and fellow officer was gunned down on a city street.

“After I saw him take out his badge, my reaction was, ‘Something’s gone wrong,’” Cpl. Will Reynolds said, continuing, “because there was no reason he would take his badge out.”

Reynolds testified on the second day of Thomas Leftwich’s murder trial. Leftwich is charged with first-degree murder, conspiracy and felony use of a firearm in the shooting death of the 29-year-old Smith in the early-morning hours of Aug. 29, 2006.

Leftwich, 25, is claiming self-defense. According to his attorney, Mark Hobbs, Leftwich was afraid he was about to be robbed and thought Smith might be reaching for a gun.

Reynolds recalled the hours leading up to Smith’s death. The two off-duty officers and close friends went out for dinner and visited a number of Beckley nightspots. It was at the last spot they visited, Pikeview Lounge, Reynolds said, where Smith was approached by a man who Reynolds would later learn was Timothy Blackburn.

“Chuck came over to me and told me we had to go,” Reynolds told the court, explaining Blackburn had planned to buy narcotics from Raushan McDougald, who was well known to narcotics officers as “Jellybread.”

Reynolds and Smith by that time had been joined by Smith’s then-girlfriend, Jasminda Gonzalez, who went along with the two officers.

“(We had) no plans of arresting ‘Jellybread,’” Reynolds testified. “We planned to observe the incident … and start an investigation.”

Reynolds told the court “Jellybread” was never located, adding the men instead encountered Michael Martin, who offered to help them purchase drugs. Martin was convicted of murder in December and sentenced to life in prison.

“He said, ‘Are you looking?’” Reynolds said of Martin, explaining that was street slang for drug dealers. “I said, ‘No,’ and Chuckie said, ‘Yes.’”

Shortly thereafter, Reynolds said, Martin led the three, in Smith’s police vehicle, a Jeep Grand Cherokee, to a parking lot at the corner of South Fayette Street and Willow Lane.

Reynolds said Smith walked with Martin across Willow Lane to the foot of a stairwell leading up to a house on top of a hill, now known to be the Leftwich residence.

“Chuckie looks at me and says, ‘I’m in, I’m out,’” Reynolds recalled, explaining those words confirmed there would be only a transaction but no arrest.

As Smith and Martin stood at the base of the steps, looking up at an individual later identified as Leftwich, Reynolds heard what he called a “brief confrontation of words,” saw Smith reach into his pocket and show Leftwich his badge. He then heard “the first shot.”

After the shots were fired and both Martin and the gunman fled, Reynolds moved Smith across the street in an attempt to get him to safety, he said. He also moved the vehicle to use as a shield.

Reynolds testified he checked Smith to see what kind of wounds the officer had received.

“I check his heartbeat and his heart is beating really fast and it just stops,” an emotional Reynolds recalled. “I felt a warm substance running down my leg in my shoe.”

“Blood,” Reynolds responded when asked by chief deputy prosecutor Kristen Keller what that substance was.

Leftwich’s attorney, Mark Hobbs, questioned Reynolds as to how much alcohol he, Smith and Gonzalez had consumed, and why Gonzalez was with them.

Reynolds testified he consumed beer, but said he did not believe any of the three was intoxicated. He said he saw Smith consume only a small mixed drink with dinner.

Dr. Iouri Boiko, who at the time of Smith’s death worked with the state medical examiner’s office, told the court that of the four bullet wounds Smith received, the most damaging was to his left chest, which perforated both lungs and damaged his heart.

Responding to Hobbs’ inquiry of Smith’s .07 blood alcohol level at the time of his death, Boiko said he believed that BAC level was that of “practically a sober person.”

Dr. Michael Kelly, chairman of emergency services at Raleigh General Hospital, told the court the first EMS record after Smith was shot was at 4:32 a.m. and reported no cardiac activity, no blood pressure and indicated Smith was not breathing. Kelly said Smith arrived at the hospital about 15 minutes later and was pronounced dead at 4:56 a.m.

Raleigh County Sheriff’s Detective Cpl. J.C. Canaday and State Police Sgt. Craig Light testified regarding two search warrants obtained for the Leftwich residence in the hours after Smith’s death.

Based on information from Reynolds that the gunman had come from the house on the hill and had vanished in the same direction, Leftwich’s residence was searched.

During the first search, Canaday said, residents were removed from the home and Thomas Leftwich approached him, confessed he had shot Smith and showed him where he had hid the weapon.

Canaday read a list of items recovered from the residence during the two searches, including shirts, a cell phone, guns, ammunition, counterfeit bills and a bullet-ridden target of a police officer.

Matthew White, a firearm and toolmark examiner, testified the bullets that struck Smith came from Leftwich’s Smith & Wesson .357.

State Police Senior Trooper R.A. Daniel testified regarding “background” checks done on 19 weapons seized from the Leftwich residence.

Daniel said the murder weapon and two other weapons had been reported stolen. Two weapons, he said, were sold to Leftwich, and it was not determined if the others had been stolen.

Hobbs countered that person-to-person sales are not always noted and Daniel had no evidence proving the other weapons had been stolen.

The trial continues at 9 a.m. today.

— E-mail: mjames@register-herald.com

From the Beckley Register-Herald:

Note: In the article below, I bolded a quote from Judge Kirkpatrick that immediately stood out to me. He says that the previous blood-alcohol testing that was done for the prosecution was done by the State Medical Examiner’s Office, not by an expert chosen by the prosecution. Well, if you have read any of my prior posts regarding our State Medical Examiner’s office, you would know that the prosecution couldn’t hire a better expert for their side if they had unlimited funds to do so. Being that many things in our state are backwards, the State ME’s Office and the State Crime Lab are basically appendages of the police and prosecutors. When they testify at trial they are trained to slant the evidence and their testimony towards the prosecutors. They are hired guns basically. If anyone contests this, then I will be glad to give examples. The end result is that none of their conclusions can really be trusted without independent testing and independent experts looking over their shoulders. Just “google” the WV State Crime Lab and you will find examples of what I am talking about. - John H. Bryan, West Virginia Criminal Defense Attorney.

Leftwich loses bid to suppress evidence

Michelle James
Register-Herald Reporter

A Raleigh County judge Wednesday denied a motion from Thomas Leftwich requesting suppression of a search warrant and the evidence it allowed officers to obtain from the accused police killer’s South Fayette Street home.

Leftwich, charged with first-degree murder and conspiracy in the shooting death of Beckley Police Detective Cpl. Chuck Smith, is scheduled to go to trial March 10.

Defense attorney Mark Hobbs questioned the probable cause for the warrant, the second issued in the hours after Smith’s Aug. 29, 2006, death. That warrant led to the seizure of a numerous items, including a variety of weapons, ammunition, drugs, videotapes and computers.

Raleigh Sheriff’s Detective Cpl. James Canaday, who signed the affidavit for the warrant, and State Police Sgt. Craig Light, who carried out the search, testified as to probable cause during a pre-trial hearing Wednesday.

The officers told the court that items seen while carrying out the first search warrant led them to obtain a second warrant.

Circuit Judge H.L. Kirkpatrick denied Hobbs’ motion for suppression, telling him there was probable cause for the second search warrant and adding a second warrant was not actually needed and the officers were simply exercising “extreme restraint and caution.”

Kirkpatrick also issued a pre-trail order intended to determine “pending motions, as well as establish parameters of inquiry of witnesses and remarks of counsel.”

Through the order, Kirkpatrick denied Hobbs’ Feb. 21 motion to be supplied with a sample of Smith’s blood in order for the defense to perform its own testing to determine Smith’s blood-alcohol level at the time of his death.

The order mentioned chief deputy prosecutor Kristen Keller’s assertion that the “BAC of the victim is entirely irrelevant when a defendant claims self-defense.” Also, Kirkpatrick pointed out the previous blood test had been completed by the state medical examiner’s office, not an expert of the state’s choosing.

Kirkpatrick also denied Hobbs’ request to enter as evidence the City of Beckley’s general policy manual for police officers. In the order, Kirkpatrick stated there was no written guideline for policy and procedures for undercover operations and said a general policy manual would have no relevancy.

Also, because speculation became a problem during the trial of Leftwich’s co-defendant, Michael Martin, the order prohibits “sheer speculation concerning supposed motives attributable to the victim.”

Martin was found guilty of first-degree murder and sentenced to life without parole.

The order also states the court will not allow the victim’s character to be “trashed.”

Kirkpatrick’s order permits the defense to inquire about and address testimony pertaining to all activities and events surrounding the shooting.

State Police Capt. Scott Van Meter, left, looks on as chief deputy prosecutor Kristen Keller asks Raleigh County Circuit Judge H.L. Kirkpatrick to disallow any negative commentaries on the character of the late Beckley Police Detective Cpl. Chuck Smith Thursday during pre-trial motions in the Thomas Leftwich murder case. Leftwich is accused of shooting Smith to death during an Aug. 29, 2006, undercover drug operation.
Rick Barbero / The Register-Herald

From the Beckley Register-Herald:

Note: What the defense is getting at here is allegations that the victim narcotics officer was not acting entirely in the capacity of a police officer when this happened. It is claimed that the victim was at a bar drinking prior to the shooting, and that when the shooting happened, he was unarmed, and his girlfriend was in the car several steps away, along with his partner, who was also purportedly unarmed at the time.

However, it doesn’t look like the Judge is going to give the defense much latitude with this argument. Regardless, his co-defendant was already convicted, and he had a much better chance of getting off because he wasn’t the shooter. He probably will inevitably be convicted, as he should. But its possible he will get convicted of 2nd degree murder if the jury runs with any of these facts. - John H. Bryan, West Virginia criminal defense attorney.

Accused cop killer to claim self-defense

Pre-trial motions heard in 2006 shooting of Beckley police detective

By Michelle James
Register-Herald Reporter

Two hours or so after he fired the shots that took the life of Beckley Police Detective Cpl. Chuck Smith, Thomas Leftwich told State Police Capt. Scott Van Meter he thought Smith might have been reaching for a weapon.

“I thought he was reaching for a gun,” Leftwich told Van Meter just before 7 a.m. on Aug. 29, 2006. “I didn’t know what he was reaching for.”

Van Meter read Leftwich’s short statement Thursday during pre-trail motions in Raleigh County Circuit Court.

Leftwich is charged with one count each of first-degree murder, conspiracy and use of a firearm in the death of the 29-year-old Smith.

During Thursday’s hearing, his attorney, Mark Hobbs, told the court the planned defense during the trial, which is slated to begin March 10, will be self-defense.

Hobbs said “it was all about (Leftwich’s) state of mind at the time” of the shooting, adding Smith did not identify himself and was fumbling in his pocket.

Although toxicology reports on Smith showed his blood-alcohol content was below the legal limit, Hobbs requested a sample of his blood in order for the defense to perform its own testing.

Chief deputy prosecutor Kristen Keller argued “BAC is irrelevant,” adding even if the toxicology is disputed, it doesn’t mean Smith’s death was justified.

Hobbs, saying he believed Smith had violated police department policies the night he was killed, requested permission to enter as evidence the Beckley Police Department’s policy manual.

Should Kirkpatrick allow submission of the manual, Hobbs said Marvin Robinson, a former city detective, would be an expert witness for the defense.

Keller questioned the relevance of the manual and added not only was there no evidence Smith had done anything wrong on the night of his death, but that if he had been in the wrong it is “no defense saying he wasn’t following rules and procedures.”

Keller asked Kirkpatrick to not permit Smith’s character to be called into question during the trial.

Kirkpatrick said there would be no “attacking or trashing the reputation” or Smith’s character.

Although Hobbs told the judge Smith’s character was not generally an issue, he said some of the conduct from the night of his death was. He asked Kirkpatrick to give guidelines on “how far he could go” when talking about what Smith had done prior to the incident.

Kirkpatrick said he would put together a pre-trial order to discuss what matters are permissible and what are off-limits.

Another pre-trial hearing has been scheduled for 1:30 p.m. next Wednesday, at which time Kirkpatrick will rule on the request for a blood sample as well as on the admissibility of the department policy manual. The hearing will also determine if Robinson is qualified to testify as an expert witness on the manual.

Leftwich’s co-defendant, Michael Martin, who set up the alleged drug buy between Leftwich and Smith and was himself convicted of first-degree murder in December, will also appear at the hearing to determine if he is willing to testify at Leftwich’s trial or if he will exercise his Fifth Amendment rights.

Leftwich, barring a negative medical exam, will wear a shock belt mechanism during his trial.

Kirkpatrick explained the belt will allow the court to reduce the number of police officers needed in the courtroom. Should Leftwich not comply with orders or get out of hand, Kirkpatrick said, a trained officer would administer a shock that would temporarily disable him.

Leftwich agreed to wear the belt.

— E-mail: mjames@register-herald.com

Yesterday, Patricia Brown was sentenced to 40 years, which is the maximum sentence for 2nd degree murder. Following a jury trial, she was acquitted of first degree murder. At the hearing, two members of the victim’s family spoke. Then Patricia briefly spoke on her own behalf, still proclaiming her innocence.

However, 40 years is much better than life without mercy. In her case, she will come up for parole in 10 years - actually 9 years since she has already spent one year in jail. - John H. Bryan, West Virginia criminal defense attorney.

From today’s Beckley Register-Herald:

Special jury called for prosecutor beating

By Christian Giggenbach
Register-Herald Reporter

LEWISBURG — A Greenbrier County judge has ordered a special grand jury to convene next month to decide if a sheriff’s deputy will be indicted for allegedly beating county prosecutor Kevin Hanson last year during a front yard altercation.

Special prosecutor Dan Dotson of Braxton County filed a motion in circuit court last week and Judge James J. Rowe issued the order Friday for a special grand jury to convene March 18. The order also states that no member of the February grand jury, which meets today, may be called for the special grand jury.

Dotson said a special grand jury was necessary because the victim in the case, Hanson, presents evidence for indictments to the regular county grand jury.

Deputy Kevin Sawyers, a seven-year veteran of the Greenbrier County Sheriff’s department, has been charged by State Police with unlawful wounding stemming from an altercation with Hanson last August.

Dotson said up to 25 citizens may be called upon to comprise the 16-person jury. At least 12 jurors must vote that probable cause exists that a crime has been committed in order to “return a true bill” or indictment.

“The people that will hear the case must not have any ties to the recent grand jury,” Dotson said by phone Monday.

Names for grand jury lists come from DMV and tax records, as well as voting registration lists, Dotson said.

During a grand jury, prosecutors normally question the arresting officer and present evidence about the alleged crime. Rules of evidence are not followed and hearsay is allowed during a grand jury.

The accused may also testify in front of a grand jury, which is rare, but it must be done outside the presence of his or her lawyer. Judges give instructions to grand juries about the elements of a crime, but are not present during any questioning.

In September, a misdemeanor battery charge was upgraded to the felony charge of unlawful wounding against Sawyers.

Hanson, the county’s prosecutor since 2001, spent several days in a local hospital recovering from his injuries. He has not been charged in the incident.

Dotson said Hanson suffered a broken nose, separated shoulder, bruises, swelling, lacerations and abrasion from Sawyers’ attack.

The criminal complaint filed by Princeton State Trooper Sgt. M.R. Crowder states Sawyers, 37, “arrived at his estranged wife’s residence” on Aug. 2 and found Hanson “in the driveway area.”

Sawyers had previously filed for divorce from his wife, who is employed as a legal assistant at the county prosecutor’s office.

Sawyers’ defense attorney, Tom Czarnik, could not be reached for comment Monday. Sawyers remains free on $2,500 bond and was placed on paid administrative leave from his job pending the resolution of his charges.

If convicted, Sawyers faces a maximum prison sentence of five years.

Note: My guess would be that this case will go to trial - before a jury. A couple of things to point out: here you have a 7-year veteran of the Sheriff’s Department beating up the elected prosecutor. He was initially charged with misdemeanor battery, but the charges were upgraded to a felony after a “special” prosecutor was brought in on the case. Much like cops, prosecutors don’t take too kindly to one of their own getting attacked. You have to wonder if the everyday bar fight - albeit with injuries requiring hospitalization - brings a felony charge. I haven’t seen very many of those. Misdemeanor battery will probably be offered as a plea, but if he takes it he surely will lose his job. Thus, I think this case will go to trial. Historically, the husband-beats-up-other-man-with-wife defense has faired pretty well before juries - even in murder cases. Furthermore, this defendant is an Iraq war veteran, and probably a pretty sympathetic guy. I give him a good shot at being acquitted. - John H. Bryan, West Virginia criminal defense attorney.

From today’s Charleston Daily Mail:

Jurors find Michael Merrifield guilty

by Cheryl Caswell
Daily Mail staff

WINFIELD - After little more than one day of deliberations, a jury has found Michael Merrifield guilty of the murder of 2-year-old Logan Goodall.

They also found Merrifield, 32, guilty of causing the death of a child as a parent or guardian and guilty of sexual abuse by a parent or guardian. They found him not guilty of first-degree sexual assault.

Jurors did not recommend mercy, so the first-degree murder charge carries a life sentence.

Watch video of the verdict being read here
An attorney for Michael Merrifield had told jurors during his closing argument that other people should have been suspects in the 2005 death of the Putnam County toddler.

Ed Rebrook, who along with Mike Clifford has represented Merrifield in his first-degree murder trial, implored jurors to remember there was no direct evidence to link Merrifield with the child’s injuries or death.

And Rebrook again raised the question he has brought up several times during the trial - that Michael’s brother was suspect.

“Where was Patrick Merrifield?” Rebrook asked. “We know he had access to the child. He refused to testify. You have (Logan’s mother) Pepper Eren, you have Michael Merrifield and you have Patrick Merrifield.

“All three suspects were in the house in the time range the physicians have given us for when death occurred.”

Three witnesses, including another medical examiner called in by the state Wednesday, said Logan bled to death from a liver laceration and it could have taken several hours.

“The state wants you through a process of elimination to see that Michael Merrifield did it,” Rebrook said. “That is not what you agreed to do when you agreed to serve on this jury.”

The jury began deliberating Wednesday and continued today.

Conspicuously absent from the courtroom Wednesday for closing arguments were the defendant’s parents, Dr. John and Diane Merrifield, who have sat directly behind their son for the entire trial in Putnam Circuit Court.

The Merrifields were believed to be with Patrick, who reportedly had been admitted to Charleston Area Medical Center.

An operator at CAMC said no information could be given out about Patrick Merrifield. His attorney, Jim Cagle, also would not answer questions.

Patrick was subpoenaed by the defense but invoked his Fifth Amendment right not to testify because he didn’t want to incriminate himself.

Frequently during the trial, the defense had pointed out that Logan, while in the care of Michael Merrifield, also spent a lot of time with Patrick.

In his closing statements, Putnam County Prosecutor Mark Sorsaia asked the jury to find Michael guilty and grant him no mercy.

The former boyfriend of Logan’s mother, Michael is accused of sexually assaulting, abusing and killing Logan on Sept. 6, 2005.

“Do not recommend mercy,” Sorsaia said. “There is none. Don’t give it to him. This is the man who abused this child, causing his death.”

Sorsaia displayed photographs of the dead child while he spoke to jurors. Melissa Eren, the boy’s grandmother, openly wept, and many others in the courtroom cried and dabbed their eyes.

The prosecutor reiterated to the jury the many injuries the boy sustained, including multiple bruises and cuts, and told them no one else could have inflicted them. He said Michael had abused and tortured the boy for months.

“On the 6th of September his body gave up and sought refuge in death. He did not have the benefit of a loving mother or father with him, or a compassionate caregiver to help him.

“He died alone, in the presence of the man over there, who is responsible for killing him,” Sorsaia told them.

But Rebrook told jurors they couldn’t fairly jump to the conclusion that Michael abused or killed the boy. Instead, he reminded them of testimony from witnesses who said Michael loved Logan and provided care for him that his mother did not.

Sorsaia said the toddler wanted nothing but love but got only pain and hurt in his life.

“No matter how hard that little boy worked at being good, he got hurt,” he said. “Children have nothing but love to give, even when someone hurts them.”

Sorsaia reminded the jury of all the stories Michael told of how the child was injured.

“He told everyone at the hospital he loved the child, but the nurses were too smart,” Sorsaia told them. “They noticed he did not have any tears.

“All three paramedics were suspicious. The nurses were suspicious,” he said.

But Rebrook told the jury that medical professionals can jump to the wrong conclusion. He told them his wife once fell down the steps in their home and cut her head. He said he took her to the hospital and was surprised when health care professionals suspected abuse.

“They said to her, ‘He did this to you, didn’t he?’ ” Rebrook recounted.

“I tell you that to tell you in this world there is injustice,” Rebrook said.

Rebrook said that if the child was being hurt and abused, family members would have known it.

“If you hurt a child, they are going to tell someone,” he said. “If Michael Merrifield had burned that child, don’t you think the child would have told his grandparents? Don’t you think he would have said, ‘Michael did this to me?’ “

Rebrook said he thought Michael might have caused the boy’s death in his desperate attempts to revive him the day he died.

According to court records and witness statements, Michael repeatedly told police Logan had started having a seizure and he squeezed and hit him on the back to revive him.

“But I don’t think he murdered him,” Rebrook said.

“My client has been in jail for more than two years,” he said. “I ask you to set him free.”

Note: Examine the last three sentences of the article. The defense attorney posits the theory that his client may have accidentally killed the child in his attempts to resuscitate. I have heard this used before in infant abuse murder cases. This is a classic decision for a jury: is the medical evidence and other evidence in the case consistent with this theory? Evidently the jury found that it was not. The defense attorney also states after positing the theory, “But I don’t think he murdered him.” This is unique. Usually it is not appropriate for the defense attorney to give an opinion as to personal belief to the jury, only to argue on behalf of the client. But, who is going to complain? Certainly not the prosecutor, because the guy was convicted. - John H. Bryan, West Virginia criminal defense attorney.

From today’s Register-Herald:

Jury selected for accused cop killer

By Matthew Hill
Register-Herald Reporter
A jury of seven women and five men, along with two male alternates, was impaneled Thursday for the March 10 trial of a Beckley man charged with fatally gunning down a city undercover police officer in August 2006.

The panel was seated Thursday after Raleigh County Circuit Judge H.L. Kirkpatrick started Wednesday morning with a pool of 47 potential jurors for the trial of Thomas Leftwich, 25. Leftwich is charged with one count each of first-degree murder, conspiracy and use of a firearm in connection with the Aug. 29, 2006, shooting death of Beckley Police Detective Cpl. Chuck Smith.

Kirkpatrick thanked the jurors for “going above and beyond the call of duty” in braving Thursday’s inclement weather to appear in his courtroom. He cautioned the jurors to refrain from reading, viewing or listening to media coverage of the case. Kirkpatrick added they would be individually questioned March 10 as to any media coverage to which they may have been exposed.

A motions hearing in the case is scheduled for Feb. 21. Chief deputy prosecutor Kristen Keller is heading up the prosecution, while Leftwich is represented by Logan County attorney Mark Hobbs.

Leftwich’s co-defendant, Michael E. Martin, 42, of Beckley, was convicted last month of first-degree murder and conspiracy in connection with Smith’s death in an alleged undercover drug buy that went sour.

In that case, as in Leftwich’s, a jury was selected several weeks ahead of the trial due to heavy publicity surrounding the case. Attorneys have worried that intense media coverage could make jury selection problematic.

Martin faces life in prison with no chance of parole when he is sentenced today by Kirkpatrick.

Note: This reporter is one of the same reporters that covered the Patricia Brown murder trial that I was involved in. It is always frustrating to read the newspaper every morning during a highly-publicized murder trial in that it is almost always heavily biased against your client. The sad thing is that you know jurors are probably reading the paper every morning too. Even worse than the paper is watching the evening news on TV - they are horribly, horribly biased and inaccurate. However, this particular reporter, Matthew Hill, began his stories about the Patricia Brown trial in a very biased way - see for example this article, titled “Victim named killer as she bled to death, witness says.” It makes you cringe to picture jurors waking up in the morning and taking a glance at the front page of the paper, whether they actually read the article or not. However, I think that after sitting through every witness in the trial, he began to publish articles that were more fair and balanced, see for example this article titled “Defense hints at theory in murder trial,” or this article titled “Experts testify in Brown murder trial.”

Anyways, in the above case, using the label “cop-killer” definitely is not going to help the defense if potential jurors hear that word. In their mind, they are not going to want to even consider the possibility of finding someone not guilty who has been touted in the community as being a “cop killer.” Whether he is or not is irrelevant. The point is that even defendants charged with killing cops are entitled to a fair and impartial jury. This is probably something that you will see at the trial itself. Trial lawyers like to use labels in front of juries. I’m sure the prosecution will repeatedly refer to the defendant as a “cop killer,” probably over the objection of the defense. - John H. Bryan, Attorney at Law.

Perhaps the most difficult situation to be faced with as a criminal defense attorney in West Virginia, or in any other rural state, is going to trial with a defendant who is charged with such an appalling crime that it is practically impossible to get a fair and impartial jury. This task is made much more difficult in your average small West Virginia county, where any crime of great magnitude is going to be repeatedly covered in the local media. Nevertheless, without a fair and impartial jury, justice cannot be served, one way or the other. In my opinion, cases like this should be moved far, far away from the local county in which the crime is alleged to have taken place. In the below case, today marks the third day of jury selection. Obviously the defense attorneys made a previous motion for change of venue, which was denied or “taken under consideration” by the Judge until either a jury is seated, or enough potential jurors are dismissed for cause that a jury cannot be seated. Either way, if it has already taken three days to seat the jury, obviously most of the potential jurors have prior knowledge of the case from media accounts or other local conversation or gossip. This creates a tough row to hoe for the defense if a jury is seated - since all it takes for a juror to be deemed “fair and impartial” by the Court is for them to say, “yeah, I think he’s guilty, but I probably can be fair and impartial….”

From an article in the Charleston Daily Mail:

Opening statements are likely to begin Monday in the trial the man accused of sexually assaulting and killing Putnam County toddler Logan Shane Goodall.

After three days of questioning potential jurors, defense lawyers and prosecutors on Thursday had not yet chosen the 12 people who will decide the fate of Michael Kent Merrifield.

“We’re slowly but surely trucking along,” defense lawyer Mike Clifford said Thursday morning.

The 2-year-old boy died in September 2005. An autopsy found that he had been severely beaten and sexually assaulted before his death.

Merrifield, 32, once dated the boy’s mother, Pepper Dawn Eren. He is charged with first-degree murder, first-degree sexual assault, sexual abuse by a parent or guardian and child neglect by a guardian or parent resulting in death. In August 2006, Merrifield pleaded not guilty to the charges.

His lawyers have long maintained that they wouldn’t be able to find an objective jury in Putnam County because of media attention to Merrifield’s case. In September, Putnam Circuit Judge Ed Eagloski denied their written motion to change venue because of publicity.

“Obviously [publicity] is the problem, and it is taking a long time,” Clifford said. “I’ve been involved in criminal trials where the selection of the jury didn’t take an hour.”

Prosecuting Attorney Mark Sorsaia said he has a policy not to publicly comment on a trial until it is over. He would only say he expects opening statements to begin Monday.

Defense lawyers and prosecutors started individually questioning potential jurors Tuesday at the Putnam courthouse in Winfield, Clifford said.

“I think we’ve questioned probably close to 40 at this point,” he said Thursday morning.

Dozens of potential jurors were eliminated even before questioning began due to their answers to a jury questionnaire, he said.

Eren originally also faced first-degree murder charges, but pleaded guilty last year to child neglect causing injury. In September, she was sentenced to one to 10 years in prison.

As detailed at the CrimProf Blog, evidence has been discovered of a prosecutor wanting to downplay evidence in an innocent man’s trial.

From jacksonville.com: Only weeks before Chad Heins’ murder trial in 1996, a Jacksonville prosecutor sent a memo asking a state crime lab supervisor to downplay findings that stray hairs found on the victim’s body came from an unknown person.

“I need to structure your testimony carefully so as to convince the jury that the unknown hairs are insignificant,” Assistant State Attorney Stephen Bledsoe wrote in a letter recently obtained by the Times-Union.
In December 1996, a jury convicted Heins of the first-degree murder of his sister-in-law in her Mayport apartment. He was sentenced to life in prison until new DNA tests led to his release last month.
Bledsoe’s letter was among thousands of pages of documents examined by Heins’ lawyers after a judge allowed re-testing of DNA in the case. Although the attorneys don’t believe it affected the outcome of the case, the letter shows a “cavalier disregard for the actual evidence,” said Jennifer Greenberg, policy director of the Innocence Project of Florida, which worked for Heins’ release.
“It actually made my stomach turn,” Greenberg said Tuesday. “This is not a game. This is justice. These are people’s lives and they matter and the truth matters.” Rest of Article. . . [Mark Godsey]