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Judge rejects request for venue change

October 09, 2003|by ANDREW SCHOTZ

andrews@herald-mail.com

A statistical projection of jury-pool bias on Wednesday failed to convince a judge to transfer a well-publicized attempted-murder case to another county.

The attorneys representing David Eugene Munday, 38, of Harper Lane in Hedgesville, W.Va., requested a change in venue for his trial, which could mean moving it elsewhere or impaneling an out-of-county jury.

Munday was charged with attempted murder after West Virginia State Police Trooper Robert J. Elswick was shot in the head Oct. 10, 2002.

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At Wednesday's pretrial hearing, Berkeley County Circuit Judge David Sanders was not swayed by a statistician's claim that local publicity surrounding the case may taint the jury pool.

In a related matter, Sanders also ruled Wednesday that statements Munday allegedly made to police officers and emergency workers after the shooting can be admitted as evidence.

The trial is scheduled to start Oct. 21.

Munday is charged with four counts of attempted murder and one count of malicious wounding of a police officer.

Charging documents allege that Munday shot Elswick in the head on a rainy night after Elswick and other troopers responded to a call about a domestic dispute on Harper Lane. Munday allegedly threatened to kill the troopers and ordered them to keep away, then fired a rifle.

Elswick was in critical condition for several weeks, but rallied and lived. He since has appeared in public in a wheelchair and received a Purple Heart in May.

Munday also has been charged with trying to bribe two key witnesses, but those allegations will not be part of this month's trial.

Attorneys argued Wednesday about whether Munday's alleged comments about shooting Elswick and wanting to die could be introduced during the trial.

The two sides' mental health experts presented conflicting professional opinions. Each has interviewed Munday.

Defense witness Gary McDaniel, a licensed independent clinical social worker with East Ridge Health Systems, testified that post-traumatic stress disorder is the diagnosis most suited to Munday's mental condition.

McDaniel also said he thinks Munday is dependent on alcohol and marijuana.

Severe, inescapable childhood trauma - particularly extensive abuse by authority figures in his life - "never came to the attention of the proper authorities," McDaniel testified.

The key criteria for post-traumatic stress disorder, he said, are heightened arousal, such as sleep problems; nightmares, flashbacks or other intrusive symptoms; and avoidance of situations that can evoke feelings of fear and panic, all of which Munday has.

The grip of post-traumatic stress disorder meant that Munday's "ability to conform to norms was significantly impaired" the night Elswick was shot, McDaniel said.

The prosecution countered with East Ridge psychiatrist Raymond Shapiro, who said alcohol is the root of Munday's behavioral problems.

"Mr. Munday has been given chance after chance after chance after chance after chance after chance over the years ... and he actively avoided treatment," Shapiro testified.

Shapiro said he believes Munday was trying to commit "suicide by cop" by angering the troopers to the point where they would shoot and kill him.

"You go out in a blaze of glory ..." Shapiro said. "For a lot of people, it's very difficult to kill yourself. You make someone else mad enough at you."

Defense attorney Margaret Gordon tried to get Shapiro to acknowledge that post-traumatic stress disorder could cause someone to lose control.

He wouldn't. Each time, Shapiro responded by saying that Munday refused to stop drinking alcohol.

To bolster her argument, Gordon showed Shapiro a form on which he previously indicated that Munday had some degree of mental illness.

Shapiro said the form was meaningless bureaucracy and irrelevant in the criminal case.

"I would say about five seconds of thought went into that form - roughly," he said.

Earlier in the hearing, Shepherd College sociology professor V.J. Brown testified about a telephone survey he supervised on pre-trial publicity.

About 19 percent of the respondents said, without prompting, that they had heard of Elswick or Munday, plus details of the case. About 64 percent said they knew details, but not the names, and about 17 percent said they knew nothing of the case.

In order to weed out people with knowledge of the case, about 240 to 260 people would have to be drawn into the jury pool, Brown testified.

A more practical solution would be to bring in a jury from outside the county, he said.

Berkeley County Prosecutor Pamela Games-Neely argued that while survey respondents may say the right person was arrested, they will understand that due process is in order before a defendant can be convicted.

Higher-profile cases have been tried fairly in the county, she said.

Sanders said statistics may veer from reality and he thinks an impartial jury can be picked.

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