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Defense questions trooper in trial

October 25, 2003|by CANDICE BOSELY

martinsburg@herald-mail.com

David Eugene Munday's defense attorneys asked witnesses Friday whether it is possible a fellow trooper or a woman who lived on Harper Lane accidentally shot Trooper R.J. "Bobby" Elswick on Oct. 10, 2002.

Defense attorney Robert Barrat first asked Trooper John Droppleman, who was present during the shooting, whether it is possible someone other than Munday shot Elswick.

"Absolutely not. I know what you're implying. Absolutely not," Droppleman said.

Had one of the troopers shot Elswick at close range with his service weapon, a .40-caliber handgun, it would have caused a more severe injury, Droppleman said.

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Barrat then asked whether it was possible Elswick was hit with a pellet from a shotgun shell. Droppleman was armed with a shotgun that night and fired it several times.

Each shotgun shell holds several small pellets, which Droppleman compared to ball bearings.

Droppleman looked at Barrat for a moment with an unbelieving expression before answering that Elswick was definitely not hit with a pellet.

Because all but a few fragments of the bullet remain lodged in Elswick's brain, ballistics testing was not possible.

Munday, 38, of Hedgesville, W.Va., faces 28 felony and misdemeanor counts related to the shooting and events that led to it. His trial, which started Tuesday, is scheduled to continue next week.

Later in the day while questioning Sgt. Dean Olack, the investigating officer, Barrat asked whether it is possible Sandra Lambert, who lived on Harper Lane at the time, shot Elswick.

Before the shooting, Munday allegedly threatened to kill Lambert and shot his gun, a .22-caliber Marlin bolt-action rifle, toward her.

Barrat focused on a 911 call Lambert made just before police arrived. On the tape, which was played for jurors, Lambert told a dispatcher Munday was holding her husband hostage.

Parts of the tape were difficult to hear, but Lambert mentioned a gun going off and said she was not sure whether it was her gun or Munday's gun. Lambert also owned a .22-caliber Marlin bolt-action rifle.

The dispatcher asked Lambert whether she had fired her weapon.

"I had to. I have a kid," Lambert replied.

When the dispatcher asked Lambert whether she had fired toward Munday, Lambert said, "I believe I did. Somebody's gun went off."

When it was her turn to question Olack, Berkeley County Prosecutor Pamela Games-Neely said whether Lambert fired her gun is irrelevant because if she did it was before Elswick arrived.

Police found three spent shell casings from a .22-caliber rifle at the scene. Ballistics tests showed that all three came from Munday's rifle, said Rusty Reed, head of the West Virginia State Police Crime Lab's Firearms and Tool Marks section.

The shooting happened along Harper Lane, a gravel road in Hedgesville, as Droppleman, Elswick, Trooper Robert Copson and Sgt. Eric Burnett discussed how to handle a potential hostage situation. As they conferred, they spotted someone walking toward them.

When they shined their flashlights on the man, the man raised a rifle and threatened to kill the officers, Droppleman testified. Because the man refused to comply with orders to drop the weapon, Droppleman started to run for cover.

"I heard a pop and I immediately fired," he said.

Barrat then referred Droppleman to a statement he wrote about an hour after the shooting.

"The suspect yelled back, 'I'm going to shoot you. I'm going to kill you.' The suspect refused to comply with the orders given to him, so Trooper Droppleman fired his shotgun three to four times at the suspect," Droppleman wrote in the statement.

Barrat asked Droppleman why he did not indicate in the statement that Munday shot first. Droppleman replied that it was not until later, after speaking with the other officers, that he realized with certainty Munday shot first, he said.

Koren Powers, a trace evidence technician with the West Virginia State Police Crime Lab, testified about the results of gunshot residue kits applied to Munday after the shooting.

Tests revealed gunshot residue was present on Munday's face and left hand, she said.

On cross-examination, defense attorney Margaret Gordon asked whether it was possible that an officer who had fired a gun and touched Munday could have transferred the powder. Droppleman said he had to practically carry Munday from a wooded area after shooting him with buckshot.

Powers said it was possible.

"Typically, it's very easily transferred," she said.

After hearing from several more witnesses, Games-Neely rested the state's case at 4:15 p.m. Jurors were allowed to leave and told to return Tuesday morning, when the trial will resume.

To keep them from hearing about or discussing the case, the judge barred jurors from going to work Monday.

After the jurors left, Gordon told Circuit Judge David Sanders the case should be dismissed because not a single witness pointed toward Munday and identified him.

"Nobody said this is the guy. It's not up for the jury to figure out this is the guy," she said.

After considering the motion, Sanders ruled that the serious nature of the case could not cause him to dismiss it on such a technicality. He also said several witnesses were affected by Munday's presence in the courtroom, including one who "glared" at him while testifying.

In addition, he said, Gordon may have hurt her cause. When she cross-examined witnesses, she often introduced herself and Munday, pointed toward him and even described his clothing.

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