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Munday case is sent to jury

October 29, 2003|by CANDICE BOSELY

martinsburg@herald-mail.com

After deliberating for a little more than an hour late Tuesday afternoon, jurors hearing the trial of David Eugene Munday decided they wanted to leave for the night and resume today.

Munday, 38, of Hedgesville, W.Va., is being tried on 25 felony and misdemeanor charges related to the Oct. 10, 2002, shooting of West Virginia State Police Trooper R.J. "Bobby" Elswick.

The trial began last week.

Neither Munday nor Elswick, who continues to recover from the gunshot wound to his head, testified.

Before leaving for the evening, jurors sent a note to Circuit Judge David Sanders indicating they wanted to see the crime scene at night.

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Jurors were taken to the scene, on Harper Lane in Hedgesville, one morning last week. The shooting happened around 9 p.m.

Sanders reserved making a final decision, but told the jurors they were not allowed to drive there themselves. Members of the jury - seven women and five men - then left. Deliberations are scheduled to resume today at 9 a.m.

Because the defense called no witnesses and rested its case Tuesday morning, not long after they sat down, jurors were released for a mid-morning break. Attorneys on both sides haggled over final motions and the instructions to the jury. Those instructions ended up being 37 pages long, and it took an hour for Sanders to read them aloud to the jury.

After listening to the instructions, jurors heard closing statements from Berkeley County Prosecutor Pamela Games-Neely and one of Munday's two attorneys, Margaret Gordon.

Using a PowerPoint presentation, Games-Neely showed the jurors a timeline of what the prosecution said happened that night, starting with the time Munday got home from work.

Games-Neely said he drank at a local bar and played pool, returned home, got into an argument with his girlfriend and slapped her.

Munday's girlfriend, Connie Harrison, 40, and a neighbor, Sandra Lambert, then went to a nearby convenience store to buy soda. Once at the store, Harrison called police and told them of the alleged domestic battery, according to Games-Neely and previous testimony.

By the time two state troopers, including Elswick, arrived, Munday was gone and had taken with him a .22-caliber Marlin bolt-action rifle, she said.

After 911 dispatchers received calls indicating Munday was holding a neighbor hostage, four state troopers returned to Harper Lane.

As Elswick and three other troopers converged on the gravel road to discuss how to handle a possible hostage situation, Munday walked down the road, raised his rifle and fired one shot, which hit Elswick on the left side of the head, Games-Neely said.

Games-Neely attempted to dismantle defense speculation that someone other than Munday shot Elswick.

"This is not an accidental shooting by any stretch of the imagination," Games-Neely said. "It's David Munday. There is no question it's David Munday."

Games-Neely said Munday was not insane that night, as defense attorneys have argued.

"Don't give him this excuse," she said.

Gordon, during her closing statement, repeated the phrase "reasonable doubt" over and over.

"Reasonable doubt with a big old R and a big old D," she said at one point.

She pointed out that Munday's blood-alcohol content that night was measured at .161. And although state experts disputed him, a defense expert theorized that Munday suffers from post-traumatic stress disorder.

Both, Gordon said, mean Munday was insane and was not able to form intent that night.

Should jurors find Munday not guilty by reason of insanity, he would not be given keys to walk out of the courthouse doors, Gordon said.

"I'm not making excuses," she told the jurors. "It's a chance to give someone a chance."

Surrounded by friends and family members, Elswick, who has said he does not remember the shooting, has attended most of the trial. Sitting in the courtroom's back row, he talked and joked with friends as the jurors deliberated in a private room.

Munday faces the following charges related to the shooting and events that preceded it: Three counts of burglary, three counts of kidnapping, five counts of wanton endangerment with a firearm, one count of malicious assault upon a police officer, four counts of attempted murder, two counts of brandishing a firearm, three counts of discharging a firearm within 500 feet of a dwelling, one count of domestic battery, one count of destruction of property, one count of assault and one count of fleeing from police on foot.

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