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Jury's still out in Munday trial

October 30, 2003|by CANDICE BOSELY

martinsburg@herald-mail.com

MARTINSBURG, W.Va. - Jurors hearing the case of David Eugene Munday, who is charged with shooting a West Virginia State Police trooper, decided Wednesday to cease deliberating at 5 p.m. and plan to resume this morning.

After listening to closing statements Tuesday afternoon, jurors deliberated for about an hour before leaving just after 5 p.m. Minus a couple of smoke breaks and an hour-long lunch break Wednesday, jurors deliberated from 9 a.m. to 5 p.m.

Just before leaving, jurors sent a note to Circuit Judge David Sanders asking to see a transcript of West Virginia State Police Trooper John Droppleman's testimony. They asked Sanders to have an answer today.

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Munday, 38, of Hedgesville, W.Va., is on trial for 25 charges related to the Oct. 10, 2002, shooting of Trooper R.J. "Bobby" Elswick, including four counts of attempted murder, three counts of kidnapping and one count of malicious assault upon a police officer. Munday is charged with shooting Elswick once in the left side of his head with a .22-caliber rifle. Elswick continues to recover from the wound.

Droppleman testified last week. He, Elswick, Trooper Robert Copson and Sgt. Eric Burnett had responded to Harper Lane in Hedgesville that October night to handle a possible hostage situation.

Jurors did not specify which portion of Droppleman's testimony they needed to review. Droppleman testified about his actions that night, saying he pursued Munday through a wooded area and shot him with shotgun pellets, forcing Munday to surrender to police.

After the jurors left for the evening, attorneys on both sides and a law clerk used a laptop to try to find case law establishing whether a jury can have a transcript while deliberating.

Two relevant cases were found, including a 1934 case from West Virginia.

Both cases declared that while juries cannot have a written transcript of testimony, testimony can be read back to them. Both cases also declared that a judge must make that decision.

Sanders said he would rule on the matter this morning and asked court reporter Marcy Chandler to prepare a draft copy of Droppleman's testimony.

Berkeley County Prosecutor Pamela Games-Neely said she has no problem allowing the jury to again hear Droppleman's testimony. Munday's attorneys said they oppose it.

Defense attorney Robert Barrat said he fears the jury will place more emphasis on Droppleman's testimony than on that of other witnesses. He said jurors should rely on their notes and memory.

On a separate issue, Sanders ruled that the jury cannot see the crime scene at night, as they had requested. Games-Neely opposed that idea, saying the crime scene might not appear as it did last year because of daylight savings time, lighting conditions, the moonlight and other factors. Munday's attorneys agreed.

The trial began last Tuesday, when the entire day was spent selecting a jury. Testimony was heard every day the rest of the week and resumed Tuesday; jurors had Monday off.

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