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'Three strikes' trial for Munday to begin today

January 08, 2004|by CANDICE BOSELY

martinsburg@herald-mail.com

Several last-minute issues - including whether an attorney should be removed - were handled during a pre-trial hearing Wednesday for David E. Munday, the man convicted of shooting a West Virginia State Police trooper once in the head.

Munday, 38, of Hedgesville, W.Va., asked on Monday that one of his two defense attorneys, Robert Barrat, be removed from the case because he did not feel Barrat had his best interests at heart.

On Wednesday, however, Munday told Circuit Judge David Sanders that he now wants Barrat to remain on the case. He did not say why.

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Jury selection is to begin at 9 a.m. today for Munday's recidivist - or "three strikes" - trial. Twelve jurors will be selected to hear the trial, which is expected to last one day, said Berkeley County Prosecutor Pamela Games-Neely.

Defense attorney Margaret Gordon again requested that a change of venue be granted for the trial, but Sanders denied the motion. Seventy-five potential jurors will be called to the courthouse for jury selection.

During the 90-minute pre-trial hearing, attorneys for both sides discussed the instructions that will be given to the jurors and what questions should be asked of potential jurors.

Sanders voiced concern about one particular question, whether jurors, for religious, philosophical or moral reasons, either oppose or approve of life sentences for repeat offenders. He asked that the question be reworded somehow, since giving someone a life sentence can be a matter of law, not conscience.

During today's trial, police officers who handled cases involving Munday are to testify he has previously been convicted of three separate felonies. Munday could face a life sentence if the prior convictions are proven.

In Frederick County, Md., in March 2000 Munday was convicted of second-degree assault and, in the same county in August 1989, he was convicted of wearing and carrying a dangerous weapon and assault and battery, according to court records.

Last October in Berkeley County he was found guilty of 21 charges related to the shooting of West Virginia State Police Trooper R.J. "Bobby" Elswick, who was shot once above his left ear. Elswick, who initially was not expected to live, is recovering from the wound.

Gordon filed a motion to dismiss the recidivist case, citing the fact that some of the Maryland convictions were for misdemeanor, not felony, charges.

The recidivist law reads that a person can be sentenced to life in prison if he has been convicted of crimes punishable by a penitentiary sentence.

In West Virginia, a felony is any charge punishable by a year or more in a penitentiary, while misdemeanor charges are those punishable by up to a year in jail.

Although some of the charges for which Munday was convicted in Maryland are considered misdemeanors, they carry penitentiary sentences. For that reason, Sanders did not dismiss the case.

Both of the Maryland convictions resulted in "rather healthy penitentiary sentences," he said.

For the 1989 case, Munday was ordered to serve 10 years in prison, although the entire sentence, minus time already served, was suspended in favor of a five-year probation sentence. For the 2000 case, Munday was ordered to serve eight years in prison, but four years were suspended. He was placed on two years of probation after serving his time.

Munday's sentence for the charges related to the shooting of Elswick will depend upon the outcome of today's trial.

Both sides of the case agreed on some issues.

Photographs that depict Munday wearing prison clothing will not be shown to jurors, although such photos could aid in identification matters, Games-Neely said. Defense attorneys said the photographs could prejudice the jury against Munday.

Instead of using photos, Games-Neely said she will use fingerprints and other evidence to show Munday was the same person convicted of all the offenses.

Both sides agreed that a plea bargain will not resolve the case. Munday rejected a plea bargain in which he would have pleaded guilty to the recidivist allegation in exchange for allowing a judge to determine whether the life sentence should run consecutively or concurrently to his other sentences. One of the 21 charges was selected for recidivist purposes, but Munday still will be sentenced on the other 20 charges, some of which are misdemeanors.

Also as part of the plea bargain, a charge pending against Munday that he offered witnesses $50,000 to either leave the state or change their testimony would have been dismissed.

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