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Mercy for killer in hands of jury

December 13, 2006|by MATTHEW UMSTEAD

MARTINSBURG, W.VA. - A jury of eight men and four women this week is expected to decide whether a 25-year-old man who pleaded guilty last week in the October 2005 murder of a 14-year-old Gerrardstown, W.Va., girl will be eligible for parole.

The jurors and two alternates were selected from 117 Berkeley County residents who appeared for the sentencing trial of Roger Dwayne Smith, formerly of 419 S. Raleigh St., Martinsburg. Twenty-five people failed to appear, court officials said.

The selected jurors will be part of an unprecedented legal proceeding for Berkeley County Prosecuting Attorney Pamela Games-Neely, who charged in opening remarks that Smith's tear-filled statements to police about Miana Stewart's death on Oct. 13, 2005, might have demonstrated regret, but not remorse.

The proceedings are expected to resume today with the state's presentation of evidence in a trial expected to last three days.

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"He meant to do what he did," Games-Neely said after recounting how EMS responders "struggled" to free a rope tightly tied around the young girl's neck in the basement of her home, which Smith allegedly had been burglarizing when she arrived home from school.

On Friday, Smith pleaded guilty to felony murder, possession of a stolen vehicle, malicious wounding, attempted murder and robbery. He also pleaded guilty to a misdemeanor count of fleeing from a police officer. All of the charges were part of a grand jury indictment.

"I've never had (a murder case) like this," Games-Neely said after 23rd Judicial Circuit judge David H. Sanders adjourned the opening day of the first jury trial in Berkeley County's new courthouse at 380 W. South St.

With guilt already determined, the jury is being asked to decide whether Smith will have an opportunity for parole after serving 15 years in prison for the felony murder charge or if he will remain incarcerated for the rest of his life. Sentencing terms for the remaining charges will be determined by Sanders.

Defense attorney Eric Black said his client's decision to burglarize Stewart's home was a "massive error in judgment" brought about by Smith's use of crack cocaine and heroin.

"There was no intent to kill," said Black, who added that Smith expressed sorrow about Stewart's death "at all times" since the homicide.

Black said Smith was sexually assaulted at an early age and then again by two men at age 13, two years after his client began drinking alcohol and smoking marijuana. Severe depression led to three suicide attempts at age 16, Black said.

"He had a life full of trauma from his very early years," Black said.

In her opening statements, Games-Neely maintained Smith's actions that led to Stewart's death were calculated and not an accident or a mistake.

She said Smith tied Miana Stewart to an incline weight bench in the basement of her home after hitting her with a baseball bat when she disrupted his burglary of the residence.

That day, Stewart's parents left the house unlocked for their daughter because she lost her set of keys and she usually was the first to come home in the evening, Games-Neely said.

Miana's mother, Mary, came home soon after, and also was struck by Smith with the bat and similarly held captive in the basement, Games-Neeley said. She escaped to a neighbor's house after pretending to pass out from the rope around her neck and exiting through a basement door that creaked a bit, Games-Neely said.

"She knew her daughter was gone," Games-Neely said, describing how the girl choked and sputtered and then fell silent.

"Mary Stewart has cried a mother's tears," Games-Neely said, telling the jury that Miana's mother would testify. "She can't cry anymore."

The proceedings Tuesday began in the historic Berkeley County Courthouse, the only place available to provide enough room for the jury selection process. Jury selection did not conclude until after 3 p.m., when the pool of 117 had dwindled to 49. The panel ultimately chosen through attorney "strikes" was selected from 20 regular jurors and four alternates.

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