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Second judge recuses self from bail bondsman's hearing

Circuit Judge W. Kennedy Boone III asked not to hear the arguments because of comments the judge has made about Toms' business

August 17, 2010|By DON AINES
  • Gregory Lehman Toms
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For the second time in two weeks, a Washington County Circuit Court judge has recused himself from hearing pretrial motions in the case of a local bail bondsman indicted on explosives, firearms and drug charges.

"I will err on the side of caution and recuse myself," Circuit Judge W. Kennedy Boone III said Tuesday before the hearing on defense motions began.

Gregory Lehman Toms, 54, asked that Boone not hear the arguments because of comments the judge has made about Toms' bail bonds business in the past, Boone said.

The hearing was postponed Aug. 9 because Circuit Judge Daniel P. Dwyer recused himself, citing "reasons personal to me and my family."

Boone said Circuit Judge John H. McDowell cannot hear arguments on the motions because he signed the search warrant for Toms' property. That leaves Circuit Judge M. Kenneth Long Jr. or Circuit Judge Donald E. Beachley to preside over the hearing when it is rescheduled.

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Assistant State's Attorney Michele Hansen said Toms' attorney, Gregory Bannon, previously agreed to have Boone hear the motions.

Boone said he has made comments from the bench about Toms' business, but characterized them as innocuous. The judge said he has had no dealings with Toms outside of his profession as a bail bondsman, although he does know Toms' brother.

Bannon's motion to suppress evidence gathered during the June 2 search of Toms' Lemuel Lane home in Boonsboro alleged that the application and accompanying affidavit for the search warrant contained "false, inaccurate and misleading information."

The motion stated that a suspect in a series of home invasions, robberies and burglaries in the Tri-State area told conflicting and inconsistent stories about firearms stolen in a West Virginia burglary.

The suspect had given two stolen guns to an investigator, but refused to say where they came from, the affidavit stated. The investigator asked the man if he sold any of the stolen weapons, which the man denied, the affidavit said.

Weeks later, the man told the investigator the two guns he returned came from Toms, the affidavit said. The man said he did not sell the guns to Toms, "but traded them to him in exchange for bonds or collateral," the affidavit alleged.

"The search warrant was not based upon probable cause and was otherwise defective," the defense motion stated.

After the search of Toms' house, he was indicted on single counts of possession of an incendiary device, possession of more than five pounds of black powder without a license, possession of a stolen firearm, transporting a firearm in a vehicle, theft of less than $1,000, possession of marijuana, and two counts of possession of drug paraphernalia, court records show.

In another motion, Bannon asked the court to dismiss the first, second and fourth counts of the indictment, court records said.

"In as much as the alleged incendiary material, black powder and the gun in his vehicle on private property can be considered arms ... the defendant maintains that he had and has the constitutional right to bear those arms to protect himself, his family and his home," the motion stated.

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