Berkeley County judge declares mistrial in case of man accused of attempted murder

September 30, 2011|By MATTHEW UMSTEAD |

MARTINSBURG, W.Va. — An apparent obscene gesture directed at a juror from someone later seen in the courtroom caused a Berkeley County judge Friday to declare a mistrial in the case of a Falling Waters, W.Va., man accused of attempted murder.

The mistrial declared by 23rd Judicial Circuit Judge Gina M. Groh in the trial of Donald Mark "Donnie" Seibert Jr., came after the jury had deliberated for more than three hours Friday and had reached a verdict.

Seibert, 23, was indicted by a grand jury in May 2010 on two counts of attempted murder and four counts of malicious assault.

He is accused of shooting Robert and Laura Hicks twice in the head at their home at 2649 McCoys Ferry Road in Brookstone subdivision on Nov. 27, 2009, in an apparent drug deal gone bad, according to court documents.

Seibert was returned to Eastern Regional Jail after the four-day trial  ended Friday afternoon.

 Although the juror told the judge that the incident didn't impact her deliberations and conclusions she reached in the case, Groh later concluded that "we can't be certain (the incident) wasn't on her mind,"  because she told the other jurors about what happened.

When summoned from the jury room, the juror told Groh that a woman held her middle finger to the side of her head and moved it downward as the juror was parking her vehicle outside the Berkeley County Judicial Center at lunchtime on Wednesday.

The juror said she didn't tell the other jurors who were seated for Seibert's trial until after they had finished deliberating Friday afternoon and had reached a verdict.

The juror said she initially thought the woman had made the obscene gesture at her because of how she parked, but otherwise didn't think anything of the incident.

Upon returning to the courtroom for Seibert's trial, the juror said she thought she saw the woman who made the gesture to her seated in the gallery. Officials said the woman had been seated on the defendant's side of the courtroom.

The juror told the court she did not see the woman in the courtroom on Friday after being twice asked to scan those seated in the gallery.  

However, Seibert's attorneys told Groh that they believed the juror had, in fact, described a woman who actually was in the courtroom Friday.

Groh agreed, and the woman who generally matched the juror's description was directed by the judge to take the witness stand.

When questioned under oath by defense attorney Paul G. Taylor, the woman denied that she made a gesture at the juror in the Judicial Center parking lot.

The woman was seated on the victims' side of the gallery on Friday and testified that she was residing with them.

Assistant Prosecuting Attorney Timothy D. Helman later indicated the woman had provided transportation for the victims to get to the Judicial Center.

"The state disagrees with the judge's decision, but respects it, nonetheless," Helman said after the mistrial was declared.

While thankful for the jury's service, Helman said he was disappointed that an apparent action of someone affiliated with the victims in the case contributed to the mistrial.

"We'll set another trial and move forward again," Helman said.

Groh scheduled an Oct. 20 status hearing for the case and said she wanted to set new trial dates as soon as possible.

Groh noted the cost of the four-day trial was significant, but also said that concern doesn't "hold a candle" to the interest of the defendant who faces the possibility of a significant prison sentence if convicted.

Police have alleged Seibert shot the couple after Robert Hicks refused to sell prescription pills to the defendant.

 After leaving the Judicial Center, Taylor and co-counsel Matthew Harvey said they were surprised by the turn of events.

"(I've) never seen that happen in 20 years of practicing law," said Taylor, who had asked for the mistrial.

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