Man accused of Fourth of July shooting intends to claim self-defense

December 07, 2012|By MATTHEW UMSTEAD |
  • Daniel Lee Herbert
West Virginia Regional Jail and Correctional Facility Authority

MARTINSBURG, W.Va. — A man accused of shooting another man and an 8-year-old girl at Martinsburg’s Fourth of July celebration this year intends to claim at his trial that he shot the other man in self-defense, his attorney said Friday.

Daniel Lee Herbert, 28, was indicted in October on two counts of attempted murder, three counts of malicious assault, five counts of wanton endangerment, and single counts of felon in possession of a firearm and fleeing from a law enforcement officer.

Police have said the girl, who was treated for flesh wounds to her legs, was an innocent bystander in the shooting at the annual celebration held in War Memorial Park.

The second shooting victim, Gabriel “Ziggy” McGuire, was shot twice in the upper back and Assistant Prosecuting Attorney Gregory K. Jones told presiding 23rd Judicial Circuit Judge John C. Yoder Friday that he was not cooperating in the state’s prosecution of Herbert.

Yoder on Friday agreed to reset the trial for Feb. 26 after defense attorney James Riley told the judge he needed time to have a psychological evaluation of Herbert completed as part of the self-defense argument. The trial was set to begin Dec. 18.

A witness told police that the shooting took place near a pavilion following an argument between two males. One male, who was wearing a red, polo-style shirt, pulled out a handgun and fired several rounds at the other male, who was running away, police said.

Herbert was captured shortly after gunshots were heard in the area of the park’s south pavilion, near Tennessee Avenue, police said.

The firearm allegedly used in the shooting was recovered after police saw the defendant throw it into a nearby driveway, according to police and court records.

Herbert, who pleaded guilty to felony counts of aggravated robbery, grand larceny and conspiracy to kidnapping in 2003 in Berkeley County Circuit Court, was released from state prison in February, according to court records.

Riley was appointed to the case Nov. 1 after the previous attorney, Neil Zahradnik, was allowed to withdraw as Herbert’s attorney “due to a breakdown in attorney client communication,” Riley said in an initial motion to continue the trial.

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