Bluefield Daily Telegraph, Bluefield, WV

November 10, 2012

High court of appeals reinstates 1998 murder conviction

GREG JORDAN
Bluefield Daily Telegraph

PRINCETON — By

 — A circuit court decision setting aside the 1998 first-degree murder conviction of a Bluefield man was reversed Friday by the West Virginia Supreme Court of Appeals, creating the possibility of his return to prison.

David Lee Hurt was a juvenile when he was arrested after the Aug. 21, 1995 death of Freddie Lester, who worked at the Rich Oil Company – also the Red Head Station – along Bluefield Avenue. Lester was shot during a robbery. Hurt told investigators at the time that he was speaking on the telephone with his girlfriend when Lester was shot and killed.

Hurt was tried September 1997 in Mercer County Circuit Court, according to court documents. During the trial, co-defendant Michael Hopkins testified that he entered the store at Hurt’s direction, shot Lester in the back of the head, stole $157 and spit it with Hurt. Hurt testified and denied any involvement.

 The jury became hung with a vote of 10 to 2 in favor of acquittal, and a mistrial was declared. Hurt’s attorney at that time moved for a change of venue, citing the publicity focused on the first trial. The second trial was moved to Pocahontas County.

On May 29, 1998, a jury in Pocahontas County Circuit Court found Hurt guilty of first-degree murder with a recommendation of life in prison with mercy. In February 2009, Hurt’s attorney, Richard E. Holicker of Charleston, appeared with Hurt in Mercer County Circuit Court to seek a new trial and Hurt’s release. Judge Omar Aboulhosn ordered that the case be sent back to Pocahontas County.

The Pocahontas Court entered an order on April 18, 2011, granting Hurt habeas corpus relief, according to the state supreme court order issued Friday. The granting of habeas corpus relief was based on the circuit court’s determination that Hurt’s counsel at his second trial was ineffective.

“The circuit court made specific findings with regard to one of the ground of ineffective assistance of counsel,” according to the supreme court’s decision. “Specifically, the circuit court found that trial counsel was ineffective in failing to ensure that the trial court advised the respondent (Hurt) of his right to testify and not to testify. The circuit court found that the trial court failed to advise the respondent of these rights, and the record does not reflect that the respondent’s trial counsel advised him of these rights.”

The state Supreme Court of Appeals ruled that the failure of Hurt’s counsel to tell him that he had the right to testify and not to testify “was not prejudicial” to him, the justices said in their decision. The justices reversed the decision giving Justice habeas corpus release.

 Hurt is currently free on a $10,000 bond. Mercer County Prosecuting Attorney Scott Ash said Friday he would file a motion to revoke this bond.

“The supreme court was very clear that this was not a constitutional-level error,” Ash said of the court’s decision. “I’m going to bring as soon as possible a motion to revoke the bond because state law says people who have been convicted of first-degree murder are not entitled to a post-conviction bond.”

The justices’ decision was not unanimous. Chief Justice Menis E. Ketchum II filed a dissenting motion Friday arguing that Hurt did not receive a fair trial and should remain free.

“I would affirm the order granting habeas relief,” Ketchum said in his motion. “The undisputed evidence was that the defendant’s trial lawyer failed to advise the defendant that he had the right not to testify. To make matters worse, there is no evidence that the lawyer told the defendant that, if he testified, the state would be able to cross-examine him with incriminating evidence.”

“A defense lawyer’s failure to advise a client of his or her constitutional rights is a failure that affects the very framework of the criminal trial,” Ketchum said. “It is tantamount to having no lawyer at all.”

The Pocahontas court had ruled that a judge did not have to advise a criminal defendant that he or she had the right to testify or not to testify. Ketchum argued that this was an error, too.

“I would also overrule our case law requiring a trial judge to advise represented criminal defendants of their right to testify or not to testify,” Ketchum said. “This is the duty of the defendant’s lawyer, not the trial judge.”