The Register-Herald, Beckley, West Virginia

May 15, 2013

Trial is postponed in re-opened case

By Tina Alvey
Register-Herald Reporter

LEWISBURG — Over the vigorous objections of defense attorney Michael Whitt, a Greenbrier Circuit Court judge granted the state’s motion to postpone the trial of Gary Richard Baker.

The West Virginia Supreme Court of Appeals vacated Baker’s conviction for the 2009 robbery of a Fairlea Subway restaurant employee and the attempted armed robbery of the restaurant. The high court remanded the case for further action, and a new trial was scheduled for May 29.

Asking for a postponement of that trial date, Greenbrier County Prosecuting Attorney Patrick Via said the state has re-opened the investigation into the crimes with which Baker was charged.

“We’ve elected to widen this investigation,” Via advised the court, saying additional witnesses were interviewed only a day prior to Tuesday’s hearing and that an officer was still working the case even while the hearing was under way.

“We were left dealing with — essentially — a new trial on a 2009 indictment,” Via said of the Supreme Court’s February decision to send the case back to the Circuit Court level.

When Whitt argued that his client’s right to a speedy trial should take precedence over all other considerations, Via countered, “Both sides are entitled to a fair trial.”

“The defendant is the one who has the right to a speedy trial,” Whitt said, maintaining “there is no compelling reason” for the continuance sought by the state.

“Re-opening a case to gain a continuance is unfair,” Whitt protested.

Via denied the postponement was the incentive for re-opening the investigation.

Circuit Judge Joseph C. Pomponio Jr., who also presided over Baker’s 2010 trial whose verdict was overturned, noted the Supreme Court commented on the lack of strength of the state’s case in that original trial. The judge said it appears the state is correct in deducing the additional investigation is warranted and, thereby, granted the request for a postponement.

Pomponio instructed both sides to quickly set pre-trial and trial dates.

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Also in court Tuesday:

-- A scheduled pre-trial hearing for convicted arsonist David C. White was postponed due to illness. The state is seeking to incarcerate White as a recidivist, a charge that requires a separate trial.

That trial was supposed to begin today, but was postponed as well. It is now scheduled for May 29.

-- Pomponio reduced bond for Freddy Donlee Bostic from $45,000 cash only to $20,000 cash only, plus home confinement and additional monitoring by the probation department.

Bostic has been incarcerated in the Southern Regional Jail since Sept. 28, 2011, awaiting trial on burglary, grand larceny and conspiracy charges.

-- Pomponio granted continuances in the cases of Joshua E. Hardiman, who is charged with various sexual abuse and sexual assault crimes, and Joshua E. Redden, who is charged with participating in the December 2011 torching of several vehicles that were parked on State Police property in Rainelle.

— E-mail: talvey@register-herald.com