The Register-Herald, Beckley, West Virginia

February 22, 2013

Judge rules on motions in manslaughter case

By Tina Alvey
Register-Herald Reporter

LEWISBURG — A Greenbrier Circuit Judge ruled Thursday on a flurry of motions filed by the attorney representing Antonio Dewayne Smith, who is charged with causing fatal injuries to a Lewisburg man during a staircase scuffle last year.

Ira Lindberg Harris, 23, died in a Charleston hospital the day after suffering massive head injuries in the Feb. 26, 2012, incident.

The 35-year-old Smith, whose home address is listed as Wheeling, was indicted in June on a charge of voluntary manslaughter for allegedly shoving Harris down a flight of stairs outside a Lewisburg apartment.

Smith’s lawyer, Dewitt Daniell, won the approval of Circuit Judge Joseph C. Pomponio Jr. for a request that a pool of jurors be assembled a week prior to trial for individual voir dire, the questioning process by which the court determines if a juror is biased or cannot otherwise render an impartial verdict.

Voir dire is typically conducted during the first day of a trial rather than in advance, but Daniell argued that the pre-trial publicity and potentially controversial issues that have cropped up around this case necessitate the deviation from usual practice.

“It is a safer way to go about it,” Daniell said of the early voir dire.

In the absence of an objection from the prosecution, Pomponio said, “We’ll give it a try.”

Greenbrier Prosecuting Attorney Patrick Via did object to Daniell’s request for a change of venue for the trial, however, citing the unusual voir dire procedure as a way of testing the state’s belief that an impartial local jury can be impaneled in this case.

“Let’s get a pool in here and see what we’ve got,” Via argued, saying that all the other side could offer to show bias was speculation at this point.

Daniell said pre-trial publicity was rampant in the week following Harris’s death last year, with widespread television and newspaper coverage, along with “at least three Topix threads” discussing the case.

“For whatever reason, this case captured the attention of the community,” the attorney said.

In addition to pre-trial publicity, Daniell pointed to Harris’s status as a local entertainer who was employed by both the Greenbrier Valley Theatre and The Greenbrier resort and to the sexual orientation of both Harris and Smith as factors in preventing a Greenbrier County jury from being impaneled in this case.

Noting the case is now about a year old, Pomponio denied the change of venue motion, saying, “Let’s see how it goes here.”

Daniell’s final motion drew the most vehement objection from the prosecutor. That motion asked the court to bar the prosecution and its witnesses from referring to Harris during the trial by using the term “victim.”

“There is some subtle communication... to the jury,” Daniell maintained. “That word carries connotations and emotional weight. It begs the question — victim of whom? It implies the occurrence of a crime.”

“I’ve never seen this motion before,” Via objected. “There’s no merit, no authority for it.”

Pomponio agreed with Via’s assessment. The judge said he is not aware of any authority for the court to prohibit mention of the word “victim” in a trial.

In response to a proposal from Daniell, the judge said he would consider a limiting instruction to the jury regarding the use of that term.

Smith was not in court for Thursday’s hearing. Daniell explained that his client is now in Florida.

Smith’s trial is not yet on the court’s docket, but Via said following the hearing that he expects the case to be heard prior to May, when this February’s grand jury’s cases begin going to trial.

“My best guess is that this trial will be sometime in April,” Via said.

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