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Judge, prosecutor dismiss charges against Weekley

The Pennsboro News of Harrisville, West Virginia

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All five felony charges against David Peter Weekley have been dismissed in Ritchie County Circuit Court.

Although the charges have been dismissed, they were dismissed without prejudice, which means Ritchie County prosecuting attorney Steve Jones has the option to prepare another indictment and present evidence to a grand jury concerning the allegations.

Weekley, along with his attorney Judith McCullough, appeared in court Tuesday, Nov. 25, for hearings on motions submitted to the court.

The case against Weekley was scheduled for jury selection Monday, Dec. 1, with the trial to follow.

Weekley was indicted in October on five felony counts including two second degree sexual assault charges, two sexual abuse by a parent, guardian, custodian or person in a position of trust to a child charges and one first degree sexual abuse charge.

Weekley had been accused of sexual intercourse or sexual intrusion with two victims during incidents in May 2013 and between December 2013 and January 2014.

During the hearing Tuesday, motions filed by McCullough were brought before Third Circuit Court Judge Timothy Sweeney to allow the court to rule on those motions.

McCullough had filed a motion to dismiss the charges in the indictment, as well as a motion to compel the state to provide discovery information and a motion to receive an incident report for one of the victims from Dec. 2, 2013.

McCullough stated to the court some of the items she had requested for discovery had been given to her by the time the court hearing began.

McCullough said she had filed a motion to compel discovery Oct. 22, and some of the items had been provided to her on Tuesday before the court hearing began.

Prosecutor Jones informed the court Kelly Waggoner, principal at Ritchie County High School, was in the courtroom Tuesday and had the disciplinary file, which contained incident reports for one of the victims.

He further stated information contained in the disciplinary report was exculpatory evidence and he wanted to handle the report in that fashion.

He further stated he wanted the court to make a ruling on whether the information in the incident report would be available to the defense since he was using it as exculpatory evidence.

Judge Sweeney stated the Dec. 2, 2013 incident report, as well as the disciplinary reports were to be furnished to the court for review and a sealed copy would be placed in the court file.

He went on to say there were confidential items included in the reports and there would be a hearing in chambers with the attorneys to review the items both sides planned to use during the trial phase of the matter.

McCullough stated she had requested the Dec. 2, 2013, incident report for a specific purpose. She said she was looking to establish that one of the victims was in the office on that specific date.

Moving on to the motion to compel discovery, she said there is an audio recording of the second victim and during the recording the victim is allegedly making a sketch.

McCullough said she did not have access to that sketch and she understood the drawing was no longer in existence and Cpl. J. L. Brewer was not sure what had happened to the drawing.

McCullough said video surveillance from Ritchie County High School, which she had requested, was no longer in existence because the tape runs on a loop and had been deleted.

McCullough said she filed a second motion to compel discovery Nov. 3, requesting specific items.

She stated she had received several discovery items Tuesday morning and was told she would receive other items from the state included in the motion.

One item McCullough included in her motion was information on the initial disclosure from one of the victims to Ms. Waugaman, the high school counselor.

McCullough said Waggoner had directed Waugaman to provide any notes or to provide written recollections of the disclosure for the parties.

McCullough stated she filed a third motion to compel Nov. 13, which included any reports or written recollections from Ritchie County Deputy Greg Britton, who allegedly had initial contact with one of the victims.

The third motion also contained a request for a copy of the search warrant, which had been provided to her.

McCullough had provided the court with a motion to compel exculpatory evidence, which included a forensic report on a cell phone that was taken into evidence.

McCullough said there should be a compact disc (CD) or a DVD with the entire contents of the cell phone included or information from the crime lab with notes about what was found, on the cell phone.

"I don't have that or know if they intent to use any of that. We would be entitled to that," McCullough said.

Judge Sweeney asked Jones if there was a CD or DVD containing the information McCullough was requesting.

Jones said he was unaware if there was one, but he would find out.

Jones then stated he was not going to provide any of the photographs from the cell and he did not have any intention to use anything from the phone. He said it was still in evidence and it was going to remain there.

Judge Sweeney said McCullough was requesting a CD or DVD with the results of the analysis.

McCullough asked Judge Sweeney if there was a deadline for the state to provide this information to the defense.

Jones said he would contact the West Virginia State Police Crime Lab and find out if there was a CD or DVD with the information she was wanting.

As far as a deadline requested by McCullough, Judge Sweeney said the parties were working on the case Tuesday and he was going to be in the courthouse throughout the day.

"Let's attempt to keep to the time frames. The trial is scheduled to begin a week from yesterday," Sweeney said.

McCullough informed the court she did not have any of the criminal records for any of the witnesses the state was planning to call and she had not received the disciplinary records for the investigating officer, Cpl. Brewer.

Judge Sweeney told Jones he needed to disclose the criminal records of the state's witnesses to the defense.

McCullough then asked about alleged statements taken from others and Judge Sweeney advised Jones if he had those statements, he needed to disclose them to the defense.

Jones said there were no statements taken.

McCullough argued if an officer has an oral conversation with a potential witness, then that person would have given answers to the questions.

Judge Sweeney said the officer could reduce the alleged conversations to a written statement.

He went on to say the two attorneys needed to work on getting the information available and to get the information exchanged. He said it was six days before the case was set to go to trial and if the state had the information there was a legal obligation to provide it.

He also stated if McCullough knew the information existed, then she had independent knowledge of it.

Judge Sweeney said he could not ferret out the facts and have the attorneys sit there and argue about all of this. He said he was there to rule on any issues of law and admonished them to talk and hammer out the details.

McCullough said there were two motions in limine for the judge to rule on Tuesday, which included the admissibility of one of the victim's statements during trial.

McCullough said there were witnesses and the newspaper in the courtroom and asked if they should go into chambers to discuss the matter.

Judge Sweeney stated the motion in limine was a part of the public record.

Jones said the state did not intend to offer the statements for the intent of the victim not testifying during the trial.

The second motion in limine, McCullough stated, concerned Cpl. Brewer. She was asking the court to admonish Brewer to not reference previous statements during the trial.

Jones objected to the motion.

Judge Sweeney stated hearsay statements of witnesses interviewed would be irrelevant and granted the motion.

Judge Sweeney went on to say the disciplinary records for Cpl. Brewer were to be disclosed to the court in closed chambers. He said the court would examine the records for exculpatory evidence, which would then be disclosed to the defense under seal.

McCullough then brought up the defense's motion to dismiss the charges.

She asked the court for a brief recess to allow her to make sure her witnesses were lined up and ready.

After a short court recess, Judge Sweeney stated there were matters involving confidentiality which would be taken up in chambers.

Jones, Cpl. Brewer, McCullough, Weekley and the court reporter all went behind closed doors to continue the hearing.

Upon returning to open court, Judge Sweeney granted the defense's motion to dismiss charges one, three and five, but did not dismiss counts two and four contained in the indictment.

The three charges initially dismissed by the court were the two second degree sexual assault charges and the first degree sexual abuse charge, leaving the two counts of sexual abuse by a parent, guardian, custodian or person in a position of trust to a child charges.

The three charges Judge Sweeney dismissed were dismissed without prejudice, which means the state can prepare an indictment and present evidence to a grand jury concerning those matters.

Jones, on Monday morning, Dec. 1, stated he had decided to dismiss the remaining two counts in the indictment without prejudice.

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Original Publication Date: December 3, 2014

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