The double homicide case against Terri Storer and accessory after the fact cases against Randy Barnhart continued with a motions hearing on Wednesday, November 10.
In November 2019, emergency responders arrived on the scene of a shooting near the Greenbrier County and Nicholas County line on Coleman Road [in] Williamsburg.
“Through investigation, it was discovered Jeremiah Thomas, 33, Jennifer Thomas, 34, had allegedly gotten into an argument over a hunting lease with Randy Barnhart, 45, and Terri Storer, 45,” reads an initial press release from the West Virginia State Police. “During this incident Jeremiah Thomas and Jennifer Thomas were fatally wounded.”
Greenbrier County Prosecutor Patrick Via explained to The West Virginia Daily News shortly after that the dispute consisted mainly of who should have access to a piece of land often used for hunting.
In August 2020, Storer was indicted on two counts of murder and Barnhart was indicted on two counts of accessory after the fact to murder.
On Wednesday, at the end of the nearly three-hour-long hearing primarily focused on one motion, Greenbrier County Circuit Court Judge Robert Richardson summed up the essential argument between Via and the defense for the first motion, considering if a specific type of 3D mapping technology could be used during the trial.
“As I understand it, the technology that is in question is used in order to identify the locations of objects,” Richardson said. “The location of those objects is relevant to the issues at hand—I have not reviewed all of the evidence that may be presented in this case. … If where objects are located is irrelevant and measurements by hand would not matter, … then there may be some relevance issue that can be raised at a later date. To the extent that the parties appear concerned about where guns or bodies or other objects may have been located at the time of the investigation, if those things are relevant, the means by which they are measured, would be important.”
Much of the testimony focused on how the maps were created, how reference measurements of known physical objects are used to establish the measurements, and how reliable the technology is. Storer’s defense attorney, Brandon Johnson, explained the defense’s position.
“Your Honor, you’re the gatekeeper in this role [and] we’re asking you to keep [this evidence] out for several reasons,” said Johnson. “First thing, they failed to show that it was even the same vehicle. You’ve got scans taken by different individuals over a spread of a few years, different locations with different instrumentation. Even though [the witness] admitted, [the measurements] don’t line up. They’re asking him to do an overlay judge—we think it’s improper, it doesn’t meet the threshold this court has measured [evidence] by. Therefore, we’re asking you to keep it out.”
Via fought to keep evidence available during the trial.
“Judge, on behalf of the state, I would argue that the evidence the court heard today is that the 3D scanning, in some form, has been around for decades. … The current system, or perhaps previous generations, have [used] the Pharaoh 3D scanning device. Presently, I believe he said it is used by thousands of public safety agencies throughout the country. … It is used by numerous branches of the armed forces and is currently in use by a couple of divisions within the Federal Bureau of Investigation, among other federal agencies. It is a highly reliable science, as [the witness] indicated, with precision measurements. … I will be candid, I could not find an [opinion on the admissibility established by Daubert v. Merrell Dow Pharmaceuticals, Inc.] per se, either adversely or favorably. I think it’s fair to conclude there have been few challenges to this, and if there were any, they didn’t get past a local court. … I think the evidence the court heard today, despite no precedent that we can point to, is that the science is within the mainstream and accepted in the scientific community in this field. It’s highly reliable. … [I] would therefore ask for its admissibility at trial.”
Barnhart’s defense attorney, Grady Campbell, also argued against its admissibility.
“The prosecutor argues that it’s scientifically sound, and therefore it should be admissible, even if it’s scientifically sound,” said Campbell. “I don’t think we’re dealing with the issue of whether or not it’s admissionable right now, because I don’t think it’s relevant to anything. I joined the motion … to keep this evidence out. I think it’s confusing for the jury, it’s not reliable, and it doesn’t add anything.”
After lengthy testimony, Richardson sided with the prosecution.
“The court finds that the technology, 3d scanning, mapping, is reliable, that it does rely upon demonstrated scientific methodology that has been subjected to testing and peer review. The techniques used by the persons who’ve testified as experts today are generally accepted within the community. The process involves a known error rate, which was testified to as one millimeter at 10 meters I believe, and slightly higher potential error rate at 35 meters. … The court does find that the testimony and evidence relating to the use of 3D scanning technology is admissible under [Daubert]. If at some point, someone wants to explain, that it doesn’t matter where a gun was located, or where a body was located, and so that there’s no issue of relevance, then I’ll entertain that, but I suspect from what’s been presented thus far, that the parties believe that the location of items is highly relevant.”
This motion, however, is not the only one currently on file. A prosecution subpoena to Gmail for emails relating to the incident swept up communications between one defendant and her attorney, violating attorney client privilege.
The defense moved to have these communications removed from potentially admissible evidence, something Via conceded out of hand, but the motion will be further considered to be sure no admissible evidence is thrown out.
“The state seems to concede that the contents of emails between Ms. Storer and her attorneys would not be admissible at trial,” Richardson said. “Whether there are other remedies that must be invoked or whether there is other … evidence that would be improperly tainted by law enforcement having access to those communications may depend upon the facts of this particular case and what the contents of those emails were. We may have to come up with some mechanism for a review that will allow for the presentation of any concerns the defendants may have without, at the same time, making the situation worse.”
Richardson then turned to “several other motions that had been filed, including a motion to exclude any evidence regarding the relationship between the defendant Storer and the defendant Barnhart. Is that an issue for which we’re going to need a hearing?”
Via agreed the parties could “submit an agreed order on that issue,” explaining that “the state has no intention of implying or stating some relationship between the parties for which there’s no factual basis, and will not do that.”
The final motion discussed, Richardson explained, was “actually … more in the form of an objection, but styled as a motion, to the conduct of the trial with apparently any COVID-19 precautions. … Counsel, what’s your real concern with COVID-19 protocols? Is there any basis that you can point to with regard to legal authority as to the court’s discretion in implementing public safety measures such as requirements and social distancing and wearing masks?”
“That motion was filed up against a court-imposed motions deadline on behalf of defendants,” explained Campbell. “We filed it at the time, we weren’t aware of exactly what the protocols could be because Greenbrier County has changed and changed again. So we want to be on the record to be heard on that, Your Honor. … Essentially, I don’t know what precautions the court is going to take. We have some concerns, we understand the need for safety, we want to balance those. Until we know what the plan is, it’s hard for us to address that.”
As COVID-19 cases dwindled earlier this summer and the Delta variant caused a new spike in cases, eventually overtaking nearly all of the original COVID-19 strain of the virus, the state and Greenbrier County’s caseload has wildly fluctuated. Richardson agreed with Campbell, reflecting the uncertain future reality.
“We will give counsel a full opportunity to be heard on any deviations from what has been the historical practice of the court and the conduct of trials relative to the placement of jurors, the use of masks or other protective facial coverings and so forth,” Richardson said. “At this point, it’s difficult to know where we will be with regard to the COVID-19 situation and the necessity of precautions. … We don’t know when the trial is going to take place yet and we don’t know the extent to which the COVID 19 pandemic will be persisting at that time. … At this point, Greenbrier County remains in the high risk, red category on the Global Health Institute’s COVID-19 Risk Assessment Map. I have no way of predicting what will be the case when this matter is … ready for trial.”
With that noted, Richardson pushed the parties toward a possible resolution on precautions.
“I understand counsel are going to confer and identify any motions or issues of agreement and submit an agreed order to the court as to any of those issues. I would also ask that you identify any that are not in agreement, and contact my staff to schedule a hearing of the appropriate duration and timing so that we can get those resolved.”
With one of the motions considered, and solutions in the works for many others, the state and defense are both preparing for a homicide trial.
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