Derek Shifflett to get new trial

ELKINS – A Randolph County man who was found guilty on sexual assault and incest charges in February will receive a new trial due to questions about a juror’s impartiality.

On Feb. 21, a Randolph County jury found Derek Jason Shifflett, of Elkins, guilty of 27 felony counts of first-degree sexual assault, 27 felony counts of sexual abuse by a parent, guardian or custodian, and 27 felony counts of incest. He had not yet been sentenced, however.

Shifflett, along with his attorneys, John Cooper, Jeremy Cooper and Chris Cooper, made a motion to acquit for failure to disqualify an impartial juror. The issue arose because of answers the juror gave on a jury questionnaire and because of a card she sent to Randolph County Prosecuting Attorney Michael Parker following the trial.

The motion noted juror Shannon R. Bennett Campbell’s response to a question on the juror questionnaire asking if she had already formed an opinion on Shifflett based on news media or anything else she had seen, heard or read. Bennett Campbell replied that she had, but she tried to assume a person innocent until proven guilty, the motion stated.

Senior Status Judge Thomas Keadle did not accept the motion for acquittal but did grant Shifflett a new trial, saying that allowing Bennett Campbell to stay on the jury was a “reversible error.” He noted the state Supreme Court would likely overturn the verdict.

“I believe that the motion made by the defendant with regard to the failure to disqualify the juror, Shannon R. Bennett Campbell, is a reversible error and I believe the Supreme Court would reverse it in a heart beat. So, I am going to set aside the verdict in this case and grant the defendant a new trial,” Keadle said.

“The way I see it, Mr. Parker, is that Mrs. Bennett was on the jury panel and this questionnaire says, ‘Have you personally formed an opinion about the defendant, Derrick J. Shifflett’s guilt or innocence as a result of any…’ She said, ‘Yes. I try to presume innocence until found guilty but I read there was up to 50 counts and my thinking was that this person must have done something.’

“And then the next question, ‘Do you have any strong feelings toward the defendant, Derrick J. Shifflett, as a result of what you heard, read or seen in the news media about the defendant?’ and the answer is ‘Raised my observation of the case,'” he added.

Parker said Bennett Campbell answered several other questions that were part of the questionnaire that showed she had the ability to be an impartial juror, which is why she was not removed.

The defense also presented Keadle with a copy of a card that was sent by Campbell to Parker roughly a week after the trial. The note reportedly thanked Parker for his service to Randolph County, the defense stated.

Keadle said the card added to the suspicion that Campbell may not have remained impartial throughout the trial.

“It also concerns me the juror in question wrote the letter on Feb. 23, 2014, thanking you for your service. It certainly adds to the fact that she was not very impartial in this case…,” Keadle said. “If I would have been handling the jury selection I would have stricken her for cause.

“She says, ‘I know this person must have done something.’ The Supreme Court decisions in the past couple of years, they are getting real particular with this jury selection business. They have reversed several cases over it in the past few years. I am not going to grant your motion for a judgment of acquittal, that is denied, but I am going to grant you a new trial.”

Keadle also noted he didn’t feel the state did anything wrong, and that the burdon to strike the juror should have been on the court, not the state.

“By the way, I meant to say this, I don’t consider this your fault, Mr. Parker,” Keadle said.

Following the decision to grant Shifflett a new trial, Chris Cooper requested a change in venue for the proceedings.

“Judge, we believe that it’s proper in this case, particularly because this case has been tried here and the post-trial publicity,” Cooper said. “The fact that we have been through this exercise before and everything that’s happened now, judge, I just think we are to the point now where we’ve attempted to get numerous jurors and we would renew our motion for a change of venue…, I don’t have a problem with importing the jurors and having the case tried in this court…”

Parker said the state objected to a change in venue because two juries have previously been paneled for this case and he saw no reason a third jury couldn’t be paneled.

Jury selection is scheduled for Nov. 10. A three-day jury trial will follow on Nov. 12, 13 and 14.

Shifflett was originally indicted on 50 counts of first-degree sexual assault, a felony; 50 counts of sexual abuse by a parent, guardian or custodian, a felony; and 50 counts of incest, a felony.

The indictment alleges that Shifflett had sexual intercourse with a family member under the age of 12 on numerous occasions between Oct. 1, 2011, and Sept. 30, 2012.

On Jan. 2, Parker moved to dismiss 66 of the 150 counts against Shifflett, “based on information that (the state) had obtained in preparation for the case.”

Also in Randolph County Circuit Court Wednesday

  • James Wilson Falls, III, 27, was sentenced to one to five years in a state penitentiary and given credit for 254 days of time served. Falls pleaded guilty to one felony count of unlawful assault on May 2.
  • Jeremy Allan Roberts, 41, of Elkins, was sentenced to two to 10 years in a state penitentiary. The sentence was suspended for five years supervised probation plus court costs. A condition of the sentence was that Roberts must also successfully complete Randolph County Adult Drug Court.

Roberts pleaded guilty to felony possession of precursor with intent to manufacture methamphetamine on May 7.

  • Stephanie Dawn Lyons, of Elkins, was sentenced to one to five years in a state penitentiary, which was suspended for five years of supervised probation. Conditions of the sentence are that Lyons must successfully complete Randolph County Adult Drug Court and work on obtaining her GED.

Lyons pleaded guilty to felony possession with intent to deliver a controlled substance – methamphetamine – on June 16.

  • Tosha Joyce McDonald, 20, of Elkins, pleaded guilty to one felony count of possession of a controlled substance by an inmate of a jail and one misdemeanor count of petit larceny as part of a plea agreement. As part of the agreement, the state agreed to dismiss one felony count of transportation of dangerous substances onto the grounds of a correctional facility.

McDonald was sentenced to one year in a state penitentiary for the misdemeanor count, which was suspended for five years supervised probation and successful completion of Randolph County Adult Drug Court. The felony count was diverted and will be dismissed upon successful completion of drug court. If she does not successfully complete drug court, she will be sentenced for the felony guilty plea.