After several tense moments during the Alexander Scott Whaley trial, Judge Mark A. Karl declared a mistrial in Wetzel County Circuit Court on Friday.
The trial began Thursday morning, lasting two days. After deliberations passed the three-hour mark Friday afternoon, Judge Mark A. Karl reconvened court and asked counsel how they felt about a mistrial. Karl remarked that he could hear raised voices from the jury room and from the questions jurors were asking, it appeared as if the case would not be solved.
The jurors were asked to consider four charges: malicious assault, unlawful assault, battery, and assault. The jury first asked for a copy of the definitions of each charge. These definitions had actually been given to them in their instructions. Secondly, the jury asked if unlawful assault meant that Whale went towards the alleged victim, Leonard Keith Wildman, with the intent to commit assault or if the intent could have occurred at any point during the altercation. The counsel agreed that the intent could occur at any point, with Whaley's attorney, Michael Alberty, stating, "I would agree, but however the materials they've been given already have that in it. . . They should be instructed to read their materials." The third question was in regards to unlawful assault and whether or not Wildman was "permanently" maimed, disfigured, or disabled.
At the beginning of the trial, counsel stipulated to the number of witnesses each side of counsel could take to the stand. A stipulation had also been signed as to the types of injuries Wildman had sustained as a result of the altercation. These injuries included: subarachnoid hemorrhage, subdural hematoma, nasal bone fracture, and maxillary bone fracture.
In his opening statement, Prosecuting Attorney Timothy Haught stressed to the jury the difference in age between the alleged victim and the defendant. Wildman was a 68-year-old retired man at the time of the incident. He was a former custodian who was living by himself. "This was a 68-year-old man, and this was a 24-year-old man. We have the walking stick. Testimony will show that Mr. Wildman had a history of dementia; he was confused at the time. He was walking in an area and was confronted by Whaley."
Haught also pointed out the differences in statements Whaley gave on the day of the incident and on the next day.
"Whaley gave a statement in which he said Mr. Wildman hit him with a stick. Later, the next day, when Whaley gave a statement, he said he punched Wildman in the face. . .On the 27th, (Whaley) says nothing, but on the 28th, he admits punching (Wildman) once in the face. Later on in the statement, he says, "I kicked him in the head once." Haught notes that Whaley was wearing boots at the time of the altercation. "(Whaley) kicks him in the head after he's punched him in the face; he's basically defenseless. Mr. Whaley admits all of this but not until his second interview. Those must've been some facts he forgot on the 27th, when he made his written statement to the police. He remembered them then on the 28th."
Haught notes that the state has the walking stick, "a homemade walking stick. Photographs show injuries. . .photographs taken by Wildman's daughter. . . Photographs taken by Deputy Daugherty." Haught noted that in one of the photographs, Whaley can be seen holding up his forearms, to show red marks where he was allegedly struck by Wildman's walking stick. In these photographs, Whaley is seen with a grin on his face.
Michael Alberty, Whaley's counsel, then gave his opening statements in the matter. "I do know that this incident started years before June 27, 2012, before the confrontation occurred. This started back with continuous problems that Mr. Whaley's family had with Mr. Wildman."
Alberty then stated that Mr. Wildman threatened to rape Whaley's then girlfriend at the time, who is now his wife. Alberty also stated that Wildman would walk around with the walking stick, which Alberty described as a "self-made club." Alberty alleges that Wildman swung at Whaley, who "held up his hands to defend his head. Then (Whaley) hit Wildman, who never fell."
As to accusations that Wildman acted inappropriately towards Whaley's family, Alberty stated, "I do know that Leonard Keith Wildman would come over, and my client has a step daughter, a very young child. Mr. Wildman would peer in the windows. Alberty also stated that Wildman would make inappropriate sexual comments, which Whaley's family believes to be a reference to a form of rape.
Alberty continued, "911 would say Pine Grove is too far away. They would just do paper work. Whaley would sit and wait for years and years."
As to the day the incident occurred, Alberty stated, "He would be fishing at the pond, with his step-daughter. Wildman tried to bash Whaley's head with a broom handle. . .I'm sorry, and I'm sure Whaley is sorry; he doesn't want to be here."
"I think you'll hear evidence that Mr. Wildman was injured. You'll hear evidence that he didn't go down. You'll hear evidence that he went down. You'll hear evidence from people that were right there watching, who said he never went down. He grabbed ahold of a four-wheeler. There's going to be evidence that Wildman's condition has declined since this fight. That's important for two reasons: whatever he looks like today, is not the man who was in that field, with a stick, trying to bash my client's head in. Whatever he looks like today, you'll hear from women who said he was menacing, menacing for years. Whatever he looks like today, he didn't look that way on June 27.
The first witness to take the stand was Glen Tribbett from Jackson County. Tribbett explained that at the time of the incident, he was working in Wetzel County for Equitable Gas Company. The job included "putting in a gas line up on North Fork Road." Tribbett's job consisted of flagging duties.
Tribbett explained that at the time of the incident, he was flagging a truck back into the warehouse.
Tribbett testified that he saw an "old man thrown in the bottom. The boy kicked him in the ribs, and took a couple steps back and very fast kicked him in the head. He landed kind of on his side." Tribbett testified that the old man was not moving and was not doing anything that would've demonstrated he was being hostile. "I only saw him raise his head," he stated.
Tribbett stated that he only knew Wildman because Wildman stopped and talked to him a couple times. "He walked down the road a lot," Tribbett explained. When asked if Wildman had ever demonstrated any violent behavior, Tribbett responded, "No, he was a very feeble old man.
Haught then handed a picture of Wildman to Tribbett for identification purposes. A visible effected Tribbett turned the photo over, face down at the stand, stating "It's Keith Wildman."
Tribbett stated that he had seen Wildman with two canes in the past, one appearing home-made while the other looked like a broomstick. Tribbett could also not recall any unusual comments from Wildman.
Of the incident, Haught asked, "When you saw this, what did you do?" Tribbett replied that because he has trouble with his sciatic nerve, "I just went on down the road and talked to the deputy later."
Tribbett stated he was working in Wetzel County the whole summer for Pete Gold and Son, who was working for Equitable Gas. Tribbett testified that he was unaware of any lawsuit between Pete Gold & Son and Whaley's family. This line of questioning from Haught came after Alberty had mentioned such a lawsuit in his opening statements. Tribbett reported that he has been working for Pete Gold for seven to eight years and is still working for them. He said he had not had any contact with Sarah Spears or Whaley while working on North Fork. Furthermore, he testified that he had not seen Wildman since the incident occurred, was not related to him in anyway, and was only there at court because he had received a subpoena to be there.
Tribbett confirmed that he had only 30 seconds to talk to Haught before the trial that day. "What was it I told you today?" Haught asked.
"To tell the truth," Tribbett replied.
During cross-examination, Alberty asked Tribbett how he knew Whaley lived in the area if he had never had any contact with him. "Because he was down there (in the area) fishing, riding his four-wheeler..." Tribbett replied. "Would you say you saw the tail end of the altercation?" Alberty asked. "I can't really say, because I left," Tribbett replied.
Alberty then proceeded to question Tribbett as to why he did not call for help. Tribbett said that the company truck phone is to only be used for work, and Tribbett said that although he does have a cell phone, "You don't have service up there in that holler." Alberty asked Tribbett why he did not go and help Wildman."
"I wasn't about to leave a big truck sitting in the road, and going down there." Tribbett noted that the truck driver was as old as he.
"What was stopping you from driving the truck to a house and using a landline?" Alberty asked. "I just didn't do it," Tribbett replied.
"You don't know that one of those Pete Gold trucks had a collision with one of Whaley's family member's vehicles?" Alberty asked.
"No," Tribbett replied, "If it was one of the big trucks I would, because I'm there with them."
Tribbett testified that Wildman would talk to him about farming and his wife dying but that was about the extent of their acquaintance. "I don't have time to socialize, with what we do."
With his redirect, Haught asked Tribbett how old he is. Alberty opposed such a question, but Haught stated, "The question was why didn't Tribbett go down and intervene. What I'm getting at, is he didn't want to go down and help, because there was another 68-year-old man getting beat up."
Alberty still argued that age was irrelevant, but Judge Karl allowed the question. Tribbett said he was 67 when the altercation occurred and that he had an artificial hip that throws his back out. Haught noted that Alberty limped when he walked into the courtroom. Tribbett responded, "This is a good day."
Next to take the stand was deputy Eric Daugherty. Daugherty testified that on June 27, around 4:11 p.m., he was notified by dispatch of a call to North Fork, about five to seven miles out. "Whaley said he was assaulted by his neighbor, Mr. Wildman." Daugherty said he was on another domestic when he received the call but he did make it. "I spoke to Mr. Whaley; he pretty much told me that he and Sarah's daughter were there fishing. They had left the spot where they were fishing, 70 yards from the trailer on the crick bank. They went back to put sun-block on the girl. When they came back, Mr. Wildman was there. Mr. Wildman said they had no right to run him off. (Whaley) said he took the stick away and punched (Wildman) in the nose." Daugherty said he talked to Whaley a bit further and found out this neighbor dispute had been going on for a while. "My understanding is that (the property) is an heirship between Mr. Wildman and Ms. Spears' mother or grandmother. I think they had equal right to both be there."
Daugherty said he took pictures of blood on the grass and found one blood drop on the road. He said that Whaley had described the stick Wildman had and said the neighbor boy had taken it. "The neighbor boy had brought the stick back in three pieces and said he had broken it."
A written statement by Whaley was then read to the court. In the statement, Whaley had said that he was assaulted by Wildman on June 27. He said that Wildman was trespassing in the hay field and that an altercation had occurred on the previous date. Whaley accused Wildman of making inappropriate comments toward his daughter. He also stated that Wildman bragged about looking through the window of Whaley's trailer. The statement ended with, "Mr. Wildman is a danger to children in our neighborhood."
Daugherty said that he "photographed everything" the day of the incident. He then reviewed the photos with Haught. This evidence included photos of Whaley's forearm; his face, to show he had no markings there; a blood stain in the grass; and photographs of Whaley's hands, to show that there were no markings on his knuckles.
"I left and went to Wetzel County Hospital after getting statements," Daugherty testified. "AirEvac was at Wetzel County Hospital taking Wildman out of the room." Daugherty said that a medical release was then signed so that he could see the extent of his injuries. "I observed blood on his face."
Haught then asked Daugherty if he had the occasion to "go back and interview Mr. Whaley again."
"I did, between (June 27 and June 28)," Daugherty stated. "Somebody contacted me. I can't remember, might've been one of the oil workers that had seen this. I found out that there was a guy that worked for Pete Gold and Son that had seen this. I knew what he had told. . . I knew there was a witness that had seen something when I was talking to Whaley on the 28th." Daugherty continued, "I told (Whaley) to come to my office, basically to find out what happened. I knew from the extent of the injuries, this was just not one punch. You can't get that many injuries from one punch."
A photocopy of the Miranda rights form was then recognized by Daugherty. The photocopy showed that Whaley initialed each line, meaning that he understood his rights.
The statement was then played to the court. Whaley can be heard several times telling Daugherty that he only punched Wildman once. Once Daugherty tells him that someone witnessed the altercation, he only then admits to kicking Wildman, as he was trying to leave on his four-wheeler.
"Had Mr. Wildman not suffered any broken bones or had any blood drops emanating from his face, would you have filed charges against my client?" Alberty asked Daugherty during his cross-examination.
"I would've consulted with the prosecutor's office. I would've told him my opinion," Daugherty stated.
"Did you consult the prosecutor's office before filing charges or did you file a warrant," Alberty responded.
"I wanted to hold off," Daugherty stated. "I thought Mr. Wildman was going to die." Daugherty later testified that Wildman's death, "would've changed everything. If he dies within a year of the incident, Whaley could've been charged with murder."
Alberty later questioned Daugherty on the firearm that his client supposedly possessed at the time of the altercation, telling Karl that the relevance of this line of questioning was that if Whaley had wanted to kill Wildman, "he had the means."
"Relevance?!" Haught exclaimed. "This isn't a murder case."
Testimony was then given by the alleged victim in the case: Leonard Keith Wildman. Wildman took the stand but was able to give very little information to the court. Wildman repeatedly apologized, stating that he could not remember things. "This guy accused me of calling his wife a bad name." Wildman said that he the told Whaley he had never seen (Whaley's) wife. Wildman stated he had hurt his shoulder, but kept apologizing, as it appeared as if he did not recall anything else of the incident.
Haught asked Wildman if he could point out the man who he was involved in the altercation with. Wildman stated that he could not, asking "Is he here?"
Leslie Tennant, daughter of Wildman, was next to take the stand. She said her father was 68 at the time of the incident and was not working, as he had retired in June 2008. She said he was a custodian at Shortline, had worked for the Wetzel County Board of Education for 20 years and then retired.
Tennant stated that she did not know of any inappropriate sexual conduct by her father. She testified that she visited him once or twice a week, to give him his groceries, and she would call him everyday to make sure he took his medication. She testified that she did visit her father everyday before her son was born in 2010.
Furthermore, Tennant testified that Sarah Spears, the wife of Whaley, was her cousin. She said that Spears had never come to her and said that her father was making inappropriate sexual comments. "He's around my boys all the time," Tennant exclaimed.
Tennant did say that the family had been feuding for years and never talked to each other. When asked what they argued over, Leslie stated. "A dog, who it belonged to. . . They just never got along." Tennant further testified that the dispute started back when she was five, "and I'm 31."
She said that her father had, as her doctor described, "early onset Alzheimer's. . .He would forget random things, like the day's date. His long-term memory was great. . .short term, we'd have to repeat things." Tennant said that at some point, her father had been reported to adult protective services. Two representatives came from APS, including a supervisor. APS approved of her father's living situation. "I wanted him to have his independence," Tennant added.
Tennant recognized her father's walking stick from the time of the incident but stated that no one had ever complained that it was a weapon being used. "I don't think he ever needed it all the time," she said, "but he used it walking up and down the road. He visited the neighbors all the time."
Tennant stated that after finding out about the incident she went straight to WCH. "At first, he wasn't really moving," she said of her father. "He said he had to go to the bathroom. He got up and vomited blood everywhere."
Tennant said she travelled that evening to Morgantown after her father was transferred there. She said that for the first couple of days her father didn't respond and was unconscious. Then, he would say, "Tell that S-O-B I didn't say that," and would wake up and begin covering his space, as if protecting himself. Furthermore, she said her father was at Ruby Memorial Hospital for almost a month and ended up with bacterial meningitis. "He had to go into quarantine and intensive care." Wildman was then transferred to Health South. Tennant says her father wasn't ready to come home, but "was in an in-between phase."
Court was then adjourned for the day, with Alberty objecting to the photographs that were shown of Wildman. Some of the photos were taken with Tennant's camera phone. Alberty argued that the photographs were grainy, and thus, inaccurately displayed Mr. Wildman. Karl ruled the next day that the photos were allowed, as there is no law that stipulates that photographs have to be of a certain quality.
The next day, Tennant was shown the photographs and confirms that she took them with her camera and that they accurately portray Mr. Wildman after the accident.
Furthermore, Tennant testified that her father now lives with her brother in the Mount Claire, W.Va., area. She said (Wildman) is unable to return home, as when he was at Health South, several tests determined that he was unable to live by himself. Tennant stated that her father is the thinnest she has ever seen him and that his medical condition is a lot worse: "He is more confused than he's ever been." Tennant said she is afraid her father will get lost, because her brother has a farm. "My brother found him asleep on the porch one night." She added, "He'll mess with the thermostat, turn it all the way off, then put on overalls and bundle up." Tennant stated, "He was capable of running a thermostat before, and now, it seems like he'll forget if he's eaten." She explains, "Sometimes he'll eat two meals and then he won't want anything, because he'll say he hadn't eaten."
During cross-examination, Alberty questioned Tennant on her father's mental condition. "You mentioned he was on Paxil and Xanax. That was prior to this incident? Both of those are used to treat mental disorders; is that correct? Do you know what mental disorder he had?"
Tennant stated that her father had suffered from anxiety and he was also depressed. "After my mom passed away, he never got over it," she stated.
Alberty then questioned Tennant as to what would happen if her father had overdosed on Paxil or Xanax. Tennant replied that if anything, her father would forget rather than not take it. She said that nothing would happen if he forgot a dose because Paxil takes time to build up in an individual's system.
Alberty then questioned Tennant concerning her father's furnace and telephone, stating that Wildman did not have a furnace or a working telephone. Tennant adamantly replied that her father did have a furnace.
"The weeks leading up to the incident, there was no way of talking to him, was there?" Alberty questioned.
Tennant stated that she talked to him, that she paid the phone bill and talked to her father almost everyday.
Alberty then questioned Tennant has to how she would know if her father was making inappropriate comments. "I'm a teacher, which means I'm a child advocate, and I would know. I have some experience." She said that she would expect a person, including Sarah Spears, to call her if they had problems with her father. "I would expect her to call me, or the police, or whoever."
Kelly Odel Wildman, (hereafter referred to as "Kelly") son of Leonard Keith Wildman, was then next to to take the stand. Kelly testified that his father has lived with him now since the end of August, "since he got out of rehabilitation." As to his fathers' condition, Kelly stated, "Some days he's good and some days he's bad. Some days he'll sit and and think about all this, but some days, it's kind of a turn around. He doesn't get around as good as he used to." Kelly stated that prior to the incident, "My dad was able to stay by himself. He had a bunch of dogs. He loved his dogs. He mowed for people. . .He can't do that now." For instance, Kelly confirmed that the week prior to the incident he had had contact with his father. He said that his father had weedeated for a teacher in Reader, and because of his father's age, Kelly had told him he shouldn't.
"Did anyone ever tell you that your father was making inappropriate sexual comments to them?" Haught asked.
Kelly responded, "No one."
Kelly testified that his father had a series of mini-strokes after his mom passed. "He kinda, would cry a lot because of missing her. . .I guess. He kinda just shut things out, not talk as much as he used to."
Kelly said that his father had a lot of injuries to his face from the incident. He said his father's ear was packed and that he was told it was the start of a cauliflower ear. Furthermore, Kelly said there were more injuries than what the photo shows. "The injuries went kinda from the spine, down through the face."
Kelly also testified that his father did have a dispute between him and his neighbors for years, over dogs. "He would be mad and irate. . .The neighbor dogs coming over in his yard. That's been going on two to three years now. I remember Leslie calling me."
During cross-examination, Alberty stated that the dogs "weren't there at the time of the incident." Kelly said that they were in fact there, that they had been removed after the incident.
Julie Watson, niece of Wildman, was called by the defense for testimony regarding the character of Wildman. "We had never gotten along, all these years. Sometimes we would. Sometimes we wouldn't. He'd come over when he was pleasant." Watson began to testify to several supposed incidents of inappropriate conduct from Wildman. However, the state objected to several of these statements, as Watson could not recall dates or time periods of the incidents. "What I'm trying to show is a pattern of behavior of Mr. Wildman's that led to this altercation," Alberty stated.
"If the defense is self-defense, regardless of what Mr. Wildman's associations with his family were, I don't see how that justifies the beating he got."
Watson testified to one time when Wildman supposedly picked her granddaughter up and tickled her. She also testified that one time Wildman had come out on his porch one time naked and exposed himself to Watson and her mother.
Additionally, she also testified to a time in April 2013 when she saw Wildman standing outside of her granddaughter's window, looking inside the window. Watson stated that she told Wildman to stay away this time, as well as several other times.
Haught then cross-examined Watson, asking her about dates her mother resided in the area with her. Watson stated her mother was in the nursing home in April and May, off and on, because she had to have surgery.
"She was in the nursing home in April, was in the nursing home in May of 2012, and then she had to leave to go have surgery sometime in May 2012?" asked Haught.
"She had the surgery in Marietta," Watson stated. "She came home May 28th, the end of May."
"When did Mr. Whaley move into that residence?" Haught asked.
"February 2012. You mean with my mom? No, that was May 2012, with my mom." Watson responded.
"Were you living there at the time?" Haught asked.
"No, I never lived with her. I lived beside her in a mobile home." Watson stated. She went on to say that the "Soonest Whaley was out there was February 2012." She also confirmed that he does not have any children with Watson's daughter, Sarah Spears.
Alexander Scott Whaley then took the stand. He stated that the day of the incident, Sarah Spears' daughter and himself were fishing, "which we did everyday during the summer. It was our bonding time." Whaley added that the two went back to the house by four-wheeler to get bug spray and a bathing suit.
He then alleges that on the way back he saw Wildman "poking through my tackle-box."
Whaley stated that prior to this incident, he would notice the way Wildman "walked, the way he showed himself to everybody before. He carried himself, like an older Marine, with his chest puffed out."
Whaley said that he had witnessed Wildman picking up his step-daughter when she didn't want him to. He said that Wildman has used slurs against him and his wife and has threatened to rape his wife. "We ended up taking the pool down because of him," Whaley stated. "He would stare at us, watch us. He had a chair in his driveway so he could sit and watch us. He would whistle at us and do cat-calls." Whaley also alleges that Wildman made explicit comments towards his step-daughters.
Furthermore, Whaley said that after catching Wildman going through his things, he pulled up beside him on his four-wheeler and told Wildman to leave. Whaley testified that Wildman became angry and began swinging his "club" at Whaley. "How many times were you struck before you threw any kind of swing at him?" Alberty asked. "Four or five times," Whaley responded. "I had my hands up trying to stop him. It was directed towards my face and head."
Whaley said that he did believe he could be knocked out by Wildman, as he heard wind coming off of the stick. Whaley said that he took the stick and hit Wildman once. He then adds, "I hit him as many times as I could until he would leave me alone. Then I got on my four-wheeler, and I kicked him."
Whaley testified that it took the cops an hour to get there. After being asked by Alberty, he said he had a 9-mm pistol with him at the time, as well as a pocket knife. He agreed that he was fully capable of shooting and stabbing Wildman but said, "I didn't see the need to do that."
Whaley said that he believed the altercation was started by Wildman and was ended up by Wildman walking to his house. "I was on the phone multiple times with Jackson County's Sheriff's Department."
Whaley testified that he called 911 and no one came. "They said they were too busy, their officer had been sent to Price County." Whaley also said that he called the state police and that they "didn't have any officers in."
"Now, you gave the written statement on the day that this happened. You never once mentioned you hit Mr. Wildman at all, did you?" asked Haught during cross-examination.
"I believe I told the 911 dispatch that when I called," responded Whaley.
"When you wrote the statement, you didn't mention that, did you?" asked Haught.
"No, I was in the flurry of, 'Hey this happened. Let's get it taken care of.'"
"You don't remember everything that happened that day?" asked Haught.
"My memory is clear," responded Whaley.
"You remember or you don't remember it," asked Haught.
"At the time, minute details weren't the most important thing on my mind," responded Whaley.
Haught also mentioned to Whaley that not in the written statement nor in the recorded statement, did he mention that Wildman was messing with his fishing tackle.
Alberty objects to the questioning, saying he did not see how it was important.
"Truthfulness," Haught responded.
"You didn't think it was important to tell that part of the story when you were being recorded?" Haught asked.
"It was important," Whaley said.
"Why didn't you tell it?" Haught asked.
"Like I said, every minute detail wasn't important," Whaley said again.
Haught told Whaley that this was the third version of events that had been given. Whaley responded that it was not. Haught stated, "You gave one statement. Then another. And one now. They are all different." Whaley denied this.
"Your statement on the 27th and 28th doesn't include any statements about fishing tackle; it's completely new today," said Haught.
"To you," Whaley responded.
"In the statement you told on the 28th, you repeatedly said you only hit him once," said Haught.
"Yes," Whaley said.
"Today, you said you hit him, and you repeatedly hit him," Haught said.
"Yes," Whaley agreed.
"In your statement to Daugherty, you told that you took the stick away and hit him once," Haught stated, referencing the fact that Whaley had just stated to the defense that he held the stick and punched Wildman repeatedly.
Whaley also confirmed that on the 27th, he never said anything about kicking Wildman. He only mentioned this on the 28th.
"You weren't telling the whole truth. Isn't it a lie not to tell the whole truth, in your opinion?"
"Yes," Whaley responded.
"You admit, you lied, on the 28th?" Haught asked.
"Yes, I did," responded Whaley.
Whaley also denied to Haught that he had called the Jackson County sheriff's department the time the incident occurred.
Later, Haught asked Whaley about taking the stick away from Wildman. "Have you ever heard the proverb, if a man comes at you with a stick, all you have to do is take it away?"
"No," responded Whaley.
"All you had to do was take that stick away," Haught said.
Whaley responded, "Your words."
"You were carrying a gun and a knife, and he had a stick, right. . . You took a gun and a knife to a fight with an old man." Haught said.
"I didn't take anything to a fight with an old man," Whaley responded.
"All you had to do was take that stick away. That would've been the reasonable thing to do. Wouldn't it have been reasonable to take the stick away?" Haught said.
"Why get closer when he's already belligerent," Whaley responded.
Haught then asked Whaley how many times he had hit Wildman, in which Whaley said he did not know. Haught asked him if it was more than four. Whaley repeated that he did not know.
"You were pretty sure it was just once when you talked to Eric Daugherty," Haught said.
Sarah Spears took the stand next and testified that when she walked outside at the time of the altercation, she saw Mr. Wildman swing at Whaley's head, "like four or five times."
She said she walked four steps down her walkway. She testified that she then saw Whaley take hold of the stick and punch Wildman. She said that she headed back toward the house to call the police, after Whaley told her to, but then changed her mind and "didn't bother. . .They don't come; they don't do nothing."
She said she saw Mr. Wildman taking his stick and walk back to his house. "The only thing I saw was Mr. Wildman swing his stick, because Alex told him to leave." Spears testified that she actually saw the stick hitting Alex, then saying, "I seen Alex grab the stick and punch him. . .Then throw the stick in the air."
She repeated that she walked halfway back to the house to call the police but then came back. As to calling the police, she again said, "What the hell for, they won't do nothing." She adds, "We had called numerous times on him." She referenced a time when she was eight months pregnant and Wildman allegedly threatened to rape her in the road. "The dispatch officer told me, 'He has to touch you first.' They sent nobody."
Spears testified that Wildman looked different the day of the incident than what he looked like in court. She said at the time of the incident, "he was bigger, long hair, beard, smelled. . ." When asked, she says that she did feel like he was physically capable of raping her.
During cross-examination, Spears confirmed that she had just testified that she saw Mr. Whaley take the stick out of Wildman's hand and "it went flying in the air."
"Let's go over that again. You saw him grab the stick, you saw (Whaley) hit (Wildman), and then you saw the stick go in the air."
"I turned away," Spears stated. "I grabbed my daughter's hand. He told me to call the law."
"Now you only saw one punch thrown," Haught asked.
"Yes," Spears stated.
During closing arguments, Haught described Whaley as being "arrogant" and having "no shame, no remorse." "His testimony was almost as bad as poor Mr. Wildman's," he stated. "You have a right to defend yourself," Haught explained. "Where this case goes wrong, is the force he used wasn't reasonable."
Haught stated that he formerly practiced defense law and had a book called, "What To Do When Your Client is Guilty." Haught stated the first course of action in this book was to "smear the victim," referring to the defense's accusations that Wildman made explicit comments. The second step was to "blame it on the police."
"We live in a society of blame shifters," Haught noted. "You know what? The police aren't on trial today. You might've had a bad experience with police, but they aren't on trial today." Haught added, (Whaley's) testimony is so inconsistent; it's even inconsistent with Sarah Spears' testimony."
"I feel like (Whaley's) life is in my hands," Alberty told the jury at the beginning of his arguments. "It's going to be in your hands." "
He added, "Bacterial meningitis. . . You don't get that from being beat. (Wildman's) deterioration occurred over a time period." As for the Whaleys', he noted, "These people were trying to call the police. . .They called the police the day before this happened. (The police) are sitting here. They have the ability to stand up and say things."
"The only people that were there were my client and Sarah Spears. . . and Mr. Wildman, who they admitted, his testimony is useless."
"A tackle-box," Alberty stated. "Those are things are expensive. . .fishing lures can be 40 and 50 dollars a piece."
"Are we going to let someone hit us in the head with this thing?" Alberty stated, referring to the walking stick Wildman used. "You can die from this thing. You get hit in the head, get hit in the temple, and you're dead. Every time someone comes at you, you have the right to defend yourself." Alberty added, "It's unfortunate the result of that, he bled. A lot of people get hit in the head and something breaks. . It's what happens when you start a fight; it's what happens when your family allows you to wander around and do this stuff. . . All indications seem to be that Mr. Wildman went out into that field, knowing they were out there. . .And my client punched him."
As to the police again, Alberty stated, "They don't go out there until they see blood. . .Then they want to commit somebody to something. When they don't even respond, that's outrageous. . .I would be incompetent, if I didn't point this out to you. I'd be an imbecile attorney, if I didn't tell you that they called the cops on this guy the day before."
"You find this alleged victim as he comes. If he has brittle bones, that's too bad. . . You are going to see a whole bunch of pictures, some of Mr. Wildman, probably to inflame you and get you mad."
Alberty continued, "In West Virginia, it's very vogue, the minute that they see any sort of blood, helicopter and out they go." He continued, "As a trial attorney, I used to think when somebody flew off in a helicopter, I used to think it was a big case." Alberty stated, claiming that it wasn't true.
"It's better to let 10 guilty men go free, then to convict one not guilty man," Alberty stated. "If you think he had the intent to hurt this man, but you are not sure, if there's reasonable doubt, you have to let him go. . .We don't want to put anybody who might be innocent, in the position of being convicted."
Haught then gave the final remarks: "Mr. Alberty and I agree on one thing. That is, we don't want an innocent man found guilty. But look at the evidence in this case. It shows he's guilty. If ever there was a malicious act. . .Remember Mr. Tribbett's testimony? (Whaley) took two or three steps, kicking an old man in the head. . .If ever there was a malicious act, it was this act, kicking him in the head."
Haught continued, "Mr. Alberty says it's unfortunate he was hurt that bad. It's not unfortunate. It's a tragedy. . .Did you ever see an apology? Did you ever see any remorse? Mr. Alberty says if someone messes with your tackle-box, you can hurt him so badly. You can send him to the ER in Morgantown. How reasonable is that? $20 and $30 for lures. . .beat a man that badly, for lures? I hope that I am not so far removed from the people of Wetzel County, I hope that's not what people think."
He continued, "You know what it takes to be a good juror. It takes moral courage. It takes moral courage to be a good human being. This is the opportunity for justice to be done today. Mr. Alberty gave you a quote. . .I'm going to give you one. This was given to me by a judge, the first judge I practiced law with. His family was murdered while he was a prosecuting attorney in Monroe County:
'All that is necessary for the triumph of evil, is for good men to do nothing.' This now falls to you. The state has proven beyond a reasonable doubt, that this man, Mr. Whaley, is guilty of brutally beating Leonard Wildman, a 68-year-old man, with a history of dementia. It wasn't justified. There's no basis for justification. It wasn't reasonable. Guilt to malicious assault."