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Jury Finds Clegg Guilty Of DUI

December 18, 2013
BY LAUREN MATTHEWS - Staff Writer (reporter@wetzelchronicle.com) , Wetzel Chronicle

Michael Paul Clegg, 35, of 440 Durham Street, Sistersville, was found guilty by a jury of his peers on Dec. 11 of driving under the influence.

However, prior to the trial, the defendant stipulated to prior convictions. Because of the stipulation, under the law the prosecution could not introduce prior convictions into evidence in front of the jury. The case had to be tried to the jury as if the charge was the first offense. Now convicted, the stipulation goes into effect, so Clegg has been convicted of third offense driving under the influence.

Post trial motions and sentencing are scheduled for Jan. 10.

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Prior to the trial, which took place Dec. 10 and Dec. 11, Wetzel County Prosecuting Attorney Timothy Haught said the state had an issue with some of the people in the courtroom's audience. He firmly stated that the prosecution did not want the audience to have any contact with jurors. "We want a fair trial with everyone," he noted. "The state and Clegg."

Haught explained to the jurors that on or about April 25, Clegg had committed the offense of driving under the influence of alcohol. Haught said the state would attempt to introduce evidence from two witnesses-Officer Mike Kelly and Officer Bryan Owens of the Paden City Police Department. "Those will be the only witnesses, because they were on duty on the date and time in question in Paden City, West Virginia, and in fact they witnessed the defendant pull up to a stop sign . . . When (Clegg) saw them, he put his car in reverse at that stop sign and attempted to back up and go a different direction."

Haught explained the intoximeter test is a machine one blows into and is designated by the state of West Virginia as a reliable machine to test a person's blood alcohol. Furthermore, Haught explained that there is only one intoximeter in Wetzel County. "Everyone arrested in Wetzel County has to blow into the machine at the New Martinsville Police Department."

"The court will instruct you today that if you have a Blood Alcohol Content of .08, that is prima facie evidence that you are operating a motor vehicle under the influence of alcohol in the state of West Virginia," Haught explained. "The ticket from the intoximeter in this case indicates his Blood Alcohol Content was .16, twice the legal limit."

"Essentially, that is going to be the testimony of the police officers and basically the evidence the state has . . . I have certified copies that officer Owens was trained on the intoximeter machine; that he was trained on a preliminary breath test machine, that the intoximeter at the New Martinsville Police department is the designated machine for that purpose by the state of West Virginia and some of those technical things."

Haught further explained that what the case boils down to is that "the officers are going to testify that they observed (Clegg) operating a motor vehicle, in Paden City, in Wetzel County, while he was under the influence of alcohol."

"I don't know what the defense is, if the defendant will even testify, because he's not required to testify in this case . . . You'll recall during our voir dire examination that you can't hold that against him, because every person in the United States of America has a right not to testify, and we don't hold that against them."

"There's a presumption of evidence . . . He's presumed innocent until I, as prosecuting attorney, prove that he's guilty beyond a reasonable doubt. He's presumed to be innocent, and you understand those things because those things have been gone over in voir dire, because the judge will also give you instructions. That's the law and that's the way it should be. I don't know whether he will testify but I suspect perhaps there will be a defense put on, and I suspect that the defense will be that there was a short period of time in which the officers were not able to observe him, from the time he exited his vehicle . . . And that he shotgunned some form of alcohol. His defense will be that he didn't drink before he drove, that he drank in that short of period of time before they stopped him."

Haught also stated that he believed the defense "would make a lot of hay" over the fact that there was no tape recording of the stop. "In Officer Owens' car there was no functioning video camera when he was stopped." Additionally, Haught said the defense would "make some hay over the fact that there may have been a tape of what happened in the intoximeter room, and that tape was inadvertently recorded over by the New Martinsville Police Department."

"I suppose those will be the defenses in this case," Haught said. "But the issue in this case is basically this: Did he operate a motor vehicle in Wetzel County, West Virginia, while he was under the influence of alcohol . . ."

During open arguments, Defense Attorney Peter Kurelac stated of the NMPD recording: "We aren't going to have that . . . I don't know if it was inadvertently, intentional, unintentional, or otherwise . . . It's routinely done. That would provide some assistance to see what statements happened, did not happened, or what."

Kurelac stated the jurors would come to the conclusion that the intoximeter test "doesn't really matter." He explained: "What matters is the timing of the test. There are a few things the state said that are true about that evening . . . Mr. Clegg had a few drinks; he operated his car, and he was eventually arrested for DUI . . . However, in doing so, the officers were operating on limited information, and the limited information they are operating on was basically from the time they initially saw the subject's car . . . He had pulled up to a stop sign, two-and-a-half blocks away . . . There will be testimony that they saw it go into reverse but then lost sight of it . . . They didn't know whether or not anything occurred or any traffic violation occurred on or not. They didn't catch back up with the car until it parked. At that time, there was no initiation of a stop, nothing at that time. You will hear there was no traffic violation at that time or not. You are going to hear that the officer saw Mr. Clegg get out of the car and proceed down the street, but the officer, even at that time, did not stop and initiate his lights to stop the vehicle. And the officer continued past."

He continued: "Mr. Clegg at this point, you will hear that he was at a friend's house earlier . . . And what he did was left the friend's house, and you are going to hear this . . . While he was there, he did have a couple drinks while at this friend's place . . . He stayed there over the course of four hours. There was food also. You are going to hear there was consumption of food while drinking those couple of drinks. But when he got up and left, his friend gives him a call and said come back because (Clegg) doesn't have to work the following day."

"(Clegg) didn't back up illegally . . . He backed into a person's driveway and proceed back. He parked in a legal fashion and on the way back to his friend's, he had a couple of beers leftover that he was taking back home, but he took them out of his car, as he was walking back to his friend's he consumed those beverages and that's significant. That's why the intoximeter or any test doesn't matter. It's going to show that he was intoxicated at the time the test was given, but at no point will you be able to prove beyond a reasonable doubt that he was operating his car at anyway of traffic violation or that did so while intoxicated. He wasn't stopped outside his car, but his car was completely out of sight . . . He was a block-and-a-half down the road, out of sight."

Kurelac continued: "There are going to be discrepancies as to what was said, how (Clegg) responded, what the officers think they heard . . . Keep in mind, once being charged or confronted, there was no obligation for Clegg to say anything. He has a right to invoke his right to remain silent at any point."

Kurelac stated all the court had was testimony, due to the lack of a video. "We are just going to have (Clegg's) testimony.

Bryan Owens, the state's first witness, testified he is employed by the Paden City Police Department and had been employed by them for approximately eight months. He stated he had previously been employed the Sistersville Police Department for four years.

Owens said he had completed a 16-week training through the West Virginia State Police Academy and had received this training from June to October 2010. Owens stated he had made 35-40 DUI arrests throughout his career.

Owens testified he was trained in investigating DUIs, including using sobriety tests. He stated that indicators that a person has been driving under the influence include an odor of alcohol coming from a person's body or breath, red bloodshot eyes, slurred speech, and unsteadiness on feet. He stated he had observed individuals who were intoxicated in the past.

Owens testified he had received training in respect to a device called the alco-sensor, a preliminary breath test. At this time, the state marked its exhibits one and two, which were to prove that Owens is certified to operate the blood alcohol test and intoximeter, which Owens testified is a secondary breath test. He said he has administered the intoximeter 35-40 times.

Furthermore, Owens testified that the machine for Wetzel County is located at the NMPD. Tyler County's intoximetmer is located at the Tyler County Sheriff's Office.

Haught had the document that clarifies the intoximeter at the NMPD is the correct one to use as exhibit three.

Owens stated that on April 25, he was on routine patrol. He stated he was at the Marathon gas station's parking lot, facing north, when he spotted a white Toyota Corolla pull up at a stop sign and then move in reverse, backing down West Robinson Street. Owens had testified that the time of these events was approximately 12:30 a.m.

Owens said he proceeded to follow the car, which went down South Third Avenue. Owens said no one was with him when he was sitting at the Marathon, though Patrolman Kelly was in another car at that location.

Owens said there was a point in time when he lost contact with the vehicle, when it was backing down West Robinson. He said he lost contact for about two to three seconds; he testified he followed the car because he found it odd the car was backing down the street. Owens said he could see who the person was when they parked at South Third Avenue. Furthermore, Owens said he saw Clegg exit the vehicle and that Clegg had nothing in his hands when he exited the vehicle.

Owens stated that he did lose contact with Clegg briefly when driving by where Clegg had parked; however, he testified Patrolman Kelly picked up contact where Owens had lost. Owens said he had lost contact with Clegg for approximately 25 to 30 seconds.

Owens stated that when he finally made contact with Clegg he smelled alcohol on Clegg as well as observed red bloodshot eyes. Owens performed the standardized field sobriety test on Clegg to determine if Clegg was intoxicated; these tests included the one leg stand, the horizontal gaze assessment test, and the walk and turn. Owens said that with the horizontal gaze assessment test he did observe involuntary movement of the eye, which is a sign of alcohol impairment. In regards to the walk and turn, Owens said the defendant failed this test, and in regards to the one-legged stand, he said Mr. Clegg kept dropping his foot and could not keep his balance. After failing these tests, Clegg was placed under arrest and read his Miranda Rights.

Owens testified that prior to going to the NMPD, a stop was made at the PCPD so Clegg could use the restroom. Owens testified that the defendant was not out of his sight, that the bathroom door was left open. Owens said he had searched Clegg at the scene, and Owens did not have anything on his person besides car keys and identification. Owens said Clegg did not ingest anything while he was going to the restroom and that after he went to the restroom he was transported to the NMPD.

At this time Haught entered exhibit four into evidence, which was the implied consent statement.

Owens stated that after Clegg signed the implied consent statement, he agreed to the take the intoximeter test. Owens testified that he observed Clegg for a period of 20 minutes before he took the test, to make sure he did not inhale or "spit up anything." Owens said he performed the secondary breath test after the observation period was up. He said he gave Clegg a new mouthpiece, fresh from a wrapper, and ordered him to blow into the mouthpiece. Clegg's blood alcohol content level registered at 0.16-twice the legal limit.

At this time, the state submitted their fifth and sixth exhibits. Exhibit number five was the ticket printout from the intoximeter. Exhibit number six showed that the intoximeter is designated as the secondary test for West Virginia Law Enforcement Agencies.

During cross-examination, Attorney Kurelac asked Owens to estimate how far West Robinson Street is up from the Marathon gas station. Owens testified it was approximately 75 to 100 yards.

"You are aware at West Robinson Street, the corner of that and Route 2, there's a house on that corner . . . You saw the car pull up and then immediately back out of your sight behind the house . . . Now at that point, the vehicle could've simply backed into the house's driveway, turn around and went down the street?" Kurelac questioned.

Owens responded there was no driveway at the location.

"Officer Owens, I know you testified now that it wouldn't be possible for him to back into a driveway to turn around to go back down where he came from as far as West Robinson Street . . . Do you recall testifying on a previous hearing in regards to this case on the same subject matter?"

At this time, Kurelac asked Owens to read from a transcript, from a previous hearing in the case. During this previous hearing, Owens had stated that the car could have backed into a driveway.

After asking him to read from the transcript, Kurelac then asked Owens additional questions about how he had followed the car that night and observed how the car was driven. Owens testified that the car did not drive erratically, and even after finally meeting up with the car, he did not observe any traffic violations or other violations with the car when it was parked.

Kurelac then asked Owens to read from the transcript again after Owens stated that after following the car, losing track of it briefly, and then passing it parked, he went only five to six feet down the street before turning around and heading back to the car. Owens read from the previous hearing's transcript where he stated that he had passed a couple of houses before turning. When he stated that after following the car, losing track of it briefly, and then passing it parked on and then passing it parked after he had passed the car, he had only gone five to six feet down the street. At the previous hearing, Owens had testified he had passed a couple of houses before turning. Kurelac suggested further indiscrepencies in Owens' testimony after Owens stated he had only lost sight of Clegg for 30 to 40 seconds. At the previous hearing, Owens testified he had lost sight of Clegg for 40-50 seconds.

"Now when you arrived at Park Street, where Mr. Clegg was walking on the sidewalk . . . Did you see his vehicle from where you were, as to where his vehicle was?" Kurelac inquired.

"No sir," Owens responded.

"So in essence then, the street is in a T-section . . . He's walking down Park Street. The car is on South Third Avenue. So he was around the corner, out of sight from the car?"

"Yes sir," Owens stated.

"So you agreed it would take him almost a minute to get to that point from where his car was?"

"Yes sir."

Owens testified that he and Patrolman Kelly converged on Clegg at the same time, that neither one of them initiated their lights on their cruisers.

"Now, you didn't mirandize him at that time?" Kurelac inquired.

"No sir," Owens responded.

"Now, what I want to get at . . . You testified before that there weren't any statements made by Mr. Clegg or any statements trying to explain what he was doing on the sidewalk . . . That's what you testified to earlier, correct?"

"Yes sir," Owens responded

"So now you are trying to say he didn't try to offer any explanation."

Kurelac then stated he was going to request that Owens read from the previous hearing's transcript again.

"According to the complaint you said he replied to your question as to that he realized he had too much to drink and should not be driving and he was going back to his friend's house?" Kurelac questioned.

"Yes sir."

Owens further testified that this was the extent of Clegg's statement that he made when he was walking. He further confirmed that Clegg stated he had drank four to five Coors Lights.

"He didn't elaborate at to what manner he drank them or when, it was after that point that you initiated the field sobriety test on him then?" asked Kurelac.

"Yes sir."

Kurelac asked Owens if he demonstrated the tests to Clegg and then asked Owens if he could demonstrate the tests to the court.

Kurelac mentioned that Owens wavered and wobbled when performing the walk and turn himself, as well as only demonstrated the one legged stand to a four-count before putting his foot down.

"At that time it was based upon your own subjective determination that he failed those tests, correct?"

"Correct," Owens responded.

Owens testified during cross-examination that after the field sobriety tests and breathalyzer tests, he placed Clegg under arrest for driving under the influence. He stated he left Clegg's car parked where it was, went to Paden City Police Station, and then processed Clegg at the NMPD.

Owens further testified that he had Clegg sign an authorization allowing a secondary breath test, signed an implied consent form.

"So when you had Mr. Clegg in the intoxilizer room, I believe you stated that you are aware there are usually recordings going on in that room. Are you aware whether it is video or straight audio?"

Owens said he was not aware

"But this is something that usually takes place there?" Kurelac further inquired.

"Yes sir," Owens noted.

"And from your standpoint, you never requested it be persevered, did you?" Kurelac asked.

"No." Owens said.

"And as there is a recording, any information passed back and forth, would've been recorded, correct?"

"Yes, it's my understanding," Owens responded.

"But we just don't have that now, do we? And we won't ever have that, will we?" Kurelac asked.

"No, not to my knowledge," Owens said.

During redirect by Haught, Owens testified he was nervous and that this was the first time he had testified in court in front of a jury.

"I want to go to some of those questions Mr. Kurelac asked you . . . One had to do with whether there is an alley or driveway on West Robinson Street . . . Do you know whether it is an alley or a driveway?" asked Haught.

Owens stated that to his knowledge it is an alley.

"But if you said driveway at another hearing, is that incorrect?" Haught asked.

"Yes," Owens replied.

Owens also testified that in preparation for the trial, he did go back and look at the location and has verified it's an alley.

"Did you do that before your last hearing?" Haught inquired.

"No sir."

Furthermore, Owens testified that to his knowledge, the distance he drove from Clegg's parked car was two houses. He also said he pulled into a driveway long enough to make a three point turn.

Also, Owens stated during redirect that he did forget that the defendant had made a statement and that this statement occurred before he was mirandized, but before he was placed under arrest.

Owens also testified to the court that Clegg had told him he had had four to five Coors Light beers. He said Clegg did not tell him that he had had two drinks at a party nor did he tell the officer that he had shotgunned "a couple of Coors Lights as he got out of the car."

Owens also said that Clegg had not told him where he had stashed the alleged beer cans; he had not stated that a friend had called him back to the party, nor did he say he was going back to the party. Owens said Clegg had told him he was going back to his house.

Owens said he would've looked for the cans had Clegg told him he had "ditched the cans" somewhere.

The officer also testified that all the events occurred in Wetzel County. Furthermore, he testified that he did believe, as a police officer, that Clegg stopping at the stop sign and backing up was suspicious, as well as potentially dangerous because "you can't see behind you well, what if there was a car going down the alley?"

Owens also testified that there was not anything that could have obstructed Clegg's view from West Robinson to where he and Officer Kelly were sitting, suggesting that Clegg might have spotted the officers.

"Now Mr. Kurelac pointed out what he thought was another discrepancy with your times," Haught noted. "Today you said 30 to 40 seconds (the time Clegg was out of Owens sight); before you noted 40 to 50 seconds"

Owens stated that he did not check his watch at the time, though it was most likely 40 to 50 seconds."

John Kelly of the Paden City Police Department testified that he had been employed with the PCPD for just a little over a year. He said he recalled the incident involving Clegg. He stated he was finishing up his shift and was sitting at the Marathon gas station talking to Owens. "We observed a vehicle, a white Toyota Corolla, came up to a stop sign on West Robinson . . . " Kelly testified he saw the vehicle hesitate for a short period of time and then the vehicle backed up on West Robinson Street.

Kelly stated Owens pulled out of the parking lot and turned down West Robinson Street. He said that he pulled out shortly after Owens did. Kelly said he found the vehicle's activity suspicious because "it's not something you see commonly . . . pull up to a highway like Route 2 and back up the street."

Kelly stated he followed the same route Owens did, turning down West Robinson and stopping at the stop sign at West Robinson and South Third Avenue.

Furthermore, Kelly testified he made contact with Clegg shortly after Owens radioed him. He said he observed Clegg walking with a staggered gait. "He was walking and seemed to be unsteady," Kelly noted.

"I detected an odor on his person, glassy eyes, bloodshot . . . He was slightly irritable," Kelly also testified.

Kelly said he watched Owens administer the horizontal gaze test, one-legged stand and walk and turn and that it was in his (Kelly's) opinion that Clegg failed those tests.

Kelly stated that it was in his opinion that Clegg was intoxicated.

He then testified that Clegg was transported to New Martinsville Police Department. "First we stopped by the PCPD to let him use the restroom and then we went to NMPD to administer the second test." Kelly said the first test was the preliminary breath test, which is a handheld unit that is carried by officers in their patrol cars "to get an initial sample of the subject's breath to determine the possibility of them being intoxicated." Kelly said Owens administered this test, but he knows that Clegg failed it.

Kelly testified that he did not know whether he went in the same vehicle with Owens to the police station or not; he said once at NMPD, he was in and out of the intoximeter room. "My main function there was to plan a ride home for the defendant."

During cross-examination, Kelly testified he was speaking with Officer Owens while parked at the Marathon. He stated he did not recall in what direction his car was facing though. He said he waited just a little bit before taking off after Owens and he arrived at the scene at approximately the same time the defendant did.

Kelly testified he did not really have any interaction with Mr. Clegg as he was there for the other officer's safety. He said his primary function was basically trying to find a way home for Clegg.

Clegg then took the stand and testified he had gotten off work at 6 p.m. the day of the alleged crime. He said after work, he went home, took a shower, ate dinner, and then went to a friend's house around 8 p.m.

Clegg said he took a six pack of Coors Light with him and went to the friend's house to "play cards and drink beer." He said he consumed about two to three beers while at his friend's house. He said around 10-10:30 p.m., he then ate a couple hamburgers cooked on the grill. He said he finally left his friend's place around midnight.

"So you had a few beers, from the time you got there . . . around eight to ten . . . Did you have anything after that?"

Clegg stated he didn't. He then testified when he left he took two Coors Lights that he had left over.

He said he decided to leave around midnight because his girlfriend was calling. Clegg said when he left he felt fine and that he felt he could operate a car.

He said once he started driving home, he friend gave him a call and told him a couple of friends were coming over. He said at this time he was proceeding to a stop sign by Route 2. Clegg said that when he decided to go back, he reversed back into a guy's driveway at the house beside of him and turned around. He said he did not notice any officers at the time.

Clegg said there is a driveway on the house at the corner, "and there's an alleyway and there's another driveway" Clegg said he noticed no one behind him. He said after turning around, he parked his car and that when he parked his car, he noticed a police officer drive by and "keep going."

"I kept walking," Clegg stated.

Clegg said he then shotgunned two beers by poking a hole at the bottom of the can with a key and popping the top. Clegg said he did this with both beers and then threw the cans "down by the creek, down by his car."

Clegg said he shotgunned these beers because he thought he "better play a little catch up" before he got back to the party because his friends "was getting drunk."

The defendant then testified that he told the officers he was going to a friend's house. He said he told the officers he had had too much to drink, shouldn't be driving, and was walking back to a friend's house. He said he didn't go into details about shot-gunning the beers because he didn't know whether he was being stopped for public intoxication or public littering.

Clegg said he felt he had passed the field sobriety tests.

During cross-examination, Clegg admitted that the night of his arrest he was operating a motor vehicle in Paden City, Wetzel County. he said he pulled up to a stop sign and backed up. He said he was drinking prior to operating the vehicle, and he had two to three beers, but no more than three.

Clegg gave the name of the friend who hosted the party but would not give the name of the street of the friend's residence. Clegg did confirm the house was located two blocks from where he parked.

"Why did you park two blocks from his house?" Haught questioned.

"It was where I parked earlier in the day," Clegg answered.

When asked, Clegg did affirm that his friend could verify everything he was saying in court.

Clegg also testified that the police cruiser went past his car before he got out of his car.

"So you know a police cruiser went by your car, and you got out and shotgunned two beers, correct?" Haught inquired.

"Yes, Clegg responded."

Haught stated that Clegg said he had brought a six pack to the party, said he drank a few beers, and then said he had two left. "What happened to the other beer?

Clegg said he didn't know what had happened to the beer. He also testified he didn't think to retrieve the beer cans he threw into the creek.

Clegg testified there was not any other alcohol consumed at the party then stated the other guests were drinking Bud Light.

"I want to make sure I understand your testimony," Haught noted. "You are not contesting the intoximeter results. Is that correct?"

"Correct," Clegg replied.

"You had just shotgunned those beers when you were walking, yet you felt tipsy," Haught stated.

"I felt fine yet the intoximeter said I was over the limit . . . the breathalyzer."

"Were you so intoxicated that you didn't know you were littering?" Haught asked.

"I knew I was littering."

"Did it ever occur to you that perhaps you shouldn't have gotten behind the wheel that night when you left that party?" asked Haught.

"I felt fine."

"But I know a lot of people who say they felt fine after they've had a couple of drinks," Haught stated. "You felt fine?"

"Yes sir," Leg stated.

"Was that from the effects of the alcohol?" Haught inquired.

"Yeah," Clegg responded.

"Did you consider that it might be dangerous to yourself and the public to drive after you've been drinking?" Haught stated.

"At the time, I waited. I felt fine to drive," Clegg said.

"Did you ever consider calling someone and having them take you home?" Haught stated.

"No sir."

"Are you aware that drinking and driving is dangerous?" Haught asked.

"Yes sir," Clegg responded.

But you decided on that night you'd take a chance, correct?"

"I thought I was fine to drive."

Haught stated he has heard other people say that as well. "It's quite common for people to say, isn't it?"

"I guess so," Clegg stated.

"You would agree with me that just because you felt fine doesn't mean you were fine," Haught stated.

"I was driving. I'd say I was fine," Clegg stated.

"Let your verdict be the truth, whatever the truth may be," Prosecutor Haught stated at the beginning of closing arguments. "I've tried many cases and obtained many convictions, but the most important thing today is that when you leave here, you sought justice and you sought truth . . . Truth for the state of West Virginia and truth for this defendant, and that is the purpose of the trial. That is what the state is asking you to do. Now, the judge has given you instructions on elements that the state must prove beyond a reasonable doubt."

"This is real life with real consequences," the prosecutor continued. "Reasonable doubt is not all possible doubt. It's a test of reasonableness, and it's a test of you using your common sense. The judge has instructed you relative to that."

"Sometimes people say the system failed," Haught noted. "Well my response to you is that you are the system. You are the people that make the decision here. You carry an awesome responsibility here, not just for the defendant but also the state of West Virginia and specifically the people of Wetzel County from whom you were chosen."

"(Clegg) said he poked a hole in the bottom of two Coors Lights. Here's the question: Would any of you who had just seen a police cruiser drive by. Would any of you get out and shotgun two beers? Does that make any sense? You jump out and in a hurry to shotgun two beers . . . What's the hurry? You are going back to your party. What's the point in shotgunning two beers?"

"The only other thing about his testimony that was bothersome was the fact that he acknowledged he had been drinking at this party, and he hopped in the car and drove. He didn't seem to have any appreciation for the seriousness of that . . . Drinking and driving is serious. People die every year from it, including defendants."

"Excuses are all the defendant officers," Haught stated.

"I agree with Mr. Haught's contention that you should make your decision based on the evidence that was presented in this case," Kurelac stated. "From the beginning I've said this is going to be a pretty simple case, simple in the fact there wasn't going to be a lot of test results, recordings and stuff like that . . . Basically it was going to boil down to testimony. That's the only thing we have."

"Uncontradicted testimony should be considered fact, and that's what we have here today. You've been instructed from the beginning of this case, weigh all testimony equally."

"However there are other factors you can consider in weighing the credibility and how much weight you should place on that testimony. Those things should be taken into that testimony -their mannerisms."

"Officer Owens, the main one involved in this case . . . after seeing everything that went on, the inconsistencies there . . . his mannerisms . . . I'll tell you not to provide little to any credit as to his testimony."

"Now Officer Kelly, he testified, he wasn't involved with much. He was there for officer safety, wasn't involved in any conversation between Mr. Owens and Mr. Clegg. In fact, Mr. Kelly couldn't remember whether he rode in the same car or not, or if he drove his own car."

He added: "Now I already said, uncontradicted testimonies should be considered as fact. We know the state's burden is a high burden, as far as beyond a reasonable doubt. After hearing all this evidence, quite simply the burden has not been met. Sure there's several elements that are undisputed, but what this comes down, the crucial aspect which is why attention to detail is needed is the fact as to whether or not, Mr. Clegg operated his car while under the influence of alcohol and whether or not that concentration of alcohol was over the legal limit.

Kurelac said that the state, based on that, "Has failed to prove that aspect, and the time in which the state failed to prove it, is the most critical point."

"Now the state has us believing it's an open and shut case, because we have the intoximeter. We have the test showing he was intoxicated, and the fact he said he was driving, but that's not it. Everything in between is what matters and how you got to where you were."

"He just had gotten out of his car. He shotgunned beers in which a manner he explained. He said he gave an explanation as to why he would do something. He made a decision to go back, regardless of getting a call from a couple of other people. You know, it is what it is. He had a couple left over, and in a sense, he wanted to be on the same level as his friends. They kept drinking when he stopped."

Kurelac said Clegg had tried to explain at the scene that he was just going back to his friend's place, that tried to explain he just had too much to drink and was walking back.

"The officers still charged him with driving under the influence," Kurelac stated.

Kurelac said it was tough "when we have nothing but testimony." Kurelac said the case "comes down to testimony."

"You are going to weigh that and take it into consideration. As far as consistencies and inconsistencies. The officer tried to give supporting testimony as to why he charged Mr. Clegg with what he charged him with, but he couldn't even keep his own story straight in the stand. He's a trained professional, you know, with the West virginia State Police. However, even with just the charge, that he provided that evening, he couldn't keep what happened straight."

"(Prosecutor Haught) asked if the officer was nervous, and he testified he was. Only, he has testified two to three times before. He knows what is required of him at this point. We could see how he was acting on the stand. Why did the officer have anything to be nervous about? He's not the one on trial. The officer doesn't have anything to be nervous about."

Kurelac suggested Officer Owens might be nervous because "he realized he didn't do something correct that evening . . ."

"Perhaps it was the wrong charge. Maybe he didn't think it would come this far. Maybe he didn't think he would be challenged in just giving a DUI. You know he had to come here and face the music and how he handled matters."

Kurelac said the state was trying to minimize Owens' indiscrepencies. "But here, direct testimony, I asked if Mr. Clegg tried to give any explanation as to why he was going back to his friends. (Owens) said no, he didn't give any statement." Kurelac stated that Owens' answer was no, "until I brought to his attention and had him read from a previous testimony that he was well aware of, and he said 'Oh, oh yeah, that's right.'"

Kurelac said that multiple times Owens had backtracked on his testimony.

"The reasonable doubt does reside in the fact that Mr. Clegg testified that he got out of his car, consumed two beers quickly and proceeded back to his friends, and this is why, as far as the breathalyzer is concerned, being over the limit doesn't matter."

"As I said, the fact the result came back that he was intoxicated at the time doesn't matter because of the fact of when he consumed the alcohol . . . Any sobriety tests after that fact is going to show the intoxication of the things just drank getting out of his car, which is the two he had left over from earlier . . . This thing, about what is reasonable after seeing an officer or not . . . The officer drives by. I mean, there's nothing there; he's not pulled over, no lights were initiated. What's to give any indication that he should be worried? There wasn't anything different than any other car going by. He was just getting back to his friend's house and hang with his buddies. He decided he was not going home. He made the choice to go back and hang with his buddies . . . He wasn't focused on the officer at all. There was no reason to be worried until he was approached and started being asked questions when he was walking along the sidewalk."

Haught said: "Officer Owens testified that he was nervous. Yes, he's a police officer, but he doesn't have much experience in court. He doesn't have the experience that I have, and every time I try a case I get nervous. Maybe I show it, maybe I don't. I can tell you it's just like playing football. I have butterflies in my stomach before playing a game. I get nervous. Everyone gets nervous."

"We live in a society of blame shifters, where you can shift the blame to these police officers. If I can shift the blame on the police officers, away from my defendant . . . That's what attacking Officer Owens was all about."

"Trying to get you to ignore that crucial piece of evidence . . . 0.08 is prima facie evidence; .016 is the reading that was taken an hour, approximately an hour after the stop."

"I'll leave you with one other thing," Haught noted, "invasively part of what is wrong with society . . . People lack moral courage. That's why we are in the predicament we are in." Haught explained that he once practiced law in front of a prosecuting attorney whose wife and daughter were murdered."

Haught added: "It almost caused him to give up the practice of law and become a priest . . . I have the utmost respect for my friend. I was a young lawyer, and one thing he told me . . . He said 'Whatever you do. Remember this.' And I leave it to you (the jury), as you go into deliberations. It was a quote. It was this: 'All that is necessary for evil to triumph is for good men and women to do nothing.'"

"To fail to act, because of lack of moral courage . . . It takes moral courage to be a juror. When you go into that jury room and you deliberate, you make your decision based upon the evidence, and you come out with moral courage. You make your decision, and it will rest with you . . . The state believes it has proven its case beyond a reasonable doubt, and now it's up to you to go in there and make that determination."

 
 
 

 

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