BUCKHANNON — Three years after he was found guilty of murdering his aunt and wounding his uncle, a man was back in the Upshur County Circuit Court for a hearing to determine if there was juror misconduct.
The shooting occurred in 2011 and the jury trial was in April 2014.
Howard Clarence Jenner and his attorney, Harry Smith, appealed the convictions of first-degree murder, attempted murder and malicious wounding to the West Virginia Supreme Court of Appeals, and a hearing was held in October 2015.
The Supreme Court sided with the circuit court on all but one issue, ordering a further hearing about a juror who may have talked to the surviving victim, Sherman Truax, during a recess.
Judge Kurt Hall, who presided over the original trial and the post-trial motions in 2014, also presided over the Remmer hearing Thursday.
After the April 2014 trial and conviction, Smith asked for a new trial, claiming that a juror was seen on multiple occasions by two of Jenner’s relatives talking with Truax, the key witness for the state, and sometimes Truax’s son, Nicholas.
During a hearing held in August 2014, Jenner’s mother and sister told the court they saw Truax talking to one of the jurors several times outside the courthouse. However, victim advocate Laura Queen testified that she only saw Truax talking to two friends of his late wife outside the courtroom and said she had escorted Truax and his son to the car after they testified that day.
Hall said at the time that Smith had not met the burden of proof, and although the attorney asked for the jurors to be brought in and questioned, Hall denied that request.
The supreme court opinion said that the circuit court should permit Smith to subpoena and take sworn testimony from the juror in question.
On Thursday, Smith called Diana Crites, who served as a juror in the murder trial in April 2014, as his sole witness.
Crites testified that during recesses from the trial, she would take a smoke break with the other jurors who smoked.
She said she never spoke with Jerry Truax or Nicholas Truax during the trial, but did learn who they were when they testified on the witness stand.
Upshur County prosecuting attorney David Godwin reminded Crites about the oath she took as a juror.
Crites said she complied with her oath and testified she had no outside influence in considering the verdict. With that, Crites was dismissed.
Smith called no other witnesses but referenced the testimony that was taken during the post-trial motion.
Hall said he would review that before making a decision.