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New hearing requested in theater robberies

Nov. 23, 2012 @ 12:00 AM

HUNTINGTON -- The prosecution's dependence upon cellphone records could now jeopardize a conviction in two armed robberies at the Marquee Cinemas, a 16-screen movie theater at Pullman Square in downtown Huntington.

Attorneys for Joshawa Clark claim the U.S. Drug Enforcement Administration and the Huntington Police Department abused a federal drug law in subpoenaing his cellphone records with no evidence their investigation had anything to do with drug trafficking. Police used those records to establish a connection between Clark and co-defendant Dustin Shaver.

Investigators called the July 13, 2009, and Oct. 19, 2009, robberies an inside job, as Clark was working at the theater and doubled as a supposed victim in both incidents.

The 22-year-old from Huntington is now serving a 52- to 60-year prison sentence at the state's Mount Olive Correctional Complex. A jury convicted him on two counts each of first-degree robbery and conspiracy.

The Supreme Court's memorandum opinion, entered Nov. 16, orders Cabell Circuit Judge Alfred Ferguson to hold another suppression hearing on the disputed subpoena. It criticized the trial judge's earlier ruling saying it did not develop sufficient facts to support his decision, which allowed evidence developed from the cellphone subpoena to be used at trial.

The high court's opinion further orders Ferguson to vacate Clark's conviction and set a new trial, if the new hearing leads him to determine the DEA inappropriately obtained the subpoena or improperly shared its findings with the Huntington Police Department. The opinion also cites federal law in limiting any such subpoena to drug investigations and the release of its findings to state and/or local officials who are also engaged in drug enforcement.

The opinion also questioned a number of obvious discrepancies, including the prosecution's "shifting explanation" and the authenticity of a subpoena included within the court's record.

It further states the new hearing, to be held within 90 days, should include witness testimony and evidence. No witnesses testified at the court's initial suppression hearing, Aug. 2, 2010.

An investigator, in October 2009, testified he obtained Clark's cellphone records, after learning Clark was among those working at the theater during armed robberies in November 2008 and July 2009. That revealed a series of phone calls between Clark and Shaver prior to and after the July 13, 2009, robbery.

A third armed robbery occurred Oct. 19, 2009. Clark also was working at the time of that incident, and surveillance video later captured Clark and Shaver together at their housing complex in Marcum Terrace. A search warrant of Clark's home revealed a safe containing a bag with $4,600.

Clark's public defender maintains the subpoena amounted to a "fishing expedition." Prosecutors claim it was based upon a city police officer, who while moonlighting at the cinemas, initiated the investigation and developed probable cause. He did so by noticing Clark with a significant amount of new, personal property, and asking cinema personnel as to how Clark had obtained those items.

When Ferguson asked about the drug requirement at his Aug. 2 hearing, the prosecution replied police "didn't know at the time what they were dealing with ... they didn't know if it was a drug related case at the time."

Ferguson responded by denying Clark's motion to suppress, but the written order contained evidence provided to the judge's law clerk after the Aug. 2 hearing. That included specifics about Clark's new items and indications that a person living in public housing could not afford them.

Clark's defense challenged that ruling, to which Ferguson issued an amended order that deleted the additional information while coming to the same conclusion.

If Ferguson upholds his earlier ruling again, the Supreme Court will invite additional briefs from both sides as it considers other claims included in Clark's appeal. Those involve Clark's expectation of privacy in regards to cellphone records and his legal standing to challenge such a subpoena.

Shaver is serving a 50-year prison sentence, after pleading guilty to two counts of first-degree robbery.

The November 2008 robbery remains unsolved.

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