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Judge OKs use of cellphone records in trial

Feb. 06, 2013 @ 12:00 AM

HUNTINGTON -- A circuit judge found no reason Tuesday to ignore cellphone records that proved critical in convicting a man of two holdups at the Marquee Cinemas, a movie theater at Pullman Square in downtown Huntington.

Investigators called the July 13, 2009, and Oct. 19, 2009, robberies an inside job, insisting that Joshawa Clark worked at the theater and doubled as a supposed victim in both incidents. Cellphone records then established a connection between Clark and co-defendant Dustin Shaver.

Clark's defense had argued investigators abused a federal drug law in subpoenaing those records with no evidence the case had anything to do with drug trafficking. That contention prompted the state Supreme Court of Appeals to order another hearing, as its justices in late 2012 criticized the trial court for not developing sufficient facts in deciding to allow cellphone records at trial.

Cabell Circuit Judge Alfred Ferguson found no reason to overturn that decision Tuesday. He came to that determination after hearing testimony from two federal task force members and the robberies' lead investigator.

One of the task force members, J.T. Combs, told the court he had suspected Clark was living above his means. The now retired Huntington Police lieutenant grew suspicious as he worked overtime security at the theater and asked management how the public housing resident could purchase an expensive motorcycle jacket and helmet.

One manager attributed it to a military bonus.

Another said Clark had been dealing marijuana.

The later tip, combined with a quick debunking of the military story, led Combs to seek an administrative subpoena for Clark's cellphone records through the U.S. Drug Enforcement Administration.

DEA Special Agent Tom Bevins issued the subpoena July 21, 2009. Its findings revealed a high volume of calls to a particular cellphone, which led investigators to subpoena similar records for that number, later identified as having belonged to Shaver.

Bevins testified the procedure was not unlike hundreds of other subpoenas that he has participated in issuing, some of which have produced non-drug convictions.

"I see no reason to change my prior decision," Ferguson said. "I don't see where anything was done improperly in this case,"

The judge also indicated he will find there was no improper sharing of the subpoena's findings over a defense objection. Bevins testified he provided the records to Combs who was handling the drug investigation.

Combs testified he continued the effort to link Clark to marijuana trafficking to no avail.

Ferguson's court will prepare its official order in coming days and send its findings to the state Supreme Court. Its justices will invite additional briefs from both sides as it considers other claims and decides whether it will hear arguments in Clark's appeal.

Clark is now serving a 52- to 60-year prison sentence at the state's Mount Olive Correctional Complex on two counts each of first-degree robbery and conspiracy.

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