Motions for medical records further delayed the trail of Howard P. Shriver, 34, of Shinnston, W.Va., who is facing an 11-count indictment handed down by the February 2012 grand jury.
Shriver allegedly used an axe-like weapon in an attempt to break into a home and attack his wife and two young children. He is currently incarcerated and appeared in Tyler County Circuit Court Monday afternoon alongside his attorney, Jay Gerber.
The original trial date was set for Jan. 21, but the court was unable to seat a jury from the jury pool. Judge Mark A. Karl declared a mistrial at that time and the defense and the state agreed to continue the case until the next term of court. The trial was to begin Monday morning, but the judge received communication from Gerber and Prosecutor Luke Furbee last week that necessitated a delay. Gerber had met with Shriver and filed a motion for a hearing to allow time to obtain certain medical records and treatment records of the alleged victim in the case so they can be reviewed. "I spoke with Mr. Gerber first and then with Mr. Furbee," said Judge Karl. "I believe it's the defendant's contention that this may have some bearing on what the victim had been treated for and Mr. Gerber desires to look at those records."
Karl said he explained to Gerber that his practice is to forward the records produced, but said, "I want them produced in camera (or in chambers) to the court." Judge Karl said he will review them and make a determination about their distribution to Gerber and Furbee. Gerber provided Karl the name of a couple medical facilities that had the records. Karl asked Gerber to fax that information to him and to the prosecutor's office so it can be included in the order asking for the records. "We also need to know what time frame they took place," noted Karl.
Prosecutor Furbee stated, "With regard to that motion, I spoke with the victim today and she informed me she received counseling in Kentucky at Blancefield Army Community Hospital in 2006, she told me that it was in connection with the death of her first husband. So I would like the court to know the state objects to the entering of any records from that session."
"I can't imagine how the defendant could show how they could have anything to do with this proceeding," Karl said.
"I don't know until I see them," Furbee countered. "She has also told me she has been in counseling at Wellspring in the aftermath of the matter which we're here for, so there should be some records at Wellspring. Wellspring is located in New Martinsville."
Judge Karl told the clerk to make note of the objection from the state but said, "I have been doing this for 43 years and I would rather have the records than have to try this case twice, and then have to determine the relevance, if any."
Karl then asked Shriver if he was willing to continue the trial, to which he answered in the affirmative.
"Mr. Shriver, do you understand your speedy trial rights?" continued Karl. "Do you understand that Mr. Gerber does personal injury cases and in a lot of those cases medical records are produced by treating physicians, hospitals, and health care providers?
"This is something that is not going to occur overnight and I'll tell you why. Health care providers get very nervous about HIPPA regulations, whenever they get the request for those records from my order to turn them over. I will guarantee you they will talk with their legal counsel to determine whether or not there were any violations of HIPPA, so were looking at some time down the road before they will be produced, especially since there are some records from out of state."
Further, Karl advised to Shriver to inform his attorney if he was aware of any others medical facilities that might have records needed in the case. "You don't want to have to go searching around for more records," cautioned Karl.
Karl said on Friday he received a motion to reinstate the bond. Furbee stated, "Your honor I think the court's required to establish another bond. However, I would like to take the opportunity to advise the court of the state's concern in this case. We have disclosed a number of witnesses to the defense, some of those witnesses offer information that tends to contradict the testimony we think his alibi witnesses were prepared to give. One of those witnesses showed up here at the courthouse today under subpoena and there was no way for anybody to get a hold of her to tell her the trial had been continued."
Furbee said that while he had yet to listen to the statement taken that day by Investigator David Kelly and Deputy Shannon Huffman, "It seems as this defendant's father has called her 10 times and I believe that it's clear these people were worried about her. And it felt like she was being intimidated by them and I would suggest that the court would at this point look at my opinion. It seems like a matter of trying to intimidate the people involved in the case. We certainly haven't called any of their witnesses since they were disclosed. I think the court should be very careful. Quite frankly, with all due respect, the state's getting worn out with this type of behavior."
Furbee, when asked by Karl, said he felt these were bailable offenses.
Gerber brought up another matter relating to bond. Shriver was a passenger in a vehicle driven by his father and also Ed Gump was with them when the car allegedly went by the victim's residence. Gerber said they were both in the courtroom Monday and could testify if need be, so driving by the former residence shows no form of harassment by the defendant.
Furbee said he wanted to point out to the court that they drove by it twice. Gerber said it is his understanding after talking to Shriver that his father was driving and he did not have control of the vehicle, so he couldn't be held responsible. "It's not my client's fault, he wasn't in control of the vehicle." Karl said he will consider the amount of bail on April 3 will probably put Shriver on home confinement. "And understand Mr. Shriver, you are to take the most direct route and not go out sightseeing. Go back to your residence. Return to court on April 3, you may be remanded."