Mason false arrest case moved to federal court

By Lawrence Smith | Dec 19, 2008


HUNTINGTON – A Mason County man who alleges the actions of two fellow residents and two sheriff's deputies led to him being falsely arrested and subsequently prosecuted will now have to prove his case in federal rather than state court.

David Mohler, attorney for Mike Cooper, moved to have a civil suit filed against his client from Mason Circuit Court to U.S. District Court.

In his notice of removal filed Nov. 19, Mohler, with the Charleston law firm of Bowles, Rice, McDavid, Graff and Love said federal court is the better venue to test the claims Shawn Barker levels against Cooper and the other defendants in violating his rights under the Fourth, Fifth and Fourteenth Amendments to U.S. Constitution.

In his original complaint and suit filed Oct. 7, with the assistance of R. R. Fredeking II, with the Huntington law firm of Fredeking and Fredeking, Barker, a resident of Glenwood, names both Cooper and Danny McCallister, both of Milton, as defendants. Also, named as defendants are Mason County Sheriff Scott Sims, two of his deputies –- Sgt. R.E. Fruth II and Cpl. C.A. Varian -– and the Mason County Commission.

According to court records, Barker, 20, was a guest at the home of Shawn Carter in Ashton on Friday, Nov. 16, 2007. The reason Barker was at Carter's home is not immediately clear.

However, records show that along with Barker, nine other people where at Carter's home that evening, including Michael Howard Oakes and Paul Kahne. Along with Adam Lester, Oakes and Kahne arrived at Carter's home about 6 p.m. and left sometime around 7 p.m.

Kahne and Lester later returned around 1 a.m. on Sunday, Nov. 18.
Barker, who records show remained at Carter's home since arriving on Friday evening, later left with Kahne, Lester and Christine Cobb. En route to the home of Quenten Eva in Winfield, the four met Eva, Holley Eva and Tara Browning at Ashton Elementary School.

While traveling along Ashton-Upland Road to his residence, Eva's car develops a flat tire. Eva stops his car in front of the Buffington Acres subdivision on the Mason County side of Milton.

After Barker, Lester and Kahne stop to lend assistance, McCallister, who records show lives near Buffington Acres, along with Cooper approach Barker and begin accusing him of partaking in a robbery that occurred at his home earlier on Saturday, Nov. 17. Despite Barker denying any involvement in the robbery, McCallister holds him at gunpoint until police arrive.

Records are unclear at to what role Cooper played after his initial confrontation with Barker.

Along with Varian and Fruth, West Virginia State Trooper J.M. Finnicum and Milton Police Officer Cory Ciccarelli arrive on the scene. McCallister, records show, allows Varian to view a tape his security camera took of three men breaking into a garage on his property.

According to the criminal complaint he filed in Mason Magistrate Court, Varian alleges he viewed the tape showing three men entering the garage and stealing McCallister's Yamaha Blaster valued at $3,000.

"Crime was caught on the owners security camera system video which was recorded and I did review the camera recording and positively identify the accuseds as to the ones who were at the crime scene," Varian said in his complaint.

Along with Barker, Oakes and Kaehne were arrested on charges of breaking and entering. Barker, who continued to maintain his innocence, was released from the Western Regional Jail in Barboursville four days later after posting $30,000 bond.

Later on Jan. 8, all Barker, Oakes and Kaehne were indicted by the Mason County grand jury. All three were charged on one count each of grand larceny, burglary, breaking and entering and conspiracy.

Barker's court-appointed attorney, W. Dan Roll, requested the tape be produced. According to his lawsuit, it never was.

Despite the tape, Roll said he was able to produce at least six eyewitnesses who would vouch that Barker played no role in the robbery. However, Barker's best alibi witnesses turned out to be his alleged co-conspirators, Oakes and Kaehne, as, in the course of pleading guilty to stealing McCallister's ATV, averred that Barker played no role in the crime.

Records show, Oakes, 23, of Hurricane, and Kaehne, 22, of Eleanor, each pled guilty to one count of grand larceny on May 12. In exchange for their guilty pleas, Mason County Prosecutor Damon Morgan agreed to dismiss the remaining charges.

Mason Circuit Judge Thomas C. Evans III on July 14 ordered both to indeterminate sentences of 1-10 years in prison with credit for their respective time served. Also, records show Evans ordered Kaehne to make $4,480 in restitution to McCallister.

Four days later, Evans dismissed the indictment against Barker based on not only Oakes' and Kaehne's confession, but also having an alibi and "insufficient evidence."

Because the only probable cause Varian and Fruth had for arresting Barker was McCallister's "inaccurate and unsubstantiated allegations," all three are in some way responsible for his unnecessary journey though the criminal justice system. In addition to ones for constitutional violations, Barker makes claims of false arrest, negligence, outrageous conduct and malicious prosecution against McCallister, Cooper, Varian and Fruth.

Also, because of Varian's and Fruth's conduct, Barker believes both Sims and the county commission should be held responsible for negligent supervision and training.

As a result of the defendants' actions, Barker alleges he incurred, among other things, physical and mental pain and suffering, loss of enjoyment of life, medical and psychological expenses, injury to reputation and emotional distress. He is seeking unspecified damages.

Along with the notice of removal, Cooper filed his answer to Barker's lawsuit. Aside from admitting he was with McCallister when he confronted Barker, Cooper denied all the allegations leveled against him.

Also, Cooper asked that the suit be dismissed since that Barker not only failed to state a claim in which relief can be granted, but also his grounds for a suit are baseless since "the Plaintiff was engaged in an illegal activity, which activity gave rise to the matters set forth in the Plaintiff's Complaint."

In his answer filed Dec. 15, with the assistance of Debra Tedeschi Herron, with the Clarksburg law firm of McNeer, Highland, McMunn and Varner, McCallister only admitted to the fact that his ATV was stolen the night of Nov. 17, 2007. As to the remaining allegations, including the one that he held Barker at gunpoint, McCallister said he "lack[ed] sufficient knowledge or information to admit or to deny the allegations."

However, as part of his defense, McCallister said he, "at all times acted within his legal rights in the conduct of his activities and with just cause."

Records show on Dec. 3, both Sims and the county commission via their attorney Lee Murray Hall, with the Huntington law firm of Jenkins Fenstermaker, notified the court of their intention to file a bona fide defense within 10 days. However, as of presstime, their answer had yet to be filed.

The case has been assigned to U.S. District Judge Chuck Chambers.

U.S. District Court for the Southern District of West Virginia, Huntington Division, Case No. 08-cv-1298
Mason Circuit Court, Case Nos. 08-F-3 (Barker criminal), 08-F-23 (Kaehne criminal), 08-F-29 (Oakes criminal) and 08-C-596 (Barker civil)

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