CHARLESTON – Richard Poore, who faced life in prison without mercy on a charge of murdering his three-month-old son, has won a new trial or full freedom.

On Nov. 19, the Supreme Court of Appeals reversed Pleasants County jurors who found in 2008 that Poore killed three-month-old Ricky Junior 27 years earlier.

Four Justices held that Circuit Judge Robert Holland should have held a hearing to determine whether the delay in the indictment violated Poore's right to due process.

"A substantial delay in excess of 25 years raises the possibility that relevant and exculpatory evidence can no longer be adduced due to missing records and other physical evidence, unavailable witnesses, and fading memories," they wrote.

They directed Holland to hold a hearing on the delay in the event of retrial.

They found he committed another prejudicial error by allowing prosecutor Tim Sweeney to inflame jurors in his opening statement.

They frowned on Holland's decision allowing testimony about Poore's violent nature, urging but not ordering an evidentiary hearing on it in the event of retrial.

Ricky Junior died in 1981, at a hospital in Morgantown.

Medical examiner James Frost conferred with a police officer and could not determine whether homicide or a natural event caused the death.

When Frost retired, he left some cases incomplete.

In 2003, as chief medical examiner James Kaplan reviewed Frost's cases, he decided Ricky Junior died from shaking.

In 2006, grand jurors indicted Poore for murder.

At trial two years later, Sweeney opened by displaying a photograph of Ricky Junior's grave and reading his obituary.

"He did not make it very far. He did not really have a very good life," he said.

"I submit he came into this world crying and that is how he went out," he said.

He called Poore explosive, abusive, violent, lazy and foul.

Kaplan testified that Ricky Junior had a fatal brain injury, bruises on ears and forehead, torso injuries, a small subdural hematoma, and severe bleeding in both retinas.

Frost told jurors he couldn't make a determination.

Pediatrician John Galaznik testified for Poore that Ricky Junior stopped breathing as a result of choking.

He testified that subsequent restoration of blood flow to dead tissue resulted in bleeding of the brain and retinas.

Ricky Junior's mother, Jeri Williams, told jurors Poore choked her into unconsciousness and tossed her into a closet.

She said he knocked two teeth through a lip, kicked her with combat boots, and beat her with a belt for letting the children go to church.

Stepdaughter Heather Dunn said he punched her brother Charles Hinton in the back and threw him into a closet for failing to pronounce words properly.

Hinton said he kicked his sister, beat his mother and shook the baby.

Holland told jurors they could consider the evidence not for proving elements of murder but on issues of motive and intent.

Jurors convicted Poore, and Holland sentenced him to life without mercy.

On appeal, Chief Justice Robin Davis and Justices Brent Benjamin, Menis Ketchum, and Thomas McHugh found Sweeney's comments so damaging as to require reversal.

"Obviously, the prosecutor's remarks concerning the events surrounding the funeral service of the decedent and the appellant's abusive character would tend to provoke sympathy for the decedent and incite anger toward the appellant," they wrote.

They wrote that "absent these remarks, the competent proof introduced to establish the appellant's guilt was not strong."

They wrote that although Poore didn't ask for an evidentiary hearing on the delay in the indictment, Holland should have held a hearing.

They found it unnecessary to address evidence of Poore's violent nature, but they expressed concern about it.

"It is not apparent from the record that the circuit court found by a preponderance of the evidence that the alleged acts of abuse occurred," they wrote.

Dissenting Justice Margaret Workman wrote, "I do not agree that the prosecutor's statements regarding the appellant's unemployment and violent nature were improper."

She wrote that in opening statement, a prosecutor may address facts which will be admitted into evidence.

She wrote that Poore's lawyer didn't object to Sweeney's remarks.

She also faulted Poore's lawyer for failing to request a hearing on the delay.

She wrote that Poore could have pursued a new trial on the basis of ineffective assistance of counsel.

She wrote, "I find it unusual for this Court to require a trial court to conduct a pre-indictment delay hearing when the defendant has not requested such."

William Summers of Parkersburg represented Poore.

Attorney General Darrell McGraw and assistant attorney general Christopher Smith represented the state.

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