November 9, 2012
New trial denied in 1995 killing

CHARLESTON, W.Va. --The state Supreme Court has reversed a decision to grant a new trial for a man convicted of participating in the 1995 gas station robbery and killing of another man.

Last year, Greenbrier Circuit Judge Joseph C. Pomponio overturned David Lee Hurt's conviction on grounds that his lawyers failed to inform him of his right to testify during his trial, according to a Supreme Court opinion released Friday afternoon.

Hurt reportedly served as a lookout while Michael Hopkins entered the Rich Oil gas station in Bluefield and shot employee Freddie Lester in the back of the head. Hopkins stole $150 from the store.

Hurt's first trial in Mercer County ended in a hung jury and a judge agreed to move the second trial to Pocahontas County. A jury found him guilty of first-degree murder and sentenced him to life in prison with mercy, the opinion states.

Hurt appealed the conviction on grounds that his lawyers botched the trial. Pomponio ruled that his counsel failed to advise Hurt of his right to testify or not testify. The judge vacated Hurt's life sentence and ordered that he be released on bond, the opinion states.

Hurt apparently did testify during trial, which subjected him to cross-examination from prosecutors on allegations that he stole a van and a Jeep and told Lester's widow specific information about the murder.

The Supreme Court found that the lawyer's failure to tell Hurt that he did not have to testify was not a violation of his constitutional rights. The justices also said in the opinion that Hurt's decision to testify likely did not affect the outcome of the trial.

Reach Zac Taylor at or 304-348-5189.

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