HAGERSTOWN —A Washington County Circuit Court jury trial for one of three men charged in a December gas station robbery was postponed this week because a man already convicted in the holdup balked at testifying for the state.
Elijah R. Herring, 20, of 128 Ray St. in Hagerstown, is charged in the Dec. 16 holdup of United Petroleum, 890 Pennsylvania Ave.
A jury-scheduling mix-up resulted in his case not being tried June 18, and it was postponed again on Monday.
On June 18, another suspect in the robbery, Noe Pelayo Torrez, 31, formerly of 117 Ray St., pleaded guilty to armed robbery and is awaiting sentencing.
However, Torrez has not agreed to testify against Herring and the state has filed a motion to compel him to testify, Assistant State’s Attorney Gina Cirincion told Judge M. Kenneth Long Jr.
“We’re ready for trial again,” said Assistant Public Defender Brian Hutchison, who objected to another postponement. The state has known for months that Torrez would not cooperate, he told Long.
Though he pleaded guilty to participating in the robbery, Hutchison said he believes Torrez still has a Fifth Amendment privilege against self-incrimination because he has yet to be sentenced.
The court will need to determine if Torrez’s prior actions in giving a Mirandized statement to police and pleading guilty to armed robbery constitute a full waiver of his Fifth Amendment rights, Cirincion said after Long granted the postponement.
Herring is now scheduled for trial on Sept. 12.
When Torrez entered his plea in June, Cirincion said the state was seeking up to 25 years of active incarceration.
The third suspect, Lee Colby Morton, 38, of 127 E. Lee St., had a jury trial in July, but it ended in a mistrial when a witness testified to seeing facial tattoos on one robber. The defense had been granted a motion prior to the trial that the witness could not identify Morton, who has facial tattoos, from the stand because of evidentiary issues.