*1 job left alone to do their without interfer- part petitioner. is, duct on the It judiciary ence from those of us therefore, who only our conclusion that not expertise insight have neither the nor the complained the action justified, may it to evaluate their decisions. well have only appropriate been the re- sponse University. available to the Mr. North asserts that he has competent shown himself to be a student Accordingly, for the. reasons set forth person and a who will competent prac be a above, judgment of the Circuit Court of titioner of medicine. But he has also County Kanawha is affirmed. capacity shown substantial for fraud and Affirmed. deceit a carefully plan contrived to cheat way into medical school in the first instance. practice of medicine is not a
simple application matter of routine of sci principles
entific relating physiology,
pharmacology, pathology or surgery. even
Physicians only must not technically
competent,
but
possess
must also
Although we have disparaged Mr. arguments, North’s nothing we have but
surpassing admiration for Mr. North’s
counsel, Heiskell, Edgar Mr. F. who has
doggedly, diligently, skillfully kept Mr. fact,
North’s case alive since 1977. In Mr.
Heiskell, points, at accomplished almost finally, given
miracle. But the amount money Virginia the State of West has
spent education, on Mr. North’s reluctant-
ly, we find we must affirm the circuit
court, equally thorough job which did an
reviewing this case. Judge John-
son, speaking for our Court Landeman al., Beardsley & et Wilson 29 W.Va. observed that anis all- “[f]raud vice,
pervading and whatever it touches throughout.
taints Part can not be bad good.
and the rest It is all bad.” That today
observation is as true as it was near-
ly years ago; any one hundred action University
the President of the or the Regents, expulsion,
Board of short of
would necessarily have constituted some
degree of reward for fraudulent miscon- *5 Gen., III, Stanton, Atty. Asst.
George P. Charleston, appellee. for Kauffelt, Ben- and James T.D. Kauffelt Charleston, appellant. for Snyder, N. jamin intoxicated, muttered, McGRAW, extremely “I then Justice: you going appel- think to rob me.” appeals Cook from a Thomas Theodore lant that this statement was not testified the Circuit Court of Kanawha order of final that Frye made. further testified Richie 4, 1983, May which con- County entered and the then exited vehicle appellant degree of first mur- his conviction firmed began wrestling appel- around. mercy der a recommendation of without merely he left the truck lant testified that penitentia- him to life in sentenced himself, Frye to relieve and that followed. ry. assignments numerous He advances got any event, two men out of after the assertedly warranting his reversal of error truck, up a picked peen Price ball Mark Disposition of a few of these conviction. got hammer the backseat and out. from assignments unnecessary renders address- Therefore, Richie, appellant ing assignments. after the According other follow- ing Frye, discussion of the circumstances his a brief subdued the much smaller broth- conviction, resulting we address his will er beat him death with the hammer. assignments. According each of the relevant appellant, after he had himself, around relieved he turned to see May Roy met On striking Frye Mark in the head with the appellant’s Frye near the at a tavern home testified, hammer. individuals Both how- drinks, sharing in Madison. After a few ever, Frye’s then took Frye purchase expressed a desire some pocket checkbook wallet from marijuana. suggestion, At the Mark’s and returned to the instruction Frye’s two men left truck for Mark, truck truck with who drove the over home of Mark Price order to secure this Frye’s body they dying dead or were arrived, purchase. When indi- Price leaving. cated that he believed friend lived who nearby might marijuana have some After men left dining, the three Charles- *6 men, along three Mark’s sale. These with Frye’s ton in headed for truck and Cleve- brother, Price, younger Richie juvenile, a land, They stopped Ohio. and rested brief- house, went to this friend’s but discovered motel, ly paying a Ripley their bill The entourage that he was not there. then Frye’s with one checks. After their Van, went to another tavern in order to departure Ripley, their way from on to return, Frye await this friend’s where Cleveland, by stopped Mark was an Ohio beer, bought group including some a police being clocked at eighty- officer after departure pack upon again six their to Although per four miles hour. the officer Mark’s friend. search for ascertained none of the vehicle’s occu- truck, pants incredibly, he only owned the friend, failing to locate
After Mark’s required hand his Whitesville, Mark to over driver’s a group first went to bar in license, they continued to beer, after which on Frye purchased a case where store, Cleveland. liquor purchased then a where he liquor Apparently, and mixers. the other Cleveland, Once Mark sold truck tried, men also on occasions various a man for one hundred dollars to he had afternoon, throughout the cash some bar, and, appellant, along met in a with the checks, Frye’s consent, his with in order to checkbook, using Frye’s attempted to
purchase marijuana. more alcohol Frye’s transfer funds from bank Dan- travels, the course of their Richie served as May ville to bank in Cleveland. On bartender, according testimony, employee, who Danville bank by Frye’s instructed his brother to mix death, Frye’s Virgi- aware of notified West stronger” the oth- drinks “a little bit than nia authorities that the Cleveland bank had ers. telephoned Frye’s verify account.
Eventually,
Cleveland
were immediately
Mark drove to a deserted
authorities
no-
Capitol
suspects
near the State
tified
the three men were
road
Charleston.
Frye.
day,
At
the murder
Later that
point,
begins
to con-
Cleve-
Richie,
According
given
land
Frye,
suspects’
flict.
who was
authorities were
descriptions
and the
supra; Syl. pt.
Hawkins,
full names and
identi-
fication
of the warrants for their
numbers
Duvernoy,
assignment
The
next
156 W.Va.
192 Meadows, of crime.” 3, strumentalities evidence Syl. pt. v. su- State also See 3, Syllabus part, v. Weigand, 169 Point State Thom- pt. v. Syl. State pra; 1, 640, (1974). 1, 445 (1982); as, 739, Syl. pt. 157 W.Va. 203 S.E.2d 289 508 S.E.2d W.Va. 772, Cain, 169 W.Va. 289 S.E.2d v. State Boswell, 2, pt. supra; Syl. State v. See also 1, Syl. v. 167 (1982); pt. Farley, State 488 428, 4, Buck, 170 W.Va. Syl. pt. v. State 620, fur- 280 234 We S.E.2d W.Va. (1982); v. Syl., 294 281 State Han S.E.2d noted, 2 Point v. Syllabus ther State 354, 157 shaw, W.Va. 294 S.E.2d 170 Moore, supra, “The burden rests on Vance, 168 W.Va. Syl. pt. v. State preponderance of the by to show a State (1981); Syl. pt. v. 285 437 State S.E.2d search falls evidence the warrantless supra. The rationale this ex Farley, exception.” an authorized See also within ception requirement is that: to the warrant Meadows, Syl. pt. supra; Where, once an otherwise lawful search supra. v. The State pt. Farley, State inadvertently police progress, is in challenged sei- argues that the search and evidence, piece upon come would proper under the “incident to a zure .was inconvenience, a needless and often be “plain exceptions arrest” view” valid and dangerous the evidence or sometimes —to requirement. the search warrant police require to the themselves—to ignore it until have obtained them Syllabus Point 6 of v. State describing particularly it. warrant held, Moore, following supra, this Court 395 U.S. 89 California, v. Chimel 403 at Coolidge Hampshire, v. New U.S. (1969),that, 685 “A L.Ed.2d 467-68, S.Ct. at L.Ed.2d at 584. 91 S.Ct. person and the warrantless search case, present arresting In the when physi geographic immediate area under his entered hotel room unan- officers is to a cal control authorized as incident drawn, shotguns appel- nounced with arrest.” also v. valid See State sleeping lant the Price brothers were and Hodges, S.E.2d no together. They bed offered resist- (1983); Syl. pt. 3, Drake, supra. v. State complied ance with the officers’ order exception rationale for the war this Each searched next to “freeze.” man was requirement rant is that search of bed, Mark immediately physical limited area under the handcuffed. The officers then Price were “necessary person control of an arrested area around and searched immediate might used weapons to uncover bed, seizing some underneath items of prevent against arresting officer clothing. completed, After this one of par destruction evidence arrested began examining the officers items located Moore, ty.” v. 165 W.Va. some from the on a dresser distance bed. Point Syllabus at 813. In 7 of times address One of these was an book Moore, supra, following Coolidge which, upon inspection, closer was ascer- Hampshire, 403 U.S. 91 S.Ct. New belong Roy tained officer to *8 held this L.Ed.2d 564 Court Frye. the address book on the Under that: also, upon was a checkbook which dresser inspection, belong was plain A closer ascertained property warrantless search of later, Roy Frye. Two minutes constitutionally permissible pro- to three view scene, “(1) three after the officers secured the requirements vided met: had investigations arrived to police observe the in scientific unit must evidence Although sight “process” the hotel plain without benefit a search room. ex- were still invading one’s reasonable Price brothers [without arrived, (2) they privacy], police must in the room when unit pectation this began its legal right they are were escorted out have a be where before sight premises. This unit seized plain observa- search of the when make and, (3) checkbook police proba- must book and the tion have address and its of the room con- photographs ble cause that evidence took believe fruits, in- seen constitutes contraband tents.
Unquestionably, arresting days. offi duct a search that lasted four Court, refusing recognize top cer’s search of the of the dresser was a “murder amendment, scope geo exception” outside the scene to the fourth the immediate stated graphic physical area under the that: control of Furthermore,
the three arrestees. the ad There was no that indication evidence dress book and the checkbook offered no lost, destroyed, would be or removed dur- immediately apparent evidence of criminal ing required the time to obtain a search case, activity. strikingly In a Indeed, similar police guard warrant. at the Circuit, in Second United States v. Beren apartment minimized that possibility. (2d Cir.1977), 562 F.2d guer, suggestion 210-11 And there is no that a search held that seizure of top easily a billfold from the warrant could not and convenient- justified ly of a bureau was not under either have been obtained.
the “incident to a
“plain
valid arrest” or
view” doctrines.
the address
assign
next
book and the
obviously
checkbook were
ment of error involves the admission of
weapons and offered no indicia of owner
evidence seized from Mark Price at the
ship.
time of his
He
arrest.
concedes that he
evidence,
The seizure of
along
standing
challenge
lacks
the constitu
photographs
with the
taken of the room
See,
tionality of the search of Price.
e.g.,
contents,
and its
complicated
was further
Tadder,
pt.
the fact that it was executed
a sec
maintains,
ond
ever,
of officers who
conduct
the existence of items taken
ing their search
after
arrestees were
possession
from the victim in the
of Price
premises.
removed from the
On cross-ex was irrelevant to the issue of his involve
amination,
arresting
homicide,
robbery
officer admitted at ment either in the
or the
and, therefore,
suppression hearing
the room
these items should not have
could have been secured and a
respect
warrant
been admitted. With
to the admis
*9
prior
obtained
by
sibility
generally,
the search and seizure
of
this
evidence
Court
group
that,
consistently
this second
of
re
“The action of a
officers.
this
has
held
spect, the
admitting
excluding
instant case bears
in
evi
resemblance
trial court
the
circumstances involved in
in
of its discretion
Mincey v. dence
the exercise
will
Arizona,
385,
2408,
by
appellate
437 U.S.
98 S.Ct.
57 not be disturbed
the
court
(1978),
arresting
appears
L.Ed.2d 290
where
it
that such action
offi
unless
amounts
10,
Syl. pt.
cers secured the scene of a homicide until
to an abuse of discretion.”
55,
ten
141
Huffman,
detectives arrived
minutes later to con-
v.
W.Va.
87 S.E.2d
State
194
2,
411,
(1981).
v. W.Va.
545
Further-
State
Syl.
280 S.E.2d
see also
(1955);
pt.
541
317,
more,
proof
of
respect
with
the burden
Peyatt, 173
S.E.2d 574
315
W.Va.
issue,
Syllabus
in
this Court held
Kopa,
v.
6,
173
on this
State
(1983); Syl. pt.
W.Va.
Starr,
905,
v.
4,
158 W.Va.
State
(1983);
pt.
of
State
43,
Syl.
Point 5
412
311 S.E.2d
that,
640,
“The State
600
W.Va.
S.E.2d
Louk,
639,
which amount to ad-
301
ments of an accused
State v.
171 W.Va.
S.E.2d
Rector,
v.
2,
part
on
or all of an offense were
State
(1983); Syl.
167 missions
pt.
596
into
748,
(1981).
voluntary
may
before such
be admitted
597
In a
W.Va.
280 S.E.2d
also
See
degree
case.”
murder and
the evidence of a criminal
prosecution for first
456,
State,
Hilliard,
1,
court in Hall v.
State v.
Syl.
173 W.Va.
battery,
pt.
the
sexual
Wilson,
v.
(1983); Syl.,
State
(Fla.1979),
35
683,
held that
318 S.E.2d
381
690
So.2d
(1982);
443,
Syl.
matters
deserted road.
parked on the
the truck was
Fifth Amendment
of the
would make
367,
States, 340 U.S.
Rogers v. United
See
safeguard against judi-
only a humane
344,
438, 440-41,
371,
L.Ed.
348
71
95
S.Ct.
posi-
but a
self-disclosure
cially coerced
(1951) [“[Tjhe
of this Court
decisions
the truth a
to mutilate
invitation
tive
against
holding
privilege
explicit in
that
hardly
“[Tjhere is
to
party offers
tell.
solely for the benefit
‘is
self-incrimination
letting
af-
the defendant
justification
witness,’
personal
purely
‘is
of
firmatively
perjurious testimo-
resort to
witness,’
... a refusal
privilege of the
dis-
ny in reliance on the Government’s
justified by a desire
cannot be
answer
challenge
credibility.”
ability to
his
punishment....”
from
protect
others
65,
States,
62,
U.S.
347
v. United
Walder
Furthermore,
omitted)
(Footnotes
].
356,
503,
354,
507
98 L.Ed.
74 S.Ct.
scope of
respect general rules with
(1954).
party
of the other
The interests
applica-
have been
cross-examination would
of courts of
regard for the function
ble:
rel-
the truth become
justice to ascertain
to cross-ex-
rules exist as
Several basic
evant,
con-
in the
prevail
balance
is that
of a
The first
amination
witness.
scope
determining the
siderations
is coex-
scope
of cross-examination
against self-incrim-
privilege
limits of the
with,
by, the material
and limited
tensive
ination.
given
direct examination.
evidence
on
privilege
analyzing
scope
In
may
a witness
also be
The second
self-incrimination,
against
this Court stated
affecting
matters
cross-examined about
40, 51-52,
Burton, 163 W.Va.
v.
credibility.
“credibility” in-
his
The term
(1979), that:
137
254
interest and bias
the wit-
cludes the
uniformly recognized that
It is rather
ness,
statements made
inconsistent
against
ex-
privilege
self-incrimination
and to a certain extent
the witness
which,
questions
only to those
tends not
rule is that
witness’ character.
third
answered,
support
in themselves
if
would
judge has discretion as to
the trial
conviction,
but also
those disclosures
extent of cross-examination.
a link in the chain of
might
furnish
Richey, 171
v.
lead to evidence which could
evidence or
(1982).
prosecution.
used in the criminal
be
acknowledge
the sensitive nature
We
States, 406
Kastigar v. United
U.S.
de-
competing interests involved: the
(1972);
197 long charges phasis separation as as the answers of first cross-examination on the sought degree aggravated robbery did not tend further incriminate and murder him. In of such an in the absence camera into two counts of his indictment. Al- however, hearing, though separate we are left with no firm contained two counts of indication, indictment, however, admittedly single appellant other than the un- counsel, representations clearly being charged certain of Price’s that he knew was as by robbery, to what the exact nature of Price’s testi- with murder and felony not Therefore, mony upon degree aggravated would have been. with murder first and remand, willing testify, if remains robbery. rejecting Price In a contention that the trial conduct an in underlying felony court should camera failure to mention the hearing to the exact precludes ascertain nature an for indictment conviction felo- pa- murder, Price’s and to ny establish the v. Young, Court State 1, 118, (1983), appropriate rameters of cross-examination. 173 311 135 W.Va. S.E.2d holding Syllabus our reaffirmed Point 5 VI Bragg, supra, of State v. that: The appellant advances several as An charges indictment which signments First, error. of instructional feloniously, wilfully, defendant mali- appellant complains concerning ciously, deliberately, premeditatedly and regarding court’s failure to instruct lesser unlawfully slay, did kill murder and included offenses of murder. In v. State support sufficient a conviction for 41, 46, 838, Wayne, 162 245 W.Va. S.E.2d of, murder committed in the commission (1978), upheld 842 judge’s this Court a trial arson, rape, attempt to commit rob- give refusal in instructions on lesser bery burglary, necessary, it not be murder, felony stating cluded offenses of W.Va.Code, 61-2-1, to set under forth that: the manner or means the death which theory State’s sole was a murder [T]he the deceased was caused. during attempted robbery, an which is aggravated of a charge inclusion degree pursuant first murder to W.Va. robbery merely supplied in count two Code, and, [1923]; 61-2-1 the defense additional that he with notice maintained the defendant did kill Ar- not being charged felony Syl- with murder. any thur Felder under circumstances. McGraw, 1 labus 140 Point State v. Therefore, only since the evidence indi- 547, (1955), W.Va. 85 S.E.2d this Court 849 complete cated degree first murder or that, “Immaterial, unnecessary held innocence, the refusal of an instruction averments, might harmless which be omit- on proper. lesser offenses was affecting charge ted in- without 455, Bragg, See also v. 160 W.Va. State against dictment accused which 465, 466, (1977). con- 235 S.E.2d 472 This proved, may need not con- properly be that, “Jury forms general with the rule rejected surplusage.” sidered and See possible only instructions on verdicts must Hudson, Syl. pt. also State v. 157 W.Va. include those crimes for which substantial (1974); pt. Syl. 415 206 S.E.2d State presented upon evidence has been which Cogar Haynes, ex rel. v. 154 W.Va.
jury might justifiably find the defendant (1971); Boles, 180 492 148 Pyles v. guilty beyond a reasonable doubt.” (1964). Clearly, 135 S.E.2d W.Va. 692 Demastus, pt. v. 165 W.Va. count indictment two (1980), 270 Syl. pt. S.E.2d 649 see also robbery, charging aggravated him with Gum, W.Va. State v. 309 S.E.2d unnecessary Bragg, under Neider, 170 and, Syllabus under supra, 8 of State Point W.Va. 295 S.E.2d Williams,
Second,
pun-
appellant protests
jeopardy prohibited
double
regard
aggra-
felony
the trial
refusal to instruct
ishment for both
murder
court’s
robbery. Therefore,
ing aggravated robbery and
in vated
it did
entitle
its lesser
places particular
aggravated robbery
em- him
on
cluded offenses. He
to instructions
rec-
mercy, that such
possible
recommendation of
offenses as
lesser included
and its
defen-
mean
ommendation would
verdicts.
eligible
parole
consider-
dant could be
requests
Finally,
re
mini-
having
only
ation
after
served
Syllabus
holding in
of our
consideration
that otherwise
years
mum ten
*13
of
Sims,
212,
162 W.Va.
Point 7 of
v.
State
peni-
to
confined
the
defendant would be
that,
(1978),
834
“The crime of
248 S.E.2d
possibility of
for life
tentiary
without
not re
felony-murder in this State does
parole.
malice, pre
quire proof of the elements of
It
3,
Kopa,
intent to kill.
is
specific
pt.
supra;
or
v.
Syl.
meditation
See also
State
138,
if the
occurs
deemed sufficient
homicide
pt. 4,
Headley,
v.
168 W.Va.
Syl.
State
of,
accidentally during the commission
or
(1981). Superficially, these
199
Woods,
complaining party
preju-
supra;
Johnson,
have been
Syl. pt. State v.
diced,
injustice
manifest
resulted
159
The final ment of is error that the trial court erred IX by failing to direct a motion for directed conclusion, In to the due trial court’s upon verdict prosecution’s based failure of pursuant admission evidence obtained prove that intent to in the rob existed a warrantless search and seizure of the mind of the of striking before Cleveland hotel after room the fatal of Syllabus blows. Point 1 permit arrest and its blanket refusal to Fisher, State v. W.Va. Price, testimony of Mark we must reverse this Court held that: his conviction and remand his case for re- Upon motion to direct verdict trial. defendant, the evidence is be viewed Reversed remanded. light prosecution. most favorable to It is necessary in appraising its sufficien- BROTHERTON, dissenting: Justice cy reviewing trial court or court I Because would have affirmed the deci- beyond be convinced a reasonable doubt court, I sion of the trial must dissent from defendant; guilt ques- of the of the majority’s holding in this case. tion is whether there substantial evi- upon jury might dence which justifi- majority The reversed the of conviction ably guilty beyond find the defendant (1) Cook Theodore for two reasons:
reasonable doubt.
failure to exclude a checkbook obtained
Gum,
seizure,
(2)
pt.
a warrantless search and
Syl.
supra;
also
v.
See
State
Syl.
pt.
Oldaker, supra; Syl. pt.
the refusal
the trial court to allow the
Horton,
of Mark Price. The
court
trial
(1982)
pt.
was correct
both decisions.
pur-
Question:
any
Cook at
seized
Did Theodore
Although the checkbook was
initially helping Roy
seizure,
than
time other
a warrantless search
suant to
grab,
ever
Frye
jeep
out of
vehicle
admissible because
was nevertheless
onto,
Roy Frye?
any way
restrain
exception.
police
The
were
hold
plain view
in Cleve-
Theodore Cook was
alerted that
No.
Answer:
companion’s
Cook and
land because
(R. 1205).
in financ-
of the deceased’s checkbook
use
police
trip.
of this the
ing their
Because
attorney
that after an-
Price’s
indicated
importance
aware
were well
swering
questions
these
Price would
two
police
The
as evidence.
knew
checkbook
privilege
invoke his Fifth Amendment
case could be as
the checkbook in this
against self
and refuse
an-
incrimination
recently
a crime as a
important evidence of
any
questions.
swer
further
case. When
gun
fired
would be in another
objection
prosecutor’s
sustained
court
room, pur-
entered
hotel
the officers
Cook’s
calling
to the
as a witness because
Price
warrant,
they almost
an arrest
suant
denial of
would be
cross-examination
immediately noticed
checkbook on the
1210).
(R.
prosecution.
unfair
view,
plain
The checkbook was
dresser.
trial court was correct in its decision.
to be
police
legal right
had a
*15
Cross examination is the fundamental
room,
proba-
and
had more than
hotel
testimony in
reliability
test of the
of
our
this would be
cause to believe that
ble
justice.1
for a
system of
In order
witness
upcoming
evidence in
criminal
important
an
direct,
competent
testify on
that
to be
to
require-
I
case.
believe this satisfies
subject
must be
cross-examina-
witness
to
syl.
plain
exception.
ments for a
view
See
may
tion. Even criminal defendants
opinion.
majority
pt. 6 of
any
cross-examined as
other witness.
attempted
During
his trial the
(1966). The State
W.Va.Code 57-3-6
has
§
call Mark Price to the stand to answer
to
right to
all defense wit-
cross-examine
Price,
alleged
on
an
questions
two
direct.
A
to
nesses. witness who refuses
be cross-
murder,
appeal
accomplice in the
whose
of
testify
should
allowed to
examined
not be
pending at
a murder conviction was
the See,
Carter,
People
Mich.App.
e.g.,
trial,
consented,
had
time of the
(1980) (Defense
questions relating I that will ask him to a scope clearly of cross-examination is specific point during time this entire a matter within discretion of the event, point that at that he judge. will answer no Virginia Evidence in and West questions ques- Virginia may other from me or no It been other have § possible, prosecution ques- unlikely given however these tions for the or no other facts, compromise for a been have anybody tions for fifth will invoke his reached between defendant’s interest (R. 1202). privilege.” amendment Mr. getting prosecu in and the evidence Snyder that, prosecution also indicated “the right tion’s of cross-examination. have, probably will if things go accord- way ing they appear going, to be Unquestionably, such compromise opportunity reasonably cross-examine encouraged. question should be be- any aspect this individual on of his testimo- Court, however, fore the is who should ny aspect any of what interest or bias he proposing bear the com- burden such a *16 (R. might this anything.” have case or promise. majority opinion The page 1203). Haight, Miss Mark attorney appears put obligation upon this Price, testifying indicated that he court: “Given the critical nature of each interests, however, against advice and these her “after the discus- trial court special him, obligation was under it is a to seek my prediction sion with also (Emphasis added.) accommodation.” after those two areas Mr. at- Price would judge burden should not be on the trial amendment, tempt to invoke the fifth propose compromise. such He did not any questions beyond to answer other mat- talk to the witnesses is unfamiliar with pertaining Sny- ters to the two matters Mr. they testify Also, may what to. he is total- 1207). already spoken (R. der has to.” special ly problems unaware of the tactical She also indicated that Mark would Price may In that the defense have. this case any questions refuse to answer other even probable that the defense did not want being contempt by if threatened with subject Mark Price as a witness if he was prosecution argument court. The its to cross-examination. Mr. Price also noted that it indeed wanted to cross-exam- accused of the murder. He have would other any ine Mr. Price would defending been his own neck. If forced particu- witness and drew attention to the may he testify, further well have accused “In lar difficulties with this witness. this delivering Cook fatal blow. There- particular position defendant’s court fore, trying judge’s efforts to effect If testify. has no hammer to make him compromise probably would have been him man testify, court order were futile. having life in already been sentenced to prison mercy, thirty days requires without A rule which the defense to —or joke jail perjures big if himself—is a proffer suggestion compromise he would 1210). (R. court, exercising upon its subject him.” more effective to a review discretion, appeal. refused to allow Mark Price This Court would have a record basing compromise Mark ar- testify, ruling heavily showing its on offer and the attorney’s predictions: guments support objections thereof and Price’s ruling. judge’s along with
thereto totally in the dark present we are case possible compromises may there
as to what been, any.
have if reasons, I would have
For above of the trial court. the decision
affirmed Anthony
John TURNER HOLLAND, Warden,
Manfred WVP.
No. 16566.
Supreme Appeals Court Virginia.
West
March 1985. 11, 1985.
Rehearing Denied June *17 Turner, Anthony pro se.
John Gen., Lopez, Atty. Andrew Asst. Charles- ton, for appellee.
MILLER, Justice: petition In this for writ habeas corpus, the relator contends that circuit five-year en impermissibly court added burgla to his sexual hancements abuse Both arose out of ry convictions. offenses