State of West Virginia v. Steven Michael Williams , 236 W. Va. 130 ( 2015 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2015 Term
_______________
No. 14-0455 FILED
_______________ September 24, 2015
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
STEVEN MICHAEL WILLIAMS,
Defendant Below, Petitioner
____________________________________________________________
Appeal from the Circuit Court of Mercer County
The Honorable Omar J. Aboulhosn, Judge
Criminal Case No. 13-F-366-OA
AFFIRMED
____________________________________________________________
Submitted: September 15, 2015
Filed: September 24, 2015
Ryan J. Flanigan, Esq. Patrick Morrisey
Sanders, Austin, Flanigan & Flanigan Attorney General
Princeton, West Virginia Julie A. Warren
Counsel for the Petitioner Assistant Attorney General
Erica N. Peterson
Assistant Attorney General
Charleston, West Virginia
Counsel for the Respondent
JUSTICE KETCHUM delivered the Opinion of the Court.
CHIEF JUSTICE WORKMAN concurs and reserves the right to file a concurring
Opinion.
SYLLABUS BY THE COURT
1. “In reviewing challenges to findings and rulings made by a circuit
court, we apply a two-pronged deferential standard of review. We review the rulings of
the circuit court concerning a new trial and its conclusion as to the existence of reversible
error under an abuse of discretion standard, and we review the circuit court’s underlying
factual findings under a clearly erroneous standard. Questions of law are subject to a de
novo review.” Syllabus Point 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).
2. “Several basic rules exist as to cross-examination of a witness. The
first is that the scope of cross-examination is coextensive with, and limited by, the
material evidence given on direct examination. The second is that a witness may also be
cross-examined about matters affecting his credibility. The term ‘credibility’ includes the
interest and bias of the witness, inconsistent statements made by the witness and to a
certain extent the witness’ character. The third rule is that the trial judge has discretion as
to the extent of cross-examination.” Syllabus Point 4, State v. Richey, 171 W.Va. 342,
298 S.E.2d 879 (1982).
Justice Ketchum:
Petitioner Michael Williams was found guilty of one count of being a felon
in possession of a firearm following a jury trial in Mercer County. On appeal, Mr.
Williams asserts that the circuit court erred by granting a motion in limine filed by the
State. The court’s ruling prevented Mr. Williams from cross-examining a State witness,
Victoria Combs, about the terms of a pretrial diversion agreement she had entered into
with the State. Ms. Combs’s criminal charge underlying her pretrial diversion agreement
was not related to the charges against Mr. Williams. When Ms. Combs testified in Mr.
Williams’s case, she had completed the pretrial diversion agreement, and the criminal
charge against her had been dismissed.
In granting the State’s motion in limine, the circuit court stated, "Rule
609(a)(2) of the West Virginia Rules of Evidence requires a conviction before a witness
may be impeached with a prior criminal act.” The circuit court explained that because
the witness had completed her pretrial diversion agreement and the charge against her
had been dismissed, "there was no criminal conviction with which to impeach the
witness." While the circuit court granted the State’s motion, it allowed counsel for Mr.
Williams to question Ms. Combs during an in camera hearing to explore whether she was
induced or pressured into giving a statement in Mr. Williams’s case. Ms. Combs testified
that she was not induced or pressured into giving a statement to the investigating officer
in Mr. Williams’s case.
1
Mr. Williams asserts that the circuit court’s ruling granting the State’s
motion in limine was in error, and he asks this Court to reverse his conviction and grant
him a new trial.
After review, we affirm the circuit court’s ruling.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2013, Mr. Williams was indicted on four criminal charges: two
counts of wanton endangerment in violation of W.Va. Code § 61-7-12 [1994]; one count
of “unlawful shooting at another in street, alley, or public resort” in violation of W.Va.
Code § 61-7-11 [1989]; and one count of being a felon in possession of a firearm in
violation of W.Va. Code § 61-7-7(b)(2) [2013]. This indictment resulted from a shooting
incident that took place in the parking lot of a McDonald’s restaurant in Princeton, West
Virginia.
At approximately 3:30 a.m. on May 5, 2013, Mr. Williams, who was
driving a black car with two male passengers, entered the McDonald’s drive-through lane
and placed an order. A car containing two males, Kody Smith and Devon Honaker
(“Smith/Honaker car”), pulled in behind Mr. Williams’s car at McDonald’s. The men in
the two cars began to argue with each other while they waited in the drive-through line.
Victoria Combs was working at the McDonald’s drive-through window when this
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incident occurred. Ms. Combs described what she observed as she was handing Mr.
Williams his food:
We only had three cars left in our drive-thru, and I was
bringing food back to the second window for the car at my
window, and I heard – I don’t know exactly what was being
said, but it sounded like “Why don’t you come,” and then we
have music playing in the background of our store, so I
couldn’t really decipher what the rest of it was.
And when I brought his [Mr. Williams] drink over he
was pulling the gun up onto his lap, and kind of had his head
turned to the car behind him. And so I handed him his drink,
shut the window and walked away.
After receiving his food, Mr. Williams pulled into a parking area near the
front of the restaurant. Shortly thereafter, the Smith/Honaker car came upon Mr.
Williams’s car and the men continued arguing. Mr. Williams and Mr. Honaker got out of
their cars and started walking toward each other. Mr. Honaker told the police that Mr.
Williams pulled out a handgun and fired at him. Mr. Williams denied that he had a gun
and denied shooting at Mr. Honaker. The police later determined that a bullet had struck
the passenger side of the Smith/Honaker car. After the shot was fired, both men got back
into their cars and drove away.
A McDonald’s employee, Charles Cehen, heard the gunshot and called the
police. Mr. Cehen testified that the investigating officer, State Trooper Benjamin Wood
(“investigating officer”), arrived ten to fifteen minutes later and began his investigation.
The first two witnesses interviewed by the investigating officer were the two McDonald’s
3
employees, Mr. Cehen1 and Ms. Combs. The investigating officer took statements from
Mr. Cehen and Ms. Combs within the first thirty minutes of his investigation.
Following the investigation, Mr. Williams was charged with four criminal
counts, including being a felon in possession of a handgun. Prior to trial, the State filed a
motion in limine to prohibit Mr. Williams from questioning one of the McDonald’s
employees, Ms. Combs, about a conspiracy to commit robbery charge she previously
faced. The circuit court held a hearing on this motion, and described the substance of the
State’s motion as follows:
It’s my understanding that the State wants to limit the defense
from inquiring of Victoria Combs regarding a plea that she
entered into where adjudication was held in abeyance. She
ultimately completed her probation and her probation – as a
result of that, the court ultimately expunged her record and
dismissed the case. So there was never an adjudication, never
a finding of guilt.
Ms. Combs entered into a pretrial diversion agreement with the State on
September 19, 2012, approximately eight months before the shooting incident involving
Mr. Williams in the McDonald’s parking lot. Ms. Combs pled guilty to a felony
conspiracy charge but per the pretrial diversion agreement, the guilty plea was held in
abeyance and Ms. Combs was placed on probation for twenty-four months. According to
1
Mr. Cehen witnessed the men in the two cars arguing with each other while they
were in the drive-through lane, but he did not see the confrontation between Mr. Williams
and Mr. Honaker in the parking lot.
4
the plea agreement, if Ms. Combs successfully completed her probation, she would be
permitted to withdraw her guilty plea and the case against her would be dismissed.
Ms. Combs was on probation at the time of the shooting in the McDonald’s
parking lot. Ms. Combs had completed her probation and was no longer facing any
criminal charges at the time of Mr. Williams’s trial.2 Counsel for Mr. Williams argued
that he should be allowed to question Ms. Combs about her probation stemming from the
pretrial diversion agreement to determine whether she was pressured or induced by the
investigating officer into making a statement implicating Mr. Williams. Counsel for Mr.
Williams admitted that there was no evidence or factual basis suggesting that the
2
While Ms. Combs’s pretrial diversion agreement stated that she was to be on
probation for twenty-four months, she was released from her probation after twelve
months. There was no testimony or suggestion that Ms. Combs was released from
probation early because of her testimony in Mr. Williams’s case. In fact, during the
hearing on Mr. Williams’s post-trial motion for a new trial, Ms. Combs’s probation
officer testified that she was unaware that Ms. Combs had testified in Mr. Williams’s
case until the morning of the post-trial motion: “This morning was the first I ever heard
about the shooting, or anything about it.” The circuit court asked Ms. Combs’s probation
officer why she was released from probation after twelve months. Her probation officer
testified:
She [Ms. Combs] had done very well on probation. She had
completed all her requirements. Also, she’s not originally
from here. She is from northern Virginia. The only reason
she moved here was because her husband was from here, and
they’ve since divorced. She was living with her mother-in­
law, which was a very stressful situation. So she had asked to
return to the state of Virginia. Since she had completed all
her requirements, I asked the Judge if he would go ahead and
just release her so she could go home.
5
investigating officer induced or pressured Ms. Combs into giving a statement. Instead,
counsel stated, “I don’t know if Ms. Combs made this story up about seeing the driver
with a gun that night to get in good with the police. I don’t know if she got any
consideration for it.”
To be clear, the undisputed facts are that the investigating officer arrived at
McDonald’s ten to fifteen minutes after the shooting occurred. The two McDonald’s
employees, Mr. Cehen and Ms. Combs, were the first two witnesses interviewed by the
investigating officer. Ms. Combs gave her statement within the first thirty minutes of the
investigation. Counsel for Mr. Williams did not explain why the investigating officer,
thirty minutes into his investigation and interviewing the first two fact witnesses, would
have pressured or induced Ms. Combs into making a statement implicating Mr. Williams.
Counsel for the State disputed the notion that Ms. Combs was offered any
consideration by the investigating officer in exchange for the statement she made.
Counsel for the State told the circuit court:
There was absolutely no consideration whatsoever.
The officer is responding – the incident occurred about 4 a.m.
in the morning at McDonald’s. She is working the window.
As she’s working the window, her testimony will be that she
heard the defendant yelling at the car behind him, and that she
saw him reach into the console, get a gun, and place it on his
lap.
Circuit Court: And she gave that statement the night
of the incident?
State Counsel: Yes, sir. It was probably maybe an
hour or so later. . . .
6
Circuit Court: Let me make sure I understand, the
only time he [investigating officer] took a statement from her
was the night of the incident?
State Counsel: Yes, sir.
Circuit Court: So how could . . . they [the police] have
solicited this statement in return for having her case dismissed
early? I mean, there’s no – there’s no . . . factual basis to say
that’s how this happened.
At the conclusion of this hearing, the circuit court granted the State’s
motion in limine to prohibit Mr. Williams from questioning Ms. Combs about her prior
pretrial diversion agreement and the probation term contained therein. However, the
court offered to hold an in camera hearing prior to Ms. Combs’s trial testimony to allow
Mr. Williams to question her about whether she felt pressured or was offered anything in
exchange for giving the police a statement. The court stated that if Ms. Combs testified
that she was pressured or induced into giving the police a statement, it would overrule the
State’s motion in limine.
The trial began on February 18, 2014. Ms. Combs was the fourth witness
called by the State. Prior to her testimony before the jury, the circuit court conducted the
in camera it had previously discussed. During this hearing, Ms. Combs testified that she
was not offered any type of deal or support in exchange for making a statement to the
investigating officer; that she did not feel pressured into giving the statement; that she did
not receive anything in exchange for giving the statement; and that she did not receive
any promises from the State in exchange for giving the statement. Following this
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testimony, the circuit court reaffirmed its prior ruling granting the State’s motion in
limine.
At the conclusion of the trial, the jury found Mr. Williams not guilty on the
first three counts in the indictment (two counts of wanton endangerment and one count of
“unlawful shooting at another in street, alley, or public resort”).3 The jury found Mr.
Williams guilty on the fourth count in the indictment—felon in possession of a firearm.
Mr. Williams filed a motion for a new trial on April 7, 2014, asserting that
the circuit court erred by granting the State’s motion in limine regarding Ms. Combs’s
pretrial diversion agreement and her probation status. By order entered on April 11,
2014, the circuit court denied this motion and sentenced Mr. Williams to a determinate
sentence of four years in the penitentiary.
Mr. Williams appeals the circuit court’s order denying his motion for a new
trial to this Court.
3
While Mr. Honaker testified that the driver, Mr. Williams, fired the gunshot, he
also testified that the shooter was wearing a black shirt. Mr. Williams was wearing a
white t-shirt when the incident occurred. The other two passengers in Mr. Williams’s car
were wearing black shirts. Further, one of the passengers in Mr. Williams’s car, Tyrek
Miller, testified that Mr. Williams did not fire the shot. Instead, Tyrek Miller stated the
third person in Mr. Williams’s car fired the shot, a man named Anthony Webb.
Additionally, a gunpowder residue test performed on Mr. Williams was negative.
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II.
STANDARD OF REVIEW
Mr. Williams appeals the circuit court’s order denying his motion for a new
trial. This Court’s standard of review when addressing a circuit court’s order denying a
motion for a new trial is set forth in Syllabus Point 3, State v. Vance, 207 W.Va. 640, 535
S.E.2d 484 (2000):
In reviewing challenges to findings and rulings made
by a circuit court, we apply a two-pronged deferential
standard of review. We review the rulings of the circuit court
concerning a new trial and its conclusion as to the existence
of reversible error under an abuse of discretion standard, and
we review the circuit court’s underlying factual findings
under a clearly erroneous standard. Questions of law are
subject to a de novo review.
With this standard in mind, we proceed to consider the parties’ arguments.
III.
ANALYSIS
The sole issue Mr. Williams raises on appeal is whether the circuit court
erred when it granted the State’s motion in limine preventing Mr. Williams from
inquiring about the terms of Ms. Combs’s pretrial diversion agreement. As such, Mr.
Williams alleges that he was denied his Sixth Amendment right to confront an accuser
and that the jury was not able to fully judge Ms. Combs’s credibility.
By way of background, “the Sixth Amendment to the Constitution
guarantees the right of an accused in a criminal prosecution ‘to be confronted with the
9
witnesses against him.’ This right is secured for defendants in state as well as federal
criminal proceedings under Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d
923 (1965).” Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110 (1974). In
determining whether restrictions on cross-examination violate the Confrontation Clause,
courts look at: (1) whether the excluded evidence was relevant; (2) whether there were
other legitimate interests outweighing the defendant’s interest in presenting the evidence;
and (3) whether the exclusion of evidence left the jury with sufficient information to
assess the credibility of the witness. United States v. Larson, 495 F.3d 1094, 1103 (9th
Cir. 2007). Additionally, this Court has set forth the following general guidelines
regarding cross-examination:
Several basic rules exist as to cross-examination of a
witness. The first is that the scope of cross-examination is
coextensive with, and limited by, the material evidence given
on direct examination. The second is that a witness may also
be cross-examined about matters affecting his credibility. The
term “credibility” includes the interest and bias of the
witness, inconsistent statements made by the witness and to a
certain extent the witness’ character. The third rule is that the
trial judge has discretion as to the extent of cross-
examination.
Syllabus Point 4, State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982).
Mr. Williams argues that he should have been allowed to explore Ms.
Combs’s credibility. Specifically, counsel wanted to ask her whether the investigating
officer pressured or induced her into giving a statement to “get in good with the police”
because of her pretrial diversion agreement. Additionally, Mr. Williams argues that the
present case is analogous to Davis v. Alaska, supra, in which the United States Supreme
10
Court stated that the defendant should have been allowed to cross-examine a witness
about whether he faced undue pressure to cooperate with the police because of his status
as a probationer.
By contrast, the State argues that Ms. Combs’s pretrial diversion
agreement, including the agreement’s probation term, was not relevant to any issue
before the circuit court and was completely unrelated to Mr. Williams’s crime. Further,
the State argues that it would have been improper to allow Mr. Williams to question Ms.
Combs about her pretrial diversion agreement under Rule 609(a)(2) of the West Virginia
Rules of Evidence because Ms. Combs was never convicted of a crime. Finally, the State
asserts that the present case is analogous to State v. Lori. F., No. 12-0235, 2013 WL
2301088 (W.Va. Supreme Court, May 24, 2013) (memorandum decision), in which this
Court affirmed the circuit court’s denial of a witness being cross-examined about the
crime underlying his pretrial diversion agreement.
After review, we agree with the State. Mr. Williams has failed to offer any
factual basis demonstrating that Ms. Combs’s pretrial diversion agreement, and the
probation term contained therein, created any bias that affected the statement she gave the
investigating officer in Mr. Williams’s case. The pretrial diversion agreement was made
eight months before the shooting. The investigating officer arrived at McDonald’s ten to
fifteen minutes after the shooting. Ms. Combs was one of the first two witnesses the
investigating officer spoke to and she gave her statement to the officer within the first
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thirty minutes of the investigation. Trooper Wood, the investigating officer, was the only
person who took a statement from Ms. Combs.
Based on these facts, Mr. Williams has failed to show any relevance
between Ms. Combs’s pretrial diversion agreement and the statement she gave to Trooper
Wood. It strains credulity to accept Mr. Williams’s argument that Ms. Combs may have
been pressured or induced by the investigating officer, thirty minutes into his
investigation, in the midst of an interview with a McDonald’s employee, in order to
nefariously implicate Mr. Williams.
Next, we find that the circuit court did not abuse its discretion by
determining that Mr. Williams could not cross-examine Ms. Combs about her pretrial
diversion agreement pursuant to Rule 609(a)(2) of the West Virginia Rules of Evidence.
Under Rule 609, counsel is permitted to discredit a witness by showing that the witness
has been convicted of a crime. “Rule 609, a credibility rule, governs the use of prior
criminal convictions to impeach the general credibility of a testifying witness. The rule
has no other purpose.” Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer,
Handbook on Evidence for West Virginia Lawyers, § 609.02[1][a] (5th ed.2012)). Rule
609(a) states:
(a) General Rule. . . .
(2) All Witnesses Other Than Criminal Defendants. For the
purpose of attacking the credibility of a witness other than the
accused
(A) evidence that the witness has been convicted of a crime
shall be admitted, subject to Rule 403, if the crime was
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punishable by death or imprisonment in excess of one year
under the law under which the witness was convicted, and
(B) evidence that the witness has been convicted of a crime
shall be admitted if it involved dishonesty or false statement,
regardless of the punishment.
Ms. Combs was never convicted of a crime—she completed her pretrial
diversion agreement and the criminal charge against her was dismissed before she
testified. As one legal treatise noted, pretrial diversion agreements, also known as
deferred adjudication agreements, are not convictions:
Deferred adjudication is not a conviction or a finding
or verdict of guilt, but is a type of community supervision. A
deferred judgment is akin to a sentence of probation. . . . In
granting deferred adjudication, the court defers further
proceedings and places the defendant on community
supervision without entering an adjudication of guilt. The
purpose of statutory authority to withhold judgment and
ultimately to dismiss a charge is to provide an opportunity for
rehabilitation and to spare the defendant, particularly a first
offender, the burden of a criminal record.
22A C.J.S. Criminal Law § 558 (2015) (internal footnotes omitted).4 Mr. Williams
concedes that “pursuant to the language contained within Rule 609 . . . that at the time of
4
W.Va. Code § 61-11-12 [2010] authorizes prosecutors to enter into pretrial
diversion agreements with a person who is under investigation or has been charged with
an offense against the state. W.Va. Code § 61-11-12 states, in part:
(a) A prosecuting attorney of any county of this state
or a person acting as a special prosecutor may enter into a
pretrial diversion agreement with a person under investigation
or charged with an offense against the state of West Virginia,
(continued . . .)
13
trial Ms. Combs was not technically a convicted felon.” Because there is no dispute that
Ms. Combs was not convicted of a crime, we find that the circuit court did not abuse its
discretion by excluding Mr. Williams from inquiring about Ms. Combs’s pretrial
diversion agreement pursuant to Rule 609.
when he or she considers it to be in the interests of justice.
The agreement is to be in writing and is to be executed in the
presence of the person's attorney, unless the person has
executed a waiver of counsel.
(b) Any agreement entered into pursuant to the
provisions of subsection (a) of this section may not exceed
twenty-four months in duration. The duration of the
agreement must be specified in the agreement. The terms of
any agreement entered into pursuant to the provisions of this
section may include conditions similar to those set forth in
section nine, article twelve, chapter sixty-two of this code
relating to conditions of probation. The agreement may
require supervision by a probation officer of the circuit court,
with the consent of the court. An agreement entered into
pursuant to this section must include a provision that the
applicable statute of limitations be tolled for the period of the
agreement.
(c) A person who has entered into an agreement for
pretrial diversion with a prosecuting attorney and who has
successfully complied with the terms of the agreement is not
subject to prosecution for the offense or offenses described in
the agreement or for the underlying conduct or transaction
constituting the offense or offenses described in the
agreement, unless the agreement includes a provision that
upon compliance the person agrees to plead guilty or nolo
contendere to a specific related offense, with or without a
specific sentencing recommendation by the prosecuting
attorney.
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The State also asserts, and we agree, that this Court’s ruling in State v. Lori.
F., supra, supports its position. In Lori F., a fact witness testifying for the State had
previously entered into a pretrial diversion agreement on a criminal charge unrelated to
the defendant’s case. As in the present case, the witness in Lori F. had completed his
pretrial diversion agreement before he testified in the defendant’s case. On appeal, the
defendant argued that the circuit court erred by failing to allow her to inquire about the
crime underlying the witness’s pretrial diversion agreement. In affirming the circuit
court’s ruling, this Court explained:
[W]e find that the crime with which Mr. Sharp [the State
witness] was charged was simply not relevant to any issue
before the circuit court and was totally unrelated to
petitioner’s crime. Petitioner argues that she was not allowed
to impeach the witness by addressing the pretrial diversion
agreement, but Rule 609(a)(2) of the West Virginia Rules of
Evidence requires conviction before a witness may be
impeached with a prior criminal act. Simply put, there was
no criminal conviction with which to impeach the witness.
Further, it is clear Mr. Sharp was not motivated to testify
against petitioner in order to avoid prosecution because he
entered the pretrial diversion agreement prior to the date he
reported petitioner’s conduct and the agreement was fully
discharged prior to his testimony. The agreement did not call
for Mr. Sharp to testify in any matters and he therefore had no
need to “get in good with the police.” For these reasons, the
Court finds no error in limiting the scope of petitioner’s
cross-examination in this regard.
Lori F., 2013 WL 2301088 at 3. Similarly, Ms. Combs was not motivated to give a
statement against Mr. Williams in order to avoid prosecution because she had entered
into her pretrial diversion agreement eight months prior to giving the statement to the
investigating officer. Further, Ms. Combs’s agreement was fully discharged prior to her
15
testimony at Mr. Williams’s trial. As Ms. Combs testified during the in camera hearing,
at which time she was no longer on probation and had no need to “get in good with the
police,” she gave her statement to the investigating officer within a half-hour of the
shooting; she did not feel pressured into giving her statement; and she was not offered
any inducement or promise by the officer in exchange for her statement. For these
reasons, our ruling in this case is consistent with this Court’s ruling in Lori F.
Mr. Williams argues that he was entitled to inquire about Ms. Combs’s
pretrial diversion agreement and the probation term contained therein under the Supreme
Court’s ruling in Davis v. Alaska, supra. We disagree and find that the facts in Davis are
clearly distinguishable from those in the present case.
In Davis, the State witness was a potential suspect in the crime for which he
made a statement to the police. Unlike Ms. Combs, the State witness in Davis had not
entered into a pretrial diversion agreement. Rather, the State witness had been
adjudicated of juvenile delinquency for burglarizing two cabins and was on probation
when he gave the police a statement about another burglary. The burglary in Davis
involved a safe that was stolen from a bar, and the empty safe was later found near the
State witness’s house. The bar was owned by the State witness’s stepfather. Due to his
previous burglary crimes for which he had been adjudicated, and due to the proximity
and connection the State witness had to the stolen item, he was a potential suspect in the
robbery. Based on these facts, the Court concluded that the defendant was entitled to
attempt to show that the witness was biased because of his concern that he might be a
16
suspect in the burglary charged against the defendant, and because his probation could
have been revoked if the police discovered that he had been involved in the robbery. Id.,415 U.S. at 315, 94 S.Ct. at 1110-1111.
In the present case, however, there is no suggestion that Ms. Combs was a
suspect in the McDonald’s shooting. The only connection Ms. Combs had to the crime
was that she was working at McDonald’s when it occurred. Thus, there is a substantial
difference between the facts in the present case and those in the Davis case.
Finally, we note that under Syllabus Point 4 of Richey, supra, a trial judge
has discretion as to the extent of cross-examination. In the present case, the trial judge
held a hearing on the motion in limine, considered the motion in light of Rule 609 of the
West Virginia Rules of Evidence, and conducted an in camera hearing in which Ms.
Combs testified. Based on the hearing and Ms. Combs’s testimony, the trial judge
concluded that there was no factual basis for Mr. Williams’s assertion that Ms. Combs’s
pretrial diversion agreement could have led to her being pressured or induced into giving
a statement to the investigating officer. We therefore find that the trial judge did not
abuse his discretion in granting the State’s motion in limine.
IV.
CONCLUSION
The circuit court’s April 11, 2014, order denying Mr. Williams’ motion for
a new trial is affirmed.
Affirmed.
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