ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Thursday, March 21, 1996 TAG: 9603210029
SECTION: VIRGINIA PAGE: C1 EDITION: NEW RIVER VALLEY
DATELINE: WYTHEVILLE
SOURCE: PAUL DELLINGER STAFF WRITER
MEMO: shorter version ran in the Metro edition.
A defense attorney for a boy indicted for murder in the shooting of a Wythe County deputy argued Wednesday that the prosecution is limited to a second- degree murder charge and cannot pursue a capital murder count.
Christopher Shawn Wheeler, now 16, was 15 on Dec. 6, 1994, when Deputy Cliff Dicker was shot and killed while serving papers on Wheeler. Circuit Judge Colin Campbell did not immediately rule Wednesday on what charge Wheeler will face.
Campbell granted a defense motion postponing Wheeler's trial, which was scheduled to start Monday, until June at the earliest.
Last year in Juvenile and Domestic Relations Court, both sides compromised on a second-degree murder charge after Judge William Thomas ruled out a statement made by Wheeler because his grandmother, who was his guardian, was not present when he made it.
Thomas also ruled that Wheeler be tried as an adult, and Campbell upheld that ruling on appeal. The prosecution secured a general murder indictment against Wheeler from a grand jury, without specifying degree. Now Assistant Commonwealth's Attorney Keith Blankenship has moved that the indictment be amended to capital murder.
``The commonwealth cannot proceed with a direct indictment against a juvenile. That, in effect, is what the commonwealth is attempting to do,'' said Fred Werth, one of the defense attorneys.
Blankenship said the law sets no limits on a grand jury indictment. A general murder charge is presumed to be second-degree, he said, but the prosecution can elevate it through the presentation of evidence.
``He wants to treat this juvenile as an adult from the point where your honor ordered the transfer,'' Werth told Campbell. ``He can't go out there and get an indictment on any charge. He can only get it on the transfer charge. following this case,'' he said, to change the law so such indictments could be obtained when a juvenile is transferred to adult court, ``but that's not where we are now.''
LENGTH: Short : 48 lines KEYWORDS: FATALITYby CNB