ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Thursday, May 30, 1996 TAG: 9605300084
SECTION: VIRGINIA PAGE: C-3 EDITION: METRO
DATELINE: WYTHEVILLE
SOURCE: PAUL DELLINGER STAFF WRITER
A circuit judge will reconsider whether a 16-year-old Wytheville boy can be tried for capital murder.
Christopher Shawn Wheeler is charged with second-degree murder in the death of Wythe County Deputy Cliff Dicker, 58. Dicker was shot Dec. 6, 1994, while serving detention papers for auto theft and petty larceny on Wheeler at the home where the teen-ager lived with his grandmother.
Dicker was shot twice, once with the boy's .22-caliber hunting rifle and then with his own 9mm pistol, police say. Wheeler, who was 15 at the time, has been in custody since the shooting.
Circuit Judge Colin Campbell ruled last month that the maximum charge on which Wheeler could be tried was second-degree murder. The prosecution and defense had agreed, before Juvenile and Domestic Relations Judge William Thomas ordered that Wheeler be tried as an adult, that the evidence presented in Juvenile Court showed probable cause to believe second-degree murder had been committed.
That evidence did not include a statement about the shooting that Wheeler had given authorities. Thomas ruled the statement out because Wheeler's grandmother, who was his guardian, was not present when the boy was questioned.
Assistant Commonwealth's Attorney Keith Blankenship asked Campbell for a rehearing on the charge, based on a recent Virginia Supreme Court decision involving a juvenile charged with capital murder. Blankenship said state Attorney General Jim Gilmore also is expected to issue an opinion soon on whether a youth can be charged with capital murder.
"This is a new area of law. ... It's changed twice since the offense date," Blankenship said. "I mean, this is the kind of case where it's very important for all of us to get it right."
Campbell agreed and scheduled the rehearing for June 16. "It's better, clearly, to explore these legal problems now instead of after the trial," he said.
The judge also said his understanding of a recent U.S. Supreme Court decision is that the death penalty cannot be imposed on a child in a state that, like Virginia, has no minimum age for capital murder. Even if Wheeler were convicted of capital murder in the slaying of a deputy, Campbell said, the most he could get is life imprisonment.
Jonathon Venzie, one of the defense attorneys, said he had no doubt that the attorney general's opinion would agree with the state Supreme Court's decision on the case Blankenship cited, involving a youth charged with capital murder. But he said the issue in that case was whether the boy had ineffective counsel, not whether the charge could be increased to capital murder after the case was transferred from a juvenile court. "It never even gets close to the issue that we're faced with," Venzie said.
Campbell had another concern. He said the prosecution started with a capital murder charge but agreed to reduce it to second-degree after Wheeler's confession was ruled out. The charge raises the question, Campbell said, of whether the prosecution hoodwinked the defense just to get the case beyond Juvenile Court and then seek a more severe indictment.
It would seem that a youth defendant would lose all safeguards, Campbell said, if prosecutors could seek an indictment on some other charge once the youth had been transferred to adult court.
"This was all an up-front situation action on the part of the commonwealth," Blankenship said. "We have never conceded that this is not a capital case."
When the case was transferred to adult court, Blankenship said, he made it clear that he hoped to elevate the offense to capital murder and the defense was maintaining that it could not rise beyond second-degree. There was no misunderstanding about where each side stood, he said.
Now, Campbell will have to decide again which side is correct.
LENGTH: Medium: 73 linesby CNB