          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




                                             2

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



                                              7

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.



                                              8

                                            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




                                            11

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

                                               12
               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.



                                            14

              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.


                                             17

