Appeal. From Circuit Court of Ritchie County. Judge Fred L. Fox. Affirmed.
1. "A motion for a continuance is addressed to the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless there is a showing that there has been an abuse of discretion." Syl. pt. 2, State v. Bush, 163 W.Va. 168, 255 S.E.2d 539 (1979).
2. "The factors relevant in assessing claims of inadequate time to prepare for trial are: the time available for preparation, the likelihood of prejudice from the denial, the accused's role in shortening the effective preparation time, the degree of complexity of the case, the availability of discovery from the prosecution, the adequacy of the defense provided at trial, the skill and experience of the attorney, any pre-appointment or pre-retention experience of the attorney with the accused for the alleged crime, any representation of the defendant by other attorneys that accures [sic] to his benefit, whether the plea for more time to prepare for trial is made in good faith, the public interest in a speedy trial of the case, and the time the defendant has been in prison awaiting trial." Syl. pt. 4, State v. Bush, 163 W.Va. 168, 255 S.E.2d 539 (1979).
3. "In a criminal case, the inquiry made of a jury on its voir dire is within the sound discretion of the trial court and not subject to review, except when the discretion is clearly abused." Syl. pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944).
4. "In a criminal case, where the defendant has exercised his right not to testify, statements of the prosecuting attorney, in his argument of the case before the jury, that there had been no denial of the testimony introduced by the State, without specific reference to the failure of the defendant to testify, does not come within the inhibition of Code, 57-3-6." Syl. pt. 1, State v. Clark, 170 W.Va. 224, 292 S.E.2d 643
5. "There can be no interrogation of a person accused of committing a crime after he requests counsel, until counsel is provided except that if the suspect recants his request before counsel can be provided with reasonable dispatch, interrogation may be conducted." Syl. pt. 3, State v. Bradley, 163 W.Va. 148, 255 S.E.2d 356 (1979).
6. "A party cannot, by his own instruction, invite error and then complain of such error on appeal." Syl. pt. 7, State v. Woods, 155 W.Va. 344, 184 S.E.2d 130 (1971).
Per Curiam: Lennis Angel appeals from his conviction of first degree murder. Appellant was indicted at the January 1967 term of the Intermediate Court of Kanawha County *fn1 for the November 19, 1966 murder of Frances Kay Voiles, a 12-year-old girl who was babysitting for appellant's two children. A jury found appellant guilty, and the circuit court affirmed the intermediate court's judgment entered upon the jury's verdict. On appeal to this Court, we affirmed. State v. Angel, 154 W.Va. 615, 177 S.E.2d 562 (1970).
In Angel v. Mohn, 162 W.Va. 795, 253 S.E.2d 63 (1979), we found error of constitutional magnitude in the giving of a burden-shifting instruction. The case was remanded to give the State a reasonable opportunity to retry the appellant. 253 S.E.2d at 66.
Because of some unusual circumstances regarding the appointment of attorneys for the appellant, we believe it is necessary to recite in some detail the sequence of events leading up to the trial.
George Daugherty and John MacCorkle, both Kanawha County attorneys, were appointed to represent the appellant.
Retrial was scheduled for August 29, 1979, but it did not commence until February 2, 1981. On August 30, 1979, venue was changed to Ritchie County. Judge Gene S. Campbell asked that another Judge be appointed to hear the case. He was replaced by Judge James McClure of Ohio County.
Daugherty moved the court to be relieved of his duty of representation. In an order dated September 28, 1979, the motion was granted, and another Kanawha County attorney, John R. Fowler, was appointed to replace Daugherty. Sam White, Jr., of Pleasants County, was appointed as local counsel.
On October 11, 1979, White advised the court that there was disagreements among members of the defense team and that the appellant preferred that White act as lead rather than local counsel. Upon questioning by the court, the appellant replied that he was "more in tune with the way [White] wants to handle the case."
The court relieved White, suggesting on the record that "you go down and get a writ of prohibition. . . ." The appellant applied for a writ of prohibition. A rule was issued on October 23, 1979, staying all further proceedings. By per Curiam order, we issued a writ of prohibition preventing the trial from taking place pending the reappointment of White to represent the appellant. State ex rel. Angel v. McClure (No. 14665, filed March 4, 1980).
White was reappointed on May 12, 1980. Judge McClure subsequently recused himself, and Judge Fox was appointed on July 22, 1980. The case was set again for trial on October 29, 1980, but was continued until December 1, 1980. The State moved for a continuance on the ground that a witness was unavailable because of illness. A continuance was granted until February 2, 1981.
The appellant was retried on February 2-5, 1981. The circumstances surrounding the killing of Frances Kay Voiles, as revealed through the evidence presented at the first trial, was thoroughly discussed in State v. Angel, supra. The evidence presented in the second trial is substantially similar to that of the first, except that the former Mayor of Nitro did not testify, and there was no psychiatric or psychological testimony presented by either the State or the defendant.
Appellant assigns the following errors: (1) denial of a speedy trial between the indictment and the first trial and between this Court's reversal and the second trial; (2) discharge of lead counsel in the presence of the jury and the refusal to grant a continuance upon the representations of defense counsel that they were unprepared to go to trial; (3) refusal to allow individual voir dire of prospective jurors; (4) refusal to suppress evidence obtained as a result of conversations between police and the defendant after a request for a lawyer was made but without the presence of counsel; (5) refusal to declare a mistrial due to the prosecutor's reference in closing argument to the appellant's failure to testify or present evidence; and (6) inclusion of an instruction in the charge to the jury which shifted the burden of proof to the appellant.
The appellant contends that he was denied a speedy trial because more than three terms of court elapsed between reversal of his conviction and retrial.
A similar contention was made in State v. Gwinn, 169 W.Va. 456, 288 S.E.2d 533 (1982), where it was argued that the appellant was not afforded a speedy trial following the granting of habeas corpus relief. We rejected this contention, finding that there had been no unreasonable or oppressive delay.
Our review of the record of the case before us reveals that all delays of the retrial, save one, are attributable to the actions of the appellant. The appellant's claim that he was denied ...