Submitted: February 8, 2017
from the Circuit Court of Mercer County The Honorable Omar J.
Aboulhosn, Judge Case No. 14-C-23-OA
H. Bell, Esq. Attorney at Law Beaver, West Virginia Counsel
for the Petitioner.
Patrick Morrisey, Esq. Attorney General Zachary Aaron
Viglianco, Esq. Assistant Attorney General Charleston, West
Virginia Counsel for the Respondent.
"'In reviewing challenges to the findings and
conclusions of the circuit court in a habeas corpus action,
we apply a three-prong standard of review. We review the
final order and the ultimate disposition under an abuse of
discretion standard; the underlying factual findings under a
clearly erroneous standard; and questions of law are subject
to a de novo review.' Syllabus point 1,
Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771
(2006)." Syllabus Point 1, State ex rel. Franklin v.
McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).
"In the West Virginia courts, claims of ineffective
assistance of counsel are to be governed by the two-pronged
test established in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1)
Counsel's performance was deficient under an objective
standard of reasonableness; and (2) there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been
different." Syllabus Point 5, State v. Miller,
194 W.Va. 3, 459 S.E.2d 114 (1995).
"In reviewing counsel's performance, courts must
apply an objective standard and determine whether, in light
of all the circumstances, the identified acts or omissions
were outside the broad range of professionally competent
assistance while at the same time refraining from engaging in
hindsight or second-guessing of trial counsel's strategic
decisions. Thus, a reviewing court asks whether a reasonable
lawyer would have acted, under the circumstances, as defense
counsel acted in the case at issue." Syllabus Point 6,
State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
"When a co-perpetrator is killed by the intended victim
of a burglary during the commission of a crime, the surviving
co-perpetrator cannot be charged with felony murder pursuant
to West Virginia Code § 61-2-1 (2010)." Syllabus
Point 4, State ex rel. Davis v. Fox, 229 W.Va. 662,
735 S.E.2d 259 (2012).
"'[T]he elements which the State is required to
prove to obtain a conviction of felony murder are: (1) the
commission of, or attempt to commit, one or more of the
enumerated felonies; (2) the defendant's participation in
such commission or attempt; and (3) the death of the victim
as a result of injuries received during the course of such
commission or attempt.' State v. Williams, 172
W.Va. 295, [310, ] 305 S.E.2d 251, 267 (1983)." Syllabus
Point 5, State v. Mayle, 178 W.Va. 26, 357 S.E.2d
"In a criminal trial an accomplice may testify as a
witness on behalf of the State to having entered a plea of
guilty to the crime charged against a defendant where such
testimony is not for the purpose of proving the guilt of the
defendant and is relevant to the issue of the
witness-accomplice's credibility. The failure by a trial
judge to give a jury instruction so limiting such testimony
is, however, reversible error." Syllabus Point 3,
State v. Caudill, 170 W.Va. 74, 289 S.E.2d 748
(1982) as modified by Syl. Pt. 1, State v.
Flack, 232 W.Va. 708, 752 S.E.2d 761 (2013).
"Although it is a violation of due process for the State
to convict a defendant based on false evidence, such
conviction will not be set aside unless it is shown that the
false evidence had a material effect on the jury
verdict." Syllabus Point 2, In re Investigation of
W.Va. State Police Crime Lab., Serology Div., 190 W.Va.
321, 438 S.E.2d 501 (1993).
"In order to obtain a new trial on a claim that the
prosecutor presented false testimony at trial, a defendant
must demonstrate that (1) the prosecutor presented false
testimony, (2) the prosecutor knew or should have known the
testimony was false, and (3) the false testimony had a
material effect on the jury verdict." Syllabus Point 2,
State ex rel. Franklin v. McBride, 226 W.Va. 375,
701 S.E.2d 97 (2009).
"Polygraph test results are not admissible in evidence
in a criminal trial in this State." Syllabus Point 2,
State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39
"Double jeopardy prohibits an accused charged with
felony-murder, as defined by W.Va. Code § 61-2-1 (1977
Replacement Vol.), from being separately tried or punished
for both murder and the underlying enumerated felony."
Syllabus Point 8, State v. Williams, 172 W.Va. 295');">172 W.Va. 295');">172 W.Va. 295');">172 W.Va. 295');">172 W.Va. 295');">172 W.Va. 295');">172 W.Va. 295');">172 W.Va. 295,
305 S.E.2d 251 (1983).
Brandon Flack appeals the August 24, 2015 order of the
Circuit Court of Mercer County granting, in part, and
denying, in part, his petition for habeas corpus. Petitioner
alleges that the habeas court erred in (1) denying his claims
of ineffective assistance of counsel; (2) denying habeas
relief on the basis that the State knowingly introduced false
evidence; and (3) denying habeas relief on the basis that the
State made inappropriate comments during closing argument.
Respondent Warden, Mount Olive Correctional Complex
("the State"), asserts a cross-assignment of error
alleging that the habeas court erred in partially granting
Petitioner habeas relief on double jeopardy
grounds. We have considered the parties' briefs
and arguments, the submitted record and pertinent
authorities. For the reasons that follow, we affirm, in part,
and reverse, in part, the order of the habeas court and
remand this matter with instructions as further indicated
FACTUAL AND PROCEDURAL BACKGROUND
underlying facts were established at the trial in this matter
and set forth in Petitioner's direct appeal to this Court
in State v. Flack, 232 W.Va. 708, 753 S.E.2d 761
(2013). Sometime in late January 2011, Petitioner and his
accomplices came up with a plan to burglarize the home of
Petitioner's uncle, David Flack (the "Flack
Residence"). Id. at 710, 753 S.E.2d at 763. On
the evening of January 28, 2011, Petitioner and his
accomplices, who lived in Pulaski, Virginia, drove to
Bluefield, West Virginia, where the Flack Residence was
located. Id. Arriving shortly after midnight on
January 29, 2011, Petitioner and two of his accomplices,
Jasman Montgomery and Jacob Thomas, put on the ski masks,
obscuring their faces, and approached the back of the Flack
Residence and knocked on the door. Id. A fourth man,
Joseph Flack, remained in the car. Id.
Flack (Petitioner's second cousin), India Simmons
(Matthew's cousin), and Milton ("Mel") Thomas
(Matthew's friend), were inside the house. Id.
Hearing the knock on the back door, Matthew looked through a
curtain and saw three masked men standing at the back door.
Id. Matthew then ran upstairs to get a gun.
Id. As Matthew headed up the stairs, one of the men
kicked in the back door.  The three men then entered
the Flack Residence. Id. Following Matthew,
Petitioner ran up the stairs and began wrestling with him.
Id. While Petitioner and Matthew struggled on the
landing, Mr. Montgomery ran up the stairs, pulled out a gun
and shot Matthew Flack in the face. Id. Petitioner
was also shot when Matthew Flack fired his gun. Id.
and his accomplices ran out of the Flack Residence and fled
from the scene. Id. The men took Petitioner, who was
visibly injured, to the hospital. Id. at 711, 753
S.E.2d at 764. There, the men told hospital staff that
Petitioner had been shot in a drive-by-shooting.
Petitioner's injuries were reported to the police by
hospital staff and several officers were dispatched to
investigate. Id. Upon their arrival, one of the
officers noticed blood on the inside and outside of the car
that Petitioner and his accomplices had driven to the
hospital. Id. The officers asked for and were given
permission to search the car by a young woman named Heather
Davis, whose grandfather owned the car. Two handguns and ski
masks were found in the trunk. Id.
was subsequently arrested and charged with one count of first
degree murder, one count of burglary, one count of first
degree robbery, and one count of conspiracy. Id.
Pleading not guilty, Petitioner's case proceeded to
trial. Id. At trial, the State's witnesses
included Petitioner's accomplice, Mr. Montgomery, and Dr.
James Kaplan, the State Medical Examiner. Id.
Montgomery pled guilty to first degree murder and was
sentenced to life with the possibility of parole.
Id. As part of his plea agreement, Mr. Montgomery
testified for the State and told the jury about the plan they
had devised, their forced entry into the Flack Residence, his
shooting of Matthew Flack, and driving Petitioner to the
hospital. Id. During the course of the trial,
defense counsel did not request any limiting or cautionary
instruction regarding the consideration the jurors were
permitted to give Mr. Montgomery's guilty plea or his
testimony that he murdered Matthew Flack. Id.
trial, Dr. James Kaplan testified that Mr. Flack died as a
result of a gunshot wound. Id. However, the
pathologist who prepared the autopsy report did not testify
at trial and defense counsel did not object. Id.
April 26, 2012, following a three-day trial, a jury convicted
Petitioner of all charges and recommended mercy for the
murder charge. Petitioner then moved for a new trial,
asserting that his rights were violated when the trial court
failed to sua sponte give the jury a limiting instruction
regarding Mr. Montgomery's testimony about his guilty
plea. Id. Petitioner also argued that because there
were no African-American members on his jury panel, his
constitutional rights were violated. Id. On June 7,
2012, the trial court denied Petitioner's motion for a
new trial. Id. Because the State had pursued the
murder charge based on a felony murder theory, the trial
court merged the counts of first degree murder and burglary,
resulting in the dismissal of the burglary conviction.
Petitioner was sentenced to life with mercy for the first
degree murder offense, forty years for the first degree
robbery offense and an indeterminate term of one to five
years for the conspiracy offense, with all sentences to run
consecutively. Petitioner was given 495 days jail credit.
filed an appeal of his convictions for first degree murder,
first degree robbery and conspiracy alleging that: (1)
defense counsel's failure to object to or request a
limiting instruction following Mr. Montgomery's testimony
on behalf of the State and the relation of his guilty plea to
the jury, was plain error requiring a reversal of his
convictions under State v. Caudill, 170 W.Va. 74,
289 S.E.2d 748 (1982); (2) his right to be tried by a jury
drawn from a cross-section of his community was violated; (3)
that Mercer County did not comply with the statutory
requirements for assembling a jury pool; and (4) the
admission of Dr. Kaplan's testimony concerning the cause
of Matthew Flack's death based on findings in an autopsy
report prepared by someone other than Dr. Kaplan was plain
error. See Flack, 232 W.Va. at 712, 753 S.E.2d at
765. Finding no reversible error, we affirmed
Petitioner's convictions. Id.
January 7, 2014, Petitioner filed a pro se habeas petition
alleging various grounds for relief. The habeas court
appointed counsel for Petitioner, who then filed a
supplemental petition on his behalf on July 29, 2014. As
discussed in detail below, Petitioner contended that despite
the fact that the State proceeded under a felony murder
theory, defense counsel should have vigorously developed and
presented an identity of the shooter defense. Petitioner
argues that defense counsel could have asserted that Matthew
Flack's death was the result of being accidentally shot
by his friend, Mel Thomas, who was positioned above him on
the stairwell, and that the fatal shot came from a handgun
that was still at the scene when the police arrived and not
in the trunk of the car at the hospital. Maintaining that
this theory of defense should have been pursued, Petitioner
presented the following allegations of error to the habeas
court below: (1) the robbery offense was a lesser-included
offense to the felony murder offense predicated on burglary
and, as such, double jeopardy attached when the two were
merged; (2) ineffective assistance of counsel for (a) failure
to hire an investigator, an expert in forensic pathology, and
a firearms expert and to cross-examine the State's
experts; (b) failure to object to the autopsy evidence being
elicited from a different pathologist than the one who
performed the autopsy; (c) failure to object to the
co-defendant testifying in front of the jury in prison
attire; (d) failure to request a Caudill instruction
regarding the co-defendant's testimony; (e) failure to
request a copy of the co-defendant's written plea
agreement; (f) failure to request a self-defense instruction;
and (g) failure to subpoena certain defense witnesses for
trial; and (h) failure to object to the medical
examiner's testimony as denying him the right of
confrontation under Crawford v. Washington, 541 U.S.
36 (2004) and State v. Frazier, 229 W.Va. 724');">229 W.Va. 724, 735
S.E.2d 727 (2012). The State filed a response to the habeas
petition asserting that Petitioner's sentences complied
with double jeopardy protections, that Petitioner received
effective counsel at trial, and that it was inappropriate to
second-guess his counsel's strategy in a petition seeking
habeas court held an omnibus hearing on July 31, 2015, during
which Petitioner testified and called five other witnesses to
testify in support of his petition: Officer R.S. Gibson and
Lt. C.S. Myers, both with the Bluefield Police Department,
Larry Dehus, Danny Lane, and defense counsel Derrick W.
Lefler. Officer Gibson, the first officer on the scene of the
crime, testified regarding the location of a handgun at the
scene, a Hi-Point pistol, and another spent shell casing he
observed laying on the second set of stairs on the landing at
the crime scene. Lieutenant Myers, the detective on call on
the night of the shooting, testified regarding (1) the
location of the firearms and casings that were found at the
crime scene and submitted to the State Crime Lab; (2) his
investigation of the crime and his belief that Mr. Montgomery
fired the fatal shot killing Matthew Flack; (3) his interview
of Amanda Shorter, the witness who saw four masked men
approaching and exiting the Flack Residence; and (4) his
interview of Heather Davis and Ashley Burelson, two females
who accompanied Petitioner and his co-defendants on the night
of the crime, who were picked up and brought to the station
Lefler, Petitioner's defense counsel at trial, testified
regarding his initial investigation of the case, the theory
of defense presented at trial, and his thought process
regarding trial tactics and strategy.Larry Dehus, an expert in
forensic science, firearms and ballistics who was retained by
Petitioner's habeas counsel, testified that it was
improbable that Mr. Montgomery fired the fatal shot killing
Matthew Flack based on the trajectory of his wounds and the
position of Mr. Montgomery during the crime.
Lane, a homicide investigator, firearms expert, and former
law enforcement officer retained by Petitioner's habeas
counsel, testified regarding his personal investigation of
the case, what types of opinions a firearms expert would have
presented at trial, including a recreation of the crime
scene, and his opinion of how the fatal shot killing Matthew
Flack occurred. He also testified regarding his interview of
Heather Davis, one of the two women accompanying Petitioner
on the night of the crime, and his opinion that Ms.
Davis's testimony would have been helpful to the defense
because it would have discredited Ms. Shorter's
testimony. He testified that cell phone extractions from
Jacob Thomas's and Heather Davis's cell phones
indicated that Ms. Davis and Ms. Burelson did not accompany
Petitioner and his co-defendants to the crime scene. He
asserted that because the two women were left by Petitioner
at a relative's home while they went to buy beer at a
convenience store, this evidence would have conflicted with
Amanda Shorter's account of events.
August 24, 2015, the habeas court entered an order granting,
in part, and denying, in part, Petitioner's habeas
petition and an order correcting Petitioner's sentence
pursuant to Rule 35(a) of the West Virginia Rules of Criminal
Procedure. The habeas court concluded that Petitioner had
failed to prove both prongs of the ineffective assistance of
counsel test in State v. Miller, 194 W.Va. 3, 459
S.E.2d 114 (1995). The habeas court also rejected
Petitioner's assertions that false evidence had been
presented by the State at trial, finding that inconsistencies
in various witnesses' testimony did not prove falsity but
rather, constituted credibility determinations that remained
in the province of the jury. However, regarding
Petitioner's double jeopardy claim, the court found that
Petitioner proved, by a preponderance of the evidence, that
he had been improperly sentenced to an additional forty years
on the robbery offense because the robbery was also a
lesser-included offense to the first degree felony murder
charge and he should not have been convicted for the
lesser-included offense. The habeas court dismissed the
robbery conviction and, pursuant to Rule 35(a) of the West
Virginia Rules of Criminal Procedure, corrected
Petitioner's sentence to life with mercy for the first
degree felony murder conviction and to an indeterminate term
of one to five years for the conspiracy conviction. On
appeal, both parties assign error to the habeas court's
STANDARD OF REVIEW
circuit court's order granting or denying habeas relief
is subject to a three-prong standard of review:
"In reviewing challenges to the findings and conclusions
of the circuit court in a habeas corpus action, we apply a
three-prong standard of review. We review the final order and
the ultimate disposition under an abuse of discretion
standard; the underlying factual findings under a clearly
erroneous standard; and questions of law are subject to a
de novo review." Syllabus point 1, Mathena
v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226
W.Va. 375, 701 S.E.2d 97 (2009). With these principles in
mind, we consider the arguments of the parties.
Ineffective Assistance of Counsel
asserts an ineffective assistance of counsel claim that his
court-appointed attorneys, Derrick W. Lefler and Ward Morgan
(collectively, "defense counsel"), failed to
investigate adequately what he alleges is a serious, complex
case. Petitioner bases his claim upon several acts or
omissions by defense counsel: (1) failure to interview,
subpoena, or otherwise attempt to secure the appearance of
Heather Davis and Ashley Burelson; (2) failure to hire an
investigator or expert witnesses; (3) failure to
cross-examine the State's firearms expert or recognize
the discrepancy between the testimony of various witnesses
with respect to the firearms used in the shooting and entered
into evidence; (4) failure to object to the testimony of the
State's medical expert on hearsay and confrontation
clause grounds; (5) allowing Petitioner's accomplice, who
had previously pled guilty to first degree to appear in
prison attire when testifying on behalf of the State; (6)
failure to request a limiting instruction concerning the
accomplice's guilty plea, as permitted by
Caudill, 170 W.Va. 74, 289 S.E.2d 748; and (7)
failure to request a jury instruction on self-defense.
respect to the standards that guide our analysis in claims
for ineffective assistance of counsel, we have held:
In the West Virginia courts, claims of ineffective assistance
of counsel are to be governed by the two-pronged test
established in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's
performance was deficient under an objective standard of
reasonableness; and (2) there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceedings would have been different.
Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d
114 (1995). Noting that "[j]udicial scrutiny of
counsel's performance must be highly deferential, "
we further have held:
In reviewing counsel's performance, courts must apply an
objective standard and determine whether, in light of all the
circumstances, the identified acts or omissions were outside
the broad range of professionally competent assistance while
at the same time refraining from engaging in hindsight or
second-guessing of trial counsel's strategic decisions.
Thus, a reviewing court asks whether a reasonable lawyer
would have acted, under the circumstances, as defense counsel
acted in the case at issue.
Id. at Syl. Pt. 6.
cases in which a defendant may prevail on the ground of
ineffective assistance of counsel are few and far between one
another." Id. at 16, 459 S.E.2d at 127. Indeed,
ineffective assistance claims are rarely granted and only
when a claim has substantial merit. State ex rel. Daniel
v. Legursky, 195 W.Va. 314, 319, 465 S.E.2d 416, 421
(1995). In Miller, we explained that:
[W]e always should presume strongly that counsel's
performance was reasonable and adequate. A defendant seeking
to rebut this strong presumption of effectiveness bears a
difficult burden because constitutionally acceptable
performance is not defined narrowly and encompasses a
"wide range." The test of ineffectiveness has
little or nothing to do with what the best lawyers
would have done. Nor is the test even what most good lawyers
would have done. We only ask whether a reasonable lawyer
would have acted, under the circumstances, as defense counsel
acted in the case at issue. We are not interested in grading
lawyers' performances; we are interested in whether the
adversarial process at the time, in fact, worked adequately.
194 W.Va. at 16, 459 S.E.2d at 127. "[T]he burden is on
the defendant to prove ineffective assistance by a
preponderance of the evidence." State v.
Hatfield, 169 W.Va. 191, 209, 286 S.E.2d 402, 413
contends that defense counsel should have called Heather
Davis and Ashley Burelson as fact witnesses at trial. Ms.
Davis and Ms. Burelson were with Petitioner and his
accomplices during the night of the incident at the Flack
Residence. Petitioner argues that their testimony could have
been used to undermine the testimony of Amanda Shorter, an
eyewitness. Ms. Shorter testified at trial that after 11:00
p.m. on the night of January 29, 2011, she saw four men get
out of a car, change into dark clothes and put toboggans on
their heads. She testified that the men, who were laughing
and being loud, walked up to the back door of the Flack
Residence and knocked before the door opened and they entered
the house. She further testified that subsequent to the men
entering the Flack Residence, she heard gunshots and observed
two women, Ms. Davis and Ms. Burelson, run up to the same car
and get into the backseat before Petitioner and his
co-defendants fled the scene. Petitioner contends that
contrary to Ms. Shorter's testimony, the police
determined that Ms. Davis and Ms. Burelson stayed behind at
an apartment and were nowhere near the crime scene.
Petitioner argues that the testimony of the two women could
have been used to discredit the testimony of Ms. Shorter, and
they would have testified that there was no discussion of any
plan to commit a crime.
claims that the private investigator he retained for his
habeas corpus case located Ms. Davis, who cooperated with him
and gave a recorded interview. He contends that had she been
subpoenaed by defense counsel, she would have testified that
there was no discussion of a plan to commit a robbery,
burglary, larceny or any other crime. He also claims that she
would have testified that their car had a full tank of
gasoline and they had money to purchase beer, food or
anything else that they and Petitioner may have wanted or
needed that night. He asserts that this evidence could have
discredited several state witnesses and supported
Petitioner's version of the events leading up to his
entry into the Flack Residence. Petitioner contends that
prior to going to the Flack Residence, he left Ms. Davis and
Ms. Burelson at a relative's home in order to buy beer at
a convenience store and they were waiting on him to return
because they were planning to ride home with him in Ms.
Davis's grandfather's car.
State responds that defense counsel's decision not to
subpoena these witnesses was a matter of trial strategy and,
absent extraordinary circumstances, is outside the purview of
an ineffective assistance of counsel claim. The State
contends that the theory of the defense presented at trial
was that Petitioner and his accomplices did not arrive at the
Flack Residence intending to commit any crime and that the
conduct of the group as they exited their car and approached
the Flack Residence demonstrated their lack of criminal
intent. Mr. Lefler stated in his closing argument that there
"was no plan [to commit a robbery]" and made
reference to Ms. Shorter's testimony recounting her
observations of the behavior of Petitioner and the others as
they approached the Flack Residence.
omnibus hearing, defense counsel Mr. Lefler testified that
"we were certainly aware the State intended to proceed
on a felony murder theory, and the particulars [of how and by
whom Matthew Flack was killed], in all honesty, weren't
our focus." Mr. Lefler described Ms. Shorter as
"the best witness we had." He reasoned that her
testimony was "potentially very beneficial, " and
that "the last thing they wanted to do" was
discredit her. Mr. Lefler testified that Ms. Shorter
confirmed that Petitioner and his accomplices made a lot of
noise and did not appear to be concerned with being quiet or
approaching the house in a fashion that was undetectable.
Additionally, because Ms. Shorter testified that she did not
see a door kicked in, the defense sought to use her testimony
to establish that Petitioner and his accomplices approached
the house in a manner that did not appear to be for evil
intent. Moreover, Mr. Lefler stated that had Ms. Shorter not
been called by the State during its case-in-chief, he would
have called her as a defense witness. When Petitioner
inquired why Ms. Davis and Ms. Burelson were not subpoenaed
to testify, Mr. Lefler explained that although he initially
looked for these witnesses when he began investigating the
case, he could not locate them.
Daniel v. Legursky, 195 W.Va. 314, 328, 465 S.E.2d
416, 430 (1995), we stated that "[a] decision regarding
trial tactics cannot be the basis for a claim of ineffective
assistance of counsel unless counsel's tactics are shown
to be 'so ill chosen that it permeates the entire trial
with obvious unfairness.'" (quoting Teague v.
Scott, 60 F.3d 1167, 1172 (5th Cir.1995)). We have also
noted, "[w]hat defense to carry to the jury, what
witnesses to call, and what method of presentation to use is
the epitome of a strategic decision, and it is one that we
will seldom, if ever, second guess." Miller,
194 W.Va. at 16, 459 S.E.2d at 127.
explained in Miller, "with [the] luxury of time
and the opportunity to focus resources on specific facts of a
made record, [habeas counsel] inevitably will identify
shortcomings in the performance of prior counsel."
Id. at 17, 459 S.E.2d at 128. "[P]erfection is
not the standard for ineffective assistance of counsel."
Id. Only if an identified error is "so serious
that counsel was not functioning as the 'counsel'
guaranteed the defendant by the ...