
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: TUESDAY, March 1, 1994                   TAG: 9403010141
SECTION: VIRGINIA                    PAGE: B-1   EDITION: METRO 
SOURCE: MIKE HUDSON STAFF WRITER
DATELINE: WINCHESTER                                LENGTH: Medium

OPPOSING LAWYERS ARGUE WHETHER EVIDENCE GETS IN

W.T. "Pete" Robey was trying to argue a finer point of the law on DNA testing. Commonwealth's Attorney Rob Hagan broke in and told him he was citing the wrong court case.

"I appreciate all the help Mr. Hagan can give me," Robey said, with more than a little sarcasm, "but I think I can do it myself. I do think I can handle it."

Hagan and Robey are opponents - prosecutor and defense attorney - in the capital murder trial of William R. Layne. Robey's client is charged with kidnapping and killing 11-year-old Phadra Carter.

There were a few lively exchanges Monday as the attorneys battled over the law of the case - and tried to sway the judge about what evidence the jury should be allowed to hear. If things got a bit testy, it was because the stakes are so high: How the judge rules on what goes in and what doesn't will have a profound impact on the case even before the lawyers make their opening statements today. The trial is expected to last at least one week.

Hagan and his fellow prosecutor, Rockbridge Commonwealth's Attorney Eric Sisler, are seeking the death penalty. They will try to show that Layne, 41, kidnapped Phadra Sept. 18 because he wanted to have sex with her. To make it a death penalty case, they must show that Layne had the "intent to defile."

The prosecutors and defense attorneys Robey and Terry Grimes are fighting over every scrap of evidence that relates to sexual intent.

Robey and Grimes will focus much of their defense on the fact that the medical examiner found no semen or other evidence of sexual assault on the girl's body. On Monday, Hagan argued that the medical examiner should be allowed to explain how limitations in the lab tests might have prevented them from turning up semen.

Robey said that would be mere speculation. Saying nothing was found is a statement of fact, but allowing the medical examiner to say more would violate the rules of evidence, he said.

Experts should be allowed to testify only when their opinions are supported by a high degree of medical certainty, Robey said. "They shouldn't be testifying about `This could have happened, that couldn't have happened.' You get this all the time in personal injury cases: `Well, he could get arthritis. He might need another operation.' "

Botetourt Circuit Judge George Honts said he would make a decision when the medical examiner arrives this week and can be quizzed ahead of time on his testimony.

That set off another dispute: Robey wanted to use his opening statement to emphasize the absence of physical evidence of sexual assault. But Hagan countered that if Robey gets to do that, the prosecution should be allowed some sort of response.

The judge tried to get the attorneys to agree to leave that question out of their opening statements.

But Robey wouldn't budge. "I can't give that up. If you put me in a position of having to give that up. . . ." He searched for some way to express how important the point was to his case. Finally, he simply said that if he lost this argument, "I submit it isn't the way things ought to be."

Honts said he would wait until the morning to give both lawyers a chance to come up with some way to make their points in opening statements without raising objections from the other side.

by CNB