The opinion
BROTHERTON, Justice
dissenting:
Because I would have affirmed the decision of the trial court, I must dissent from the majority’s holding in this case.
The majority reversed the conviction of Theodore Cook for two reasons: (1) the failure to exclude a checkbook obtained by a warrantless search and seizure, and (2) the refusal of the trial court to allow the testimony of Mark Price. The trial court was correct in both decisions.
*200 Although the checkbook was seized pursuant to a warrantless search and seizure, it was nevertheless admissible because of the plain view exception. The police were alerted that Theodore Cook was in Cleveland because of Cook and his companion’s use of the deceased’s checkbook in financing their trip. Because of this the police were well aware of the importance of the checkbook as evidence. The police knew that the checkbook in this case could be as important evidence of a crime as a recently fired gun would be in another case. When the officers entered Cook’s hotel room, pursuant to an arrest warrant, they almost immediately noticed the checkbook on the dresser. The checkbook was in plain view, the police had a legal right to be in the hotel room, and they had more than probable cause to believe that this would be important evidence in an upcoming criminal case. I believe this satisfies the requirements for a plain view exception. See syl. pt. 6 of majority opinion.
During his trial the appellant attempted to call Mark Price to the stand to answer two questions on direct. Price, an alleged accomplice in the murder, whose appeal of a murder conviction was pending at the time of the appellant’s trial, had consented, against the advice of counsel, to answer two questions, as follows:
Question: While the jeep was parked at Hillcrest drive, at any time did Roy Frye say, “I think you are going to rob me?”
Answer: No.
Question: Did Theodore Cook at any time other than initially helping Roy Frye out of the jeep vehicle ever grab, hold onto, or any way restrain Roy Frye?
Answer: No.
(R. 1205).
Price’s attorney indicated that after answering these two questions Price would invoke his Fifth Amendment privilege against self incrimination and refuse to answer any further questions. The trial court sustained the prosecutor’s objection to the calling of Price as a witness because the denial of cross-examination would be unfair to the prosecution. (R. 1210). The trial court was correct in its decision.
Cross examination is the fundamental test of the reliability of testimony in our system of justice. 1 In order for a witness to be competent to testify on direct, that witness must be subject to cross-examination. Even criminal defendants may be cross-examined as any other witness. W.Va.Code § 57-3-6 (1966). The State has a right to cross-examine all defense witnesses. A witness who refuses to be cross-examined should not be allowed to testify See, e.g., People v. Carter, 96 Mich.App. 694 , 293 N.W.2d 681 (1980) (Defense witness who anticipated taking fifth amendment on cross-examination not allowed to testify.) If he has already testified and then refuses to answer pertinent questions in cross-examination, his direct testimony should be stricken. 5 Wigmore Evidence § 1391 (Chadbourn rev. 1974).
*201 The majority suggests that an in camera hearing would have been appropriate to determine the precise extent to which Price would testify. Although Price was not present, the court did conduct an in camera inquiry to the extent of Mr. Price’s testimony. The inquiry clearly indicated that the witness would not subject himself to cross-examination. Mr. Snyder, attorney for the defendant, indicated that, “[Mark Price] will answer two very limited questions that I will ask him relating to a specific point in time during this entire event, that at that point he will answer no other questions from me or no other questions for the prosecution or no other questions for anybody and will invoke his fifth amendment privilege.” (R. 1202). Mr. Snyder also indicated that, “the prosecution will probably not have, if things go according to the way they appear to be going, the opportunity to reasonably cross-examine this individual on any aspect of his testimony or any aspect of what interest or bias he might have in this case or anything.” (R. 1203). Miss Haight, attorney for Mark Price, indicated that he was testifying against her advice and “after the discussion with him, it is also my prediction that after those two areas Mr. Price would attempt to invoke the fifth amendment, not to answer any other questions beyond matters pertaining to the two matters Mr. Snyder has already spoken to.” (R. 1207). She also indicated that Mark Price would refuse to answer any other questions even if being threatened with contempt by the court. The prosecution in its argument noted that it indeed wanted to cross-examine Mr. Price as they would any other witness and drew attention to the particular difficulties with this witness. “In this particular defendant’s position the court has no hammer to make him testify. If the court were to order him to testify, this man already having been sentenced to life in prison without mercy, thirty days — or in jail if he perjures himself — is a big joke to him.” (R. 1210). The court, exercising its discretion, refused to allow Mark Price to testify, basing its ruling heavily on Mark Price’s attorney’s predictions:
Well, I heard Miss Haight, and I have great confidence in Miss Haight, not only in her ability but I have confidence in her integrity and it’s Miss Haight’s opinion that — although she didn’t say it — if I threatened him with contempt of court if he didn’t speak up, it was Miss Haight’s opinion that he would become recalcitrant and not cooperate. So I am going to sustain your objection Mr. Brown.
(R. 1210).
The scope of cross-examination is clearly a matter within the discretion of the trial judge. Evidence in Virginia and West Virginia § 30 (1954). It may have been possible, however unlikely given these facts, for a compromise to have been reached between the defendant’s interest in getting this evidence in and the prosecution’s right of cross-examination.
Unquestionably, such a compromise should be encouraged. The question before the Court, however, is who should bear the burden of proposing such a compromise. The majority opinion at page 16 appears to put this obligation upon the trial court: “Given the critical nature of each of these interests, however, the trial court was under a special obligation to seek an accommodation.” (Emphasis added.) The burden should not be on the trial judge to propose such a compromise. He did not talk to the witnesses and is unfamiliar with what they may testify to. Also, he is totally unaware of the special tactical problems that the defense may have. In this case it is probable that the defense did not want Mark Price as a witness if he was subject to cross-examination. Mr. Price was also accused of the murder. He would have been defending his own neck. If forced to further testify, he may well have accused Cook of delivering the fatal blow. Therefore, the judge’s efforts in trying to effect a compromise would have probably been futile.
A rule which requires the defense to proffer a suggestion of compromise would be subject to a more effective review upon appeal. This Court would have a record showing the compromise offer and the arguments in support thereof and objections *202 thereto along with the judge’s ruling. In the present case we are totally in the dark as to what possible compromises there may have been, if any.
For the above reasons, I would have affirmed the decision of the trial court.
. For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience.
Not even the abuses, the mishandlings, and the puerilities which are so often found associated with cross-examination have availed to nullify its value. It may be that in more than one sense it takes the place in our system which torture occupied in the medieval system of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine ever invented for the discovery of truth.
Striking illustrations of its power to expose inaccuracies and falsehoods are plentiful in our records; and it is apparent enough, in some of the great Continental trials, that the failures of justice could hardly have occurred under the practice of effective cross-examination. The special weakness of chancery procedure (which followed Continental traditions) lay in its obstacles to an effective cross-examination.
The praise of cross-examination and its efficacy as a fundamental test of truth have often been the subject of comment and exposition by our judges and jurists.
5 Wigmore Evidence § 1367 (Chadbourn rev. 1974).