STATE of West Virginia EX REL. Scott R. SMITH, Prosecuting Attorney, Petitioner v. The Honorable David J. SIMS, Judge of the Circuit Court of Ohio County; and Dallas Michael Acoff, Respondents

A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side. Syllabus Point 1, Halstead v. Horton , 38 W.Va. 727, 18 S.E. 953 (1894).

Syl., State v. Frazier , 162 W.Va. 935, 253 S.E.2d 534 (1979).

This Court affords trial judges a wide range of discretion in determining whether newly-discovered evidence warrants the grant of a new trial. This deference is due, in part, to the superior position the trial judge holds when assessing the credibility of the new evidence, an essential component of the determination of whether the evidence would make a different result on retrial probable. State v. Pinder , 114 P.3d 551, 565 (Utah 2005).

In the present case, the trial court articulated the prongs of the Frazier test and then meticulously applied them to the facts before it. Petitioner contends, nevertheless, that the trial court erred when it granted the Defendant a new trial on the ground of newly-discovered evidence in the form of Mr. Banks testimony. Specifically, Petitioner asserts the trial court erred when it concluded the Defendant satisfied the second and fourth Frazier factors. We address each of these arguments in turn.

With regard to the second Frazier factor, Petitioner asserts the trial court erred when it concluded the Defendant was diligent in his attempts to secure Mr. Banks trial attendance. Petitioner argues that the Defendant knew Mr. Banks could have been contacted at his sisters address: 9200 Denison Avenue, Cleveland, Ohio, as this was the address provided to the Defendant in the States initial discovery disclosure, four months before trial.

Petitioners argument is unimpressive. He ignores the uncontested fact that the Defendants trial counsel, Mr. Sheehan, was notified by the police and/or the assistant prosecutor-after the States initial discovery disclosure-that the police did not know the whereabouts of Mr. Banks. The trial court found that the Defendant could not have reasonably secured the presence of Mr. Banks at trial in light of the foregoing:

a. Sheehan listed Banks as a witness albeit with an unknown address in Defendants discovery disclosure; he indicated an unknown address after he had been notified by detectives and/or counsel for the State in August, 2016, that Banks whereabouts were then presently unknown. Stated otherwise, the defense intended, at least preliminarily, to employ Banks as a witness, but perceived itself as incapable of identifying his whereabouts based upon representations by the prosecution.

b. Banks was affirmatively avoiding being found by anyone given his stated fear that someone would be coming after him.

c. Banks did not have a legal residence at 9200 Denison Avenue, Cleveland, Ohio, his sisters address, and stayed there only infrequently.

d. Banks bounced around from place to place and had no identifiable address.

e. Banks was, for a period of time, actually homeless and had received assistance from his probation officer in getting placement in a homeless shelter somewhere in Cleveland.

f. Sheehan continued to make efforts to locate Banks, including interviewing third parties ... who he believed might have been able to provide him with information or leads as to Banks whereabouts.

g. Sheehan called and texted the phone number he believed to have been Banks number, although his calls went unanswered and his texts not responded to.

h. Sheehan forwarded information he had received from Cordell Coleman [the brother of Lemroy Coleman] to the effect that Banks was located near 99th and Denison in Cleveland to Burgoyne [the Defendants investigator]. Burgoyne deemed such vague information insufficient for purposes of commencing an investigation into Banks whereabouts.

Consequently, the Defendant satisfied the reasonable diligence prong of Frazier . Moreover, while this determination is a mandatory component of Frazier , the trial courts primary focus was properly on the significance and impact of the newly discovered evidence, not upon the failings of counsel or whether counsels lack of diligence was so unjustifiable that it fell below constitutional standards. If consideration of the newly discovered evidence is essential to a fair trial and a just verdict, the court should be able to grant a new trial without condemning trial counsel as constitutionally ineffective. People v. Soojian , 190 Cal.App.4th 491, 118 Cal.Rptr.3d 435, 454 (2010).

With regard to the fourth Frazier factor, Petitioner contends the trial court erred when it concluded that Mr. Banks testimony would likely have produced a different result at a second trial. Petitioner relies on the video surveillance footage of the shooting, the Defendants admission to shooting at the victims, and the fact that Mr. Coleman died from a bullet that entered from an elevated position which would be consistent with the Defendant firing from the stairs of the Legion. Petitioner also attacks the credibility of Mr. Banks, a twice-convicted felon, who was on probation at the time of the shooting.

Petitioners argument is not persuasive for several reasons. First of all, credibility determinations are for the trial court, not this Court. The decision whether, and to what extent, to credit the testimony of Mr. Banks and Mr. Saunders was within the peculiar competence of the trial court, who has seen and heard them testify. Second, Petitioner fails to address the fact that the police found a bullet matched to the one found in Mr. Colemans body on the ground next to him, fifteen feet up Lane E and around the corner from where the Defendant fired shots. Thus, the crime scene evidence substantiates Mr. Banks testimony that a second shooter was in Lane E. Third, Petitioner fails to undermine in any meaningful fashion the fundamental basis for the trial courts ruling: Mr. Banks testimony identifying Mr. Saunders as the perpetrator of these crimes goes to the very essence of the Defendants guilt or innocence on the charges at issue. If the jury has the benefit of Mr. Banks testimony, it is likely that a different result will be reached on retrial. Consequently, although a new trial on the ground of newly-discovered evidence is very seldom granted this case epitomizes such an extraordinary circumstance. Syl. Pt. 9, in part, State v. Hamric , 151 W.Va. 1, 151 S.E.2d 252 (1966).

For that reason, Petitioner has not shown the existence of clear error as a matter of law[.] Syl. Pt. 4, in part, Hoover , 199 W.Va. at 14-15, 483 S.E.2d at 14-15. Ultimately, the decision to grant a new trial based on newly discovered evidence was within the sound discretion of the trial court. Because a writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court, we conclude that the writ of prohibition sought by Petitioner will not issue.

Finally, a new trial is warranted in the interest of justice. Those entrusted with the responsibility of representing the State at criminal proceedings must never forget their fundamental obligation is not to convict but to see that justice is done. If fairness and justice are forgotten in the pursuit of a guilty verdict, the integrity and authority of our criminal justice system is challenged. State v. Goode , 278 N.J.Super. 85, 650 A.2d 393, 397 (1994). The United States Supreme Court has declared:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. U.S. , 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). The same holds true for the prosecuting attorneys of this State. Syl. Pt. 3, State v. Boyd , 160 W.Va. 234, 233 S.E.2d 710 (1977).

Therefore, a new trial must be awarded to see that justice is served by securing a lawful conviction. Obviously, if the Defendant was wrongfully convicted of second-degree murder and malicious wounding, the real perpetrator remains free to victimize again. At stake is the very integrity of the criminal justice system and our trial courts ability to conduct fair trials.

IV. CONCLUSION

For the reasons stated above, this Court denies the writ of prohibition sought by Petitioner to prevent the Circuit Court of Ohio County from enforcing its December 21, 2017, order.

Writ denied.

JUSTICE LOUGHRY dissents and reserves the right to file a dissenting opinion.

JUSTICE WALKER dissents and reserves the right to file a dissenting opinion.

See also State ex rel. Smith v. McBride , 224 W.Va. 196, 206, 681 S.E.2d 81, 91 (2009) (recognizing trial court has discretion to determine credibility of new evidence). For instance, this Court has indicated, with respect to a newly-discovered confession, that

[n]o one would doubt that a confession by another person to the crime, if discovered after trial, could be a ground for a new trial on the basis of newly discovered evidence. A confession by another person, however, does not invariably require a new trial; the integrity of the confession is for the trial court.

State v. King , 173 W.Va. 164, 165, 313 S.E.2d 440, 442 (1984).

Although Petitioner relies heavily on the surveillance footage, the video shows no clear evidence that either victim was struck by the Defendants gunfire. Both men were able to run from the scene without any obvious physical impairment.

See Syl. Pt. 2, State ex rel. Peacher v. Sencindiver , 160 W.Va. 314, 233 S.E.2d 425 (1977) (A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va. Code, 53-1-1.).

See King , 173 W.Va. at 165, 313 S.E.2d at 442 (Only when all the [Frazier ] requirements have been satisfied is a new trial warranted in the interests of justice.).

Loughry, J., dissenting:

While including unnecessary hyperbole and unsupported accusations against the prosecuting attorney, the majority pays mere lip service to the controlling law in this matter. Under the well-established test for obtaining a re-trial based upon newly discovered evidence, the moving party has the burden of showing, inter alia, that he was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict and that the evidence ought to produce an opposite result at a second trial on the merits. Syl., in part, State v. Frazier , 162 W.Va. 935, 253 S.E.2d 534 (1979) (citation omitted). The defendant has failed to meet this burden. Accordingly, he is not entitled to a new trial. See Anstey v. Ballard , 237 W.Va. 411, 422, 787 S.E.2d 864, 875 (2016) (stating that all Frazier factors must be proven for award of new trial).

The purported new evidence in this case is the testimony of Mr. Banks, who claims that as he and Mr. Coleman were running away from their shootout with the defendant outside of the American Legion bar, they immediately happened upon a second, unrelated, shooter in a nearby alley, and that this other shooter is the person who inflicted the fatal gunshot wound to Mr. Coleman. Setting aside the seeming absurdity of Mr. Bankss claim for a moment, it is clear that the defense could have secured this information before the trial.

Indeed, Mr. Bankss presence at the crime scene was known to both the prosecution and defense counsel from the beginning of this case, and he was included on each sides witness list. Ten days after the indictment was returned against the defendant, the State provided the defense with a valid address in Cleveland, Ohio, where Mr. Banks could be reached. Although defense counsel reportedly believed that the address was incorrect and that Mr. Banks did not wish to be found, the defense team never actually tried to contact Mr. Banks at this location. The defense lawyers never sent any letters to the address, never visited nor tried to telephone any occupants of this address, and never attempted to have a subpoena served upon Mr. Banks at this address. Moreover, the defense team had retained the services of a private investigator, yet never directed the investigator to visit the address or otherwise take steps to locate Mr. Banks. The defense even received, in discovery, a criminal background report on Mr. Banks that included information that could have been used to contact him, but this information was not pursued, either. According to the testimony presented during the hearing on the motion for a new trial, the only affirmative action that defense counsel took to contact Mr. Banks was to send a text message to a telephone number obtained from one of Mr. Bankss acquaintances. It is abundantly clear to me that if the defense team had exercised due diligence, they could have located Mr. Banks before trial.

Critically, it is also unlikely that this so-called newly discovered evidence would have produced an opposite result at trial. The States evidence included footage from video security cameras showing the defendant firing a handgun at Mr. Coleman and Mr. Banks while the defendant was standing on an elevated position on the steps of the American Legion bar. Although Mr. Coleman was able to flee the scene, he was found, lying with a gunshot wound, in the vicinity of the American Legion bar. Mr. Coleman died later that night, and the State presented uncontested expert testimony that the fatal wound was inflicted from a bullet that entered the left side of his abdomen and continued laterally and downward to the right pelvis area. This trajectory is consistent with having been shot from a gun held by a shooter standing at a position above the victim, as the defendant had done. Further, although a police officer testified that Mr. Banks gave a [w]hole bunch of different stories about what had transpired on the night in question, Mr. Banks never told police that the third person, Mr. Saunders, was the shooter. And, Mr. Saunders has denied any involvement. Finally, as to shell casings found in the alley, the State elicited testimony that those casings were in a weathered condition, indicating they had been in the alley well before the murder occurred. In short, the defendants newly-discovered evidence is wholly contradicted and not likely to lead to a different outcome at trial.

Regarding the majoritys unfounded implication that the prosecuting attorney somehow violated her obligation to ensure that justice was done, the majority does little more than make generalized statements about Brady v. Maryland and Berger v. United States . Notably absent is any explanation concerning how the prosecutor supposedly ran afoul of the law of these cases. There is no suggestion that the prosecutor knew, but failed to disclose, that Mr. Banks would accuse Mr. Saunders of being the shooter. Furthermore, the record establishes that the State timely provided the defense with an accurate address for Mr. Banks. Although one of the defense lawyers testified that he came to doubt whether Mr. Banks lived at that address, he never accused the State or any police officer of knowingly providing false information. Finally, the State was under no obligation to call Mr. Banks as a witness. The majoritys insinuations about prosecutorial misconduct, and lofty talk about the very integrity of the criminal justice system being at stake in this post-trial proceeding, do little to obfuscate the defendants failure to prove an entitlement to a new trial.

Based upon my review of this matter, I am left with the firm conviction that the trial court exceeded its authority when granting the defendant a new trial. The jurys verdict in this matter should stand. Because I would grant the States petition for prohibition, I respectfully dissent.

State v. Pinder , 114 P.3d 551, 565 (Utah 2005).

WALKER, J., dissenting:

(Filed June 4, 2018)

Though I agree with the points made by Justice Loughry in his dissent, I write separately to identify two additional critical flaws with the majoritys rationale.

First, the majority opinion incorrectly states, [t]his Court affords trial judges a wide range of discretion in determining whether newly-discovered evidence warrants the grant of a new trial. The majority fails to identify any West Virginia law or precedent to support this statement, citing instead only a nonbinding opinion from another state and an opinion from this Court that generally recognizes that trial courts have discretion. To the contrary, in State v. Frazier this Court set forth particular elements that a defendant must prove before a new trial may be granted. In the absence of those elements, granting a new trial is an abuse of discretion-no matter how wide. And, as Justice Loughrys dissent accurately notes, those elements were not satisfied here. To the extent the majority relies on this so-called wide range of discretion in awarding the Defendant a new trial, it is a misstatement of this Courts precedent and an improper consideration.

Second, the majority summarily dismisses the States argument that the trial court erred in concluding that the Defendant diligently attempted to secure Mr. Bankss testimony at trial and effectively imparts a duty on the prosecutor to actively locate witnesses for the defense. The majority considers only one of the States arguments on this matter-that the Defendant knew Mr. Banks could have been contacted at his sisters address because the State provided it to the Defendant in its initial discovery disclosure. The majority altogether fails to acknowledge that the Defendant never attempted to contact Mr. Banks at the location provided by the State. As Justice Loughry points out in his dissent, the only affirmative action that defense counsel took to contact Mr. Banks was to send a text message to a telephone number obtained from one of Mr. Bankss acquaintances. Further, the Defendant did not move to continue the trial to attempt to find Mr. Banks, but instead chose to proceed without his testimony.

Despite referring to it as a mandatory component of Frazier , the majority pays only lip service to what it calls the reasonable diligence prong then guts it of this purpose entirely-once again citing only a nonbinding opinion from another jurisdiction. The majority inaccurately states that the trial courts primary focus was properly on the significance and impact of the newly discovered evidence, not upon the failings of counsel or whether counsels lack of diligence was so unjustifiable it fell below constitutional standards. To conclude as much is to essentially remove this mandatory consideration altogether and give the green light for a new trial every time a witnesss testimony cannot be secured even where-as in this case-no meaningful action is taken to secure it.

So, I would grant the States petition for prohibition and, therefore, I respectfully dissent.

The address was for the home of Mr. Bankss sister. During the hearing on the motion for a new trial, Mr. Banks agreed that this was his home base, the closest thing he had to a home address, and that he could easily be contacted at this address. In fact, he admitted receiving mail about this same case that was sent to the address.

State ex rel. Smith v. McBride , 224 W. Va. 196, 206, 681 S.E.2d 81, 91 (2009).

Syl., State v. Frazier , 162 W. Va. 935, 253 S.E.2d 534 (1979).

People v. Soojian , 118 Cal. Rptr. 3d 435, 454 (Cal.App.Ct. 2010).