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State ex rel. Smith v. Sims

Supreme Court of West Virginia

May 18, 2018


          Submitted: April 10, 2018


          Patrick Morrisey, Esq. Attorney General Gordon L. Mowen, II, Esq. Assistant Attorney General Charleston, West Virginia Counsel for Petitioner

          Robert G. McCoid, Esq. McCamic, Sacco, & McCoid PLLC Wheeling, West Virginia Counsel for Respondent Dallas Michael Acoff

          CHIEF JUSTICE WORKMAN delivered the Opinion of the Court. JUSTICE LOUGHRY dissents and reserves the right to file a dissenting opinion. JUSTICE WALKER dissents and reserves the right to file a dissenting opinion.


         1. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

         2. "'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).

          WORKMAN, C. J.

         Petitioner Scott R. Smith, Prosecuting Attorney for Ohio County, West Virginia, brings this matter under the original jurisdiction of this Court. Petitioner seeks a writ of prohibition against Respondent The Honorable David J. Sims, Judge of the Circuit Court of Ohio County, to prevent the trial court from enforcing its order vacating Respondent Dallas Michael Acoff s (the "Defendant") convictions for the second-degree murder of Lemroy Coleman and the malicious wounding of Norman Banks, and granting a new trial based on newly-discovered evidence. Petitioner argues that the trial court erred in finding that the Defendant was diligent in his efforts to secure the trial attendance of Mr. Banks and that Mr. Banks' subsequent testimony exonerating the Defendant would have produced a different outcome at trial.

         Upon review, we find this case represents an extraordinary circumstance where a victim and eyewitness to a homicide, who did not testify at trial, subsequently offered testimony exonerating the Defendant. After conducting an evidentiary hearing on the matter, the trial court found that justice demands that the Defendant be awarded a new trial. Because this decision was within its sound discretion, we deny the writ.

         I. BACKGROUND

         During the late evening hours of October 9, 2015, gunfire was exchanged outside the American Legion bar (the "Legion") in Wheeling, West Virginia. Lemroy Coleman was shot in the abdomen and died. His friend, Norman Banks, was shot in the leg.

         The Legion is located in a high crime area. It is equipped with multiple surveillance cameras (inside and outside) that captured footage of the events. The videos show that Mr. Coleman and Mr. Banks were inside the Legion and they left shortly after the Defendant arrived. The Defendant followed them out and began firing gunshots at them from the stairs of the Legion. When Mr. Coleman returned gunfire, the Defendant retreated inside the Legion. Mr. Coleman and Mr. Banks sprinted toward an alley known as "Lane E, " that runs perpendicular to Fifteenth Street. After he was shot, Mr. Banks was able to run to the police station at Fifteenth and Chapline Street to summon help. Before entering the station, Mr. Banks tossed his own firearm in the bushes in front of the police station. He told police that "somebody shot me in the alley. I think they killed him. Go help him before you help me. Help him first, because I think they killed him." The police found Mr. Coleman mortally wounded in Lane E.

         Mr. Banks was taken to an area hospital for treatment. The police never obtained a written or recorded statement from Mr. Banks. After he was released from the hospital, Mr. Banks returned to Cleveland, Ohio, to his sister's residence. As explained more fully below, neither the State nor the Defendant secured his attendance at trial.

         The Defendant was indicted on multiple charges. Related to this proceeding, he was indicted on first-degree murder and malicious assault. The trial was held in September 2016. The Defendant testified, admitted firing shots at Mr. Coleman and Mr. Banks, and claimed he did so in self-defense. The critical factual dispute was whether the victims were shot by the Defendant directly outside the Legion on Fifteenth Street or whether they were shot moments later by a second shooter after they fled into Lane E. The Defendant's theory of a second shooter in Lane E was established circumstantially at trial.[1]The State listed Mr. Banks as a potential witness but, remarkably, he was not called to testify.

         There was no evidence of blood droplets, blood splatter, or a blood trail on Fifteenth Street in front of the Legion leading into Lane E. Nevertheless, the State maintained that the Defendant's guilt was established by his admission that he fired shots at the victims, as well as the video surveillance of the shooting. Moreover, the medical examiner's finding that the bullet entered Mr. Coleman's abdomen at an elevated angle was consistent with the Defendant having shot him from an elevated position (the stairs of the Legion). Following a four-day jury trial, the Defendant was found guilty of the second-degree murder of Mr. Coleman and the malicious wounding of Mr. Banks. He was also convicted of three counts of wanton endangerment, not at issue here.

          Prior to trial, prosecutors mailed a document to Mr. Banks, via United States Mail, at his sister's address, 9200 Denison Avenue in Cleveland. Mr. Banks' sister took a picture of the document with her phone and sent it to him via text message. The trial court noted that it was unclear what this document was because no copy was introduced. Nevertheless, after receiving her text, Mr. Banks believed the document requested his presence at trial. He called a detective and expressed his reluctance to appear. The detective told Mr. Banks that the issue of his trial attendance was up to the prosecuting attorney. Apparently, in response to that conversation, Mr. Banks called the Ohio County Prosecutor's office. Mr. Banks said he was told by a woman answering the phone that the prosecutor was too busy to speak; she asked if he could call back at another time. Mr. Banks did not initiate further contact with the prosecutor's office and it took no steps to enforce a valid subpoena. At trial, the Defendant objected to moving forward without the testimony of Mr. Banks but this objection was overruled.[2]

         Following his convictions, the Defendant filed a motion for a judgment of acquittal and a motion for a new trial in December 2016, which the trial court denied. With newly appointed counsel, the Defendant filed a renewed motion for a new trial in June 2017, asserting that he had newly discovered evidence. He located Mr. Banks, who was at that time incarcerated in Ohio. The Defendant stated Mr. Banks would exonerate him because Mr. Banks claimed that Jerome Saunders shot him and Mr. Coleman in Lane E.

         In August 2017, the trial court conducted an evidentiary hearing on the Defendant's motion for a new trial. The trial court heard testimony from several witnesses including Mr. Banks, Mr. Saunders, and the Defendant's trial counsel, Martin Sheehan. Mr. Banks (who knows Mr. Saunders) testified unequivocally that Mr. Saunders shot him and Mr. Coleman shortly after they entered Lane E. Mr. Banks observed Mr. Coleman fall to the ground immediately upon being shot by Mr. Saunders. Mr. Banks turned to run and was immediately struck by gunfire. Mr. Banks heard three or four gunshots while fleeing the alley. Mr. Banks further testified that, although he could always be reached at his sister's address, he often did not reside there and did not want to testify at trial. Mr. Banks stated he "bounced" from place to place and, at some point, lived in a homeless shelter.

         Mr. Saunders testified and denied shooting the men. He claimed to not even be in the area that evening but the trial court noted his testimony was refuted by at least two witnesses who saw Mr. Saunders in the area that night.

         After reviewing the newly discovered evidence at the evidentiary hearing, and comparing it to the trial evidence, the trial court granted the Defendant's motion for a new trial and vacated his convictions for second-degree murder and malicious wounding. The trial court made extensive findings of fact along with credibility determinations.

         As outlined more fully below, the trial court made numerous findings concerning the Defendant's attempts to locate Mr. Banks. It concluded that he made diligent efforts under the circumstances to locate Mr. Banks, interview him, and secure his attendance at trial. The trial court also chastised the State for failing to make any lawful attempt to secure the attendance of Mr. Banks at the trial and reminded the prosecutor that ...

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