                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                            FILED
Plaintiff Below, Respondent
                                                                               October 20, 2017
                                                                                  RORY L. PERRY II, CLERK
vs) No. 16-0956 (Kanawha County 79-F-274)                                       SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Clyde Richey,

Defendant Below, Petitioner



                               MEMORANDUM DECISION
       Petitioner Clyde Richey, by counsel Wiley Newbold and Valena Beety, and Rule 10 law
students Bradley J. Wright and Michelle Schaller, appeals the order of the Circuit Court of
Kanawha County, entered on September 20, 2016, which denied his motion for a new trial and
motion for expedited relief. Respondent State of West Virginia appears by counsel Zachary
Aaron Viglianco.1

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        Petitioner, a former state legislator, was convicted following a jury trial in 1979 of third-
degree sexual assault after fourteen-year-old D.B. testified that petitioner anally penetrated him
in a hotel room while D.B. stayed in Charleston for service as a legislative page. D.B. reported
the assault to his mother when he returned home two days later. His mother took him to West
Virginia University Hospital where a doctor ordered, among other testing, a cytological smear to
detect the presence or absence of spermatozoa. Cytologists created a slide (“slide R1”) of the
cytological smear, but the State did not use slide R1 at trial. Trial testimony clarified that no
spermatozoa was detected in testing. Petitioner initially maintained that he learned of slide R1
approximately ten years after trial; however, after filing his brief with this Court, petitioner filed
an “addendum to correct factual inaccuracy” informing the Court that trial counsel was, in fact,
aware of slide R1.


       1
         Petitioner filed, on January 23, 2017, a motion for leave to supplement the record on
appeal with documents from the litigation of his prior petitions for writ of habeas corpus. We
find that those documents are unnecessary to our resolution of this appeal, and petitioner’s
motion is thus denied.


                                                  1

       Petitioner was sentenced to five years of probation, and that sentence has been
discharged; however, he is a registered sex offender. Petitioner appealed his conviction, and the
conviction was affirmed. State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982). Petitioner has
sought post-conviction relief in the Circuit Court of Kanawha County or before this Court on
multiple occasions, as set forth in State ex rel. Richey v. Hill, 216 W.Va. 155, 603 S.E.2d 177
(2004). In that matter, we denied petitioner’s original jurisdiction petition for a writ of
mandamus wherein he sought an order directing or permitting DNA testing on three pairs of the
victim’s underwear that were presented as evidence at trial.2 We explained that

       no one is “entitled to appeal upon appeal, attack upon attack, and habeas corpus
       upon habeas corpus.” Call v. McKenzie, 159 W.Va. 191, 194, 220 S.E.2d 665,
       669 (1975). Accord United States v. Quinones, 313 F.3d 49, 62 (2d Cir.2002)
       (finding no fundamental right to “the continued opportunity to exonerate oneself
       throughout the natural course of one’s life[.]”), cert. denied, 540 U.S. 1051, 124
       S.Ct. 807, 157 L.Ed.2d 702 (2003). Having thoroughly considered the merits of
       his claims, we agree that litigation must end sometime and “[t]hat time has come
       for Mr. [Richey].” United States v. Keane, 852 F.2d 199, 206 (7th Cir.1988).

Id. at 167, 603 S.E.2d at 189.

        Nevertheless, in 2005, petitioner filed a civil action in the Magistrate Court of
Monongalia County seeking to compel West Virginia University Hospital to produce slide R1,
and the magistrate court inexplicably ruled in his favor. Petitioner took custody of slide R1 more
than a decade ago, in 2006. At some point, he obtained independent genetic testing from a
Nevada-based laboratory of slide R1 using comparison material he collected himself (that is,
discarded diabetic testing strips and bloodied gauze). According to materials presented to us in
the appendix record on appeal, that testing confirmed that no spermatozoa was present on the
slide, but results indicated that petitioner “[could] not be excluded as a contributor” to genetic
material contained on the slide. Approximately eight years after taking possession of slide R1,
petitioner sought a second independent comparison (by the same provider) using new genetic
samples collected by a nurse. He represents that the second test indicates that he is excluded as a
contributor to any genetic material contained on slide R1, though slide R1 suggests other genetic
contributors. On this basis, petitioner filed, in the Circuit Court of Kanawha County, a motion to
vacate his conviction and for a new trial.

        The circuit court denied petitioner’s motions, first noting its concerns about the chain of
custody of slide R1 and the reliability of petitioner’s genetic samples. But the circuit court did
not rest its denial on those concerns. Rather, it found that slide R1 would not be admissible
because Rule 412 of the West Virginia Rules of Evidence prohibits evidence suggesting other
sexual activity by the victim. Because the State did not introduce evidence at trial concerning the
deposit of semen, the court reasoned, petitioner would be using slide R1 in an attempt to show
that D.B. engaged in sexual relations with an individual who was not petitioner. Further, the
court explained, evidence of semen deposit of some other origin is not exculpatory because D.B.

       2
       The State presented the testimony of a serologist, who found semen on two pairs of the
underwear, but was unable to identify the associated blood type.
                                                2

knew petitioner and testified that petitioner was his assailant. The circuit court considered the
factors under which a new trial would be granted as set forth in State v. Frazier, 162 W.Va. 935,
253 S.E.2d 534 (1979), and determined that slide R1 would not be admissible in a new trial
because its purpose is solely “to discredit or impeach a witness on the opposite side,” and
because petitioner had not been diligent in pursuing this claim. Finally, the circuit court noted
that it previously, in a 1998 order, found this issue barred by res judicata.

        On appeal, petitioner asserts three assignments of error. First, he argues that the circuit
court erred by “ignor[ing] this Court’s holding in [State v.] Timothy C.[, 237 W.Va. 435, 787
S.E.2d 888 (2016)] and [finding] that newly-discovered, exculpatory DNA evidence which
clearly falls within the delineated exceptions set forth in the Rape Shield Rule, would be
excluded by the Rape Shield Rule.” Next, he argues that the circuit court “erred in finding that
petitioner is barred by his res judicata from presenting newly-discovered evidence when no
previous court has ever considered this evidence.” Finally, he argues that the circuit court erred
in misapplying the test set forth in the syllabus of State v. Frazier, 162 W.Va. 935, 253 S.E.2d
534 (1979), when it considered whether he was entitled to a new trial based on newly-discovered
evidence.3

         We have explained the standard of review applicable to the denial of a motion for new
trial, as follows:

       “‘“Although the ruling of a trial court in granting or denying a motion for a new
       trial is entitled to great respect and weight, the trial court’s ruling will be reversed
       on appeal when it is clear that the trial court has acted under some
       misapprehension of the law or the evidence.” Syl. pt. 4, Sanders v. Georgia–
       Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).’ Syllabus point 1, Andrews



       3
           The syllabus of Frazier explains:

       “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).

162 W.Va. at 935, 253 S.E.2d at 534.

                                                  3

       v. Reynolds Memorial Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).”
       Syl. Pt. 1, Lively v. Rufus, 207 W.Va. 436, 533 S.E.2d 662 (2000).

Syl. Pt. 2, State v. Blevins, 231 W. Va. 135, 140, 744 S.E.2d 245, 250 (2013).

        The circuit court acted under no misapprehension of the law when denying petitioner’s
motion for a new trial and, if it acted under a misapprehension of the evidence, the error was one
that served petitioner. The circuit court proceeded to consider whether the “newly-discovered
evidence”—that is, slide R1—required a new trial under the factors set forth in Frazier.
However, as we now know, petitioner did not take possession of newly-discovered evidence
when he obtained slide R1. Instead, he acquired an object that was known to his trial counsel
nearly forty years ago, prior to petitioner’s trial.4 “[E]vidence . . . within the defendant’s
knowledge prior to trial . . . does not qualify as newly[-]discovered evidence.” State v. King, 173
W.Va. 164, 166, 313 S.E.2d 440, 443 (1984) citing State v. Milam, 159 W.Va. 691, 701, 226
S.E.2d 433, 440 (1976). Because all three of petitioner’s assignments of error address the circuit
court’s treatment of “newly-discovered evidence,” we find that all are without merit.5

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: October 20, 2017

CONCURRED IN BY:

Chief Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




       4
         To the extent petitioner argues that DNA test results, rather than slide R1, constitute
newly-discovered evidence, we note that petitioner has shown no prior reticence in seeking court
orders that would require the testing of DNA evidence. See State ex rel. Richey v. Hill, 216
W.Va. 155, 603 S.E.2d 177 (2004). Petitioner has long been aware of slide R1 and the potential
for DNA thereon.
       5
          The circuit court’s order denying petitioner’s motion for a new trial was thorough and
well-reasoned, and our concise dispensation of this matter implies no criticism of that court’s
analysis. Rather, our directness is a reinforcement of our earlier pronouncement that the litigation
of this matter is past its end. State ex rel. Richey v. Hill, 216 W.Va. 155, 167, 603 S.E.2d 177,
189 (2004). There is no newly-discovered evidence, and there is simply no need for the
examination to proceed.
                                                 4

