          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 


                                 January 2018 Term
                                                                           FILED 

                                                                         May 18, 2018 

                                    No. 18-0034                            released at 3:00 p.m.
                                                                       EDYTHE NASH GAISER, CLERK

                                                                       SUPREME COURT OF APPEALS

                                                                            OF WEST VIRGINIA




                     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. 




                     PETITION FOR WRIT OF PROHIBITION 


                                   WRIT DENIED 



                              Submitted: April 10, 2018
                                Filed: May 18, 2018


Patrick Morrisey, Esq.                         Robert G. McCoid, Esq.
Attorney General                               McCamic, Sacco, & McCoid PLLC
Gordon L. Mowen, II, Esq.                      Wheeling, West Virginia
Assistant Attorney General                     Counsel for Respondent
Charleston, West Virginia                      Dallas Michael Acoff
Counsel for Petitioner


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.

                              SYLLABUS BY THE COURT 



              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,


                                               i
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). 





                                             ii 

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




                                              1

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.




                                             2

               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.




           1
        The Defendant testified that he saw a female running out of Lane E. He also called
a witness who observed a “commotion” from a group of people there.
                                             3

              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


       2
          The Defendant did not argue a Brady violation because it was not clear at that time
whether Mr. Banks’ testimony would prove exculpatory. See Brady v. Maryland, 373 U.S.
83 (1963). We note that prosecutors have an affirmative duty “to disclose [Brady] evidence
. . . even though there has been no request [for the evidence] by the accused,” which may
include evidence known only to police. Strickler v. Greene, 527 U.S. 263, 280 (1999). To
comply with Brady, prosecutors must “learn of any favorable evidence known to the others
acting on the government’s behalf . . . , including the police.” Strickler, 527 U.S. at 281
(internal quotation marks and citation omitted).
                                              4

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




                                              5

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

it was his duty to seek justice, not convictions. Nicholas v. Sammons, 178 W.Va. 631, 632,

363 S.E.2d 516, 518 (1987).



              The trial court found Mr. Banks’ testimony “highly credible and consistent

with the physical evidence introduced at the trial in this matter.” In contrast, it found Mr.

Saunders not credible. The trial court noted that Mr. Banks was the only witness to have

testified at any point in the proceedings as to the identity of his and Mr. Coleman’s shooter.

Moreover, Mr. Banks’ testimony served to explain several pieces of physical evidence that

were unexplained at trial. For instance, police found a smashed bullet fired from the same

gun that killed Mr. Coleman next to him in Lane E. This bullet was found around the




                                              6

corner from where the Defendant stood when he fired shots from the Legion’s stairs on

Fifteenth Street.3



              The trial court ultimately concluded “it is more likely than not” that the

Defendant did not shoot Mr. Coleman and Mr. Banks on October 9, 2015, and “more likely

than not” that Mr. Saunders shot them. The trial court declared “[t]he interests of justice

demand that the testimony of Norman Banks be heard and considered by a fair and

impartial jury in this matter.”



              The trial court scheduled the new trial for March 2018. On January 19, 2018,

Petitioner filed a writ of prohibition seeking to prohibit the trial court from enforcing its

order vacating the Defendant’s convictions and granting a new trial. This Court stayed

proceedings in the underlying criminal case and heard argument in this matter.



                              II. STANDARD OF REVIEW

              Petitioner comes before this Court praying for a writ of prohibition. In doing

so, Petitioner does not assert an absence of jurisdiction. Instead, he argues that the trial

court abused its discretion in granting a new trial thereby depriving the State of a valid

conviction. Our law is well established that

                     [i]n determining whether to entertain and issue the writ
              of prohibition for cases not involving an absence of jurisdiction

       3
        The round that killed Mr. Coleman was identified at trial as a “low velocity” 9 mm
round. The shell casing that was recovered from the area where the Defendant was shooting
was from a “high velocity” 9 mm round.
                                               7

             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). With this

standard to guide us, we will now consider the issue before us.



                                    III. DISCUSSION

             The sole issue is whether prohibition lies to prevent the trial court from

enforcing its order that vacated the Defendant’s convictions of second-degree murder and

malicious wounding and granted his motion for a new trial. This Court has held that:

                    “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

                                              8

              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).4



              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,



       4
        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).
                                               9

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. Bank’s

trial attendance. Petitioner argues that the Defendant knew Mr. Banks could have been

contacted at his sister’s address: 9200 Denison Avenue, Cleveland, Ohio, as this was the

address provided to the Defendant in the State’s initial discovery disclosure, four months

before trial.



                Petitioner’s argument is unimpressive. He ignores the uncontested fact that

the Defendant’s trial counsel, Mr. Sheehan, was notified by the police and/or the assistant

prosecutor—after the State’s 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 Defendant’s 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.

                                              10 

                     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 sister’s 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 Defendant’s 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 court’s

primary focus was properly on the significance and impact of the newly discovered

evidence, not upon the failings of counsel or whether counsel’s lack of diligence was so


                                           11 

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, 118 Cal. Rptr. 3d 435, 454 (Cal.App.Ct. 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 Defendant’s 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.



              Petitioner’s 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. Coleman’s 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 court’s ruling: Mr.

                                              12 

Banks’ testimony identifying Mr. Saunders as the perpetrator of these crimes goes to the

very essence of the Defendant’s 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. 5 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.6



              Finally, a new trial is warranted in the interest of justice.7 Those entrusted

with the responsibility of representing the State at criminal proceedings must never forget


       5
         Although Petitioner relies heavily on the surveillance footage, the video shows no
clear evidence that either victim was struck by the Defendant’s gunfire. Both men were
able to run from the scene without any obvious physical impairment.
       6
         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.”).
       7
        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.”).
                                              13 

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, 650 A.2d 393, 397

(N.J.Super.App.Div. 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 (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.




                                               14 

                                   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.




                                             15 

