State v. O'Donnell, 21143

• Decision Date: 22 July 1993
• Docket Number: No. 21143,21143
• Citation: 189 W.Va. 628,433 S.E.2d 566
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Charles Daniel O'DONNELL, Defendant Below, Appellant.

Page 566

433 S.E.2d 566

189 W.Va. 628

STATE of West Virginia, Plaintiff Below, Appellee, v. Charles Daniel O'DONNELL, Defendant Below, Appellant.

No. 21143.

Supreme Court of Appeals of West Virginia.

Submitted March 9, 1993.

Decided July 22, 1993.

Syllabus by the Court

1. " '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, State v. Frazier, 162 W.Va. 35, 253 S.E.2d 534 (1979), quoting, Syl. pt. 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894)." Syl. Pt. 1, State v. King, 173 W.Va. 164, 313 S.E.2d 440 (1984).

2. To be cumulative, newly-discovered evidence must not only tend to prove facts which were in evidence at the trial, but must be of the same kind of evidence as that produced at the trial to prove these facts. If it is of a different kind, though upon the same issue, or of the same kind on a different issue, the new evidence is not cumulative.

R. Thomas Czarnik, Princeton, for appellant.

Mario J. Palumbo, Atty. Gen., Marcella Gower, Asst. Atty. Gen., Charleston, for appellee.

WORKMAN, Chief Justice:

Charles Daniel O'Donnell appeals from a December 12, 1991, order of the Circuit Court of Summers County, West Virginia, denying Appellant's motion to set aside his conviction of the felonies of sexual assault of a spouse and two counts of aiding and abetting sexual assault in the second degree and for a new trial based upon the grounds of newly-discovered evidence. Finding that the circuit court erred in not granting the Appellant a new trial on the grounds of newly-discovered evidence, we reverse the decision of the circuit court and remand this case for entry of an order awarding a new trial to the Appellant.

On July 30, 1989, Appellant brought Colin T., a seventeen-year-old juvenile, and Tommy Martin home with him from a bar, ostensibly to obtain money for the purchase of additional alcohol. After arriving at his home, Appellant suggested to the two men that they engage in group sex with his wife. During a period of at least an hour, all three men had sexual intercourse of the varying kinds specified in West Virginia Code § 61-8B-6(a)(1) (1992), ¹ together or singly with Maureen O'Donnell, Appellant's wife. ² No one denied that the sexual acts occurred. Rather, the issues before the jury at trial were consent, forcible compulsion, and earnest resistance.

Following the completion of the sexual acts, Appellant drove Colin T. and Tommy Martin to their respective homes. Appellant testified that he left his home with these two men at approximately 2:05 a.m. Mrs. O'Donnell, wearing only a bathrobe and carrying the eldest of her two young children, arrived at the Hinton Police Station around 3:00 a.m. According to the police officers with whom she spoke, Mrs. O'Donnell was in such an emotional state that it took them quite some time to learn her name and her complaint. Ultimately, the police officers drove her to her home so she could collect her other child and then took her to the Summers County Hospital for examination. The examining physician found no signs of injury or force, except a bruise on Mrs. O'Donnell's neck. The emergency room record which was admitted in evidence bears the notation: "Old bruises all over the body." The examining nurse who made this notation testified at trial that Mrs. O'Donnell told her that "fresh bruises appeared on her body after the shower." ³ The nurse testified that she had observed these bruises "[o]ver the entire thigh areas."

Appellant was arrested at his home later that day on July 31, 1989. The arresting officers testified that at that time of the arrest the marital home was in the condition of "a normal, average American home[,]" typical of those occupied by two children. Following the arrest and incarceration of Appellant, Mrs. O'Donnell left Hinton, but gave the police permission to search the house. Despite Mrs. O'Donnell's testimony that her undergarments and the bedsheets were torn up as a result of the sexual events which occurred on July 30, 1989, the police were unable to locate any such items as a result of their search of the home.

At trial, Mrs. O'Donnell testified that she returned to the marital home on August 19, 1989. While she admitted removing various items from the house, she denied taking any letters or photographs from the house. On August 23, 1989, the investigator employed by the defense went to the house upon Appellant's instructions to secure photos and letters about group sex or "kinky" sex. The investigator testified that the house was in good order with "nothing ... really out of the ordinary." When the police returned to the house on August 24, 1989, they found it had been ransacked. A neighbor testified at trial that he saw Mrs. O'Donnell a "few days" prior to his talking with the investigator on August 25, 1989 in the company of other people removing grocery bags with "papers, envelopes, stuff like that." Mrs. O'Donnell denied removing any such items from the home.

Appellant was tried on charges of committing one count of sexual assault against his spouse in violation of West Virginia Code § 61-8B-6(b) ⁴ and two counts of aiding and abetting sexual assault in the second degree against his spouse in violation of West Virginia Code § 61-8B-4 (1992) ⁵ on January 23, 1990, through January 26, 1990. Following a jury finding of guilt on all three counts, Appellant was sentenced on May 9, 1991, ⁶ to the following: A two to ten-year prison term and fifteen hundred dollar fine on the count of sexual assault against his spouse; ten to twenty years and three thousand dollar fine on each of the counts of aiding and abetting sexual assault in the second degree against his spouse. The sentence for the aiding and abetting counts were ordered to run concurrently with each other and consecutively with the sexual assault against a spouse conviction.

While incarcerated in the Summers County Jail, Appellant received a letter postmarked July 7, 1991, from Maryland with no return address. The letter, bearing the temporal designation of "6-10-91," and purporting to be from Mrs. O'Donnell, read as follows:

"Danny,

Now it's over and there is nothing you can do about it. I told you long ago they're my kids. We had fun that night. It was the only way I would get away from you and West Virginia.

I 'sleep' where I want now. Maybe one, maybe with two, you will never know. It does not matter who you show this to, it will do you no good. You've been sentenced, and I don't think your appeal will work either.

So [I]n [sic] closing, just know that you will never see Ryan or Jerry again. Have a good life. I know I'm going to. You should have known no one would believe you without the pictures.

Goodbye forever!

Maureen Michele Murphy"

On August 23, 1991, Appellant filed a motion for a new trial relying on his receipt of the June 10, 1991, letter. Following an evidentiary hearing on November 22, 1991, the trial court denied Appellant's motion for a new trial. By order entered on December 12, 1991, the trial court found "that there is a strong probability that she [Mrs. O' Donnell] wrote the letter as testified to by the forensic handwriting experts of both the State and defendant." The trial court further found that such "evidence, if it is to be believed, would be cumulative on the issue of consent" and "that no one can find or verify that this newly discovered evidence is such that it ought to produce an opposite result at a second trial on the merits...." It is from the denial of his motion for a new trial that Appellant now complains.

The five-prong standard for granting a new trial on the ground of newly-discovered evidence was restated in syllabus point one of State v. King, 173 W.Va. 164, 313 S.E.2d 440 (1984):

'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, State v. Frazier, 162 W.Va. 35, 253 S.E.2d 534 (1979), quoting, Syl. pt. 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).

173 W.Va. at 164, 313 S.E.2d at 441.

The newly-discovered evidence at issue in this case is the June 10, 1991, letter that Appellant claims to have received while incarcerated. The authorship of the letter is not in substantial dispute, ⁷ as both parties' expert witnesses and even...