State v. Helmick

• Decision Date: 03 October 1997
• Docket Number: No. 23785,23785
• Citation: 201 W.Va. 163,495 S.E.2d 262
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Appellee, v. Brian HELMICK, Appellant.

Page 262

495 S.E.2d 262

201 W.Va. 163

STATE of West Virginia, Appellee, v. Brian HELMICK, Appellant.

No. 23785.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 10, 1997.

Decided Oct. 3, 1997.

[201 W.Va. 165] 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)." Syllabus Point 1, State v. O'Donnell, 189 W.Va. 628, 433 S.E.2d 566 (1993).

2. "A new trial on the ground of after-discovered evidence or newly discovered evidence is very seldom granted and the circumstances must be unusual or special." Syllabus Point 9, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).

3. Under Rule 801(d)(2)(E) of the West Virginia Rules of Evidence, a declaration of a conspirator, made subsequent to the actual commission of the crime, may be admissible against any co-conspirator if it was made while the conspirators were still concerned with the concealment of their criminal conduct or their identity.

4. An error in admitting hearsay evidence is harmless where the same fact is proved by an eyewitness or other evidence clearly establishes the defendant's guilt.

James E. Hawkins, Jr., Buckhannon, for the Appellant.

Darrell V. McGraw, Jr., Attorney General, Molly M. McGinley, Assistant Attorney General, Charleston, for the Appellee.

MAYNARD, Justice:

The defendant below, appellant, Brian Helmick, was charged with conspiracy to commit murder in the October 23, 1994 shooting death of Michael W. Hart, Jr. Following a jury trial on April 3 to April 5, 1995 in the Circuit Court of Harrison County, West Virginia, the defendant was found guilty and sentenced to a prison term of one to five years. On appeal to this Court, the defendant assigned three errors seeking reversal of his conviction. For the reasons that follow, we affirm the conviction.

I. FACTS

Shortly before midnight on Sunday, October 23, 1994 in Clarksburg, West Virginia, Michael W. Hart, Jr. was killed as a result of a shotgun blast to his back. When police arrived a few minutes after the shooting, they found Hart lying in the road in front of the SuperAmerica convenience store, where he worked. As a result of the ensuing police investigation, the defendant, Brian Helmick, Lee Allen and Jason Henthorne were charged with conspiracy to commit murder in Hart's death. Counsel for the co-defendants moved for, and the circuit court granted, separate trials for each of the co-defendants.

At the defendant's April 1995 trial, the State offered six witnesses. Relevant to this appeal, one of the witnesses, Charlene Foster, testified that about one week to ten days prior to Hart's shooting, the defendant Helmick, Allen, and Henthorne were together at her apartment. According to Foster, the three talked about how they hated Hart, ultimately formulating a plan in which they would hide behind a fence surrounding the SuperAmerica where Hart worked and shoot him in the back when he came out to check the soft drinks. Foster testified that the defendant and Henthorne left her apartment to telephone SuperAmerica to see if Hart was working that night. When it was discovered that Hart was not working, the alleged plan of the three to shoot Hart was temporarily foiled.

Another witness, John Goots, testified, over the objection of defense counsel, to the acrimonious relationship between Henthorne and Hart. He also testified, again over the objection of defense counsel, that the day following Hart's murder, Henthorne admitted to killing Hart with a 12-gauge shotgun by shooting through the fence beside SuperAmerica while Hart was stacking Cokes.

Finally, Amy Below testified that she drove Henthorne to the SuperAmerica the night of Hart's murder, on an apparent quest to purchase more beer for a party they were both attending. According to Below, she was sitting in her car around the corner from SuperAmerica waiting for Henthorne to return when she heard a loud bang and saw Henthorne running back to the car, looking scared, with shotgun in hand. Apparently at this time Below realized that she was an unwitting accomplice to the crime. She testified that she then drove Henthorne to his house and he took the shotgun inside.

The defendant, who was the only witness the defense presented, denied involvement in or any knowledge of a conspiracy to kill Hart. He admitted that he, Allen, and Henthorne were at Foster's apartment on the night she indicated, but that it was Foster who initiated a discussion regarding Hart, and no one discussed killing Hart that night. According to the defendant, he did leave Foster's apartment with Henthorne for the purpose of calling SuperAmerica to see if Hart was working. However, he contends the reason for Henthorne's call was to affect a reconciliation with Hart.

According to the defendant's brief, Lee Allen was acquitted of the charge of conspiracy to commit murder in an August 1995 trial. The defendant also stated that, in addition to the witnesses who testified in his trial, C. Michael McDonald, Henthorne, and Allen testified at Allen's trial. According to the defendant, McDonald, a former beau of Charlene Foster, testified that Foster advised him that it was her idea to murder Hart. McDonald also testified that he had personally witnessed a gun in Foster's apartment, which Foster claimed to be her own, but that is inconsistent with Foster's testimony. At the defendant's trial, Foster testified she did not own guns or allow them in her apartment. Henthorne, who had earlier pleaded guilty to Hart's murder, testified that there was no plan or scheme to kill Hart, and that he murdered Hart without the assistance of anyone. Further, he corroborated McDonald's testimony that it was Foster who suggested killing Hart and not Allen, as Foster had testified. Finally, according to the defendant, Allen testified that to the best of his knowledge Hart's murder was unplanned. He further testified that neither he nor the defendant assisted in Hart's murder. He added that Foster's account of the alleged conspiracy was not the truth.

Shortly after Allen's acquittal, the defendant moved for a new trial based on newly discovered evidence pursuant to Rule 33 of the West Virginia Rules of Criminal Procedure. This motion was based on the testimony of McDonald, Allen, and Henthorne at Allen's trial. By order of September 15, 1995, the circuit court denied the defendant's motion for a new trial based on the testimony of Allen and Henthorne, concluding that "none of the criteria for a new trial as set forth in Rule 33 of the West Virginia Rules of Criminal Procedure had been met[.]" Specifically, the court found:

a) Trial counsel for the defendant did not present either Lee Allen or Jason Henthorne as witnesses at trial, and no subpoena was issued for their attendance at trial.

b) Trial counsel elected not to provide the testimony of Lee Allen or Jason Henthorne at the trial of the defendant, Brian Helmick.

c) There is no indication that trial counsel attempted to interview the co-defendants, Lee Allen or Jason Henthorne.

d) That there is a (sic ) reasonable likelihood the testimony of Lee Allen or Jason Henthorne ought to produce an opposite result since Lee Allen's testimony at his trial was subject to scrutiny, and the testimony of Jason Henthorne at the trial of Lee Allen was unbelievable. ¹

In an order entered on November 9, 1995, the court also denied the defendant's motion for a new trial based on the testimony of McDonald at Allen's trial, by stating:

a) The defendant has failed to show that the admission of the testimony of J. Michael McDonald ought to produce an opposite result in a new trial since Mr. McDonald's testimony would be introduced to impeach the credibility of the State's witness. That witness' credibility was fully and adequately tested in the trial in this matter.

b) The defendant admits that the sole purpose for the introduction of the testimony of Mr. McDonald is to impeach a witness who testified on behalf of the State. A new trial is generally refused when the sole purpose of the new evidence is to discredit or impeach on the opposite side.

On appeal, the defendant requests that this Court reverse his conviction and remand his case for a new trial.

II. DISCUSSION

First, the defendant asserts that the trial court erred in refusing his motion for a new trial based upon newly discovered evidence. According to Rule 33 of the West Virginia Rules of Criminal Procedure (1981), ² "[t]he court on motion of a defendant may grant a new trial to him if required in the interest of justice." "The question of whether a new trial should be granted is within the discretion of the trial court and is reviewable only in the case of abuse." State v. Crouch, 191 W.Va. 272, 275, 445 S.E.2d 213, 216 (1994) (citation omitted).

It is well-settled that,

" 'A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within...