State v. King

• Decision Date: 02 March 1984
• Docket Number: No. 15991,15991
• Citation: 173 W.Va. 164,313 S.E.2d 440
• Parties: STATE of West Virginia v. James Curtis KING.
• Court: West Virginia Supreme Court

Page 440

313 S.E.2d 440

173 W.Va. 164

STATE of West Virginia v. James Curtis KING.

No. 15991.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 11, 1984.

Decided March 2, 1984.

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

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).

David R. Tyson, Tyson & Tyson, Huntington, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., John E. Shank, Asst. Atty. Gen., Charleston, for appellee.

PER CURIAM:

James Curtis King appeals from an order of the Circuit Court of Cabell County denying his motion for a new trial under Rule 33 of the West Virginia Rules of Criminal Procedure based on newly discovered evidence. The evidence King relied on was a written confession made after his trial by a third person. Finding no error, we affirm.

Rule 33 provides that a court upon motion may grant a new trial if required in the interest of justice. Our traditional statement of the law about the requirements for a new trial on the basis of newly discovered evidence is:

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

See also State v. Stewart, W.Va., 239 S.E.2d 777 (1977).

Only when all the requirements have been satisfied is a new trial warranted in the interests of justice. These requirements obviously reflect the fact that such motions are not favored by the courts. "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). The question of whether a new trial should be granted depends on the circumstances of the case and is a matter largely in the discretion of the trial court. State v. Nicholson, W.Va., 296 S.E.2d 342, 344 (1982).

On September 16, 1982, King was tried and convicted by a jury of uttering a forged instrument in violation of W.Va.Code, 61-4-5. On December 27, 1982, William Carter, III prepared a notarized letter confessing to the uttering charge for which King was convicted. Upon receipt of this confession, King's counsel filed a motion for a new trial alleging that Carter's confession constituted newly discovered evidence requiring a new trial. At the hearing on the motion, King testified that Carter and he were fellow prison inmates at Huttonsville Correctional Center prior to his September trial and that during that time Carter told him that he, Carter, had committed the offense. Carter, against the advice of counsel and without a grant of immunity, testified that he committed the offense. Carter also stated that he believed King knew he committed the offense prior to his September, 1982 trial, but he did not think he had yet confessed to him. The trial court denied the motion on the grounds that the confession was not newly discovered and that due diligence was not exercised to present the evidence at trial.

No 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. See, e.g., Bean v. United States, 679 F.2d 683 (7th Cir.1982); State v. Talbot, 408 So.2d 861 (La.1981). In State v. Sparks, W.Va., 298 S.E.2d 857 (1982), we affirmed the denial of a new trial where a third party, Farson, confessed to the crime while confined with Sparks in a county jail after Sparks' trial and conviction. The close relationship that existed between Farson and Sparks and the fact that Farson was retarded and easily influenced and was unable to give details about commission of the crime all militated against giving much weight to Farson's confession. We affirmed the trial court's finding that Farson's confession would be offset by his prior inconsistent statements and thus would not result in an acquittal in the event of retrial.

The question then is whether King was entitled to a new trial in the circumstances of this case. Proper discussion of the issue requires a brief review of the evidence introduced at his trial. The State's evidence was that on February 8, 1982 between 4:30 and 5:00 p.m., a young black male entered the Glaser Furniture Company store in Huntington, West Virginia and purchased two lamps with a check drawn on the account of Action, Inc., payable to one Gregory Ward. He presented two pieces of identification indicating he was Gregory Ward and was given the difference between the amount of the check and the cost of the lamps. Because of concern about the validity of the check, an employee of the store obtained the license number of the car he was driving and it was then written on the back of the check.

The owner of the store soon discovered that the check had been stolen from Action, Inc., and contacted the local police. A city detective determined that the license number on the check was listed to one Tommy Turner who was known by the city police. Six photographs of young black males who resembled Turner were located. King's photograph, as fate would have it, was included in the group. This group of photographs was then given to Crystal Cole, the furniture store employee who approved the check, and she immediately picked out King's photograph as depicting the person who cashed the check. She was positive in her identification, saying King's eyes were distinctive and that she had an opportunity to observe him for approximately twenty minutes from a distance of two or three feet under the bright lights of the furniture store. She later identified him at trial.

King denied committing the offense and testified that he had never been in the furniture store and that at the time the crime was committed he was at his girlfriend's house where he was...