State of West Virginia ex rel.
O. C. Spaulding, Prosecuting Attorney
for Putnam County,
No. 20853 v.
Honorable Clarence L. Watt, Judge
of the Circuit Court of Putnam County,
and Mark J. McClelland
In this original proceeding in prohibition the relator,
the State of West Virginia, prays that this Court prohibit the
respondent, Clarence L. Watt, Judge of the Circuit Court of Putnam
County, from providing respondent Mark J. McClelland with a new
trial on certain criminal charges. The State claims that
respondent McClelland has not made an adequate showing for a new
trial and that, given the particular circumstances of the case, the
judge does not have jurisdiction to grant a new trial. After
reviewing the documents filed and the questions presented, this
Court agrees and grants the relator the relief sought.
On November 16, 1989, a grand jury in Putnam County
returned an indictment charging Mark J. McClelland with twenty-two
felony counts of sexual abuse in the first degree. The indictment
grew out of an investigation of allegations that Mr. McClelland
had, on numerous occasions, sexually assaulted his five-year-old
stepdaughter and his seven-year-old stepson.
After the return of the indictment, counsel for
respondent McClelland filed motions for discovery. In response to
the motions, the State provided Mr. McClelland with the criminal
investigation report in the case, a report which contained all
material which the State had in its possession. The State also
provided him with a copy of a taped video statement given by the
alleged victims. The motions for discovery did not request
information relating to the specific dates of the alleged incidents
leading to the indictment, and at no time did respondent McClelland
request by bill of particulars, or by any other motion, specific
dates when the alleged acts occurred.
During trial, the two children who were allegedly
victimized testified that they had been sexually assaulted every
time they visited the respondent McClelland's residence. They were
unable to remember the specific dates. To establish the dates, the
State called the father of the victims, who testified that he had
personally reviewed his work records and that he had determined
that the children had visited the respondent McClelland's residence
on eleven occasions during the time frame set forth in the
In the course of the trial, defense counsel moved for a mistrial, alleging that the State had failed to provide the respondent McClelland with the eleven dates of the visits of the children with respondent McClelland. The State took the position
that respondent McClelland had never asked for the specific dates
and that if the information had been requested, the State would
have attempted to provide it. The State also represented that the
dates had been definitively ascertained only immediately prior to
The trial court denied respondent McClelland's motion for
mistrial, and on March 16, 1990, the jury convicted him on nine of
the charges and acquitted him on two others.
After being convicted, respondent McClelland, on
March 31, 1990, filed a motion for a new trial. In that motion,
and in a supporting affidavit, he did not aver that the State had
withheld evidence. Instead, he attacked the credibility of the
State's witness regarding the dates.
On April 16, 1990, the trial court denied the motion for
a new trial and on June 5, 1990, sentenced Mr. McClelland to two
consecutive fifteen-to-twenty-five-year terms in the penitentiary
and to seven fifteen-to-twenty-year terms, which were to run
concurrently with the first two terms.
After the motion for a new trial was denied, defense
counsel, on June 8, 1990, filed a notice of intent to appeal in the
Circuit Court of Putnam County. The motion did not assign as error
the withholding of evidence by the State.
On February 11, 1991, defense counsel filed a second motion for a new trial. That motion alleged newly discovered evidence, but again did not allege that the State had withheld evidence.
On November 20, 1991, nine months after the filing of the
second motion for a new trial, and one year and eight months after
the conviction, the trial judge issued a letter opinion which held
that the respondent was entitled to a new trial on the basis of
newly discovered evidence. The judge found that, months prior to
the commencement of trial, the State possessed definite and precise
dates on which the crimes of sexual assault were allegedly
committed and concluded that this evidence impeached the
credibility of the State's witness regarding the dates.
In the present proceeding, the State, which is seeking to prohibit the new trial, argues that in order to obtain a new trial on the ground of newly discovered evidence, a defendant must show that new evidence has been discovered since trial, that he had previously made a diligent effort to ascertain and secure the new evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. Further, the evidence must be new and material, not merely cumulative, and it must be of such a nature as ought to produce the opposite result of a second trial on the merits. Lastly, the State claims the purpose of the evidence should not be solely to discredit or impeach a
witness on the opposite side. The State argues that the
defendant's showing in the present case did not meet these
This Court agrees with the State's assertions, for the
Court has stated 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 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. 935, 253 S.E.2d 534 (1979),
quoting, Syllabus Point 1, Halstead v. Horton, 38 W.Va. 727, 18
S.E. 953 (1894). See also, State v. Catlett, ___ W.Va. ___, 376
S.E.2d 834 (1988).
The Court has also indicated that, "A new trial on the
ground of after-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).
In the present case, the respondent McClelland advanced as newly discovered evidence, evidence to challenge the veracity of the children's father's statements as to when the children visited respondent McClelland's residence. It appears that the sole purpose of the evidence proffered was to discredit or impeach the children's father. During trial both child witnesses testified in detail as to the manner in which the defendant sexually assaulted and abused them, and they testified that the assaults occurred every time they visited the respondent McClelland's residence. Further evidence showed the jury when the children visited the residence. It is clear from the verdict that the jury believed that the children were sexually assaulted by respondent McClelland when they visited his residence.
This Court believes that there was substantial evidence
in the case that the children involved in the case were assaulted
every time they visited respondent McClelland's residence, and that
even though the new evidence might have cast some doubt on the
exact hours or precise dates of the visits, it would not have shown
that the visits did not occur within the time frame involved in the
case. The evidence was proffered principally to discredit or
impeach the children's father, and overall it was, and is, not of
such a nature as ought to produce an opposite result at a second
trial on the merits.
The Court notes that the motion for a new trial in this
case on the basis of newly discovered evidence was filed after the
defendant had filed a notice of intent to appeal and after an
appeal was pending in this case.
Rule 33 of the West Virginia Rules of Criminal Procedure
provides, in relevant part, that:
A motion for a new trial based on the ground of newly discovered evidence may be made only after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case.
In view of the fact that an appeal was pending in
respondent McClelland's case and that the case had not been
remanded, the Court believes that the trial judge exceeded his
jurisdiction when he granted a new trial.
It is rather clear that prohibition will lie where an
inferior tribunal proceeds in a cause where it has no jurisdiction,
or, where having jurisdiction, it exceeds its legitimate powers.
Cowie v. Roberts, 173 W.Va. 64, 312 S.E.2d 35 (1984); Crawford v.
Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953).
It is, therefore, Adjudged and Ordered that a writ of prohibition be, and the same hereby is, issued prohibiting the respondent Judge of the Circuit Court of Putnam County from affording Mark J. McClelland a new trial on the charges which are
involved in this matter. It is further Adjudged and Ordered that
the said judge proceed in the manner provided by law with the
disposition of respondent McClelland on the convictions rendered.
An attested copy of this order shall have the same legal effect as a formal writ of prohibition.