R. Thomas Czarnik
Princeton, West Virginia
Counsel for the Appellant
Mario J. Palumbo
Assistant Attorney General
Charleston, West Virginia
Counsel for the Appellee
CHIEF JUSTICE WORKMAN Delivered the Opinion of 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.
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),See footnote 1
together or singly with Maureen O'Donnell, Appellant's wife.See footnote 2 No
one denied that the sexual acts occurred. Rather, the issues
before the jury at trial were consent, forcible compulsion, and
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."See footnote 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)See footnote 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)See footnote 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,See footnote 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
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
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
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,
235 S.E.2d 534 (1979), quoting, Syl. pt. 1,
Halstead v. Horton, 38 W. Va. 727, 18 S.E. 953
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,See footnote 7 as both parties' expert witnesses and even the trial
judge concluded that the letter "was probably written by her [Mrs.
O'Donnell]."See footnote 8 Despite its conclusion that "there is a strong
probability that . . . [Mrs. O'Donnell] wrote the letter as
testified to by the forensic handwriting experts of both the State
and defendant[,]" the court nonetheless denied the new trial
that the aforesaid letter dated June 10, 1991,
would be relevant and material on the issue of
the victim's consent to the acts of sexual
intercourse with the defendant and his
codefendants on the elements of the victim's
earnest resistance and forcible compulsion;
that the evidence proffered by the defendant
is, in fact, newly discovered evidence
subsequent to the defendant's conviction
. . . .
The Court further finds that the evidence, if it is to be believed, would be cumulative on the issue of consent. . . .
In resolving the issue of cumulativeness, the trial court
initially misapplied the concept of cumulative evidence and further
appears to have utilized an inappropriate balancing test. In its
most general sense, cumulative evidence is evidence offered to
prove what has already been established by other evidence. See
Black's Law Dictionary 380 (6th ed. 1990). This Court elucidated
in State v. Frazier that "cumulative evidence is additional
evidence of the same kind to the same point." Syllabus, 162 W. Va.
at 935, 253 S.E.2d at 535. The evidence upon which the trial court
relied in concluding that the letter would be cumulative on the
issue of consent included:
the defendant having been allowed to introduce
evidence at trial of the victim's alleged
prior sexual conduct with third parties, in
the presence of the defendant, of the victim's
alleged statements or writings regarding her
interest in group sex, and also of the
victim's alleged motives in bringing false
charges against the defendant in order to
deprive him of custody or visitation. . . .
The fact that the issue of Mrs. O'Donnell's consent to the
sexual acts had been raised and made the subject of evidence by the
defense does not automatically render any further evidence on the
issue of consent cumulative. The essence of cumulative evidence is
the superfluousity of the evidence; that is, to be properly
designated as cumulative, "evidence of the same kind to the same
point" must have previously been admitted. Id. at 935, 253 S.E.2d
at 535. In further explanation,
[t]o 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 those 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.
58 Am. Jur. 2d New Trial § 448 (1989).
The evidence presented by the June 10, 1991, letter is not
identical in kind to the evidence presented at trial by the defense
on the issue of consent. While the Appellant offered some evidence
in support of his defense of consent, certainly statements by the
alleged victim which amount to an admission of the Appellant's
defense are dramatically different, both in quality and character.
Because the evidence contained within the letter is alleged to have
originated from the State's principal witness and because the
statements within the letter are completely contradictory to Mrs.
O'Donnell's in-court testimony on the ultimate issue, the new
evidence is unquestionably novel in kind and therefore not
cumulative, by definition.
Appellant analogizes this letter to a confession by another person to a crime which, dependent upon the confession's integrity, may be grounds for a new trial. See King, 173 W. Va. at 165, 313 S.E.2d at 442. Appellee prefers to liken the letter to a recantation, emphasizing that new trials are granted when recantation is involved "[o]nly under circumstances where there are credible corroborating circumstances that would lead the trial court to conclude that the witness did, indeed, lie at the first trial. . . ." State v. Dudley, 178 W. Va. 122, 126, 358 S.E.2d 206, 210 (1987) (quoting State v. Nicholson, 170 W. Va. 701, 703-04, 296 S.E.2d 342, 344-45 (1982)). Here, such corroborating circumstances exist, since two handwriting experts have determined that the letter was probably written by Mrs. O'Donnell. Clearly, the letter contains several statements against interest,See footnote 9 the combined effect of which is not only to suggest that Mrs. O'Donnell may have lied during the trial, but also to corroborate Appellant's defense to the charges against him. The evidentiary significance of an admission against interest is that, rather than qualifying as merely impeachment in nature, it is independent substantive evidence. 58 Am. Jur. 2d New Trial § 437 (1989). Given the admissions against interest within the letter coupled with the dissimilar nature of this newly-discovered evidence as contrasted to the evidence presented at trial, the correspondence cannot be viewed as cumulative.
The transcript from the hearing on Appellant's motion for a
new trial reveals that the trial judge considered the fact that, in
his opinion, the evidence admitted on the issue of consent was
"evenly balanced." Whether or not the evidence proffered on both
sides of an issue appears equally-balanced quantitatively has no
relevance whatsoever on the issue of cumulativeness. As discussed
above, evidence is cumulative only when, by its nature, it is so
substantially similar in kind that it is almost identical to
evidence already admitted to the same point. See Frazier, 162 W.
Va. at 935, 253 S.E.2d at 535.
As an additional ground for refusing to grant a new trial, the circuit court opined that even if the letter were introduced, it would not be sufficient to secure Appellant's acquittal. This Court noted in syllabus point 2 of State v. Stewart, 161 W. Va. 127, 239 S.E.2d 777 (1977), that to be admissible newly-discovered evidence must be of the type "as ought to produce an opposite result at a second trial on the merits." Id. at 128, 239 S.E.2d at 779. The facts of Stewart compelled us to conclude "that there is a substantial likelihood that this newly-discovered evidence 'ought to produce an opposite result' on retrial." 161 W. Va. at 141, 239 S.E.2d at 785. Similarly, because the newly-discovered evidence at issue corroborates the Appellant's defense to the sexual assault charges in such a manner that if one believes Mrs. O'Donnell authored the letter one is more inclined to accept the defense's theory of the case, this Court concludes that the newly-discovered evidence creates a "substantial likelihood" that Appellant would be acquitted on retrial. Id.
Based on the foregoing opinion, the decision of the Circuit
Court of Summers County is hereby reversed and remanded for entry
of an order granting a new trial to the Appellant.
Footnote: 1Sexual intercourse is defined within West Virginia Code § 61-8B-6(a)(1) as "any act between persons married to each other involving penetration, however slight, of the female sex organ by the male sex organ or involving contact between the sex organs of one person and the mouth or anus of his or her spouse."
Footnote: 2The trial court gave an instruction to the jury on Appellant's behalf which stated that none of the sexual acts engaged in were illegal between consenting adults.
Footnote: 3The emergency room record does not bear any notation regarding the observation of fresh bruises and the explanation offered at trial by the examining nurse for this omission was that she had already signed the report and noted a time thereon which precluded the addition of any further notations following her signature.
Footnote: 4West Virginia Code § 61-8B-6(b) provides that:
A person is guilty of sexual assault of a spouse when such person engages in sexual penetration or sexual intrusion with his or her spouse without the consent of such spouse; and (i) The lack of consent results from forcible compulsion; or (ii) Such person inflicts serious bodily injury upon anyone; or (iii) Such person employs a deadly weapon in the commission of the offense.
Footnote: 5West Virginia Code § 61-8B-4 sets forth the offense of sexual assault in the second degree:
(a) A person is guilty of sexual assault in
the second degree when:
(1) Such person engages in sexual intercourse or sexual intrusion with another person without the person's consent, and the lack of consent results from forcible compulsion; or
(2) Such person engages in sexual intercourse or sexual intrusion with another person who is physically helpless.
(b) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than ten nor more than twenty-five years, or fined not less than one thousand dollars nor more than ten thousand dollars and imprisoned in the penitentiary not less than ten nor more than twenty-five years.
Footnote: 6The delay in sentencing was due to the fact that Appellant failed to appear at the originally scheduled sentencing hearing.
Footnote: 7Mrs. O'Donnell denied writing the letter during her testimony at the November 22, 1991, hearing on Appellant's motion for a new trial.
Footnote: 8According to Appellant, handwriting analysis is expressed in terms of likelihood. A handwriting analysis result is either "no" or is expressed in terms of "probably yes" or "probably no." In this case, the State's handwriting expert opined that Mrs. O'Donnell "[p]robably prepared" the letter. The defense's expert testified that all the known exemplars of Mrs. O'Donnell's handwriting for comparison were internally consistent and consistent with the letter dated June 10, 1991.
Footnote: 9A statement against interest is defined by Rule 804(b)(3) of the West Virginia rules of Evidence as:
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man [person] in his position would not have made the statement unless he believed it to be true.