### FILED No. 18-0034 – State ex rel. Smith v. Sims 

### June 4, 2018 EDYTHE NASH GAISER, CLERK WALKER, J., dissenting: SUPREME COURT OF APPEALS OF WEST VIRGINIA
Though I agree with the points made by Justice Loughry in his dissent, I write separately to identify two additional critic al flaws with the majority’s rationale.

First, the majority opinion incorrectly states, “[t]his Court affords trial judges a wide range of discretion in determining whether newly-di scovered evidence warrants the grant of a new trial.” The majo rity fails to identify any West Virginia law or precedent to support this statement, citing instead only a nonbinding opinion from another state 1 and an opinion from this Court that generally recognizes that trial courts have “discretion.” 2 To the contrary, in State v. Frazier 3 this Court set forth particul ar elements that a defendant must prove before a new trial may be granted. In the absence of those elements, granting a new trial is an abuse of discretion—no ma tter how wide. And, as Justice Loughry’s dissent accurately notes, those elements were not satisfied here. To the extent the majority relies on this so-called “wide range of discretion” in awarding the Defendant a new trial, it is a misstatement of this Court’s pr ecedent and an improper consideration.

1 State v. Pinder , 114 P.3d 551, 565 (Utah 2005).

2 State ex rel. Smith v. McBride , 224 W. Va. 196, 206, 6 81 S.E.2d 81, 91 (2009).

3 Syl., State v. Frazier , 162 W. Va. 935, 253 S.E.2d 534 (1979).
1Second, the majority summa rily dismisses the State’ s argument that the trial court erred in concluding that the Defendant diligently attempted to secure Mr. Banks’s testimony at trial and effectively imparts a dut y on the prosecutor to actively locate witnesses for the defense. The majority considers only on e of the State’s arguments on this matter—that the Defendant knew Mr. Banks could have been contacted at his sister’s address because the State provided it to the De fendant in its initial di scovery disclosure. The majority altogether fails to acknowledge that the Defendant never attempted to contact Mr. Banks at the location provided by the State. As Justice Loughry points out in his dissent, “the only affirmative action that defens e counsel took to contact Mr. Banks was to send a text message to a telephone number obtained from one of Mr. Banks’s acquaintances.” Further, the Defendant did not m ove to continue the trial to attempt to find Mr. Banks, but instead chose to proceed without his testimony.

Despite referring to it as a “mandatory component of Frazier ,” the majority pays only lip service to what it calls the “‘reasonable diligence’ prong” then guts it of this purpose entirely—once again citing only a no nbinding opini on from another jurisdiction. 4 The majority inaccurately states that “the trial court’s primary focus was properly on the significance and impact of the newly discovered evidence, not upon the failings of counsel or whether counsel’s lack of diligence was so unjustifiable it fell below constitutional standards.” To conclude as much is to e ssentially remove this mandatory consideration

4 People v. Soojian , 118 Cal. Rptr. 3d 435, 454 (Cal.App.Ct. 2010).
2altogether and give the green light for a new trial every time a witness’s testimony cannot be secured even where—as in this case—no meaningful ac tion is taken to secure it.

So, I would grant the St ate’s petition for prohibition and, therefore, I respectfully dissent.

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