CHARLESTON— The West Virginia Supreme Court of Appeals ruled that a man deserves a new trial after evidence came to light that could exonerate him of his alleged crimes.
Ohio County Prosecuting Attorney Scott R. Smith made the appeal to the state Supreme Court in an attempt to prevent Ohio Circuit Judge Davis J. Sims from enforcing an order vacating Dallas Michael Acoff's convictions for second-degree murder and malicious wounding, and granting of a new trial based on newly discovered evidence, according to an opinion filed May 18 with the state Supreme Court.
Chief Justice Margaret Workman authored the majority opinion. Justices Allen Loughry and Beth Walker dissented, with Loughry authoring a separate opinion.
Chief Justice Margaret Workman
Smith contended that the circuit court erred in finding that Acoff was diligent in his efforts to secure the trial attendance of Norman Banks, who Acoff was charged with wounding, and that Banks' subsequent testimony exonerating Acoff would have produced a different outcome at trial.
Workman said in the opinion that this case is an extraordinary circumstance where a victim and eyewitness to a homicide, who didn't testify at trial, subsequently offered testimony that exonerated the defendant.
The Supreme Court ruled the decision by Ohio Circuit Court to grant a new trial was of sound discretion and, because of that, it denied the writ of prohibition filed by Smith.
After gunfire was exchanged outside the American Legion in Wheeling on Oct. 9, 2015, Lemroy Coleman died of a gunshot wound to his abdomen, while Banks was shot in the leg.
The American Legion is in a high crime area, and video surveillance showed Coleman and Banks attempting to leave shortly after Acoff arrived, with Acoff following them outside.
Acoff shot at the two men and when Coleman returned fire, Acoff ran back into the American Legion.
Coleman and Banks ran into an alley, and Banks then ran to the police station to summon help, but not before tossing his firearm into the bushes in front of the police station, according to the opinion.
The police found Coleman mortally wounded and Banks was taken to a local hospital for treatment. After he was released from the hospital, Banks returned to Cleveland, Ohio, to his sister's residence.
Acoff was indicted on charges of first-degree murder and malicious assault, and a trial was held in September 2016 during which he admitted to firing shots at Coleman and Banks, but he claimed he did so in self-defense.
The crux of the matter involved whether or not the victims were shot by Acoff outside of the American Legion or by a second shooter after they fled into the alley.
There was no evidence of blood droplets, blood splatter or a blood trail leading from the American Legion to the alley, according to the opinion.
During the trial, the state maintained that Acoff's admission that he fired shots at the victims and the video surveillance of the shooting pointed to Acoff's guilt.
The medical examiner also found that the angle of the bullet entering Coleman's abdomen was consistent with Acoff's position on the stairs of the American Legion, and, after a four-day jury trial, Acoff was found guilty of second-degree murder and malicious wounding.
Three months later, Acoff filed a motion for a judgment of acquittal and a motion for a new trial, which was denied. He filed a renewed motion for a new trial in June 2017, asserting that he had newly discovered evidence.
The newly discovered evidence, Acoff claimed, would exonerate him, as it was information from Banks stating that someone named Jerome Saunders had shot him and Coleman in the alley.
An evidentiary hearing was held two months later, and the court granted the motion for a new trial and vacated his convictions.
The trial court ruled that Acoff made diligent efforts to locate Banks, interview him and secure his attendance at trial.
The trial court also chastised the state for failing to make attempts to locate and secure Banks' attendance for the first trial.
A new trial was scheduled for March, but Smith filed a writ of prohibition in January seeking to prohibit the trial court from enforcing the order, so the Supreme Court then stayed proceedings in the criminal case until it could hear arguments on the matter.
Workman said in the opinion that a new trial is warranted in the interest of justice and that those who are entrusted with the responsibility of representing the state at criminal proceedings should never forget their obligation is for justice and not to convict.
Workman ruled a new trial must be awarded to see that justice is served by securing a lawful conviction, meaning Smith's writ is denied.
In his dissenting opinion, Loughry wrote that the majority did not pay much attention to the controlling law in the matter.
The party moving for a re-trial has the burden to show that he was diligent in ascertaining and securing his evidence, and that the new evidence should produce an opposite result at a second trial on the merits.
Loughry wrote that Acoff has failed to meet this burden and that he shouldn't be awarded a new trial.
Loughry said Banks' testimony could have been secured before the trial, but that the defense counsel never even attempted to reach out to Banks until 10 days after the verdict was reached.
Loughry said he is left with a firm conviction that the trial court exceeded its authority when it granted a new trial for Acoff.
Smith was represented by Attorney General Patrick Morrisey and Assistant Attorney General Gordon L. Mowen II.
Acoff was represented by Robert G. McCoid of McCamic, Sacco & McCoid.
