State of West Virginia v. Davis (dissenting)
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No. 31679 State of West Virginia v. Marybeth Davis Starcher, J., dissenting: FILED December 23, 2004 released at 10:00 a.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA I believe that the majority opinion has used too strict a standard for reviewing the proffered new evidence in the instant case. The majority opinion (at footnote two) concludes that the new evidence that the appellant seeks to use in a new trial is at best cumulative, and therefore cannot serve as the basis for a new trial award. In my judgment, in a close case based entirely on circumstantial evidence, the fact that new evidence is cumulative is not itself fatal to a claim seeking a new trial. Sometimes it is precisely the accumulation of evidence that can tilt the scales of justice to the point of establishing reasonable doubt. I would hold, therefore, that when a court concludes that new evidence, even if it is cumulative, might well tip the balance in favor of a criminal defendant by establishing reasonable doubt, and the evidence otherwise meets the standard for a new trial award, the court should order a new trial. I would reverse and remand for consideration under this standard.
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