Myers v. State

Syllabus

The petitioner, who had been convicted of murder and assault in the first degree in connection with a shooting, filed, in one case, a petition for a writ of habeas corpus and, in a second case, a petition for a new trial. Six days after the shooting, R gave a video recorded interview to the police, in which he admitted to being present at the shooting and identi- fied another individual, P, as the shooter. R subsequently failed to appear at the petitioner's criminal trial, even though the petitioner's trial counsel had served him with a subpoena ad testificandum. The trial court issued a capias warrant for R and continued the case for the weekend at the request of trial counsel, but R could not be located. Rather than request an additional continuance to give the authorities additional time to locate R and execute the capias, trial counsel moved to admit the video recording of R's interview under the residual exception to the hearsay rule, but the trial court concluded that it was inadmissible. In his habeas petition, the petitioner alleged actual innocence and ineffective assis- tance of counsel, insofar as trial counsel failed to undertake greater efforts, after learning that the capias warrant had not been served, to secure R's presence and testimony at the criminal trial. Thereafter, R was served with a subpoena to appear at the petitioner's habeas trial, but he again failed to appear. The petitioner requested a capias warrant to secure R's attendance and a continuance for the purpose of locating R and executing the capias, but the habeas court denied the requests. Following the habeas trial, the habeas court denied the habeas petition and, thereafter, granted the petition for certification to appeal. In his petition for a new trial, the petitioner claimed that R's statement to the police identifying P as the shooter constituted newly discovered evi- dence that was likely to produce a different result in a new trial. The respondent in that case, the state of Con