Bernard Lee Brown v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
BERNARD LEE BROWN
v. Record No. 1720-94-1 MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA NOVEMBER 14, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
Nancy E. Kight (Office of the Public Defender,
on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Bernard Lee Brown (appellant) appeals from a judgment of the
Circuit Court of the City of Virginia Beach that approved a jury
verdict convicting him for possession of marijuana with intent to
distribute. The sole issue presented is whether the trial court
erred when it denied appellant's motion for a rehearing of a
suppression motion that the trial court denied prior to his trial
on the merits of his case. Finding no error, we affirm the
judgment of the trial court.
Upon familiar principles, we view the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
____________________
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
On August 5, 1993, three Virginia State Troopers went to
appellant's residence to arrest him on two felony warrants.
After arresting appellant, the officers conducted a "protective
sweep" of the house. During the sweep they found a bag of
marijuana in plain view, and additional marijuana was found
during a subsequent consent search. Appellant was charged with
possession of marijuana with intent to distribute.
Appellant's motion to suppress the evidence was denied. At
the suppression hearing, only Troopers Blackman, Rice, and
DeFlippo testified. They stated that Trooper Rice knocked on
appellant's door and asked the man who answered the door if he
was appellant. The man said, "Yes," and Rice, followed by
DeFlippo, went into the foyer, placed appellant under arrest on
the warrants and handcuffed him. Troopers Rice and DeFlippo then
moved appellant into the living room area. Troopers Blackman and
DeFlippo conducted a protective sweep of the house to make sure
that no one else was there who might pose a threat.
Upstairs, Trooper Blackman found a bag of marijuana lying in
plain view on the floor. The protective sweep lasted no more
than "[t]en minutes tops" as the officers "were just taking a
quick sweep of everything to make sure nobody was there."
Appellant then consented to a full search of his house, during
which additional marijuana was found.
After the trial court denied appellant's initial motion to
suppress, and the first trial ended by mistrial, appellant moved
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the trial court to hear further evidence in support of a renewed
motion to suppress. Appellant supported the motion for rehearing
on the basis "[t]hat since [appellant's] original suppression
motion was heard . . . an eye-witness to [appellant's] arrest,
not then known to the [appellant], has been identified and
interviewed by the defense."
Appellant's request for the rehearing was heard on May 31,
1994. Appellant's counsel gave the following reason for wanting
to reopen the suppression matter:
Your Honor, at the motion to suppress on
February 28th I came into the courtroom
prepared to argue a suppression motion based
on the fact that my client was outside when
he was arrested. If you look at Page 4 and 5
of the motion, the transcript, you will see I
was taken by surprise when I was told that
the evidence was going to show that the
entire arrest took place inside the house.
Because I was totally unaware of this at the
motion to suppress, I did not have any
evidence to refute this. Since that time I
have found several witnesses that say
contrary to the fact; that the arrest took
place inside the house. I would like the
court to reopen this hearing so I can put on
testimony to the contrary.
The trial court denied appellant's motion to rehear.
Appellant proffered that the officers' testimony at the
suppression hearing did not accurately depict the events as they
occurred at the time of his arrest and their search of his
premises. Appellant stated that when he answered the door in
response to the trooper's knock he stepped outside and closed the
door behind him, and it was at that point that the troopers
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arrested him. Appellant further stated that the officers then
searched his car, after which he "asked them was it possible for
us to go in because I'm pretty embarrassed that all the kids are
watching." Appellant also proffered that he was fully dressed
while he was outside, and that, as to length of time, he was
outside with the troopers for "a while." Appellant admitted on
cross-examination that he was fully prepared to testify to these
facts at the first suppression hearing, but his counsel told him
not to.
Appellant contends, on the principles of after-discovered
evidence, that he was entitled to a rehearing of his motion to
suppress because at the time of the initial suppression hearing
he did not know there were witnesses who could corroborate his
testimony. We disagree.
A motion for a new trial based on after-discovered evidence
will not be granted unless four requirements are met: (1) the
evidence was obtained after trial; (2) it could not have been
obtained prior to trial through the exercise of reasonable
diligence; (3) it is not merely cumulative, corroborative, or
collateral; and (4) it is material and should produce an opposite
result at another trial. Odum v. Commonwealth, 225 Va. 123, 130,
301 S.E.2d 145, 149 (1983). Motions for new trials based upon
after-discovered evidence are addressed to the sound discretion
of the trial judge, are not looked upon with favor, are
considered with special care and caution, and are awarded with
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great reluctance. Stockton v. Commonwealth, 227 Va. 124, 149,
314 S.E.2d 371, 387, cert. denied, 496 U.S. 873 (1984). Here,
appellant conceded that at the time of the initial suppression
hearing he already knew what he now asserts was after-discovered
evidence. We find no abuse of the trial court's discretion in
denying a second hearing founded upon the principle of
after-discovered evidence.
Accordingly, for the reasons stated, the judgment of the
trial court is affirmed.
Affirmed.
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