Arthur Lee Lewis v. Commonwealth of Virginia ( 1999 )


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  •                     COURT OF APPEALS OF VIRGINIA
    Present: Judges Coleman, Frank and Senior Judge Hodges
    Argued at Salem, Virginia
    ARTHUR LEE LEWIS
    MEMORANDUM OPINION * BY
    v.   Record No. 2812-98-3                 JUDGE WILLIAM H. HODGES
    DECEMBER 14, 1999
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
    Charles M. Stone, Judge
    Elwood Earl Sanders, Jr., Appellate Defender
    (Public Defender Commission of Virginia, on
    briefs), for appellant.
    Amy L. Marshall, Assistant Attorney General
    (Mark L. Earley, Attorney General; Robert H.
    Anderson, III, Assistant Attorney General,
    on brief), for appellee.
    Appellant appeals his convictions of robbery and the use of
    a firearm in the commission of robbery.    Appellant contends that
    the trial court erred in denying his motion to set aside the
    verdicts and grant a new trial based on after-discovered
    evidence.    For the following reasons, we affirm the trial
    court's ruling.
    "Motions for new trials based on
    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 great reluctance. . . . The
    * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    applicant bears the burden to establish that
    the evidence (1) appears to have been
    discovered subsequent to trial; (2) could
    not have been secured for use at the trial
    in the exercise of reasonable diligence by
    the movant; (3) is not merely cumulative,
    corroborative or collateral; and (4) is
    material, and such as should produce
    opposite results on the merits at another
    trial."
    Hopkins v. Commonwealth, 
    20 Va. App. 242
    , 249, 
    456 S.E.2d 147
    ,
    150 (1995) (en banc) (citation omitted).
    During appellant's jury trial, the victim, James Coleman,
    positively identified Robert Poindexter as the gunman who robbed
    him on January 26, 1998.   Coleman also positively identified
    appellant as being present and assisting Poindexter with the
    robbery.    Coleman expressed no doubt as to the identity of
    either robber.   Appellant denied any involvement in the robbery.
    The jury found appellant guilty of robbery and the use of a
    firearm in the commission of a robbery.
    After appellant's trial, he filed a motion to set aside the
    verdicts and requested a new trial based upon after-discovered
    evidence.   Appellant asserted that the day after his trial,
    Poindexter contacted appellant's attorney and told appellant's
    attorney that appellant was not with him when he robbed Coleman.
    Appellant's attorney also proffered evidence that several weeks
    before appellant's trial, appellant received a note from
    Poindexter, which stated, "I was going to free you and now I'm
    going to let you hang."
    - 2 -
    At appellant's sentencing hearing, Poindexter, having been
    immunized against perjury, testified that he told appellant's
    attorney that appellant did not commit the robbery because "I
    won't with him."   Poindexter also denied that he had committed
    the robbery.
    The record established that before his trial, appellant
    knew that Poindexter could tell a different story than he did
    during the joint trial.   However, appellant did not reveal that
    knowledge to anyone until after his trial.   The evidence
    regarding the note allegedly written by Poindexter to appellant
    existed before appellant's trial and, thus could have been used
    during the trial to impeach Poindexter.   Therefore, Poindexter's
    post-trial testimony did not meet the first requirement for
    granting a new trial based upon after-discovered evidence.
    In addition, even absent Poindexter's trial testimony, the
    jury could have concluded beyond a reasonable doubt that
    appellant robbed Coleman based upon Coleman's positive
    identification of appellant as one of the robbers.   Therefore,
    Poindexter's post-trial statements and testimony also did not
    meet the fourth requirement for granting a new trial based upon
    after-discovered evidence.
    - 3 -
    Accordingly, the trial court did not err in denying
    appellant's motion to set aside the verdicts and to grant a new
    trial based upon after-discovered evidence.
    Affirmed.
    - 4 -
    

Document Info

Docket Number: 2812983

Filed Date: 12/14/1999

Precedential Status: Non-Precedential

Modified Date: 10/30/2014