Sonne M. Bailey, s/k/a v. Commonwealth ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia
SONNE M. BAILEY, s/k/a
SONNE' M. BAILEY, a/k/a
SHAWN MICHAEL BAILEY
MEMORANDUM OPINION * BY
v. Record No. 1620-99-1 JUDGE ROBERT J. HUMPHREYS
JUNE 13, 2000
COMMONWEALTH of VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
E. Everett Bagnell, Judge
Sheldon C. Worrell, Jr., for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Sonne M. Bailey, appellant, was convicted in a bench trial of
robbery, use of a firearm in the commission of a robbery, and
possession of a firearm after having been convicted of a felony.
The sole question on appeal is whether the trial court erred in
denying appellant's post-trial motion for a new trial based upon
after-discovered evidence. For the reasons that follow, we affirm
the decision of the trial court.
I. BACKGROUND
James Timmons testified that on the night of February 23,
1998, he was with William Wellons when they encountered appellant.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
At appellant's request, Timmons gave a pistol he was carrying to
appellant. The three men walked until they saw Lamont Artis.
Wellons and appellant approached Artis. Shortly thereafter, a man
approached appellant and Artis for the purpose of buying drugs.
Appellant and Artis argued over who would make the sale. Timmons
testified that appellant grabbed Artis, pulled out a gun and
demanded Artis' drugs and money. Wellons went through Artis'
pockets and Artis surrendered a piece of crack cocaine. One of
the men also took Artis' gold chain and pendant. Timmons
testified that appellant hit Artis twice in the head then fled
with Timmons and Wellons.
The three men subsequently rendezvoused with Antonio Cotton,
who was driving Timmons' car. When police stopped the car shortly
thereafter, they recovered Timmons' pistol from underneath the
front seat. A police officer also recovered Artis' gold chain and
pendant from the pavement in a spot closest to where appellant was
sitting in the car.
Officer K.C. Hutt testified that when he served the felony
warrants on appellant, appellant asked whether the victim could
drop the charges. Hutt testified that he told appellant that
Artis could not drop the charges but that if Artis did not
testify, appellant probably would not be convicted. Appellant
then stated, "I'll take care of that." The victim did not testify
at the trial.
- 2 -
Lamont Freeman was called by the defense and testified that
he saw appellant, Timmons and Wellons with Artis, but was too far
away to hear any conversation. Freeman stated that Wellons hit
Artis with a gun and went through Artis' pockets. Freeman
testified he saw appellant run from the scene, but did not see
appellant strike Artis.
On cross-examination, Freeman conceded that in a statement to
the police on the day after the robbery, he claimed to have heard
appellant demand money from Artis. He also told police that
Wellons punched Artis in the face and that appellant then struck
Artis with a gun. Freeman further told police that Wellons went
through Artis' pockets and took money and jewelry.
Appellant was convicted as charged. The next day, Freeman
approached counsel for appellant and gave a written statement. On
April 6, 1999, Freeman provided an affidavit. In his statement
and affidavit, Freeman claimed he saw appellant and Artis
fighting, but denied seeing a gun. In his affidavit, though not
in his statement, Freeman claimed he lied because Cotton was in
court and Cotton told "William Willis" (presumably William
Wellons) that Freeman "said his name in court and he and William
were going to fight over it."
At the hearing on appellant's motion for a new trial, Freeman
testified that appellant ran away from the scene before Wellons
and Timmons stepped up and went through Artis' pockets. Freeman
admitted that he lied in his statement to police and in his
- 3 -
testimony at the trial. He stated that Artis had paid him to make
the February 24, 1998 statement to the police and to testify on
Artis' "behalf" at trial. Freeman further explained that he lied
at trial because Cotton was present in court, that Cotton knew
Wellons, and that he was afraid of Wellons.
II. ANALYSIS
"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 great reluctance." Odum v.
Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983).
Because the granting of such a motion is addressed to the sound
discretion of the trial court, that decision will not be reversed
absent an abuse of discretion. See Mundy v. Commonwealth, 11 Va.
App. 461, 481, 390 S.E.2d 525, 536, aff'd on reh'g en banc, 399
S.E.2d 29 (1990).
Because of the need for finality in court
adjudications, four requirements must be met
before a new trial is granted based upon an
allegation of newly-discovered evidence:
(1) the evidence was discovered 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) is
material, and as such, should produce an
opposite result on the merits at another
trial.
Id. at 480, 390 S.E.2d at 535. We have also held that the burden
is on the moving party to show that all four of these requirements
- 4 -
have been met in order to justify a new trial. See Carter v.
Commonwealth, 10 Va. App. 507, 512-13, 393 S.E.2d 639, 642 (1990).
Granting that Freeman came forward with his new information
the day after the trial and assuming, without deciding, that the
testimony offered by Freeman at the hearing on the motion for a
new trial was not "cumulative, corroborative or collateral," we
turn to the remaining requirements set forth in Mundy. First,
we examine whether appellant has established that the evidence
could not have been obtained prior to trial through the exercise
of reasonable diligence. Second, we examine whether the
evidence discovered is such that is likely to produce an
opposite result in a new trial.
"'It is not sufficient to say merely that the evidence could
not have been discovered by the use of due diligence. The
application for a new trial must set forth in affidavits facts
showing what efforts were made to obtain the evidence and
explaining why those efforts were to no avail.'" Mundy, 11 Va.
App. at 483, 390 S.E.2d at 537 (quoting Fulcher v. Whitlow, 208
Va. 34, 38, 155 S.E.2d 362, 365 (1967)) (other citation omitted).
In support of his motion for a new trial, counsel for appellant
filed a one-paragraph affidavit which simply stated that he filed
a motion for discovery, met with his client on several occasions,
and met with Freeman prior to trial. This affidavit provided no
assistance to the trial court in trying to determine if the
evidence could have been discovered through reasonable diligence.
- 5 -
Finally, we cannot say that the trial court was plainly wrong
in finding that Freeman's changed testimony would not produce a
different result if appellant were to be tried again. His earlier
inconsistent statements to the police undermined Freeman's
credibility at the trial. His credibility at any new trial would
be considered in light of those inconsistencies as well as his
admitted perjury and his admission that he lied to the police.
Accordingly, we find that the trial court did not abuse its
discretion in denying appellant's motion for a new trial.
Affirmed.
- 6 -