Mario A. Bustillo v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia
MARIO A. BUSTILLO
v. Record No. 2321-98-4
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
JUDGE RUDOLPH BUMGARDNER, III
MARIO A. BUSTILLO APRIL 11, 2000
V. Record No. 2422-98-4
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gerald Bruce Lee, Judge
John C. Kiyonaga (Kiyonaga & Kiyonaga, on
briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
A jury convicted Mario A. Bustillo of first degree murder.
On appeal, he contends the trial court erred in denying his
motion to set aside the verdict based upon after-discovered
evidence. For the following reasons, we affirm.
The evidence in the light most favorable to the
Commonwealth proved that Michelle Gutierrez, Jesse Konstanty,
Valaria Landaeta, and the victim, James Merry, were sitting
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
together in a restaurant when a group of young men entered and
confronted the victim and Konstanty. The group were members of
the Locos gang. Gutierrez recognized the defendant as well as a
man known as Sirena and two others. When she convinced them
that the people they wanted were not there, the group left.
Shortly afterwards, the victim went outside to smoke a
cigarette. While the victim was standing and smoking, the
defendant ran up behind him with a baseball bat and smashed his
head. The victim died from the blow.
Gutierrez, Konstanty, and Landeata identified the defendant
as the assailant. During police interviews, no one including
members of the gang claimed that Sirena was the assailant. The
defendant presented an alibi defense, and one gang member
testified that Sirena, not the defendant, was the assailant.
The defendant filed a motion to set aside the verdict based
upon (1) insufficient evidence, (2) newly discovered evidence,
(3) illegally obtained evidence, and (4) a Brady violation.
After a day-long hearing, the trial court denied the motion and
subsequently sentenced the defendant on July 24, 1998. The
defendant filed a renewed motion to strike that the trial court
denied by letter opinion dated October 7, 1998.
This Court granted an appeal limited to the fourth issue
presented in the petition for appeal: whether the trial court
erred in denying the motion to set aside the verdict based on
after-discovered evidence. The writ limited the issues to those
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raised in the first motion to set aside the verdict.
Accordingly, we review the denial of the motion based upon the
after-discovered evidence of Geovany Hernandez, Marvin Escobar,
Jose Maldonado, and Valaria Landaeta. We do not address the
additional arguments that the defendant inserted in his brief
but which were not part of issues specified in the writ of
error. See Rule 5A:12; Perez v. Commonwealth, 25 Va. App. 137,
139 n.2, 486 S.E.2d 578, 579 n.2 (1997).
A new trial based upon after-discovered evidence may be
granted under limited circumstances where the defendant shows
that the evidence (1) was discovered after trial, (2) could not
have been secured for trial with the exercise of due diligence,
(3) is not merely cumulative, corroborative or collateral, and
(4) is material and likely to produce a different result at
another trial. See Odum v. Commonwealth, 225 Va. 123, 130, 301
S.E.2d 145, 149 (1983). "Motions for new trials . . . 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." Stockton v.
Commonwealth, 227 Va. 124, 149, 314 S.E.2d 371, 387, cert.
denied, 469 U.S. 873 (1984). In order for the trial court to
grant a new trial, the defendant must meet all the requirements
for after-discovered evidence. See Wilson v. Commonwealth, 25
Va. App. 263, 275, 487 S.E.2d 857, 863 (1997).
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The defendant submitted the affidavits of Hernandez and
Escobar in support of his motion to set aside the verdict. Both
were members of the Locos gang and at the post-trial hearing
testified that Sirena hit the victim with the bat. The trial
court found that the defendant knew the essence of their
testimony before trial. The defendant's counsel had spoken to
both of them before trial, and both told him the defendant did
not hit the victim. The trial court also found that their
evidence naming Sirena as the assailant was available through
due diligence.
The defendant argues that neither Hernandez nor Escobar
implicated Sirena during their interviews with the defendant's
counsel. The defendant contends their reluctance to implicating
Sirena before trial prevented him from discovering the extent of
their exculpatory testimony and cites Gatling v. Commonwealth,
14 Va. App. 60, 414 S.E.2d 862 (1992), and Fisher v.
Commonwealth, 11 Va. App. 302, 397 S.E.2d 901 (1990).
In both Gatling and Fisher, the defendant was convicted of
a sexual offense against a minor and the Commonwealth's evidence
consisted primarily of the victim's testimony. In Gatling, the
only evidence incriminating the defendant came from the
seventeen-year-old victim of a gang rape in her dorm room. The
defendant, whose defense was consent, proffered that the victim
told a close friend that she could not recall what the defendant
had to do with the rape. The defendant's counsel had twice
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attempted to interview the friend before trial, but the friend
refused to talk with the attorney. In Fisher, the
after-discovered evidence indicated the six-year-old victim was
familiar with male anatomy, a fact not known at trial.
At trial neither Gatling nor Fisher knew the essential
information provided by the after-discovered evidence. However
in this case, the defendant before the trial knew the essential
information that these witnesses could provide: the defendant
did not strike the victim. In addition, the defendant at trial
presented the specific detail that Sirena was the assailant
through another witness. The record supports the trial court's
ruling that the essential information was available and the
information that Sirena was the assailant was available through
due diligence.
The defendant next argues that the trial court erred in
denying his motion because Jose Maldonado's testimony was
exculpatory and not previously known or available to the
defendant. Maldonado was also a member of the Locos gang, but
he did not testify at trial. At the post-trial hearing, he
testified that the defendant did not attack the victim, but he
also stated he had told this to the defendant's father before
the trial. Maldonado said that he did not speak up until after
the trial because no one asked him. This testimony was
cumulative of that presented at trial, and itself shows the
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defendant did not exercise due diligence because Maldonado told
the defendant's father before trial.
Finally, the defendant argues that Landeata perjured
herself when she testified that the defendant assaulted the
victim. When the defendant seeks a new trial on the ground that
a material witness committed perjury at trial, he must prove the
perjury with clear and convincing evidence. See Mundy v.
Commonwealth, 11 Va. App. 461, 481, 390 S.E.2d 525, 536, aff'd
en banc, 399 S.E.2d 29 (1990), cert. denied, 502 U.S. 840(1991).
The defendant submitted two affidavits from other gang
members who claimed that Landeata had recanted her trial
testimony implicating the defendant. At the hearing on the
motion, Landeata explained her post-trial statement and
reaffirmed that the defendant struck the victim. The trial
court believed Landaeta and found that the defendant failed to
establish by clear and convincing evidence that she perjured
herself at trial. "[T]he finding of the judge, upon the
credibility of the witnesses and the weight to be given their
evidence, stands on the same footing as the verdict of a jury,
and unless that finding is plainly wrong, or without evidence to
support it, it cannot be disturbed." Yates v. Commonwealth, 4
Va. App. 140, 143, 355 S.E.2d 14, 16 (1987) (citation omitted).
The evidence supports the findings of the trial court.
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For the reasons stated, we affirm the conviction.
Affirmed.
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