Patrick Kirk Scarborough v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Overton
Argued at Norfolk, Virginia
PATRICK KIRK SCARBOROUGH
MEMORANDUM OPINION * BY
v. Record No. 2073-95-1 JUDGE JAMES W. BENTON, JR.
DECEMBER 31, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
Oldric J. LaBell, Jr., for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Thomas D. Bagwell, Senior Assistant
Attorney General, on brief), for appellee.
Patrick Kirk Scarborough was convicted of robbery and
sentenced to ten years in prison. On appeal, he contends that
the trial judge erred in denying his motion to vacate the
judgment until he could present evidence in support of a new
trial. For the reasons that follow, we affirm the conviction.
I.
The evidence at trial proved that on November 5, 1994, at
2:30 p.m., Gloria Wilson was entering her car when a man grabbed
her purse and attempted to pull it away. Wilson continued to
hold the purse strap and was dragged by the man until the strap
broke. Wilson yelled as the man escaped in a car with her purse.
Wilson described the man's facial features and clothing to
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
Detective Richard Gaddis. Several days later, she selected from
a photographic spread two persons, one of whom was Scarborough.
At trial, when asked whether the man who robbed her was in the
courtroom, Wilson stated, "I think that's him right there."
Susan Brown testified that she saw Scarborough in the
parking lot and watched him because his clothing was
inappropriate for the very warm temperature. After she and her
husband passed him and parked their vehicle, she saw him pulling
Wilson along the pavement by her purse. They were two parking
spaces away. Brown's husband chased Scarborough until
Scarborough escaped in an automobile.
After the robbery, Brown immediately selected Scarborough's
photograph from an array of photographs. At trial, she
positively identified Scarborough as the robber.
Scarborough testified and denied that he was the robber. He
testified that on the afternoon of November 5, 1994, he went to
visit Sola Kirby, his friend. When he found no one present at
her apartment, he then went to visit another friend, Althea
Ferguson, at 4:00 p.m. To support his alibi, Scarborough called
five witnesses at trial, including Kirby and Ferguson. None,
however, were able to testify that they saw him on November 5,
1994.
The trial judge convicted Scarborough of the robbery of
Wilson. After considering a presentence report, the trial judge
sentenced Scarborough on August 23, 1995.
- 2 -
On September 13, 1995, twenty-one days after sentencing and
sixty days after trial, Scarborough's counsel orally moved the
trial judge to vacate the judgment order of August 23, 1995, and
to grant him an evidentiary hearing on his motion for a new
trial. Counsel informed the judge that Scarborough called him on
the afternoon of the day he was sentenced and said he had been
mistaken about his alibi for the day of the robbery. Scarborough
told him that he had been at the home of Tawanda Huff. Counsel
informed the judge that counsel had been unable to locate Huff.
In support of the motion, Scarborough testified that he had
assumed he was at Kirby's house on the day of the crime.
However, he had never contacted Kirby to confirm that fact.
Scarborough further testified that Joseph Frump, an inmate in
jail with Scarborough, knew that Scarborough had been at Huff's
home on November 5. Frump was Huff's friend and recalled
Scarborough's presence at Huff's home after Scarborough informed
him of his conviction.
The trial judge found that Scarborough's testimony failed to
establish that he could not have discovered the evidence earlier.
Thus, the trial judge refused to vacate the sentence to allow
Scarborough's counsel additional time to locate Huff and present
her testimony.
II.
When Scarborough and his counsel appeared before the trial
judge on the twenty-first day after the trial, the trial judge
- 3 -
did not have a written motion for a new trial to consider. Thus,
necessarily subsumed in Scarborough's argument that he was
entitled to a ruling vacating the judgment is the contention that
he made a sufficient showing of a likelihood that he could have
presented evidence to satisfy the criteria necessary for a new
trial.
The applicant [who seeks a new trial] bears
the burden to establish that the evidence (1)
appears to have been discovered subsequent to
the 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.
Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149
(1983) (citations omitted).
We note initially that the record contains no explanation
why the request for an evidentiary hearing was not made earlier.
Scarborough's counsel proffered to the trial judge that he
learned of Scarborough's new alibi on the very day of the
sentencing. The record contains no explanation for the delay
that caused this matter to be heard on the twenty-first day after
sentencing.
More pertinent, however, the record contains no answer to
the trial judge's inquiry whether there was a reason why
Scarborough could not have discovered the evidence prior to
trial. Indeed, on this record the trial judge could have
reasonably inferred that scant investigation had occurred before
- 4 -
Scarborough and his five witnesses testified at trial. In
addition, at the September hearing, Scarborough's counsel had not
located Huff and could not proffer that she could support
Scarborough's new alibi at a later hearing. Thus, the record
contains no credible evidence or proffer that Scarborough could
not have discovered the evidence prior to trial.
Because Scarborough failed to make a prima facie showing
that evidence existed to support a motion for a new trial, the
trial judge did not err in denying Scarborough's motion to vacate
the judgment in order to permit a further hearing. See Yeager v.
Commonwealth, 16 Va. App. 761, 766, 433 S.E.2d 248, 251 (1993).
Accordingly, we affirm the ruling.
Affirmed.
- 5 -