COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and Kelsey Argued at Chesapeake, Virginia
EMANUEL CORNELIUS SIMMONS MEMORANDUM OPINION * BY v. Record No. 2028-06-1 JUDGE LARRY G. ELDER FEBRUARY 19, 2008 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Everett A. Martin, Jr., Judge
J. Barry McCracken for appellant.
Richard B. Smith, Special Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Emanuel C. Simmons (appellant) appeals from his jury trial convictions for murder, using
a firearm in the commission of murder, two counts of attempted robbery, and two counts of using
a firearm in the commission of an attempted robbery. On appeal, he contends the trial court
erred in denying his motion for a new trial based on after-discovered evidence. We hold the trial
court did not err in denying the motion for a new trial, and we affirm appellant’s convictions.
A motion for a new trial based on after-discovered evidence “is a matter submitted to the
sound discretion of the circuit court and will be granted only under unusual circumstances after
particular care and caution has been given to the evidence presented.” Orndorff v.
Commonwealth, 271 Va. 486, 501, 628 S.E.2d 344, 352 (2006). A party seeking a new trial
must show 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
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 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). The moving party
“must establish each of these mandatory criteria.” Commonwealth v. Tweed, 264 Va. 524, 528,
570 S.E.2d 797, 800 (2002).
On appeal, appellant contests the trial court’s statement about requirement two that it was
“not sure” appellant had established “the evidence could not have been secured for use at trial in
the exercise of reasonable diligence.” Appellant also contests the trial court’s express finding on
requirement four that appellant was “[not] . . . even close to” proving the after-discovered
evidence was “material and should produce an opposite result at another trial.” 1 We hold the
trial court did not abuse its discretion in concluding under prong four that Thurman Brown’s
testimony would not produce a different result. Thus, we affirm the trial court’s denial of the
new trial motion without evaluating the sufficiency of the evidence to prove reasonable diligence
under prong two.
Prong four of the after-discovered evidence test requires proof that the evidence is
“material, and such as should produce opposite results on the merits” at another trial. Odum, 225
Va. at 130, 301 S.E.2d at 149. This standard has also been expressed as requiring the evidence
to be such that it “‘ought to produce opposite results on the merits’” at another trial. Lewis v.
Commonwealth, 209 Va. 602, 608-09, 166 S.E.2d 248, 253 (1969) (quoting Reiber v. James M.
Duncan, Jr. & Assocs., Inc., 206 Va. 657, 663, 145 S.E.2d 157, 162 (1965)).
Appellant conceded in the trial court that, although Brown originally testified at the
hearing on the motion for a new trial that appellant was “not the man” who shot the victim,
1 The trial court assumed the first and third requirements had been met, and the Commonwealth does not seriously dispute these assumptions on appeal. -2- Brown admitted later during the hearing that he never saw the shooter’s face and could not
describe him. When the trial court inquired of Brown, “How do you know it wasn’t him?”,
Brown responded, “How do they[, referring to the two witnesses who testified at trial that
appellant was the shooter,] know it was him?” because “nobody [could have] see[n] his face.”
(Emphases added). Appellant’s counsel noted in argument in the trial court, “Mr. Brown quite
candidly indicates it was too dark for him to make out the face of any person.”
On appeal, appellant casts Brown’s testimony as first “stat[ing] emphatically that he
could tell that the shooter was not [appellant]” and later “stat[ing] that he did not see the
[shooter’s] face.” He argues that these “conflicts and inconsistencies” were for a jury to resolve
in a new trial. He also argues that a jury should have been allowed to determine whether the
testimony of eyewitness Jack Groder, who averred he saw the shooter’s face clearly and was
certain the shooter was appellant, was more credible than the testimony of Brown, who insisted
appellant was not the shooter and that no one could have seen the shooter’s face clearly because
the lighting was poor and the shooter was wearing a hood. Citing Hopkins v. Commonwealth,
19 Va. App. 1, 448 S.E.2d 316 (1994), appellant argues that the trial court was compelled to
grant his motion for a new trial because only a jury in a new trial was permitted to weigh this
conflicting testimony. This argument fails to acknowledge, however, that the panel decision in
that case was reversed on rehearing en banc, Hopkins v. Commonwealth, 20 Va. App. 242, 456
S.E.2d 147 (1995), resulting in an affirmance of the trial court’s denial of the motion for a new
trial in that case. 2
The Virginia Supreme Court has also recently clarified these principles, holding that:
When . . . the evidence supporting the new trial motion is contradicted by evidence in opposition to the motion, the circuit court is not permitted to presume that the moving party’s evidence
2 At oral argument, appellant acknowledged the en banc reversal in Hopkins but continued to assert the ongoing viability of the legal principle for which he had cited it. -3- is true but is required to weigh all the evidence presented in determining whether the moving party has satisfied the materiality standard articulated in Odum. Thus, when a circuit court is presented with conflicting evidence in considering a motion for a new trial, the court’s role resembles that of a fact finder in determining whether the evidence is such that it should produce an opposite result on the merits at a new trial.
Orndorff, 271 Va. at 504-05, 628 S.E.2d at 354 (emphases added) (citations omitted); see
Hopkins, 20 Va. App. at 250-52, 456 S.E.2d at 150-52 (upholding denial of new trial motion
where eyewitness who testified at trial reaffirmed identification of defendant as killer and
after-discovered evidence came from witnesses who gave self-contradictory testimony, and
distinguishing Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843 (1923), on ground that
Hines’s conviction was based on purely circumstantial evidence of guilt and strong
after-discovered evidence that came from multiple sources).
Under this standard, we hold the trial court acted within its discretion in weighing all the
evidence and concluding that Brown’s testimony would not produce a different result in a new
trial.
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and Kelsey Argued at Chesapeake, Virginia
EMANUEL CORNELIUS SIMMONS MEMORANDUM OPINION * BY v. Record No. 2028-06-1 JUDGE LARRY G. ELDER FEBRUARY 19, 2008 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Everett A. Martin, Jr., Judge
J. Barry McCracken for appellant.
Richard B. Smith, Special Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Emanuel C. Simmons (appellant) appeals from his jury trial convictions for murder, using
a firearm in the commission of murder, two counts of attempted robbery, and two counts of using
a firearm in the commission of an attempted robbery. On appeal, he contends the trial court
erred in denying his motion for a new trial based on after-discovered evidence. We hold the trial
court did not err in denying the motion for a new trial, and we affirm appellant’s convictions.
A motion for a new trial based on after-discovered evidence “is a matter submitted to the
sound discretion of the circuit court and will be granted only under unusual circumstances after
particular care and caution has been given to the evidence presented.” Orndorff v.
Commonwealth, 271 Va. 486, 501, 628 S.E.2d 344, 352 (2006). A party seeking a new trial
must show 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
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 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). The moving party
“must establish each of these mandatory criteria.” Commonwealth v. Tweed, 264 Va. 524, 528,
570 S.E.2d 797, 800 (2002).
On appeal, appellant contests the trial court’s statement about requirement two that it was
“not sure” appellant had established “the evidence could not have been secured for use at trial in
the exercise of reasonable diligence.” Appellant also contests the trial court’s express finding on
requirement four that appellant was “[not] . . . even close to” proving the after-discovered
evidence was “material and should produce an opposite result at another trial.” 1 We hold the
trial court did not abuse its discretion in concluding under prong four that Thurman Brown’s
testimony would not produce a different result. Thus, we affirm the trial court’s denial of the
new trial motion without evaluating the sufficiency of the evidence to prove reasonable diligence
under prong two.
Prong four of the after-discovered evidence test requires proof that the evidence is
“material, and such as should produce opposite results on the merits” at another trial. Odum, 225
Va. at 130, 301 S.E.2d at 149. This standard has also been expressed as requiring the evidence
to be such that it “‘ought to produce opposite results on the merits’” at another trial. Lewis v.
Commonwealth, 209 Va. 602, 608-09, 166 S.E.2d 248, 253 (1969) (quoting Reiber v. James M.
Duncan, Jr. & Assocs., Inc., 206 Va. 657, 663, 145 S.E.2d 157, 162 (1965)).
Appellant conceded in the trial court that, although Brown originally testified at the
hearing on the motion for a new trial that appellant was “not the man” who shot the victim,
1 The trial court assumed the first and third requirements had been met, and the Commonwealth does not seriously dispute these assumptions on appeal. -2- Brown admitted later during the hearing that he never saw the shooter’s face and could not
describe him. When the trial court inquired of Brown, “How do you know it wasn’t him?”,
Brown responded, “How do they[, referring to the two witnesses who testified at trial that
appellant was the shooter,] know it was him?” because “nobody [could have] see[n] his face.”
(Emphases added). Appellant’s counsel noted in argument in the trial court, “Mr. Brown quite
candidly indicates it was too dark for him to make out the face of any person.”
On appeal, appellant casts Brown’s testimony as first “stat[ing] emphatically that he
could tell that the shooter was not [appellant]” and later “stat[ing] that he did not see the
[shooter’s] face.” He argues that these “conflicts and inconsistencies” were for a jury to resolve
in a new trial. He also argues that a jury should have been allowed to determine whether the
testimony of eyewitness Jack Groder, who averred he saw the shooter’s face clearly and was
certain the shooter was appellant, was more credible than the testimony of Brown, who insisted
appellant was not the shooter and that no one could have seen the shooter’s face clearly because
the lighting was poor and the shooter was wearing a hood. Citing Hopkins v. Commonwealth,
19 Va. App. 1, 448 S.E.2d 316 (1994), appellant argues that the trial court was compelled to
grant his motion for a new trial because only a jury in a new trial was permitted to weigh this
conflicting testimony. This argument fails to acknowledge, however, that the panel decision in
that case was reversed on rehearing en banc, Hopkins v. Commonwealth, 20 Va. App. 242, 456
S.E.2d 147 (1995), resulting in an affirmance of the trial court’s denial of the motion for a new
trial in that case. 2
The Virginia Supreme Court has also recently clarified these principles, holding that:
When . . . the evidence supporting the new trial motion is contradicted by evidence in opposition to the motion, the circuit court is not permitted to presume that the moving party’s evidence
2 At oral argument, appellant acknowledged the en banc reversal in Hopkins but continued to assert the ongoing viability of the legal principle for which he had cited it. -3- is true but is required to weigh all the evidence presented in determining whether the moving party has satisfied the materiality standard articulated in Odum. Thus, when a circuit court is presented with conflicting evidence in considering a motion for a new trial, the court’s role resembles that of a fact finder in determining whether the evidence is such that it should produce an opposite result on the merits at a new trial.
Orndorff, 271 Va. at 504-05, 628 S.E.2d at 354 (emphases added) (citations omitted); see
Hopkins, 20 Va. App. at 250-52, 456 S.E.2d at 150-52 (upholding denial of new trial motion
where eyewitness who testified at trial reaffirmed identification of defendant as killer and
after-discovered evidence came from witnesses who gave self-contradictory testimony, and
distinguishing Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843 (1923), on ground that
Hines’s conviction was based on purely circumstantial evidence of guilt and strong
after-discovered evidence that came from multiple sources).
Under this standard, we hold the trial court acted within its discretion in weighing all the
evidence and concluding that Brown’s testimony would not produce a different result in a new
trial. As the trial court noted, Brown testified he believed the events occurred between 2:00 and
3:00 a.m., whereas the evidence at trial, including emergency room records, established that the
victim was shot and died before midnight. The record also showed that some of Brown’s
testimony about the sequence of events in the underlying drug transaction was inconsistent with
the testimony of Groder and Alton Archie. Further, Groder, who was within a few feet of the
shooter, testified that lighting conditions were adequate to allow him to see the shooter’s face
clearly, and Groder stated unequivocally that appellant, whom he had seen in even better lighting
a few moments earlier, was the perpetrator. The Commonwealth also offered evidence from
Investigator Robert Quick, who viewed the scene at night, took photos, and testified the lighting
was sufficient to have permitted a person located in Groder’s position to “clearly see anyone
standing in the grassy area” where the shooter stood. Groder was much nearer to the shooter
-4- than Brown, which readily explained why Groder was able to see the shooter’s face when Brown
admitted he could not. This evidence, viewed as a whole, supported the trial court’s finding that
Brown’s testimony, if admitted in a new trial, ought not to produce an opposite result on the
merits. See Orndorff, 271 Va. at 504-05, 628 S.E.2d at 354 (holding that on contradictory
evidence, “the circuit court is not permitted to presume that the moving party’s evidence is true
but is required to weigh all the evidence presented in determining whether the moving party has
satisfied the materiality standard”).
Because the evidence supported a finding that appellant failed to prove the fourth prong
of the after-discovered evidence test, we hold the trial court did not abuse its discretion in
denying appellant’s motion for a new trial. Thus, we affirm appellant’s convictions.
Affirmed.
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