Sonne M. Bailey, s/k/a v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: June 13, 2000
• Docket: 1620991
• Status: Unpublished

Opinion

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.

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