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. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

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. 
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. 

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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 

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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 

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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. 

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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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