COURT OF APPEALS OF VIRGINIA

Present: Judge Humphreys, Senior Judg es Hodges and Overton Argued at Ches apeake, Virginia

SONNE M. BAILEY, s/k/a SONNE' M. BA ILEY, a/k/a SHAWN MICH AEL BAILEY MEMORANDUM OPINION * BY v. Record No. 1620-99-1 JU DGE ROBERT J. HUMPHREYS JUNE 13, 2000 COMMONWEALTH of VIRGINIA

FROM THE CIRCUIT COURT OF SOUTHAMP TON COUNTY E. Everett Ba gnell, Judge Sheldon C. Worrell, Jr., for appellant. Steven A. Witmer, As sistant Attorn ey 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, appe llant, was convicted in a bench trial of robbery, use of a fire arm in the commission of a robbery, and possession of a firearm after havi ng been convicte d of a felony. The sole question on appeal is whet her the trial co urt erred in denying appellant's post-tri al motion for a ne w trial based upon after-discovered eviden ce. For the reasons th at follow, we affirm the decision of the trial court. I. BACKGROUND James Timmons te stified that on the night of February 23, 1998, he was with Will iam Wellons when they encounte red appellant.At appellant's re quest, Timmons gave a pist ol he was ca rrying to appellant. The three men walked until they saw Lamont Artis. Wellons and appell ant approached Artis. Shortly therea fter, a man approached appellant an d Artis for the purpose of bu ying drugs. Appellant and Arti s argued over wh o would make the sale. Timmons testified that appellant grabbe d Artis, pulled out a gun and demanded Artis' drugs and money. We llons went through Artis' pockets and Artis surrendered a piec e of crack coca ine. One of the men also took Ar tis' gold chain and pendant. Timmons testified that appellan t hit Artis twic e in the head then fled with Timmons and Wellons. The three men su bsequently rendezvoused with Anto nio Cotton, who was driving Ti mmons' car. When police stopped the car shortly thereafter, th ey recovered Timm ons' pistol from underneath the front seat. A police officer also recovered Artis' gold chain and pendant from the paveme nt in a spot closest to where ap pellant was sitting in the car. Officer K.C. Hutt testified that when he served the felony warrants on appe llant, appellant asked wh ether the vi ctim could drop the charges. Hu tt testified that he told appellant that Artis could not drop the charges but th at if Artis did not testify, appellant prob ably would not be co nvicted. Appellant then stated, "I'll take care of that." Th e victim did not testify at the trial.

- 2 -Lamont Freeman was ca lled by the defense and te stified that he saw appellant, Timm ons and Wellons with Artis, bu t was too far away to hear any conv ersation. Freeman stat ed that Wellons hit Artis with a gun and went thro ugh Artis' pock ets. Freeman testified he saw appe llant run from the sc ene, but did not see appellant stri ke Artis. On cross-examinat ion, Freeman conc eded that in a statement to the police on th e day after the ro bbery, he claime d to have heard appellant dema nd money from Artis. He also told police that Wellons punched Ar tis in the face and that appellant then struck Artis with a gun. Fr eeman further to ld police that Wellons went through Artis' pockets an d took money and jewelry. Appellant was co nvicted as charged. The next da y, Freeman approached counsel for appellant and ga ve a written st atement. On April 6, 1999, Freeman provided an af fidavit. In his statement and affidavit, Freeman claime d he saw appell ant and Artis fighting, but deni ed seeing a gun. In hi s affidavit, though not in his statement, Free man claimed he lied be cause Cotton was in court and Cotton told "William Willis " (presumabl y William Wellons) that Fr eeman "said his na me in court and he and William were going to figh t over it." At the hearing on ap pellant's motion for a new trial, Freeman testified that appellan t ran away from the scene before Wellons and Timmons steppe d up and went through Ar tis' 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 tria l. Freeman fu rther explained that he lied at trial because Cotton was present in co urt, that Cotton knew Wellons, and that he wa s afraid of Wellons. II. ANALYSIS "Motions for new tria ls based upon after- discovered evidence are addressed to the sound discreti on of the trial judge, are not looked upon with favo r, are considered with special care and caution and are aw arded with great reluctance." Odum v. Commonwealth , 225 Va. 123, 13 0, 301 S.E.2d 14 5, 149 (1983). Because the granti ng 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 re quirements

- 4 -have been met in order to justify a ne w trial. See Carter v. Commonwealth , 10 Va. App. 507, 512-13, 393 S. E.2d 639, 64 2 (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 me rely that the evidence could not have been discov ered by the use of due diligenc e. The application for a new trial must set fort h in affidavits facts showing what efforts were made to obtain the evidence and explaining why those effort s 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 (1 967)) (other cita tion omitted). In support of his moti on for a new trial, counsel for appellant filed a one-paragraph affidavit whic h simply stated that he filed a motion for discovery, met with his client on several occasions, and met with Freeman pr ior to trial. This affidavit pr ovided no assistance to th e trial court in trying to determine if the evidence could have be en discovered through reasonable diligence.

- 5 -Finally, we cann ot say that the trial court was pl ainly wrong in finding that Free man's changed te stimony would not produce a different result if appellant were to be tried agai n. His earlier inconsistent statemen ts to the police un dermined Freeman's credibility at the tria l. His credib ility at any ne w trial would be considered in ligh t of those inco nsistencies as well as his admitted perjury and hi s admission that he lied to the police. Accordingly, we find that the trial court did not abuse its discretion in denying appellan t's motion for a new trial. Affirmed

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