COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Overton 

Argued at Norfolk, Virginia 

MICHAEL EUGENE WILLIAMS 

 MEMORANDUM OPINION*

v. Record No. 2784-97-1 BY JUDGE NELSON T. OVERTON 

 MARCH 30, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Randolph T. West, Judge 

 Charles E. Haden for appellant. 

 Richard B. Smith, Assistant Attorney General 

(Mark L. Earley, Attorney General, on 

brief), for appellee. 

 In a bench trial, Michael Eugene Williams (appellant) was 

convicted of robbery, malicious wounding, and two counts of 

using a firearm in the commission of a felony. On appeal, 

appellant challenges the trial court's refusal to consider, in 

ruling upon his motion for a new trial, an affidavit from an 

alleged eyewitness to the incident. Finding no error, we affirm 

appellant's convictions. 

FACTS AND PROCEEDINGS

 "On appeal, 'we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom.'" Archer v. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) 

(citation omitted). 

 At the beginning of appellant's trial, the trial court 

asked appellant if he had any witnesses to call in his behalf. 

Appellant responded, "Yes I have one, but I don't know his 

name." Appellant claimed that he saw the witness every day. 

Appellant indicated that he was prepared to proceed with the 

trial nonetheless. 

 The Commonwealth's evidence proved that on the morning of 

April 22, 1997, Anthony Sterling and his cousin were approached 

on the street by three men. Appellant, with whom Sterling was 

well acquainted, was one of the three men. Sterling and 

appellant conversed briefly. As Sterling and his cousin turned 

to continue on their way, one of the men with appellant, 

identified by Sterling as "Antoine," pointed a gun at Sterling's 

face. Antoine ordered Sterling to empty his pockets and lie on 

the ground. Sterling said they could have what was in his 

pockets, but he refused to lie on the ground. 

 Appellant said, "Get his shit. Get his shit." Appellant 

took Sterling's watch and the money from one of Sterling's 

pockets. The third assailant patted Sterling's other pocket. 

Sterling pushed away the third man and ran. As Sterling fled, 

he was struck by a bullet in the right leg. Sterling heard 

appellant say, "Shoot him. Shoot his ass." 
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 Testifying in his own behalf, appellant claimed that he was 

present when the incident began, but that he was not involved. 

Appellant stated that on the morning of April 22, 1997, he was 

trying to "score a bag of heroin" for his own personal use from 

Sterling. Appellant said he had seventeen dollars "exactly." 

He encountered "Twan" and "Mo" on the street, and they followed 

him to Sterling. Before appellant could make the purchase, he 

testified, "Twan and Mo pulled out the gun." Appellant stated 

that he ran away as Twan and Mo started searching Sterling's 

pockets. Appellant denied taking anything from Sterling. The 

trial court rejected appellant's account of the event and found 

him guilty of the charged offenses. 

 On October 28, 1997, appellant made an oral motion for a 

new trial based upon newly discovered evidence. Defense counsel 

stated that since the trial, Betty Jackson had come forward with 

information about the incident and had sworn an affidavit.1 

 

 1Jackson's affidavit stated: 

1. My name is Betty Jackson. I am giving 

this affidavit on behalf of Michael Eugene 

Williams. 

2. On August 8, 1997, I gave Michael 

Williams eighteen dollars for him to buy me 

some cocaine. He bought from Mr. Sterling 

and when he turned to leave, two other 

fellows robbed Mr. Sterling, and shot him. 

3. Michael was not involved in the robbery 

at all. 

4. I had moved and Michael did not know 

where I was so he could not find me until 

now. I came forward after I heard he was 

found guilty of something he did not do. 
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Jackson was present in court that day. Due to time constraints, 

the trial court refused to hear appellant's motion that day, but 

required Jackson to provide her address, telephone number, and 

place of employment so that the defense could subpoena her for a 

future hearing. 

 By agreement of counsel, the hearing upon appellant's 

motion was scheduled for November 18, 1997. Although a witness 

subpoena was served by posting upon Jackson, she failed to 

appear at the hearing. Appellant asked to continue the matter, 

but the court refused. In response to appellant's request for a 

ruling on his motion for a new trial "based on the affidavit," 

the court stated: 

 I was going to, on your motion, this morning 

just reopen the trial, was what I was going 

to do, not grant a new trial. I was going 

to reopen and let her testify, but since 

she's not here, you know, I can't do 

anything about that. 

The trial court denied appellant's motion for a new trial, and 

proceeded to sentence appellant. 

ANALYSIS

 In his brief, appellant contends that "the trial court 

should have either granted a continuance to get Jackson into 

court or else ruled that the witness was 'unavailable.'" 

Whether the trial court committed reversible error by denying 

appellant's continuance request was neither an issue raised as a 
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"question presented" in appellant's petition for appeal nor an 

issue upon which this Court granted appellate review. See Rule 

5A:12(c) ("[o]nly questions presented in the petition for appeal 

will be noticed by the Court of Appeals"). See also Perez v. 

Commonwealth, 25 Va. App. 137, 139 n.2, 486 S.E.2d 578, 579 n.2 

(1997). Furthermore, appellant did not argue in the lower court 

that the trial judge should consider Jackson's affidavit because 

she was unavailable to appear as a witness. The Court of 

Appeals will not consider an argument on appeal which was not 

presented to the trial court. See Jacques v. Commonwealth, 12 

Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule 

5A:18). Accordingly, we will not address these two questions. 

 The sole issue remaining for our determination is whether 

the trial court erred in refusing to consider Jackson's 

affidavit before ruling upon appellant's motion for a new trial. 

 "Motions for new trials based on 

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. . . . The 

applicant bears the burden to establish that 

the evidence (1) appears to have been 

discovered subsequent to 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." 
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Hopkins v. Commonwealth, 20 Va. App. 242, 249, 456 S.E.2d 147, 

150 (1995) (en banc) (citation omitted). 

 Even if the affidavit constituted evidence the trial court 

properly could have considered in ruling upon appellant's 

motion, a question we do not decide here,2 the affidavit's 

contents did not mandate a new trial for appellant. Jackson's 

affidavit states that two men, not including appellant, robbed 

Sterling on August 8, 1997, almost four months after the robbery 

and other crimes with which appellant was charged. Thus, the 

affidavit on its face is immaterial to the crimes of which 

appellant was convicted. 

 Moreover, the affidavit is inconsistent with appellant's 

testimony in significant aspects. Jackson states in the 

affidavit that appellant bought eighteen dollars worth of 

cocaine from Sterling on her behalf just before the robbery. 

Appellant testified that he approached Sterling to buy heroin 

for his own use, that he had seventeen dollars to make the 

purchase, but that Twan and Mo robbed Sterling before he 

obtained the drugs. These glaring inconsistencies serve to 

undermine, rather than strengthen, appellant's testimony, which 

the trial court chose to discredit. 

 

 2"Affidavits are not generally admitted as a hearsay 

exception solely because they are affidavits." 2 Charles E. 

Friend, The Law of Evidence in Virginia § 18-28 (4th ed. 1993). 
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 Furthermore, if Jackson's affidavit accurately describes 

the robbery of Sterling, then appellant would have known of 

Jackson's testimony before trial. If appellant had been 

purchasing drugs for her from Sterling just before the robbery, 

appellant would have been well aware of that fact and that 

Jackson's testimony might prove valuable to him. Thus, any 

information Jackson could provide would not qualify as 

after-discovered evidence. 

 We find that the trial court did not abuse its discretion 

in denying appellant's motion for a new trial. Accordingly, 

appellant's convictions are affirmed. 

 Affirmed.