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WILLIAMS v. COMMONWEALTH OF VA


WILLIAMS

v.

COMMONWEALTH OF VA

(unpublished)


MARCH 30, 1999
Record No. 2784-97-1

MICHAEL EUGENE WILLIAMS

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT
NEWS

Randolph T. West, Judge
Argued at Norfolk, Virginia
Present: Judges Benton, Bray and Senior Judge
Overton

MEMORANDUM OPINION[1]
BY JUDGE NELSON T. OVERTON 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. 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."

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.
[2] 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 "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."

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,
[3] 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.

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.

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.

[2] Jackson’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.

[3] "Affidavits
are not generally admitted as a hearsay exception solely because
they are affidavits." 2 Charles E. Friend, The Law of
Evidence in Virginia
Sect. 18-28 (4th ed. 1993).

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