Home / Fulltext Opinions / Virginia Court of Appeals / BARKSDALE v. COMMONWEALTH OF VA




JUNE 16, 1998
Record No. 3141-96-3





William N.
Alexander, II, Judge
Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia

Glenn L. Berger
(Curtis L. Thornhill; Berger & Thornhill, on brief), for

Kathleen B. Martin,
Assistant Attorney General (Richard Cullen, Attorney General, on
brief), for appellee.

Kenneth W. Barksdale
was charged with malicious wounding, use of a firearm during the
commission of malicious wounding, shooting from a motor vehicle,
and shooting at an occupied vehicle. A jury convicted him of each
charge. At the sentencing hearing, the defendant moved to set
aside the verdict and grant a new trial based on after acquired
evidence. He appeals the denial of the motion. Finding no error,
we affirm the convictions.

Sonya Covington,
Nicole Cook, and Kevin Logan were riding in a car when a Toyota
Cressida pulled up beside them. The defendant was in the rear of
the Toyota with Terrence Whitehead. After dropping back for a
while, the Toyota again pulled beside Covington's vehicle and
someone yelled for it to pull over. When she did not, two shots
were fired from the Toyota into the Covington vehicle hitting
Kevin Logan who was sitting in the back seat.

The Commonwealth's
evidence that came primarily from the persons riding in the
Covington vehicle identified the defendant as the shooter. There
were differences in the details of what various witnesses saw,
what they remembered, and how they described the events. The
defense evidence showed that Whitehead, not the defendant, fired
the shots.

After the jury
rendered its verdict but before the trial judge entered final
judgment, the defendant moved for a new trial based on after
acquired evidence. The trial court held a hearing at which two
witnesses testified for the defense. Mickey Williams testified
that he talked with Whitehead while both were in jail. Whitehead
told him that he had done the shooting not the defendant. This
conversation took place after the defendant's trial.

Paul Dalton was the
second witness for the defense. He testified that while he was in
jail he overheard a conversation through a vent between Whitehead
and his roommate, Willie Young. He recognized Whitehead's voice
and heard him tell Young that he, not the defendant, had fired
the gun. The defendant testified that he did not know any of this
information before his trial.

The Commonwealth
called Terrence Whitehead to the stand. He denied that he fired
the shots and denied ever telling anyone in jail that he had been
the shooter. He testified that before the trial he had talked
with the defendant's trial attorney and told him that the
defendant had done the shooting. The prosecution also called
Willie Young. He denied having the conversation that Dalton said
he overheard.

On appeal, we view
the evidence in the light most favorable to the Commonwealth with
all reasonable inferences deducible from it.
Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975).

The party seeking a
new trial based upon a claim of newly discovered evidence has the
burden of establishing that the evidence 1) was discovered after
trial; 2) could not have been obtained prior to trial through the
exercise of due diligence; 3) is not merely cumulative,
corroborative, or collateral; and 4) is material, such as should
produce an opposite result on the merits at another trial.
Odum v. Commonwealth, 225 Va. 123, 130,
301 S.E.2d 145, 149 (1983);
Carter v. Commonwealth,
10 Va. App. 507, 512-13, 393 S.E.2d 639, 642 (1990). The granting
of such a motion is not favored, considered with special care and
caution, and awarded with great reluctance.
Odum, 225 Va. at 130, 301 S.E.2d at 149.

Whether a new trial
will be granted is a matter committed to the sound discretion of
the trial court, and its decision will not be reversed except for
an abuse of discretion.
See Carter,
10 Va. App. at 514, 393 S.E.2d at 642. Before granting a new
trial, the trial court must have clear and convincing evidence
that leaves "no room for doubt" that the after acquired
evidence if true would produce a different result.
Carter, 10 Va. App. at 513, 393 S.E.2d
at 642;
see also Odum,
225 Va. at 131, 301 S.E.2d at 149.

We have reviewed the
record and find that the evidence produced by appellant fails to
meet the last requirement for setting aside a verdict based upon
after?discovered evidence. Based upon the original evidence, the
jury found the appellant guilty of the crime charged beyond a
reasonable doubt. The victims testified that the appellant had
the weapon and that they saw him lean over as if to shoot. The
appellant's newly discovered evidence that Whitehead was the
criminal agent would not have produced a different result on
retrial. While the evidence, if believed, was material, the trial
court properly could find that it did not present the reasonable
probability that had the evidence been disclosed to the jury it
would have produced an opposite result. The new evidence does not
bear upon the validity of the original evidence, and is
cumulative of evidence presented at trial.

This case is
distinguished from
Hines v. Commonwealth,
136 Va. 728, 117 S.E. 843 (1923). In
there were many material circumstances, as well as an alleged
confession, that tended to implicate a third party which were not
presented at trial. Here, the jury considered evidence that
Whitehead was a back seat passenger and the trigger man. The
appellant has failed to affirmatively show that the evidence of
an alleged confession by witnesses who are jailhouse inmates
would change the verdict at a subsequent trial.

In addition, unlike
Odum, there is no confession. There
is only testimony from two convicted felons who allege Whitehead
admitted committing the crime for which appellant was convicted.
There is great reluctance to grant appellant's motion
"because of the obvious opportunity and temptation that
arises for fabrication of such evidence."
v. Commonwealth
, 11 Va. App. 461, 481, 390 S.E.2d
525, 536,
aff'd, 399 S.E.2d 29 (1990) (en
banc), cert. denied,
502 U.S. 840 (1991) (motion denied because no evidence of due
diligence was presented).

Holding that there
was no abuse of discretion in denying the appellant's motion for
a new trial on the grounds of newly discovered evidence, we



Benton, J.,

I would hold that
the trial judge erred in refusing to grant Kenneth Barksdale a
new trial.


The evidence at
trial proved that on the afternoon of March 14, 1995, Sonya
Covington was driving a Honda automobile. Nicole Cook was in the
front passenger seat. Kevin Logan was seated in the back. A
Toyota driven by Tim Dodson began to follow the Honda. Tina Davis
was in the front passenger seat of the Toyota. In the back,
Barksdale was seated behind the driver, and Terrence Whitehead
was seated behind Davis. When the Toyota drove beside the Honda,
someone yelled for Covington to stop. As Covington continued to
drive, an occupant of the Toyota twice fired a gun through the
rear passenger side window at the Honda. Logan was shot in his
left arm.

All the occupants of
the Honda testified during the Commonwealth's case?in?chief.
Covington, the driver of the Honda, testified that she saw
Barksdale, who was sitting behind the driver, reach down and come
up with a gun in his hand. She "scooted down" in her
seat and heard two gunshots. However, she did not see who fired
the gun. Cook, who was seated in the passenger's seat of the
Honda, testified that she saw Barksdale lean over the person
sitting on the right side and shoot through the rear right
passenger side window. Cook admitted that she did not name
Barksdale as the shooter either when she gave a statement to
police the day after the incident or when she testified at the
trial of Dodson, the driver of the Toyota.

Logan testified that
before he was shot he saw both Barksdale and a dark-skinned man,
who he did not know, in the back seat of the Toyota. Barksdale
was sitting behind the driver. Logan also testified that he saw
the gun but could not tell who had the gun. However, during
Logan's testimony, the Commonwealth stipulated that Logan had
testified at Barksdale's preliminary hearing that he saw a
"dark skinned guy with a gun" before he ducked and was
shot. Logan also admitted that he had testified earlier at
Dodson's trial that Barksdale or the other passenger had the gun.

Davis, who was
seated in the passenger's seat of the Toyota, and Dodson, the
driver of the Toyota, testified for the defense. Davis testified
that Whitehead shot the gun. She said she knew he shot the gun
"[b]ecause . . . he was behind [her], and that's where the
gun shot came from." She testified that after the shooting,
Whitehead told the driver to turn around and return to Altavista.
Dodson asked Whitehead "why was he shooting."

Dodson testified
that Whitehead was sitting in the back right side passenger seat.
He saw Whitehead reach out the window and twice shoot the gun. He
also testified that Whitehead aimed the gun at him after the
shooting and told him to drive to Altavista. At his own trial,
Dodson had testified that he assumed "that [Whitehead] shot
[at] the car because when [Dodson] pulled over on the side of the
road to try to figure out what was going on [Whitehead] had the

Based upon this
testimony, the jury convicted Barksdale. After the jury's verdict
and before sentencing, Barksdale filed a motion for a new trial
based on after-discovered evidence that Whitehead had confessed
to the crime.

At the hearing on
Barksdale's motion for a new trial, Mickey Williams testified
that Whitehead, with whom he shared a cell in jail, told him two
or three times "that [Whitehead] was the one that done the
shooting, and since . . . [Barksdale] already got found guilty of
it, [Whitehead] was just going to let . . . everybody keep
thinking that."

Paul Dalton
testified that he heard Whitehead speaking in the jail to
Dalton's cell mate. Whitehead said "he did do the
shooting" and that Barksdale "was going down for it and
[Whitehead] won't 'cause they had no evidence against him."
Dalton also heard Whitehead say that Whitehead bought the gun and
that Whitehead pulled the trigger.

Dalton's cell mate
denied that Whitehead talked to him about the shooting Barksdale
was convicted of committing. Whitehead also denied being the
shooter and denied making any of these statements. However,
contrary to every witness who testified at trial, Whitehead
testified that he was sitting in the car behind the driver on the
day of the shooting.


The following four
requirements must be met for a new trial to be granted upon a
claim of after-discovered evidence:

that the evidence
(1) appears to have been discovered subsequent to the 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

Odum v.
, 225 Va. 123, 130, 301 S.E.2d 145, 149

The majority holds
that the evidence produced at the post?trial hearing did not
meet the requirements for after?discovered evidence because it
was merely cumulative and corroborative to that of other
witnesses and "would not have produced a different
result." I disagree.


Although Whitehead's
confession corroborated the testimony of Davis that Whitehead,
rather than Barksdale, was the shooter, Whitehead's confession
was by its nature highly probative and of a wholly different
quality than testimony of a third person implicating Whitehead.
In discussing the impact of a confession on a jury's verdict,
this Court recently stated:

A confession is like
no other evidence. Indeed, "the defendant's own confession
is probably the most probative and damaging evidence that can be
admitted against him. . . . [T]he admissions of a defendant come
from the actor himself, the most knowledgeable and unimpeachable
source of information about his past conduct. Certainly,
confessions have profound impact on the jury, so much so that we
may justifiably doubt its ability to put them out of mind even if
told to do so."

Quinn v.
, 25 Va. App. 702, 719-20, 492 S.E.2d
470, 479 (1997) (citation omitted). Thus, I would hold that
Whitehead's confession was more than merely cumulative or
corroborative of the defense's other evidence and was highly
probative on the issue of Barksdale's guilt.


I also disagree with
the majority's conclusion that Barksdale did not prove the new
evidence would probably affect the outcome of a new trial. I
believe that if the jury had heard and believed this new
evidence, that Whitehead confessed to committing the crime, a
different result would have necessarily occurred.
Hines v. Commonwealth, 136 Va. 728,
750-51, 117 S.E. 843, 849 (1923). Furthermore, Whitehead's
testimony that he was sitting behind the driver was contrary to
witness who testified at trial. Certainly, the jury would have
considered that testimony as a transparent deception by Whitehead
to remove himself from the place where the gun was fired. This
evidence "is material, and such as should produce opposite
results on the merits at another trial."
225 Va. at 130, 301 S.E.2d at 149.

In Hines,
the Supreme Court of Virginia reversed the trial judge's refusal
to grant a new trial when after-discovered evidence indicated
that someone else had confessed to the crime for which the
accused had been convicted. The Court stated the following:

The jury found upon
the original evidence that he was guilty beyond a reasonable
doubt, and as they were the sole judges of the weight and
credibility of the testimony, their verdict thereon could not be
disturbed. But the vital facts upon which that verdict was based
were disputed, and this new evidence, if they had heard and
believed it, would necessarily have produced a different result.
We do not undertake to say what weight a jury would give to the
new evidence, but it certainly ought to change the result if it
is worthy of belief, and
whether it is worthy of
belief is a question which ought to be settled, not by the court,
but by a jury

at 750-51, 117 S.E. at 849-50 (emphasis added).

This is not a case
which "presents a verdict based on uncontradicted,
corroborated and reaffirmed eyewitness testimony" or which
"presents after-discovered evidence that is
self?contradictory, perjured at least in part, and plainly
unworthy of belief [or that is] insufficient, as a matter of law,
to frame a legitimate question for jury determination."
v. Commonwealth
, 20 Va. App. 242, 252, 456 S.E.2d
147, 151 (1995) (
en banc).
Nor is it "the latest in a series of inconsistent
Odum, 225 Va. at 131,
301 S.E.2d at 149. While two of the Commonwealth's witnesses
testified at trial that they saw Barksdale with the gun, their
testimony was not without contradiction. Cook's testimony clearly
establishes that she did not say Barksdale committed the crime
either when she gave a statement to the police the day after the
incident or at Dodson's trial. Covington said she saw Barksdale
with a weapon; however, she did not see Barksdale fire the
weapon. At Barksdale's trial, Logan testified that he could not
tell who had the gun. At Dodson's earlier trial, Logan could only
say that either Barksdale or another man had the gun. The
testimony of these witnesses was also contradicted by the
testimony of the witnesses for the defense who stated that
Whitehead fired the gun.

Moreover, the
after-discovered evidence was not "self?contradictory"
or "plainly unworthy of belief."
20 Va. App. at 252, 456 S.E.2d at 151. The testimony of the two
prison inmates regarding Whitehead's confessions was consistent
?? Whitehead was the shooter and he was allowing Barksdale to
take the blame. Although the majority concludes that "there
is no confession," the law is clear that "a
'confession' is generally defined as a statement admitting or
acknowledging all facts necessary for conviction of the crimes at
Caminade v. Commonwealth,
230 Va. 505, 510, 338 S.E.2d 846, 849 (1986) (citation omitted).
Whitehead's statement was a confession.
Hines, 136 Va. at 737-38, 117 S.E. at
845 (confession to third party). Moreover, the trial judge simply
relied on the fact that the two witnesses were convicted felons
in denying Barksdale's motion for a new trial. However, the
witnesses' credibility, as well as the credibility of Whitehead's
confession, were for the jury to resolve.
Hines, 136 Va. at 745, 117 S.E. at 848
("[t]he truth of the admission itself, and the credibility
of the witness who undertakes to repeat the admission, must, like
the truthfulness of all other testimony, address itself to and be
settled by the jury").

If the jury did
believe this new evidence, then the evidence would necessarily
have changed the outcome of Barksdale's trial. Therefore, I would
hold that the trial judge abused his discretion in refusing to
grant Barksdale's request for a new trial, and I would reverse
the decision and remand for a new trial.






[1] Pursuant
to Code Sect. 17-116.010 this opinion is not designated for