Emanuel Cornelius Simmons v. Commonwealth of Virginia ( 2008 )


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  •                                COURT OF APPEALS OF VIRGINIA
    Present: Chief Judge Felton, Judges Elder and Kelsey
    Argued at Chesapeake, Virginia
    EMANUEL CORNELIUS SIMMONS
    MEMORANDUM OPINION * BY
    v.     Record No. 2028-06-1                                      JUDGE LARRY G. ELDER
    FEBRUARY 19, 2008
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
    Everett A. Martin, Jr., Judge
    J. Barry McCracken for appellant.
    Richard B. Smith, Special Assistant Attorney General (Robert F.
    McDonnell, Attorney General, on brief), for appellee.
    Emanuel C. Simmons (appellant) appeals from his jury trial convictions for murder, using
    a firearm in the commission of murder, two counts of attempted robbery, and two counts of using
    a firearm in the commission of an attempted robbery. On appeal, he contends the trial court
    erred in denying his motion for a new trial based on after-discovered evidence. We hold the trial
    court did not err in denying the motion for a new trial, and we affirm appellant’s convictions.
    A motion for a new trial based on after-discovered evidence “is a matter submitted to the
    sound discretion of the circuit court and will be granted only under unusual circumstances after
    particular care and caution has been given to the evidence presented.” Orndorff v.
    Commonwealth, 
    271 Va. 486
    , 501, 
    628 S.E.2d 344
    , 352 (2006). A party seeking a new trial
    must show 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
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    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.
    Odum v. Commonwealth, 
    225 Va. 123
    , 130, 
    301 S.E.2d 145
    , 149 (1983). The moving party
    “must establish each of these mandatory criteria.” Commonwealth v. Tweed, 
    264 Va. 524
    , 528,
    
    570 S.E.2d 797
    , 800 (2002).
    On appeal, appellant contests the trial court’s statement about requirement two that it was
    “not sure” appellant had established “the evidence could not have been secured for use at trial in
    the exercise of reasonable diligence.” Appellant also contests the trial court’s express finding on
    requirement four that appellant was “[not] . . . even close to” proving the after-discovered
    evidence was “material and should produce an opposite result at another trial.” 1 We hold the
    trial court did not abuse its discretion in concluding under prong four that Thurman Brown’s
    testimony would not produce a different result. Thus, we affirm the trial court’s denial of the
    new trial motion without evaluating the sufficiency of the evidence to prove reasonable diligence
    under prong two.
    Prong four of the after-discovered evidence test requires proof that the evidence is
    “material, and such as should produce opposite results on the merits” at another trial. Odum, 225
    Va. at 130, 301 S.E.2d at 149. This standard has also been expressed as requiring the evidence
    to be such that it “‘ought to produce opposite results on the merits’” at another trial. Lewis v.
    Commonwealth, 
    209 Va. 602
    , 608-09, 
    166 S.E.2d 248
    , 253 (1969) (quoting Reiber v. James M.
    Duncan, Jr. & Assocs., Inc., 
    206 Va. 657
    , 663, 
    145 S.E.2d 157
    , 162 (1965)).
    Appellant conceded in the trial court that, although Brown originally testified at the
    hearing on the motion for a new trial that appellant was “not the man” who shot the victim,
    1
    The trial court assumed the first and third requirements had been met, and the
    Commonwealth does not seriously dispute these assumptions on appeal.
    -2-
    Brown admitted later during the hearing that he never saw the shooter’s face and could not
    describe him. When the trial court inquired of Brown, “How do you know it wasn’t him?”,
    Brown responded, “How do they[, referring to the two witnesses who testified at trial that
    appellant was the shooter,] know it was him?” because “nobody [could have] see[n] his face.”
    (Emphases added). Appellant’s counsel noted in argument in the trial court, “Mr. Brown quite
    candidly indicates it was too dark for him to make out the face of any person.”
    On appeal, appellant casts Brown’s testimony as first “stat[ing] emphatically that he
    could tell that the shooter was not [appellant]” and later “stat[ing] that he did not see the
    [shooter’s] face.” He argues that these “conflicts and inconsistencies” were for a jury to resolve
    in a new trial. He also argues that a jury should have been allowed to determine whether the
    testimony of eyewitness Jack Groder, who averred he saw the shooter’s face clearly and was
    certain the shooter was appellant, was more credible than the testimony of Brown, who insisted
    appellant was not the shooter and that no one could have seen the shooter’s face clearly because
    the lighting was poor and the shooter was wearing a hood. Citing Hopkins v. Commonwealth,
    
    19 Va. App. 1
    , 
    448 S.E.2d 316
     (1994), appellant argues that the trial court was compelled to
    grant his motion for a new trial because only a jury in a new trial was permitted to weigh this
    conflicting testimony. This argument fails to acknowledge, however, that the panel decision in
    that case was reversed on rehearing en banc, Hopkins v. Commonwealth, 
    20 Va. App. 242
    , 
    456 S.E.2d 147
     (1995), resulting in an affirmance of the trial court’s denial of the motion for a new
    trial in that case. 2
    The Virginia Supreme Court has also recently clarified these principles, holding that:
    When . . . the evidence supporting the new trial motion is
    contradicted by evidence in opposition to the motion, the circuit
    court is not permitted to presume that the moving party’s evidence
    2
    At oral argument, appellant acknowledged the en banc reversal in Hopkins but
    continued to assert the ongoing viability of the legal principle for which he had cited it.
    -3-
    is true but is required to weigh all the evidence presented in
    determining whether the moving party has satisfied the materiality
    standard articulated in Odum. Thus, when a circuit court is
    presented with conflicting evidence in considering a motion for a
    new trial, the court’s role resembles that of a fact finder in
    determining whether the evidence is such that it should produce an
    opposite result on the merits at a new trial.
    Orndorff, 271 Va. at 504-05, 628 S.E.2d at 354 (emphases added) (citations omitted); see
    Hopkins, 20 Va. App. at 250-52, 456 S.E.2d at 150-52 (upholding denial of new trial motion
    where eyewitness who testified at trial reaffirmed identification of defendant as killer and
    after-discovered evidence came from witnesses who gave self-contradictory testimony, and
    distinguishing Hines v. Commonwealth, 
    136 Va. 728
    , 
    117 S.E. 843
     (1923), on ground that
    Hines’s conviction was based on purely circumstantial evidence of guilt and strong
    after-discovered evidence that came from multiple sources).
    Under this standard, we hold the trial court acted within its discretion in weighing all the
    evidence and concluding that Brown’s testimony would not produce a different result in a new
    trial. As the trial court noted, Brown testified he believed the events occurred between 2:00 and
    3:00 a.m., whereas the evidence at trial, including emergency room records, established that the
    victim was shot and died before midnight. The record also showed that some of Brown’s
    testimony about the sequence of events in the underlying drug transaction was inconsistent with
    the testimony of Groder and Alton Archie. Further, Groder, who was within a few feet of the
    shooter, testified that lighting conditions were adequate to allow him to see the shooter’s face
    clearly, and Groder stated unequivocally that appellant, whom he had seen in even better lighting
    a few moments earlier, was the perpetrator. The Commonwealth also offered evidence from
    Investigator Robert Quick, who viewed the scene at night, took photos, and testified the lighting
    was sufficient to have permitted a person located in Groder’s position to “clearly see anyone
    standing in the grassy area” where the shooter stood. Groder was much nearer to the shooter
    -4-
    than Brown, which readily explained why Groder was able to see the shooter’s face when Brown
    admitted he could not. This evidence, viewed as a whole, supported the trial court’s finding that
    Brown’s testimony, if admitted in a new trial, ought not to produce an opposite result on the
    merits. See Orndorff, 271 Va. at 504-05, 628 S.E.2d at 354 (holding that on contradictory
    evidence, “the circuit court is not permitted to presume that the moving party’s evidence is true
    but is required to weigh all the evidence presented in determining whether the moving party has
    satisfied the materiality standard”).
    Because the evidence supported a finding that appellant failed to prove the fourth prong
    of the after-discovered evidence test, we hold the trial court did not abuse its discretion in
    denying appellant’s motion for a new trial. Thus, we affirm appellant’s convictions.
    Affirmed.
    -5-
    

Document Info

Docket Number: 2028061

Filed Date: 2/19/2008

Precedential Status: Non-Precedential

Modified Date: 4/17/2021