                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia


KENNETH W. BARKSDALE
                                         MEMORANDUM OPINION * BY
v.   Record No. 3141-96-3            JUDGE RUDOLPH BUMGARDNER, III
                                              JUNE 16, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                  William N. Alexander, II, Judge
           Glenn L. Berger (Curtis L. Thornhill;
           Berger & Thornhill, on brief), for appellant.

           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
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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



                                  -2-
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.   See 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.   See 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.    See 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



                                -3-
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.      See 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 Hines, 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




                                 -4-
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 in 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."     Mundy 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 affirm.

                                                          Affirmed.




                                  -5-
Benton, J., dissenting.

     I would hold that the trial judge erred in refusing to grant

Kenneth Barksdale a new trial.

                                 I.

     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



                                 -6-
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]




                                 -7-
pulled over on the side of the road to try to figure out what was

going on [Whitehead] had the weapon."

     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.




                                  -8-
                                II.

     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 trial.


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

(1983).
     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.

                                (A)

     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



                                -9-
            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. Commonwealth, 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.

                                  (B)
       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.    See 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 every 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."     Odum, 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



                                 -10-
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.


Id. 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."       Hopkins
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

statements."     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




                                 -11-
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."     Hopkins,

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 issue."    Caminade

v. Commonwealth, 230 Va. 505, 510, 338 S.E.2d 846, 849 (1986)

(citation omitted).   Whitehead's statement was a confession.     See

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.    See Hines, 136 Va. at 745, 117 S.E. at 848

("[t]he truth of the admission itself, and the credibility of the



                                -12-
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.




                              -13-
