                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia


ARTHUR LEE LEWIS
                                          MEMORANDUM OPINION * BY
v.   Record No. 2812-98-3                 JUDGE WILLIAM H. HODGES
                                              DECEMBER 14, 1999
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
                      Charles M. Stone, Judge

            Elwood Earl Sanders, Jr., Appellate Defender
            (Public Defender Commission of Virginia, on
            briefs), for appellant.

            Amy L. Marshall, Assistant Attorney General
            (Mark L. Earley, Attorney General; Robert H.
            Anderson, III, Assistant Attorney General,
            on brief), for appellee.


     Appellant appeals his convictions of robbery and the use of

a firearm in the commission of robbery.    Appellant contends that

the trial court erred in denying his motion to set aside the

verdicts and grant a new trial based on after-discovered

evidence.    For the following reasons, we affirm the trial

court's ruling.

            "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

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
            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).

    During appellant's jury trial, the victim, James Coleman,

positively identified Robert Poindexter as the gunman who robbed

him on January 26, 1998.   Coleman also positively identified

appellant as being present and assisting Poindexter with the

robbery.    Coleman expressed no doubt as to the identity of

either robber.   Appellant denied any involvement in the robbery.

The jury found appellant guilty of robbery and the use of a

firearm in the commission of a robbery.

    After appellant's trial, he filed a motion to set aside the

verdicts and requested a new trial based upon after-discovered

evidence.   Appellant asserted that the day after his trial,

Poindexter contacted appellant's attorney and told appellant's

attorney that appellant was not with him when he robbed Coleman.

Appellant's attorney also proffered evidence that several weeks

before appellant's trial, appellant received a note from

Poindexter, which stated, "I was going to free you and now I'm

going to let you hang."


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    At appellant's sentencing hearing, Poindexter, having been

immunized against perjury, testified that he told appellant's

attorney that appellant did not commit the robbery because "I

won't with him."   Poindexter also denied that he had committed

the robbery.

    The record established that before his trial, appellant

knew that Poindexter could tell a different story than he did

during the joint trial.   However, appellant did not reveal that

knowledge to anyone until after his trial.   The evidence

regarding the note allegedly written by Poindexter to appellant

existed before appellant's trial and, thus could have been used

during the trial to impeach Poindexter.   Therefore, Poindexter's

post-trial testimony did not meet the first requirement for

granting a new trial based upon after-discovered evidence.

    In addition, even absent Poindexter's trial testimony, the

jury could have concluded beyond a reasonable doubt that

appellant robbed Coleman based upon Coleman's positive

identification of appellant as one of the robbers.   Therefore,

Poindexter's post-trial statements and testimony also did not

meet the fourth requirement for granting a new trial based upon

after-discovered evidence.




                               - 3 -
     Accordingly, the trial court did not err in denying

appellant's motion to set aside the verdicts and to grant a new

trial based upon after-discovered evidence.

                                                           Affirmed.




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