                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Elder, Humphreys and Huff
UNPUBLISHED


              Argued at Chesapeake, Virginia


              ANTHONY JAMES EASON
                                                                               MEMORANDUM OPINION * BY
              v.     Record No. 0002-12-1                                        JUDGE LARRY G. ELDER
                                                                                   FEBRUARY 19, 2013
              COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                              Timothy S. Fisher, Judge

                               Noah D. Weisberg (Weisberg & Weisberg, PLLC, on briefs), for
                               appellant.

                               Lauren C. Campbell, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Anthony James Eason (appellant) appeals his bench trial convictions for two counts of

              aggravated maiming in violation of Code § 18.2-51.2, two counts of using a firearm in the

              commission of a felony in violation of Code § 18.2-53.1, and one count of possession of a

              firearm by a violent felon in violation of Code § 18.2-308.2. On appeal, he contends the trial

              court erroneously denied his motion to set aside the verdicts based on after-discovered evidence.

              The claimed after-discovered evidence was the post-trial affidavit of a witness who had also

              made a statement to police prior to trial. However, the content of that pre-trial statement, as

              memorialized in letter form by a police detective, differed from the content of the witness’

              post-trial affidavit. Appellant contends the detective’s letter incorrectly recorded the witness’

              pre-trial statement and that the post-trial affidavit proved appellant acted in self-defense. We



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
hold settled principles support the trial court’s denial of appellant’s motion to set aside the

verdicts. Therefore, we affirm appellant’s convictions.

                                                  I.

       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 (Orndorff I), 271 Va. 486, 501, 628 S.E.2d 344, 352 (2006). “‘The real object to

be attained in granting a new trial is to prevent an erroneous judgment from becoming final.’”

Indep. Cab Assoc. v. LaTouche, 197 Va. 367, 377, 89 S.E.2d 320, 327 (1955) (quoting Burks

Pleading and Practice § 324, at 602-03 (4th ed. 1952)).

       A party seeking a new trial must show the evidence at issue:

               (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 moving party

“must establish each of these mandatory criteria.” Commonwealth v. Tweed, 264 Va. 524, 528,

570 S.E.2d 797, 800 (2002). 1 We assume without deciding that the evidence satisfied prongs

one and three of the test and focus on prongs two and four.


       1
          Case law provides that a motion for a new trial must be accompanied by affidavits.
Those affidavits must “support the contention that the newly discovered evidence could not have
been discovered before the trial by the exercise of due diligence.” Mundy v. Commonwealth, 11
Va. App. 461, 483, 390 S.E.2d 525, 537, adhered to on reh’g en banc, 399 S.E.2d 29 (1990). An
explanation of “[the] efforts made to obtain the evidence and . . . why those efforts were to no
avail” “must [also be] set forth in affidavit[] [form].” Id.
        Here, appellant submitted an affidavit from Gwendolyn Priest describing what she
claimed to have seen after the shooting. However, he did not submit an affidavit detailing the
efforts he made to speak to Priest prior to trial. The trial court apparently accepted the averments
counsel made regarding his efforts to reach Priest in his written motion and at the related
                                                  -2-
           A. INABILITY TO DISCOVER EVIDENCE BEFORE TRIAL (Prong 2)

       A defendant is “required to show that []he actually attempted to secure [the

after-discovered] evidence in a diligent and timely manner [before trial] but was prevented from

obtaining the evidence for a particular reason.” Orndorff I, 271 Va. at 502, 628 S.E.2d at 353. A

party is presumed to have “diligently interviewed” witnesses such that he has obtained all

relevant information available from them. Lindamood v. Potomac Power & Light Co., 100 S.E.

868, 971 (W. Va. 1919); see also Michie’s Jurisp. New Trials § 24, at 606 (2002). The

reasonable diligence requirement does not permit a defendant to rely on a law enforcement

summary of a statement made by a witness. 2 The court must determine, instead, whether the

defendant exercised reasonable diligence prior to trial in attempting to interview the witness

himself or through an agent. “[W]hat is reasonable diligence depends upon the facts and

circumstances of each particular case . . . .” Orndorff I, 271 Va. at 502, 628 S.E.2d at 353.

       Here, the evidence supports the trial court’s finding that appellant failed to use reasonable

diligence to obtain a statement directly from witness Gwendolyn Priest prior to trial. Appellant

knew of Priest’s existence and had what he believed to be a correct address for Priest in New

York at least nine weeks prior to trial. He then attempted without success to secure Priest’s

presence for trial via an out-of-state witness subpoena, 3 but he made no effort to obtain a



hearings. The Commonwealth does not argue that appellant’s failure to detail his efforts under
oath prevents us from reaching the issue. Because we hold the representations, if true, fail
substantively to establish appellant was entitled to a new trial, we treat counsel’s averments as if
they were made under oath and proceed to the merits of the analysis.
       2
         We need not consider whether different principles might apply to a statement signed or
executed under oath by the witness. We also note appellant does not contend on appeal that
Detective Hahn’s allegedly erroneous summary of the witness’ informal verbal statement
constituted a failure to produce exculpatory evidence in violation of Brady v. Maryland, 373 U.S.
83 (1968).
       3
         When the trial court refused his request to have Priest’s travel costs paid by the state, as
permitted for indigent defendants under Code §§ 19.2-278 and -330, because appellant had failed
                                               -3-
statement from Priest at that time. Although appellant claimed he could not afford to obtain

Priest’s statement at that time, it was undisputed that less than twelve weeks after appellant was

convicted, he was able to afford to hire a private investigator to interview Priest in New York, at

which time he secured the affidavit at issue. On these facts, the trial court did not abuse its

discretion in concluding that appellant failed to use reasonable diligence to discover Priest’s

statement prior to trial, with or without a request for a continuance. 4 See Mundy v.

Commonwealth, 11 Va. App. 461, 483, 390 S.E.2d 525, 537, adhered to on reh’g en banc, 399

S.E.2d 29 (1990) (noting no continuance was requested).

                       B. MATERIALITY OF THE EVIDENCE (Prong 4)

        “Before setting aside [a] verdict, the trial court must have evidence before it to show in a

clear and convincing manner ‘as to leave no room for doubt’ that the after-discovered evidence,

if true[,] would produce a different result at another trial.” Carter v. Commonwealth, 10

Va. App. 507, 513, 393 S.E.2d 639, 642 (1990) (quoting Powell v. Commonwealth, 133 Va. 741,

756, 112 S.E. 657, 661 (1922)). Furthermore,

               [w]hen . . . 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

to prove his indigency, appellant did not move the court to reconsider or to allow him to furnish
evidence of his financial status. Further, when the New York court refused to issue the requested
subpoena to compel Priest’s presence for trial on the date scheduled because of the lack of
provision for travel expenses, appellant chose to proceed to trial rather than to request a
continuance in order to interview Priest or secure her presence.
       4
          Appellant’s concern over also being able to secure the testimony of a different witness,
Stacy Chapman, if trial were continued to subpoena Priest does not compel a different result.
Appellant’s inability to secure Priest’s presence at trial in June 2008 did not prevent him from
obtaining her statement prior to trial, at which time he could better have assessed the relative
value of the two witnesses’ statements in conjunction with the likelihood of being able to obtain
the testimony of each one at trial on the date scheduled or at a future date following a
continuance. Appellant in fact avers on brief that “[h]ad [he] known . . . that Priest actually had
seen [the victims’ friends] Marcus George and Rodney Williams both running from the scene
and getting into George’s vehicle with guns,” the version of events Priest gave in her post-trial
affidavit, “then he undoubtedly would have asked the Court to continue this case.”
                                                 -4-
                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 I, 271 Va. at 504-05, 628 S.E.2d at 354 (emphases added) (citations omitted); see

Hopkins v. Commonwealth, 20 Va. App. 242, 250-52, 456 S.E.2d 147, 150-52 (1995) (en banc).

In short, if the new evidence is such that it could, if believed, produce an opposite result on the

merits at a new trial, the trial court must also determine whether it should produce such a result,

i.e., whether it is credible. If the trial court finds, per Orndorff I, that the new evidence is not

credible, this credibility determination controls, and the trial court must deny the motion for a

new trial.

        Finally, when the circuit court has applied the proper standard, “the appellate court may

not substitute its own judgment of the record, but must defer to the circuit court which had the

opportunity to assess the credibility of the witnesses and was in the best position to determine the

weight to be accorded the evidence.” Orndorff v. Commonwealth (Orndorff II), 279 Va. 597,

605, 691 S.E.2d 177, 181 (2010) (appeal after remand of Orndorff I).

        Under these principles, we hold the trial court acted within its discretion in weighing all

the evidence and concluding that the information in Priest’s post-trial affidavit would not

produce a different result in a new trial. We note the record indicates the same judge presided

over both appellant’s trial for the instant offenses and appellant’s motion for a new trial, as well,

so the same fact finder who considered the evidence at trial also considered the credibility of

Priest’s post-trial affidavit. See Odum, 225 Va. at 131, 301 S.E.2d at 149 (upholding the trial

court’s credibility determinations because “the contents of [the defendant’s brother’s new]

‘confession’ would be only the latest in a series of inconsistent statements” and were

                                                  -5-
contradicted by “the positive, credible, largely unimpeached identification of defendant by the

victims”); Hopkins, 20 Va. App. at 250-52, 456 S.E.2d at 150-52 (upholding the denial of a new

trial motion where the eyewitness who testified at trial reaffirmed identification of the defendant

as the killer and the after-discovered evidence came from witnesses who gave self-contradictory

testimony).

        Although appellant avers that Detective Hahn “made a mistake” in summarizing Priest’s

first statement (the statement she made to him prior to trial), the trial court, as the fact finder on

the new trial motion, found it was “[Priest who] made a mistake” in her second statement (her

post-trial affidavit). The court also ruled explicitly that “[it] [did not] consider [the contents of

Priest’s post-trial affidavit] to be true.” See Carter, 10 Va. App. at 513, 393 S.E.2d at 642

(“Courts may properly require that it shall be made to appear affirmatively that the new evidence

tending to show the [claimed] mistake . . . exists beyond question and is not a mere matter of

belief or opinion.”). Although the trial court did not exercise the opportunity to hear Priest

testify and to assess her credibility on that basis, it heard Detective Hahn testify and credited his

testimony regarding what Priest had told him immediately following the shooting. The court’s

credibility finding regarding Hahn’s testimony supported the trial court’s additional finding that

Priest made conflicting statements about what happened and that her pre-trial statement was the

accurate one. Thus, the trial court resolved the issue of who made a mistake and the concomitant

question of the credibility of Priest’s post-trial affidavit against appellant. Cf. Lewis v.

Commonwealth, 193 Va. 612, 625, 70 S.E.2d 293, 301 (1952) (“[R]ecantation by a State’s

witness does not necessarily entitle the accused to a new trial. The opportunity and temptation

for fraud are so obvious that courts look with suspicion upon such an asserted repudiation of the

testimony of a witness for the prosecution, . . . even though the repudiation be sworn to.”).




                                                 -6-
        Further, in addition to finding Priest’s post-trial affidavit was inaccurate, the court ruled

at trial that “even if there was evidence of the two victims having weapons, [as appellant argues

based on Priest’s post-trial affidavit,] . . . it is absolutely clear from the evidence . . . that

unreasonable force was used on the part of the defendants. . . . Totally unreasonable force . . .

even if this was self-defense . . . .” These findings also support the conclusion that Priest’s new

statement was not “such as should produce an opposite result on the merits at another trial,”

Odum, 225 Va. at 130, 301 S.E.2d at 149.

                                                    II.

        For these reasons, we hold the trial court did not err in denying appellant’s motion to set

aside the verdicts based on a claim of after-discovered evidence. Therefore, we affirm

appellant’s convictions.

                                                                                                 Affirmed.




                                                   -7-
