                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia


MARIO A. BUSTILLO

v.   Record No. 2321-98-4

COMMONWEALTH OF VIRGINIA
                                           MEMORANDUM OPINION * BY
                                       JUDGE RUDOLPH BUMGARDNER, III
MARIO A. BUSTILLO                              APRIL 11, 2000

V.   Record No. 2422-98-4

COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Gerald Bruce Lee, Judge

            John C. Kiyonaga (Kiyonaga & Kiyonaga, on
            briefs), for appellant.

            H. Elizabeth Shaffer, Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.


     A jury convicted Mario A. Bustillo of first degree murder.

On appeal, he contends the trial court erred in denying his

motion to set aside the verdict based upon after-discovered

evidence.    For the following reasons, we affirm.

     The evidence in the light most favorable to the

Commonwealth proved that Michelle Gutierrez, Jesse Konstanty,

Valaria Landaeta, and the victim, James Merry, were sitting

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
together in a restaurant when a group of young men entered and

confronted the victim and Konstanty.      The group were members of

the Locos gang.    Gutierrez recognized the defendant as well as a

man known as Sirena and two others.      When she convinced them

that the people they wanted were not there, the group left.

Shortly afterwards, the victim went outside to smoke a

cigarette.    While the victim was standing and smoking, the

defendant ran up behind him with a baseball bat and smashed his

head.    The victim died from the blow.

        Gutierrez, Konstanty, and Landeata identified the defendant

as the assailant.    During police interviews, no one including

members of the gang claimed that Sirena was the assailant.       The

defendant presented an alibi defense, and one gang member

testified that Sirena, not the defendant, was the assailant.

        The defendant filed a motion to set aside the verdict based

upon (1) insufficient evidence, (2) newly discovered evidence,

(3) illegally obtained evidence, and (4) a Brady violation.

After a day-long hearing, the trial court denied the motion and

subsequently sentenced the defendant on July 24, 1998.     The

defendant filed a renewed motion to strike that the trial court

denied by letter opinion dated October 7, 1998.

        This Court granted an appeal limited to the fourth issue

presented in the petition for appeal:     whether the trial court

erred in denying the motion to set aside the verdict based on

after-discovered evidence.    The writ limited the issues to those

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raised in the first motion to set aside the verdict.

Accordingly, we review the denial of the motion based upon the

after-discovered evidence of Geovany Hernandez, Marvin Escobar,

Jose Maldonado, and Valaria Landaeta.    We do not address the

additional arguments that the defendant inserted in his brief

but which were not part of issues specified in the writ of

error.   See Rule 5A:12; Perez v. Commonwealth, 25 Va. App. 137,

139 n.2, 486 S.E.2d 578, 579 n.2 (1997).

     A new trial based upon after-discovered evidence may be

granted under limited circumstances where the defendant shows

that the evidence (1) was discovered after trial, (2) could not

have been secured for trial with the exercise of due diligence,

(3) is not merely cumulative, corroborative or collateral, and

(4) is material and likely to produce a different result at

another trial.   See Odum v. Commonwealth, 225 Va. 123, 130, 301

S.E.2d 145, 149 (1983).   "Motions for new trials . . . 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."     Stockton v.

Commonwealth, 227 Va. 124, 149, 314 S.E.2d 371, 387, cert.

denied, 469 U.S. 873 (1984).     In order for the trial court to

grant a new trial, the defendant must meet all the requirements

for after-discovered evidence.     See Wilson v. Commonwealth, 25

Va. App. 263, 275, 487 S.E.2d 857, 863 (1997).



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     The defendant submitted the affidavits of Hernandez and

Escobar in support of his motion to set aside the verdict.     Both

were members of the Locos gang and at the post-trial hearing

testified that Sirena hit the victim with the bat.   The trial

court found that the defendant knew the essence of their

testimony before trial.    The defendant's counsel had spoken to

both of them before trial, and both told him the defendant did

not hit the victim.   The trial court also found that their

evidence naming Sirena as the assailant was available through

due diligence.

     The defendant argues that neither Hernandez nor Escobar

implicated Sirena during their interviews with the defendant's

counsel.   The defendant contends their reluctance to implicating

Sirena before trial prevented him from discovering the extent of

their exculpatory testimony and cites Gatling v. Commonwealth,

14 Va. App. 60, 414 S.E.2d 862 (1992), and Fisher v.

Commonwealth, 11 Va. App. 302, 397 S.E.2d 901 (1990).

     In both Gatling and Fisher, the defendant was convicted of

a sexual offense against a minor and the Commonwealth's evidence

consisted primarily of the victim's testimony.   In Gatling, the

only evidence incriminating the defendant came from the

seventeen-year-old victim of a gang rape in her dorm room.     The

defendant, whose defense was consent, proffered that the victim

told a close friend that she could not recall what the defendant

had to do with the rape.   The defendant's counsel had twice

                                - 4 -
attempted to interview the friend before trial, but the friend

refused to talk with the attorney.     In Fisher, the

after-discovered evidence indicated the six-year-old victim was

familiar with male anatomy, a fact not known at trial.

     At trial neither Gatling nor Fisher knew the essential

information provided by the after-discovered evidence.      However

in this case, the defendant before the trial knew the essential

information that these witnesses could provide:    the defendant

did not strike the victim.   In addition, the defendant at trial

presented the specific detail that Sirena was the assailant

through another witness.   The record supports the trial court's

ruling that the essential information was available and the

information that Sirena was the assailant was available through

due diligence.

     The defendant next argues that the trial court erred in

denying his motion because Jose Maldonado's testimony was

exculpatory and not previously known or available to the

defendant.   Maldonado was also a member of the Locos gang, but

he did not testify at trial.   At the post-trial hearing, he

testified that the defendant did not attack the victim, but he

also stated he had told this to the defendant's father before

the trial.   Maldonado said that he did not speak up until after

the trial because no one asked him.    This testimony was

cumulative of that presented at trial, and itself shows the



                               - 5 -
defendant did not exercise due diligence because Maldonado told

the defendant's father before trial.

     Finally, the defendant argues that Landeata perjured

herself when she testified that the defendant assaulted the

victim.   When the defendant seeks a new trial on the ground that

a material witness committed perjury at trial, he must prove the

perjury with clear and convincing evidence.   See Mundy v.

Commonwealth, 11 Va. App. 461, 481, 390 S.E.2d 525, 536, aff'd

en banc, 399 S.E.2d 29 (1990), cert. denied, 502 U.S. 840

(1991).

     The defendant submitted two affidavits from other gang

members who claimed that Landeata had recanted her trial

testimony implicating the defendant.   At the hearing on the

motion, Landeata explained her post-trial statement and

reaffirmed that the defendant struck the victim.   The trial

court believed Landaeta and found that the defendant failed to

establish by clear and convincing evidence that she perjured

herself at trial.   "[T]he finding of the judge, upon the

credibility of the witnesses and the weight to be given their

evidence, stands on the same footing as the verdict of a jury,

and unless that finding is plainly wrong, or without evidence to

support it, it cannot be disturbed."   Yates v. Commonwealth, 4

Va. App. 140, 143, 355 S.E.2d 14, 16 (1987) (citation omitted).

The evidence supports the findings of the trial court.



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For the reasons stated, we affirm the conviction.

                                                    Affirmed.




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