                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Clements
Argued at Alexandria, Virginia


LONNIE L. TWEED, JR., S/K/A
 LONNIE LEE TWEED
                                                OPINION BY
v.   Record No. 2783-99-2              JUDGE JERE M. H. WILLIS, JR.
                                              AUGUST 14, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                   John F. Daffron, Jr., Judge

          David B. Hargett (Morrissey & Hershner, PLC,
          on brief), for appellant.

          Richard B. Smith, Senior Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     On appeal from his convictions of first-degree murder,

attempted robbery, use of a firearm in the commission of murder,

and use of a firearm in the commission of attempted robbery,

Lonnie L. Tweed, Jr., contends that the trial court erred (1) in

allowing a witness to testify as to what Tweed meant when he

said, "Time to get paid," (2) in refusing to instruct the jury

concerning the abolition of parole in the Commonwealth, (3) in

holding the evidence was sufficient to support his convictions,

and (4) in denying his motion for a new trial based on

after-discovered evidence.    We hold that the trial court erred

in refusing to instruct the jury on the abolition of parole.

Because it erred further in denying Tweed's motion for a new
trial, we reverse the judgment of the trial court and remand the

case for retrial, if the Commonwealth be so advised.

                           I.   BACKGROUND

     On June 26, 1998, James M. Hoover (the victim) was riding

his motorcycle when he was shot and killed.   David Sanchez fired

the lethal shots from a car driven by Roger Narragon, in which

Sanchez, Shaun Holmes, Ryan Bennett, and Tweed were passengers.

     Bennett testified that the men in the car had been to a

party and were drinking heavily and that he was the only one who

had not consumed LSD.   He testified that "Sanchez had a gun

wrapped in a cloth" and Tweed had "wash rags tied together."

Bennett was unsure whether Sanchez had shown the gun to the

others, but he thought everyone knew about it.    He further

testified that, as the men were leaving the party, Tweed said,

"Time to get paid."   Over objection, Bennett stated that he

understood Tweed's comment to mean "[r]obbery."

     After driving around for several hours, the men spotted the

victim at a gas station.   Sanchez made a comment about the

victim, and Narragon turned the car around.   He made another

U-turn and pulled his car alongside the victim.

     Bennett testified that, even though he did not want to

participate in a robbery and was only "along for the ride," he

thought a robbery might occur.    He testified that as the car

approached the victim, Tweed told him to "do it," which he

understood to mean "rob the man."    Bennett refused.   He

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testified that without any further discussion or suggestion,

Sanchez said, "I'll do it," and, leaning across Bennett and

Tweed, shot the victim.    The five men left the area without

stopping.

     At the conclusion of the evidence, Tweed moved to strike on

the ground that the evidence failed, as a matter of law, to

support convictions for murder, attempted robbery, or the

related firearm charges.   The trial court denied the motion, and

the jury found Tweed guilty of all four charges.

     During the sentencing phase of the trial, the jury inquired

whether Tweed would be eligible for parole.   Over Tweed's

objection, the trial court instructed the jury that they should

"impose such punishment as [they] feel is just under the

evidence and within the instructions of the Court" and that they

should not concern themselves "with what may happen afterwards."

     Post-trial but before sentencing, Tweed moved for a new

trial based upon newly discovered evidence.   In support of his

motion, he filed his trial attorney's affidavit and a transcript

of Sanchez's testimony in his own trial.   The trial court denied

the motion and sentenced Tweed to forty-eight years in prison,

in accordance with the jury verdicts.

                 II.    WITNESS OPINION TESTIMONY

     Tweed contends that the trial court erred in allowing

Bennett to testify as to his understanding of Tweed's statement:

"Time to get paid."    Bennett testified that the statement meant

                                - 3 -
"[r]obbery."   Tweed contends that this testimony constituted

inadmissible lay opinion.   We disagree.

     "The admissibility of evidence is within the broad

discretion of the trial court, and the ruling will not be

disturbed on appeal in the absence of an abuse of discretion."

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842

(1988).   "Evidence which bears upon and is pertinent to matters

in issue, and which tends to prove the offense, is relevant and

should be admitted."   Coe v. Commonwealth, 231 Va. 83, 87-88,

340 S.E.2d 820, 823 (1986).

     In Cook v. Patterson Drug Co., 185 Va. 516, 39 S.E.2d 304

(1946), the Supreme Court approved the rule that when "words

have a doubtful, ambiguous, or hidden meaning . . . not only may

the person who used the words testify as to his meaning, but all

persons who heard the words spoken may testify as to what they

understood the speaker meant by their use."     Id. at 521-22, 39

S.E.2d at 307 (citation omitted).

     Bennett's testimony explained that Tweed used the term

"[t]ime to get paid" as part of a peculiar jargon, having a

specialized meaning to the group in the car.    This meaning

differed from the usual, conventional use of that term.    It

imported a meaning not commonly known.     Thus, as a person

familiar with that jargon, Bennett was properly permitted to

explain the term's meaning.



                               - 4 -
     Bennett's explanation of the meaning and context of Tweed's

ambiguous statement was relevant to the issue of Tweed's motive

and intent when he entered the car with the other men.

Moreover, Bennett's explanation was properly confined to his

understanding of the term as opposed to bare speculation about

what Tweed meant.     We find no abuse of the trial court's

discretion in admitting that explanation.

                          III.   JURY QUESTION

     During sentencing deliberations, the jury asked the trial

court, "Is parole possible for any or each sentence?"        The trial

court replied, "[Y]ou should impose such punishment as you feel

is just under the evidence and within the instructions of the

Court.    Do not concern yourself with what may happen

afterwards."   Tweed contends that the trial court erred in

refusing to instruct the jury concerning the abolition of

parole.   We agree.

     This issue is controlled by Fishback v. Commonwealth, 260

Va. 104, 532 S.E.2d 629 (2000).     In Fishback, the Court held:

            [H]enceforth juries shall be instructed, as
            a matter of law, on the abolition of parole
            for non-capital felony offenses committed on
            or after January 1, 1995 pursuant to Code
            § 53.1-165.1. In addition, because Code
            § 53.1-40.01 is in the nature of a parole
            statute, where applicable juries shall also
            be instructed on the possibility of
            geriatric release pursuant to that statute.

     The Court limited Fishback "prospectively to those cases

not yet final on [June 9, 2000]."         Id. at 116, 532 S.E.2d at

                                  - 5 -
634.   Because this case was pending when Fishback was decided,

Fishback applies.

                  IV.   SUFFICIENCY OF THE EVIDENCE

       When the sufficiency of the evidence is challenged on

appeal, we view the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom.    See Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975).    Even where the evidence

is entirely circumstantial, the inferences to be drawn lie

within the province of the fact finder and will not be disturbed

on appeal so long as those inferences are reasonable and are

supported by the evidence.    See O'Brien v. Commonwealth, 4 Va.

App. 261, 263-64, 356 S.E.2d 449, 450 (1987).    "[C]ircumstantial

evidence alone is sufficient to sustain a conviction."    Johnson

v. Commonwealth, 2 Va. App. 598, 604-05, 347 S.E.2d 163, 167

(1986).   However, "all necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence."    Moran v.

Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553 (1987).

       Viewed in the light most favorable to the Commonwealth, the

evidence proved that before the men entered the car on the night

of the shooting, Tweed said, "Time to get paid," meaning it was

time to rob someone.    Sanchez entered the car carrying a gun

"wrapped in a cloth," and Tweed entered the car carrying "wash

rags tied together."    Bennett believed the men were going to

                                - 6 -
commit a robbery.   He believed Sanchez had shown the other men

his gun.   When the men saw the victim, Tweed told Bennett to "do

it," meaning to rob the victim.     When Bennett refused, Sanchez

said, "I'll do it."    He then shot and killed the victim.   Thus,

credible evidence supports the Commonwealth's theory that Tweed

was responsible for the crimes under a concert of action theory.

     Concert of action has been defined as "action that has been

planned, arranged, adjusted, agreed on and settled between the

parties acting together pursuant to some design or scheme."

Berkeley v. Commonwealth, 19 Va. App. 279, 283, 451 S.E.2d 41,

43 (1994).   "All participants in such planned enterprises may be

held accountable for incidental crimes committed by another

participant during the enterprise even though not originally or

specifically designed."     Id.   In this case, the men shared an

intent to commit robbery when they entered the car.     Shooting

the victim was the first act toward consummation of that agreed

act, notwithstanding the men fled before accomplishing the

robbery.   Thus, Tweed may be held accountable for the shooting,

the attempted robbery and the related firearm charges.

                      V.   MOTION FOR A NEW TRIAL

     "Motions for new trials based upon 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."

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

                                  - 7 -
(1983) (citation omitted).   Because such a motion is addressed

to the sound discretion of the trial court, a ruling thereon

will be reversed only upon a showing of an abuse of discretion.

See Mundy v. Commonwealth, 11 Va. App. 461, 481, 390 S.E.2d 525,

536, aff'd on reh'g en banc, 399 S.E.2d 29 (1990).

          Because of the need for finality in court
          adjudications, four requirements must be met
          before a new trial is granted based upon an
          allegation of newly-discovered evidence:
          (1) the evidence was discovered after trial;
          (2) it could not have been obtained prior to
          trial through the exercise of reasonable
          diligence; (3) it is not merely cumulative,
          corroborative or collateral; and (4) is
          material, and as such, should produce an
          opposite result on the merits at another
          trial.

Id. at 480, 390 S.E.2d at 535.    The moving party must satisfy

all four requirements to justify a new trial.    See Carter v.

Commonwealth, 10 Va. App. 507, 512-13, 393 S.E.2d 639, 642

(1990).

     In support of his motion for a new trial, Tweed placed in

evidence the affidavit of his trial counsel, John B. Boatwright,

III, setting forth as follows:

          1. I represented Mr. Tweed from the time
          his [sic] was charged with these offenses up
          to and including the time of the execution
          of this affidavit.

          2. At all times, it was made clear to me
          that Davis Sanchez was effectively "off
          limits" and that I would not be allowed to
          call him as a witness or interview him prior
          to any possible testimony.




                                 - 8 -
          3. I had no idea what Sanchez's version of
          the relevant events was until after he
          testified in his own defense during his own
          trial.

          4. As far as I know, the version of events
          given by Sanchez in his on [sic] defense in
          his own trial at his own trial was simply
          not in existence anywhere that I could
          locate it prior to the commencement of
          Tweed's trial in April of 1999.

Tweed also placed in evidence the testimony of Denis C.

Englisby, who represented David Sanchez with respect to charges

brought against Sanchez arising out of the incident underlying

the charges upon which Tweed was convicted.    Mr. Englisby

testified, in relevant part, as follows:

          Q:   When did Mr. Sanchez's trial take place?

          A.   I think sometime in April, I'm not sure.

          Q. Well let me ask you this:      Was it before
          or after Mr. Tweed's trial?

          A. It was, I believe, before Mr. Tweed's
          trial. I'm not sure . . . .

           *         *    *      *      *        *      *

          Q. Would you allow today Mr. Sanchez to
          testify about anything relating to his
          involvement in this case?

          A.   No.

          Q. Would you have allowed it anytime prior
          to today?

          A.   No.

          Q. Were you present during the entire
          Sanchez trial?

          A.   Yes.


                               - 9 -
          Q. Did Mr. Sanchez testify in his own
          defense in that case?

          A.    Yes.

          Q. Did he testify in relationship to the
          events that led up to the killing of Mr.
          Hoover?

          A.    Yes.

The record in this case shows that Tweed was tried on April 14

and 15, 1999.   Tweed further placed in evidence a transcript of

Sanchez's testimony given at his trial, which the transcript

shows was conducted June 29, 1999.

     Sanchez testified that on the night in question he had been

drinking and had consumed LSD.   He further testified, in

pertinent part:

          Okay. Well we came across the -- I don't
          know the name of the bridge, but it's a
          bridge that connects Hopewell and Chester --
          came across that, and we were on Route 10,
          and then we came upon the East Coast, and we
          just kept going. And then we turned around,
          for what reason, I don't know. The music
          was on. I don't know. The driver turned
          around. And then when we got to the --

           *        *     *      *      *      *      *

          Then when we got -- we turned around, there
          was a stoplight there, and we waited for it,
          and it turned green, and then we turned back
          around. And then when we was heading
          towards, westbound towards Richmond, we came
          across -- well, to me when we got up beside
          the motorcycle, what I seen was I had a
          hallucination due to the LSD, so what I seen
          was when we pulled up beside it, it was a
          demon on flames, and it was laughing and it
          was calling my name. And Your Honor, I just



                              - 10 -
             leaned out the window and started shooting
             at that.

                  And then we just kept going and went
             through Colonial Heights, and then on our
             way back home to Theresa's house, we came
             through Prince George County.

        In support of his motion for a new trial, Tweed argued that

the decision in his case came down to a choice between his

testimony and Bennett's.    He argued:

             [O]bviously, you have to assume that [the
             jury] credited Bennett enough to reach a
             final finding of guilt. Would Mr. Sanchez
             have caused them to do otherwise? We
             suggest there is a very strong likelihood of
             that because he is the only person, as the
             shooter, who can say -- you know, could have
             said or could say ever what it was that made
             him do what he did and that would have been
             a correct and a material conflict with what
             Mr. Bennett said.

        Denying Tweed's motion for a new trial, the trial court

said:

             I don't know . . . what affect, if any,
             Sanchez' testimony may have had if it were
             presented before the jury. It's not, as
             been characterized, the bombshell and the
             question, is it likely to have produced a
             different result? I can't really say that
             from the discussions made.

This ruling was error.

        The record of the motion for a new trial establishes beyond

question that Sanchez's trial took place more than two months

after Tweed's.    Prior to Sanchez's trial, his attorney denied

access to him and refused information as to what he would say.

The record discloses no other avenue by which Tweed's counsel


                                - 11 -
could have gained access to Sanchez's account prior to Tweed's

trial.   Thus, the record establishes that the substance of

Sanchez's account was in fact discovered after Tweed's trial and

that it could not have been discovered prior to his trial

through the exercise of reasonable diligence.

     Sanchez's account was not merely cumulative, corroborative

or collateral.   It neither added to nor corroborated any other

evidence in Tweed's trial.   It addressed directly an issue

central to Tweed's trial, why Sanchez shot and killed Hoover.

     The Commonwealth's concert of action theory of Tweed's

guilt was based upon his initiation of and participation in the

events leading up to Sanchez shooting Hoover.   Sanchez testified

that he shot Hoover for reasons independent of anything Tweed

said or did.   If believed, Sanchez's account exonerates Tweed.

Therefore, it is material.

     The trial court erred in denying Tweed's motion for a new

trial.

     The judgment of the trial court is reversed, and this case

is remanded for retrial in accordance with the views herein

expressed, if the Commonwealth be so advised.

                                         Reversed and remanded.




                              - 12 -
