Present: All the Justices
COMMONWEALTH OF VIRGINIA
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 012506 November 1, 2002
LONNIE L. TWEED, JR.,
s/k/a LONNIE LEE TWEED
FROM THE COURT OF APPEALS OF VIRGINIA
I.
In this appeal of a judgment from the Court of Appeals,
we consider whether the Court of Appeals erred in reversing a
criminal defendant's convictions and granting the defendant a
new trial based upon purported after-discovered evidence.
II.
Lonnie L. Tweed, Jr., was indicted by a Chesterfield
County grand jury for the following offenses: the first-
degree murder of James Monroe Hoover in violation of Code
§ 18.2-32; the use and display in a threatening manner of a
firearm during the commission of murder in violation of Code
§ 18.2-53.1; the attempted robbery of James Hoover in
violation of Code §§ 18.2-58 and 18.2-26; and the use and
display in a threatening manner of a firearm during the
commission of an attempted robbery in violation of Code
§ 18.2-53.1.
The following evidence was presented at a jury trial. On
the evening of June 25, 1998, Tweed, Ryan Bennett, Roger
Narragon, David Joseph Sanchez, Jr., and Shaun Holmes,
attended a party at the home of a woman in the City of
Hopewell. The men drank beer and some of them, including
Sanchez, ingested LSD and other illegal drugs. The men left
the woman's home sometime around midnight and got into
Narragon's car. Narragon sat in the driver's seat, and Holmes
sat in the front passenger seat. Tweed sat in the backseat
immediately behind Holmes. Bennett sat in the middle of the
backseat, and Sanchez sat in the backseat directly behind the
driver. Sanchez had a pistol in his hand. The pistol was
described as "Tech Nine," and it was wrapped in "wash rags."
Before the men left the house to get into the car, Tweed
made the statement, "[t]ime to get paid." Bennett understood
that this statement meant that Tweed intended to commit a
robbery.
The men "rode around in Hopewell" for a few hours. They
traveled into Chesterfield County, which is adjacent to
Hopewell. While on Route 10 in Chesterfield County, the men
saw Hoover, who was on a motorcycle at a gasoline station.
Narragon, who was still driving the car, made two "U-turns"
and began to follow Hoover.
Bennett testified that as Narragon drove his car behind
Hoover's motorcycle, Tweed told Bennett "[t]o rob the man."
Bennett responded, "No." Sanchez stated, "I'll do it."
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Sanchez "leaned out the [car] window and shot [Hoover]"
several times. The men panicked, and Narragon drove the car
away from the crime scene. Hoover was shot at approximately
4:30 a.m. After he was shot, Hoover managed to drive his
motorcycle "to the side of the road and cut his lights out"
before he died.
Dr. Deborah Kay, who qualified as an expert witness in
the subject of forensic science, performed an autopsy on the
victim's body. She testified that Hoover sustained three
gunshot wounds to his body and that his death was caused by
injuries from those wounds.
At the conclusion of the jury trial, the jury convicted
Tweed of the charged offenses and fixed his punishment at 30
years imprisonment for the first-degree murder conviction,
three years imprisonment for the use of a firearm in the
commission of murder, ten years imprisonment for attempted
robbery, and five years imprisonment for the use of a firearm
in the commission of attempted robbery. After the trial, but
before the entry of the circuit court's final judgment, the
defendant filed a motion for a new trial based on his
purported discovery of new evidence. Sanchez was tried for
the capital murder of Hoover approximately two months after
the date of Tweed's trial. During a hearing on Tweed's motion
for a new trial, Sanchez' counsel testified that he would not
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have permitted Sanchez to testify at Tweed's trial.
Additionally, Sanchez testified at his trial as follows:
"[W]hen 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 [the motorcycle], it was a
demon on flames, and it was laughing and it was
calling my name. And, Your Honor, I just leaned out
the window and started shooting at that."
Sanchez also testified that he did not make any remarks about
the commission of a robbery before or after the victim's
death. The circuit court denied the motion for a new trial
and entered judgment confirming Tweed's convictions.
The defendant appealed the judgment of the circuit court
to the Court of Appeals and argued, among other things, that
he was entitled to a new trial based on the so-called after-
discovered evidence. The defendant also asserted in the Court
of Appeals, and the Commonwealth concedes, that the defendant
is entitled to a new sentencing hearing because during the
jury's sentencing deliberations, the jury asked the circuit
court whether parole was possible for each sentence, and the
court instructed the jury that it should not be concerned with
parole.
The Court of Appeals held that our decision in Fishback
v. Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000), is
controlling and that the defendant is entitled to a new
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sentencing proceeding. Tweed v. Commonwealth, 36 Va. App.
363, 369, 550 S.E.2d 345, 348 (2001). The Court of Appeals
also held, however, that the defendant is entitled to a new
trial because of the so-called after-discovered evidence, and
the Court of Appeals reversed the convictions and remanded the
case for a new trial. Id. at 374-75, 550 S.E.2d at 350-51.
The Commonwealth appeals.
III.
A.
The Commonwealth argues that the Court of Appeals erred
because it considered an excerpt from the transcript of
Sanchez' testimony given in his capital murder trial and that
transcript was not made a part of the record in this case. We
will not consider the Commonwealth's contention because the
Court of Appeals held that the transcript had been made a part
of the record, and the Commonwealth failed to assign error to
that holding of the Court of Appeals.
B.
The Commonwealth argues that the Court of Appeals erred
in concluding that Tweed is entitled to a new trial based upon
after-discovered evidence. The Commonwealth contends that
Tweed failed to establish that had Sanchez' testimony been
admitted in Tweed's trial, the result in Tweed's trial would
have been different. Responding, Tweed contends that, had
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Sanchez' testimony been presented to the jury, "there is a
reasonable probability of a different result." We disagree
with Tweed, and we note that he urges the application of an
erroneous standard in this appeal.
We have repeatedly and consistently stated that
"[m]otions 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." Stockton
v. Commonwealth, 227 Va. 124, 149, 314 S.E.2d 371, 387 (1984);
Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149
(1983); accord Payne v. Commonwealth, 233 Va. 460, 472, 357
S.E.2d 500, 507 (1987); Starks v. Commonwealth, 225 Va. 48,
56, 301 S.E.2d 152, 157 (1983); Lewis v. Commonwealth, 209 Va.
602, 608, 166 S.E.2d 248, 253 (1969); Reiber v. Duncan, 206
Va. 657, 663, 145 S.E.2d 157, 161-62 (1965). A party who
seeks a new trial based upon after-discovered evidence
"bears the burden to establish 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."
Stockton, 227 Va. at 149, 314 S.E.2d at 387; Odum, 225 Va. at
130, 301 S.E.2d at 149; accord Payne, 233 Va. at 472, 357
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S.E.2d at 507; Starks, 225 Va. at 56, 301 S.E.2d at 157;
Fulcher v. Whitlow, 208 Va. 34, 37-38, 155 S.E.2d 362, 365
(1967). The moving party must establish each of these
mandatory criteria.
The issue before this Court is whether the circuit court
abused its discretion in denying the defendant's motion for a
new trial. In the exercise of its discretion, the circuit
court must consider whether the party who seeks the new trial
on the basis of after-discovered evidence has established the
mandatory criteria that we enumerated in Odum and other cases.
We hold that in this case, the circuit court did not abuse its
discretion because the defendant failed to establish that
Sanchez' testimony was "such as should [have] produce[d]
opposite results on the merits at another trial."
The jury accepted Bennett's testimony that Tweed stated
it was "[t]ime to get paid," which meant that Tweed and his
cohorts planned to leave the woman's house in Hopewell and
commit a robbery. The jury rejected Tweed's evidence at trial
that he had not intended to commit a robbery. Tweed, who was
seated in the backseat with Sanchez and Bennett, knew that
Sanchez was armed with a pistol.
Bennett testified at Tweed's trial that he had not
expected Sanchez to shoot Hoover and, thus, Sanchez' testimony
that he shot Hoover unexpectedly would, at best, have been
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cumulative, corroborative, or collateral. The jury was also
aware that Tweed and his cohorts planned to rob someone, that
they selected the victim as he innocently sat on a motorcycle
in a gas station parking lot, and that Narragon turned the car
around so that the defendant and his companions could follow
the victim. While they followed the unsuspecting victim, the
defendant asked Bennett "[t]o rob the man," and only after
Bennett said "No," did Sanchez respond, "I'll do it," and he
"leaned out the [car] window" and shot the victim several
times.
IV.
Accordingly, we will reverse that portion of the judgment
of the Court of Appeals that awarded the defendant a new trial
because of the purported after-discovered evidence, and we
will reinstate the defendant's convictions. We will remand
the case to the Court of Appeals with directions that it
remand the case to the circuit court for a new sentencing
proceeding because of the circuit court's erroneous
instruction to the jury regarding parole that was in violation
of our decision in Fishback v. Commonwealth. We will affirm
the remaining portion of the judgment of the Court of Appeals.
Affirmed in part,
reversed in part,
and remanded.
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