PRESENT: All the Justices
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 121177 JUSTICE ELIZABETH A. McCLANAHAN
APRIL 18, 2013
WILLIAM EDWARD TUMA
FROM THE COURT OF APPEALS OF VIRGINIA
A jury convicted William Edward Tuma (Tuma) of taking
indecent liberties with a child, aggravated sexual battery,
and animate object penetration. On appeal, we consider
whether the Commonwealth violated Brady v. Maryland, 373 U.S.
83 (1963) by suppressing evidence in the form of an audio tape
recording of an investigative interview with the victim.
Concluding the Commonwealth committed no Brady violation, as
the recording was made available to Tuma in sufficient time
for its use at trial, we will reverse the judgment of the
Court of Appeals of Virginia.
I. RELEVANT FACTS AND PROCEEDINGS
Under familiar principles, we review the facts in the
light most favorable to the Commonwealth, the prevailing party
at trial. Bly v. Commonwealth, 280 Va. 656, 658, 702 S.E.2d
120, 121 (2010) (applying the Brady rule).
The victim, L.S., a seven-year-old girl, indicated to her
father and stepmother that she had been sexually assaulted by
Tuma, her stepfather. L.S. stated that Tuma had been placing
his fingers "inside" of her "private parts," referring to her
vagina. When provided with this information, the Dinwiddie
County Sheriff's Office (DCSO), along with the Dinwiddie
County Department of Social Services (DSS), conducted a joint
investigation. Among other things, DCSO Investigator Dwayne
Gilliam and Jon Scheid, a child protective services worker
with DSS, interviewed L.S. Scheid audio tape recorded the
interview as required by DSS regulations. See 22 VAC § 40-
705-80(B)(1)).
As a result of the investigation, Tuma was indicted on
charges of committing three sex crimes against L.S. for which
he was ultimately convicted in a jury trial - taking indecent
liberties with a child (Code § 18.2-370.1), aggravated sexual
battery (Code § 18.2-67.3(A)(1)), and animate object
penetration (Code § 18.2-67.2).
Prior to trial, the Commonwealth's Attorney for Dinwiddie
County provided Tuma's counsel with a written summary of the
investigative interview with L.S., which Gilliam prepared as
part of his case report. Tuma's counsel was not provided pre-
trial access to the tape recording of the interview. However,
he learned of the tape's probable existence at least a week
before trial when, according to him, he specifically "asked
[Gilliam] whether or not there was a tape" and Gilliam said
"he thought there may have been but he was not sure."
2
At trial, Gilliam, the Commonwealth's second of six
witnesses (L.S. was the first), reiterated on cross-
examination that he believed DSS had tape recorded the
interview. Scheid, the Commonwealth's third witness, then
confirmed during cross-examination that she recorded the
interview and had the audio tape with her in the court room.
Tuma's counsel immediately moved to admit the tape recording,
in its entirety, into evidence. At that time, neither he, the
prosecutor, nor the trial judge had listened to it. Under
those circumstances, the trial judge refused to admit the tape
into evidence. As the judge explained, "we'll not just play a
tape . . . without any sort of thought or notion as to what is
there."
In making this evidentiary ruling, the trial judge
nevertheless made clear to defense counsel that he could
listen to the tape: "You can go listen to it if you want to
on your own time," the judge stated. "You can take it off and
listen to it," the judge further clarified. The judge then
asked the prosecutor if defense counsel "had access to [the
tape]," to which the prosecutor replied, "He can listen to it
if he wants to." Defense counsel did not ask to listen to the
tape outside of the jury's presence, either then or at any
other time during the trial. Rather, he simply asked the
3
judge to "[j]ust note [his] exception" to the ruling on his
request to play the entire tape to the jury.
Tuma's counsel moved a second time to admit the tape into
evidence before arguing a motion to strike at the conclusion
of the Commonwealth's case. He asserted that the tape was
"the best evidence of what was said" during the interview, and
that he "would think that it would be exculpatory in terms of
where things occurred and [the] number of times they
occurred," referring to the allegations of sexual assault.
However, Tuma's counsel admittedly had "not heard [the tape]
yet." The trial judge denied the request, explaining to him,
"I don't think you are entitled just to play something because
you think it may be exculpatory."
Tuma's counsel first listened to the tape after the trial
ended with guilty verdicts on all charges. Tuma subsequently
filed motions to strike the evidence as insufficient for
conviction and, alternatively, to set aside the verdicts and
grant him a new trial, based on the contention that the
prosecutor violated Brady by failing to provide pre-trial
access to the tape. Had he been given such access, Tuma
argued, it could have been used to impeach the credibility of
the Commonwealth's first four witnesses, namely, L.S.,
Gilliam, Scheid, and L.S.'s counselor, Amy Holloman.
According to Tuma, the tape revealed eight certain "areas of
4
interest and factual discrepancies" that the defense could
have used to effectively cross-examine those four witnesses.
Tuma's counsel conceded at an earlier post-trial hearing,
however, that he had access to the tape during the trial.
Counsel specifically admitted that "at the trial [the
prosecutor] said I could have access to it and things of that
nature." He similarly acknowledged that the trial judge "was
clear at the trial that I would be able to get it and listen
to it." Finding no Brady violation, the trial court denied
Tuma's motions, entered a judgment of conviction and imposed
the sentences fixed by the jury.
Tuma appealed his convictions to the Court of Appeals,
contending the trial court erred by (i) rejecting his Brady
challenge to the prosecutor's failure to disclose the audio
tape prior to trial, and (ii) refusing to admit the tape into
evidence and allow the jury to hear it. In a memorandum
opinion, a three judge panel, with one judge dissenting,
reversed the convictions on the Brady issue and remanded the
case for a new trial. Tuma v. Commonwealth, Record No. 0919-
10-2, 2011 Va. App. LEXIS 337 (November 8, 2011). Given that
ruling, the panel did not rule on Tuma's second assignment of
error. Id. at *12-13. Granting the Commonwealth's petition
for rehearing en banc, the Court of Appeals reached the same
5
decision. Tuma v. Commonwealth, 60 Va. App. 273, 303-04, 726
S.E.2d 365, 380 (Va. App. 2012).
We granted the Commonwealth this appeal on two
assignments of error in which it asserts the Court of Appeals
erred by (i) finding a Brady violation when the evidence was
available to Tuma at trial; and (ii) holding that the audio
tape contained evidence that was material under Brady.
II. ANALYSIS
A.
Under the Brady rule, the prosecution's suppression of
evidence favorable to the accused and material to either guilt
or punishment violates due process. Brady, 373 U.S. at 87.
First, the prosecution's suppression of evidence may be
established "irrespective of the good faith or bad faith of
the prosecution." Id. Second, the evidence must be
"'favorable to the accused, either because it is exculpatory,
or because it is impeaching.'" Skinner v. Switzer, 562 U.S.
___, 131 S. Ct. 1289, 1300 (2011) (quoting Strickler v.
Greene, 527 U.S. 263, 281-82 (1999)). Third, the "'evidence
is "material" within the meaning of Brady when there is a
reasonable probability that, had the evidence been disclosed,
the result of the proceeding would have been different.'"
Smith v. Cain, 565 U.S. ___, 132 S. Ct. 627, 630 (2012)
(quoting Cone v. Bell, 556 U.S. 449, 469-70 (2009)). The
6
accused has the burden of establishing each of these three
components to prevail on a Brady claim. Skinner, 131 S. Ct.
at 1300.
In this appeal, the Commonwealth does not challenge
whether the tape recording presented favorable impeachment
evidence for the defense, as Tuma contends. The Commonwealth
instead limits its challenge to Tuma's showing on the
suppression and materiality prongs of the Brady rule. Because
we agree with the Commonwealth that the prosecution did not
suppress the tape in violation of Brady, we need not address
the issue of materiality. See Porter v. Warden of the Sussex
I State Prison, 283 Va. 326, 332, 722 S.E.2d 534, 542 (2012)
(explaining that "we do not reach the issue of materiality"
under Brady "unless we first determine that the evidence was
not available" to the defense).
B.
Brady is "a disclosure rule, not a discovery rule."
United States v. Higgins, 75 F.3d 332, 335 (7th Cir. 1996).
Indeed, "[t]here is no general constitutional right to
discovery in a criminal case, and Brady did not create one."
Weatherford v. Bursey, 429 U.S. 545, 559 (1977). The more
limited purpose of the Brady rule is "'to assure that [the
defendant] will not be denied access to exculpatory [or
impeachment] evidence known to the government but unknown to
7
him.'" Lugo v. Munoz, 682 F.2d 7, 10 (1st Cir. 1982) (quoting
United States v. Ruggiero, 472 F.2d 599, 604 (2d Cir. 1973))
(first emphasis added). Accordingly, Brady is not violated,
as a matter of law, when impeachment evidence is made
"'available to [a] defendant[] during trial'" if the defendant
has "sufficient time to make use of [it] at trial." Read v.
Virginia State Bar, 233 Va. 560, 564-65, 357 S.E.2d 544, 546-
47 (1987) (quoting U.S. v. Behrens, 689 F.2d 154, 158 (10th
Cir. 1982)); see Higgins, 75 F.3d at 335 (Under Brady,
"[d]isclosure even in mid-trial suffices if time remains for
the defendant to make effective use of the exculpatory
material."); United States v. Knight, 867 F.2d 1285, 1289
(1989) (holding Brady satisfied where "[a]ppellants received
the information during the trial and have failed to
demonstrate that the disclosure came so late that it could not
be effectively used"); see generally 6 Wayne R. LaFave,
Criminal Procedure § 24.3(b) at 365 (3d ed. 2007) (Under
Brady, "the prosecution should be able to satisfy its
constitutional obligation by disclosure at trial.").
This principle applies without regard to when the
prosecution was or should have been "aware of the
information." Read, 233 at 564, 357 S.E.2d at 546, citing
with approval United States v. Darwin, 757 F.2d 1193 (11th
Cir. 1985). In Darwin, the defendant contended that the
8
prosecution violated Brady because the government failed to
disclose certain impeachment evidence about a witness until
after he had testified even though the government had been
aware of the information several days prior to his testimony.
Id. at 1201. Rejecting defendant's Brady claim, the Court of
Appeals for the Eleventh Circuit explained:
The point in the trial when a disclosure is
made . . . is not in itself determinative of
timeliness. We agree with those circuits
holding that a defendant must show that the
failure to earlier disclose prejudiced him
because it came so late that the information
disclosed could not be effectively used at
trial. Appellant here made no such showing.
In fact, although Dunn had completed his
testimony, the trial itself was far from over.
Appellant could have recalled Dunn for further
questioning but chose not to.
Id. (internal citations omitted), quoted in part by Read, 233
Va. at 564-65, 357 S.E.2d at 546-47; see also United States v.
Davis, 306 F.3d 398, 421 (6th Cir. 2002) (holding disclosure
of impeachment material during trial, when witnesses were
subject to recall, satisfied Brady); United States v. Mangual-
Garcia, 505 F.3d 1, 5-6 (1st Cir. 2007) (same); United States
v. Kime, 99 F.3d 870, 882 (8th Cir. 1996) (same).
In Read, this Court further relied upon United States v.
Elmore, 423 F.2d 775 (4th Cir. 1970), which held that no Brady
violation occurred when the impeachment information was
disclosed "well before the end of the trial," particularly
9
given that defense counsel requested no continuance "for
whatever further time might have been necessary" to make use
of the information at trial. Id. at 779-80. Similarly
rejecting a claim for late disclosure of Brady material, the
Court of Appeals for the Seventh Circuit in Higgins reasoned
that "[i]f counsel needed more time, she had only to ask; yet
she did not seek a continuance. Nothing more need be said."
75 F.3d at 335; see United States v. Crayton, 357 F.3d 560,
569 (6th Cir. 2004) ("Any disadvantage that a defendant might
suffer because of the tardiness [in the disclosure] of
impeachment material can be cured by asking for a recess."
(citing United States v. Presser, 844 F.2d 1275, 1283-84 (6th
Cir. 1988)). 1 In the analogous context of Rule 3A:11,
governing discovery in criminal cases, this Court has held
that a defendant who "failed to move for a continuance or even
for a recess in order to consider the material" untimely
disclosed by the prosecution would not "be heard to complain
that he had insufficient time to prepare for trial." Frye v.
Commonwealth, 231 Va. 370, 384, 345 S.E.2d 267, 277 (1986);
1
See also United States v. Collins, 415 F.3d 304, 311
(4th Cir. 2005) (holding that the proper response to a late
Brady disclosure was a motion for continuance, not a motion to
dismiss); United States v. Sepulveda, 15 F.3d 1161, 1178 (1st
Cir. 1993) (generally "a defendant who does not request a
continuance will not be heard to complain on appeal that he
suffered prejudice as a result of late arriving" Brady
material).
10
see Davis v. Commonwealth, 230 Va. 201, 204, 335 S.E.2d 375,
377 (1985) (holding no prejudice shown under Rule 3A:11 when
defendant "did not request either a postponement or a
continuance").
Here, Tuma did not have pre-trial access to the audio
tape recording of the investigative interview with L.S., which
purportedly contained impeaching material favorable to him.
His counsel, however, had reason to believe before trial that
the tape existed based on his conversation with Gilliam. Then
early in the trial, the two prosecution witnesses who
conducted the interview, Gilliam and Scheid, testified that it
was recorded; and Scheid revealed that the tape was in her
possession in the courtroom. Without first seeking to listen
to the tape outside the jury's presence, Tuma's counsel simply
moved to admit the tape into evidence and play it for the
jury, which the trial judge denied as procedurally improper.
Nevertheless, the judge twice advised defense counsel that he
could "go listen to it," and the prosecutor concurred,
stating, "[h]e can listen to it if he wants to."
On these facts, we conclude Tuma failed, as a matter of
law, to show he was denied access to the tape recording in
sufficient time to effectively use it at trial. Upon learning
during Scheid's testimony that she had the tape, Tuma's
counsel could have asked for a recess and listened to it,
11
proceeded to cross-examine Scheid using any favorable
impeaching information contained on it, and recalled L.S. and
Gilliam for the same purpose; but defense counsel chose not to
do so.
Despite such access to the tape at trial, Tuma attempts
to save his Brady claim by pointing to the subsequent exchange
between the trial judge, his counsel, and the prosecutor
following the close of the Commonwealth's case. At that time,
Tuma's counsel moved for the second time to admit the tape
into evidence without having listened to it, and without
having made any request during the trial to do so. He instead
asserted that the tape was "the best evidence of what was
said" during the recorded interview, and that he "would think
. . . it would be exculpatory in terms of where [the alleged
sexual assaults] occurred and [the] number of times they
occurred." The trial judge again denied the request,
explaining that Tuma's counsel was not "entitled just to play
something" because he thought "it may be exculpatory." When
Tuma's counsel pursued the issue further, the trial judge
reiterated his ruling that "[t]he tape will not be played."
The trial judge committed no error under Brady with this
ruling. The trial judge was not denying Tuma access to the
tape, as Tuma contends, but rather rejecting the method by
which his counsel sought repeatedly to introduce the tape into
12
evidence (an issue to be addressed by the Court of Appeals on
remand, as explained in Part II.C. of this opinion). We thus
reject Tuma's argument that the ruling was in error under
Brady because it was not a Brady ruling.
Tuma also asserts that the prosecutor violated Brady
during the same exchange because she represented there was no
exculpatory information on the tape. What she actually
represented was that she had "relied" on information from
Investigator Gilliam to form her opinion that nothing on the
tape was exculpatory. Most significantly, when the trial
judge asked her at that time whether she had listened to the
tape and whether she knew if it was exculpatory, she answered
unequivocally, "[n]o, sir." Tuma thus cannot credibly contend
that the prosecutor's representations about the tape somehow
amounted to its suppression. Indeed, Tuma's counsel made
clear each time he moved to introduce the tape into evidence
that he had formed his own opinion that it contained favorable
impeachment material based on the testimony of L.S., Gilliam
and Scheid – yet he did not pursue the opportunity to listen
to it when it was made available to him early in the trial.
In short, the tape was not suppressed. Thus, having had such
access to the tape, Tuma "cannot miraculously resuscitate
[his] defense after conviction by invoking Brady." United
States v. White, 970 F.2d 328, 337 (7th Cir. 1992).
13
Finally, we disagree that "the futility of any request
Tuma might have made at trial for a recess to listen to the
audio tape is obvious." Tuma, 60 Va. App. at 303, 726 S.E.2d
at 380. As Judge Kelsey states in his dissenting opinion:
This ipse dixit implies a bold accusation. The
majority apparently believes it "obvious" the
trial judge would have arbitrarily denied a
brief recess (if one had been requested) for
Tuma's counsel to listen to the tape - after
twice suggesting that he do so. Nothing in the
record suggests this censorious supposition is
true, much less obvious. We will never truly
know, of course, because Tuma's counsel never
asked for a brief recess to listen to the tape.
I do not see how the trial judge can be blamed
for that.
Id. at 313-14, 726 S.E.2d at 385. 2
2
We also note the Court of Appeals devotes much of its
opinion to criticizing the prosecutor's handling of the tape
on the basis of essentially ethical considerations. In Brady,
however, the United States Supreme Court made clear that the
"good faith or bad faith of the prosecution" is not
dispositive in deciding a Brady claim. Brady, 373 U.S. at 87.
As the Court explained more recently in Strickler, "under
Brady an inadvertent nondisclosure has the same impact on the
fairness of the proceedings as deliberate concealment. 'If
the suppression of evidence results in constitutional error,
it is because of the character of the evidence, not the
character of the prosecutor.'" 527 U.S. at 288 (quoting
United States v. Agurs, 427 U.S. 97, 110 (1976)). In short,
"Brady is not a canon of prosecutorial ethics . . . . In
Brady cases, therefore, an appellate court sits not as a
disciplinary committee of the state bar – but rather as a
court of review, ensuring only that the criminal conviction
satisfies the threshold requirements of due process." Tuma,
60 Va. App. at 308-09, 726 S.E.2d at 382-83 (Kelsey, J.,
dissenting). Because of the availability of the audio tape
for Tuma's use at trial, those threshold requirements were met
under Brady in this case.
14
C.
This appeal is limited to the Commonwealth's challenge to
the Court of Appeals' decision on the Brady issue, which that
court decided in Tuma's favor pursuant to his first assignment
of error. In light of that decision, the Court of Appeals was
not required to address Tuma's second assignment of error in
which he challenged the trial court's denial of his request to
admit the tape into evidence (a separate issue from whether
the prosecution violated Brady). That evidentiary ruling is
thus not before this Court to decide. Therefore, having now
decided in the Commonwealth's favor on the Brady issue, we
will remand this case to the Court of Appeals to decide Tuma's
second assignment of error.
III. CONCLUSION
For these reasons, we will reverse the judgment appealed
from and remand the case to the Court of Appeals for a
decision on Tuma's second assignment of error challenging the
trial court's ruling on the admissibility of the audio tape of
the investigative interview with the victim.
Reversed and remanded.
JUSTICE LEMONS, concurring.
I agree with the majority's holding that the
recording was made available to Tuma in sufficient time
15
for its use at trial, but I write separately to address
the issue of materiality raised by the dissent.
The United States Supreme Court held in Brady v.
Maryland, 373 U.S. 83 (1963), that "the suppression by the
prosecution of evidence favorable to an accused upon
request violates due process where the evidence is
material either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution." Id. at
87. That Court later explained that evidence is only
material under Brady "if there is a reasonable probability
that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different."
United States v. Bagley, 473 U.S. 667, 682 (1985).
"Reasonable probability" is defined as "a probability
sufficient to undermine confidence in the outcome." Id.
We have held that in order to meet the materiality
prong, "the accused must have been prejudiced." Workman
v. Commonwealth, 272 Va. 633, 644-45, 636 S.E.2d 368, 374
(2006). Essentially, "[t]he question is not whether the
defendant would more likely than not have received a
different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence." Kyles v.
Whitley, 514 U.S. 419, 434 (1995). "The mere possibility
16
that an item of undisclosed information might have helped
the defense, or might have affected the outcome of the
trial, does not establish 'materiality' in the
constitutional sense." United States v. Agurs, 427 U.S.
97, 109-10 (1976).
The dissent fairly points out the prosecutor's
failures in this case, and I agree that the prosecutor's
understanding of her duties under Brady was deficient.
However, the ultimate issue under Brady is whether the
defendant has actually been prejudiced, not what a
prosecutor should or should not have done in a particular
case. Under the facts of this case, I do not believe that
Tuma was prejudiced.
The inconsistencies between L.S.'s statements on the
tape and her statements at trial involve where the abuse
occurred and how many times it occurred. On the tape,
L.S. stated that the abuse only occurred at the "white
house," and that it happened more than five times and less
than ten times. At trial, L.S. testified that the abuse
occurred in other locations in addition to the "white
house," * and more than ten times. But the statements on
the tape never indicate that L.S. was not abused, or that
*
The "white house" is also referred to as the "house
with horses" and is located in Dinwiddie County.
17
Tuma was not the person who abused her. In Smith v. Cain,
565 U.S. __, 132 S.Ct. 627 (2012), the United States
Supreme Court held that previously undisclosed impeachment
evidence was material. However, the evidence in Smith was
material because it directly contradicted the only
eyewitness' identification of the defendant. Id. at 630.
Because the statements on the tape in no way indicate that
L.S. was not abused, or that someone else was the abuser,
the United States Supreme Court's holding in Smith v. Cain
is not implicated.
L.S. was consistent in her statements on the tape and
in her trial testimony that Tuma abused her at least 5-10
times at the "white house." Tuma was only charged with
and convicted of three counts: taking indecent liberties
with a child, aggravated sexual battery, and animate
object sexual penetration. Perhaps if Tuma had been
charged with more than five counts, then the exact number
of times the abuse occurred would become material.
The jury in this case was also already aware that
L.S. had made inconsistent statements as to the number of
times the abuse occurred and the locations where the abuse
occurred. The trial testimony of Jon Webster Scheid, the
social services worker, and Investigator Gilliam, the
police officer who conducted the taped interview, and
18
Investigator Gilliam's written summary of that interview,
already demonstrated that L.S.'s trial testimony differed
from her initial interview with them regarding the
frequency and location of the abuse, and her mother's
presence during the abuse. The audio tape was merely
cumulative of other evidence that had already been used to
impeach L.S. at trial. Where undisclosed evidence merely
furnishes an additional basis on which to challenge a
witness whose credibility has been attacked, the
undisclosed evidence may be cumulative, and hence not
material. See Byrd v. Collins, 209 F.3d 486, 518 (6th
Cir. 2000); United States v. Avellino, 136 F.3d 249, 257
(2d Cir. 1998); United States v. Cuffie, 80 F.3d 514, 518
(D.C. Cir. 1996).
The impeachment value of the statements on the tape
would have been minimal, especially in light of the expert
witness' testimony that it is not uncommon for young
children to not recall specific dates or instances of
abuse because they attempt to repress such events. Any
impeachment of these issues, taken as a whole, does not
undermine the confidence in this verdict.
The dissent asserts that the impeachment evidence was
also material to the punishment Tuma received, noting that
Tuma received a sentence of 35 years' imprisonment, nearly
19
three times the upper end of the guidelines. The mere
fact that the jury sentenced Tuma above the guidelines
does not prove materiality. As discussed above, the jury
was already aware of L.S.'s inconsistent statements.
Despite that, the jury believed her testimony and the
evidence was more than sufficient to prove that Tuma
sexually molested his seven-year-old stepdaughter. The
jury's sentence was within the statutory range and
arguably supported by the egregious facts of this case,
including the victim's very young age.
Any Brady claim must be "evaluated in the context of
the entire record" of the case. Agurs, 427 U.S. at 112.
Favorable evidence is material "only if there is a
reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding
would have been different. A 'reasonable probability' is
a probability sufficient to undermine confidence in the
outcome." Bagley, 473 U.S. at 682. After considering the
entire record of the case and the statements on the audio
tape, I believe that the statements on the tape do not
"put the whole case in such a different light as to
undermine confidence in the verdict." Kyles, 514 U.S. at
435. I also believe that Tuma has failed to establish a
reasonable probability that his punishment would have been
20
different if L.S.'s statements on the audio tape had been
utilized by the defense at trial. Tuma has failed to
prove that the statements on the audio tape were material
to his guilt or punishment.
Accordingly, I join the majority opinion and would
further hold that the statements at issue were not
material.
JUSTICE MILLETTE, with whom JUSTICE GOODWYN joins,
dissenting.
The fundamental principle set forth in Brady v.
Maryland, 373 U.S. 83, 87 (1963), is that "the suppression
by the prosecution of evidence favorable to an accused
. . . violates due process where the evidence is material
either to guilt or punishment, irrespective of the good
faith or bad faith of the prosecution." To be awarded a
retrial based on a Brady violation, the defendant must
make three showings as set forth in Skinner v. Switzer,
562 U.S. ___, 131 S. Ct. 1289 (2011): "(1) the evidence
at issue is favorable to the accused, either because it
was exculpatory, or because it is impeaching (2) the State
suppressed the evidence, either willfully or inadvertently
and (3) prejudice . . . ensued." Id. at 1300 (alteration
in original) (internal quotation marks omitted). Because
21
I find that the defendant in this instance made all of the
above showings, I respectfully dissent.
1. Undisclosed evidence is favorable to the accused
because it is impeaching.
As to the first prong, the Commonwealth does not
contest on appeal that we are considering impeachment
evidence, and it is clear that we are. The victim was the
primary witness against the accused, and the content of
the tape when compared to the in-court statements of the
victim raised inconsistencies primarily as to the number
of times the alleged abuse occurred and the locations
where she was allegedly abused. The content of the tape
would thus have allowed for impeachment through a more
thorough cross-examination of the witnesses, arguably
raising doubts in the jurors' minds as to either the
truthfulness of the victim's statements or the frequency
or severity of the events that occurred.
2. Impeachment evidence was suppressed.
The second prong is where the majority finds a
deficiency in this case. The majority focuses on the
availability of the tape at trial, holding that there was
no suppression because the evidence was made available
during trial but that the defense attorney declined to
take advantage of it. The majority concludes that the
22
burden fell on the defense attorney to ask for a
continuance to review the tape, and, finding that the tape
was made available to him at trial but that he did not
make such a request, holds that there was no Brady
violation.
I disagree with the majority's conclusion that the
tape was made available at trial in the form of disclosed
exculpatory evidence. A close reading of the trial
transcript seems to reveal the opposite.
During trial, L.S., the first witness, testified that
she was abused in both her stepfather's and her own
bedroom within the original house where they lived (the
"house with the horses"), as well as in the trailer park
and her grandmother's house after they moved out of the
original house. She also testified that her stepfather
touched her "a lot" – more than ten times – and that when
they moved into the trailer he touched her three times a
week, every week. She additionally stated that her
stepfather made her touch her younger brother while he was
in the bathtub.
After the detective and the Department of Social
Services (DSS) worker testified, it first became clear
that the DSS worker had a tape of the original interview
with the girl. Defense counsel moved to play the tape
23
arguing that it was admissible under the "best evidence"
rule. Over defense counsel's objection, the circuit court
denied the motion as to admissibility as best evidence,
stating: "We'll not play it now because you want to play
it. It is not admissible unless it contradicts something
that she has said. You haven't heard it. . . . It is not
going to be played." When asked by the circuit court
whether defense counsel had had access to the tape, the
prosecutor, who previously had not provided the tape to
defense counsel, had not listened to the tape, and had
instead produced for the defense a report of the interview
prepared by the detective, responded that defense counsel
"can listen to it if he wants to." There was no
discussion by the circuit court or admission by the
prosecutor at that time regarding whether the tape was
potentially exculpatory.
It was not until the motion to strike at the close of
the Commonwealth's evidence that the issue of the
potential exculpatory nature of the tape was raised, when
counsel for the defense argued that the tape "would be
exculpatory in terms of where things occurred and a [sic]
number of times they occurred." The following exchange
continued:
24
The Court [to the
Commonwealth]: Have you listened to the
tape?
[The Commonwealth]: No, sir.
The Court: So you don't know whether it
is exculpatory or not?
[The Commonwealth]: No, sir.
The Court: So therefore you didn't give
it to him as being
exculpatory because you
never listened to it? You
don't think it is – he is
entitled to it because it is
not exculpatory? You just
don't know?
[The Commonwealth]: I relied on my investigator
who had given me his notes
and transformed that into a
typewritten statement that
codified what went on at
that particular interview.
The Court: So you are satisfied there
is nothing significant or
exculpatory? Are you willing
to stand on that? If it is
you will not have complied
with Brady.
[The Commonwealth]: Yes, sir.
The Court: You are willing to stand on
that?
[The Commonwealth]: Yes, sir.
. . . .
The Court: You are saying that you
think it is exculpatory?
[Defense counsel]: Yes, sir.
25
The Court: In some way?
[Defense counsel]: Yes, I mean I can't get to
the material. I have asked
the representatives.
The Court: Well, I don't think you are
entitled just to play
something because you think
it may be exculpatory. . . .
The Court is not going to
admit it. If at some point
if your client is convicted
that tape shows something
that is significant,
exculpatory, he gets a new
trial. So that is the way
we are going with it.
. . . .
We will not hear any more
about that over your
objection. The tape will
not be played. Now you have
a motion to strike, and I
will be glad to hear you on
that.
The above exchange reflects the clear suppression of
the evidence at trial. The tape was not made available to
the defendant when he requested it, and the prosecutor
conceded her duty to disclose potentially exculpatory
evidence on the tape and acknowledged that she was not
doing so at her own peril. The circuit court stated that
it would hear no additional argument on the issue. The
information was therefore not made available to the
defendant at a time when it could be used.
26
According to the majority, this case rises or falls
on the apparent availability of the tape at trial and the
failure of defense counsel to immediately request a
continuance to listen to the tape once it was established
that the tape was in the courtroom. The majority, in
concluding that this failure of defense counsel is
paramount, ignores the fact that the burden of production
of exculpatory evidence falls on the prosecution. The
duty to disclose exculpatory evidence requires not merely
a duty to acknowledge the existence of a tape of an
interview, but rather to disclose the exculpatory or
impeachment evidence at least during the course of a
trial, if not earlier. The Supreme Court of the United
States has stated that
[a] rule thus declaring "prosecutor may hide,
defendant must seek" is not tenable in a system
constitutionally bound to accord defendants due
process. Ordinarily, we presume that public
officials have properly discharged their
official duties. We have several times
underscored the special role played by the
American prosecutor in the search for truth in
criminal trials. Courts, litigants, and juries
properly anticipate that obligations [to refrain
from improper methods to secure a conviction]
. . . plainly rest[ing] upon the prosecuting
attorney, will be faithfully observed.
Banks v. Dretke, 540 U.S. 668, 696 (2004) (internal
quotation marks and citations omitted) (second, third, and
fourth alterations in original). Our courts have long
27
stated that we hold our prosecutors to a higher standard
even than other attorneys:
The [prosecutor] is the representative not of
an ordinary party to a controversy, but a
sovereignty whose obligation to govern
impartially is as compelling as its obligation
to govern at all; and whose interest,
therefore, in a criminal prosecution is not
that it shall win a case, but that justice
shall be done. As such, he is in a peculiar
and very definite sense the servant of the law,
the twofold aim of which is that guilt shall
not escape or innocence suffer.
Berger v. United States, 295 U.S. 78, 88 (1935). Thus,
relying on the declarations by the prosecutor that the
content of the tape was not exculpatory, the circuit court
did not order the production of the evidence. In fact,
again in reliance on the prosecutor's position, the
circuit court foreclosed any further inquiry.
The prosecutor's overly narrow view of exculpatory
evidence was only revealed during argument on a post-trial
motion brought by defense counsel more than three months
after the trial was concluded, when defense counsel was
still seeking an opportunity to inspect the tape. Defense
counsel argued to the circuit court that "in light of what
has gone on[,] there needs to be some sort of inspection
of the tape to see if it has Brady material. . . . I
don't think it's sufficient for a prosecutor to say, well,
the police officer told me there was nothing exculpatory
28
on it." The prosecutor responded that "[t]he only thing
that would be exculpatory on that tape is if there was [a]
child saying he didn't do it, somebody else did it or it
happened in China or somewhere else."
Assuming without deciding that the evidence contained
in the tape only became exculpatory once the victim
testified, the prosecutor felt no obligation to turn over
evidence that the Commonwealth does not now contest should
have been disclosed under Brady. The prosecutor
apparently ignored the mandate of Brady to disclose
evidence favorable to the accused either because it is
exculpatory or because it is impeaching. Skinner, 131 S.
Ct. at 1300.
Defense counsel, meanwhile, clearly signaled that he
was seeking impeachment evidence when he claimed during
trial that he was seeking evidence regarding each witness'
credibility based upon discrepancies in the number and
location of occurrences. In a post-trial motion to set
aside the verdict, defense counsel was even more specific
in addressing what he considered to be eight separate
areas of discrepancies that he believed could have been
utilized in impeaching witnesses' credibility if he could
only have had access to the tape.
3. Defendant suffered material prejudice.
29
Because of its finding as to the second prong,
today's majority does not reach the third prong of
materiality or prejudice. Under Brady, the prosecution's
suppression of evidence favorable to an accused "violates
due process where the evidence is material either to guilt
or to punishment." Brady, 373 U.S. at 87 (emphasis
added). This has been more recently phrased as the
defendant's obligation to prove prejudice by showing a
"reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been
different." Cone v. Bell, 556 U.S. 449, 469-70 (2009).
"A reasonable probability does not mean that the defense
'would more likely than not have received a different
verdict with the evidence,' only that the likelihood of a
different result is great enough 'to undermine[]
confidence in the outcome of the trial.'" Smith v. Cain,
565 U.S. ___, 132 S. Ct. 627, 630 (2012) (quoting Kyles v.
Whitley, 514 U.S. 419, 434 (1995)).
Considering the materiality of the impeachment
evidence, I concur with the majority opinion offered by
the Court of Appeals of Virginia that, given that the
Commonwealth's case rested primarily on the victim's
testimony, impeachment testimony concerning the number of
instances of abuse and the places where the abuse occurred
30
could have sufficiently undermined the jury's confidence
in the victim as a witness to create a reasonable
probability that the outcome of the proceeding,
potentially as to guilt but at least as to sentencing,
would have been different. Witness credibility is of the
utmost importance in a case like this one in the absence
of any physical evidence produced by the Commonwealth.
The accusations in the case at bar were such that they
relied primarily on the credibility of a single witness,
one who is young and thus suggestible, on the detective
and DSS worker's accounts of her prior statements, and on
her counselor's observations. See, e.g., Workman v.
Commonwealth, 272 Va. 633, 650, 636 S.E.2d 368, 378 (2006)
(noting that the credibility of a key witness testifying
against a defendant is "a significant issue at trial," and
that – for Brady purposes – material usable for
impeachment is "critical . . . evidence" in that context).
The case at bar required the jury to weigh these
statements against the testimony of the defendant and the
victim's mother, who denied the abuse. Under such
circumstances, impeachment evidence goes directly to the
jury's evaluation of which witnesses are being truthful,
and so bears strongly not only on the issue of guilt, but,
since a jury in Virginia also imposes the punishment for
31
felony convictions, likewise bears on the issue of
punishment.
At sentencing before the circuit court judge, defense
counsel argued that the sentencing guidelines for the
crimes for which the defendant was convicted ranged from a
total of five years, two months to thirteen years, one
month. At trial, the jury had reached a determination
that the combined sentence for the three convictions
should be 35 years, nearly three times the upper end of
the guidelines. The circuit court refused any reduction
in the sentence, specifically deferring to that jury
verdict. See Code § 19.2-298.01(A) ("In cases tried by a
jury, the jury shall not be presented any information
regarding sentencing guidelines.")
Given the severity of the punishment and the
potential for impeachment of the witnesses, the likelihood
of a different result, at least as to sentencing, is
sufficient to undermine confidence in the outcome of the
proceeding. As explained by Judge Humphreys, writing for
the majority of the Court of Appeals:
Had the jury known of L.S.'s recorded interview
statements, that the abuse occurred only at the
white house between five and ten times and not
at the trailer or her grandmother's house, the
jury very well could have doubted the number of
times Tuma sexually abused L.S., considering
that her interview statements contradicted her
32
trial testimony. It is reasonable to conclude
that the evidence of repeated occurrences of
sexual abuse at three separate locations
impacted the jury's assessment of a proper
punishment for Tuma. . . . Therefore, the
evidence was also material to Tuma's degree of
punishment, and suppression of the recorded
interview constituted a separate Brady violation
on that basis.
A jury could reasonably have awarded a lengthier sentence
based on the more frequent abuse testified to at trial.
In addition, the tape only referred to abuse in Tuma's
bedroom at one house in which they lived, unlike L.S.'s
testimony at trial which made references to him coming
into her bedroom on multiple occasions and continuing to
abuse her as they moved their residence to multiple
locations, which a jury could have found more
reprehensible. There was also a discrepancy between the
victim's testimony at trial and on the tape as to her
mother's involvement in the alleged abuse, which may have
had a dual impact on the credibility of the mother and the
jury's determination of the appropriate punishment.
Finally, the tape contained no references involving Tuma
demanding she touch her younger brother in the bathtub, as
testified to at trial, and which could reasonably be
viewed as more significantly offensive behavior on the
part of her stepfather. Thus, even if Tuma would
ultimately have been found to be guilty of the abuse, due
33
process entitled him to use these contradictions to
attempt to mitigate the sentence levied upon him by the
jury.
For the aforementioned reasons, I would affirm the en
banc judgment of the Court of Appeals of Virginia
reversing the conviction and remanding for retrial as to
both guilt and sentencing.
34