Garnett v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Benton, Elder, Humphreys, Clements, Kelsey, McClanahan,
Haley, Petty and Beales
Argued at Richmond, Virginia

HOWARD Z. GARNETT, JR.
OPINION BY
v. Record No. 3027-04-2 JUDGE ELIZABETH A. McCLANAHAN
APRIL 10, 2007
COMMONWEALTH OF VIRGINIA

UPON REHEARING EN BANC

FROM THE CIRCUIT COURT OF MADISON COUNTY
Daniel R. Bouton, Judge

W. Todd Watson (Hargett & Watson, on brief), for appellant.

Alice T. Armstrong, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.

A jury convicted Howard Z. Garnett, Jr. of rape, abduction with intent to defile, assault

and battery on a family or household member (third or subsequent offense), and animate object

penetration. Garnett contends the trial court erred in denying his motion for a new trial on the

grounds that the Commonwealth failed to disclose exculpatory evidence, in the form of tape

recordings and transcripts of the victim’s statements, in violation of Brady v. Maryland, 373 U.S.

83 (1963). A panel of this Court held the Commonwealth’s failure to disclose the victim’s

verbatim statements constituted a Brady violation and reversed his convictions in an unpublished

opinion. We granted a petition for rehearing en banc and stayed the mandate of the panel

decision. Upon rehearing en banc, we affirm the trial court.
 I. BACKGROUND

On the morning of July 24, 2003, the victim went to Garnett’s barn to retrieve some

belongings. 1 When Garnett appeared, she attempted to leave but he grabbed her truck keys out

of her hand. Garnett told her he wanted to return some things to her. The victim followed him

into the house and then the barn, but he refused to return her keys. Once in the barn office,

Garnett physically blocked the exit and prevented the victim from leaving. He pushed her up the

stairs into a secluded area where he verbally and physically attacked her, ultimately raping her.

Garnett then drove the victim home in her truck and left.

The victim reported the rape later that afternoon to the Madison County Sheriff’s Office

and submitted a handwritten statement. Deputy Hill observed scratches and bruises on her body,

redness around her neck, her clothing was dirty and in disarray, her face was red and puffy, her

voice was “very broken and soft,” and the frame of her glasses was bent. Hill took her to the

hospital for a sexual assault examination, and interviewed her that night with Investigator

Michael. The victim gave another statement on July 31 in which she described Garnett’s sexual

assaults of January 19 and April 29, 2003.2 Both interviews were recorded and transcribed. The

victim also submitted a handwritten statement, and disclosed additional details regarding the

alleged assaults to the Commonwealth while preparing for trial. Some of these statements

conflicted with her preliminary hearing testimony.

1
The victim lived with Garnett from July 2001 to August 2002. Later in 2002, she
terminated their relationship because she did not want “to be involved in a relationship that had
violence and aggression.” Garnett was charged with domestic assault against the victim but
those charges were dismissed in September 2001 because she was non-cooperative. She testified
that his family urged her not to press charges and he promised to change. She also withdrew a
protective order she had against him.
2
The offenses for which Garnett was convicted occurred on July 24, 2003. The jury
acquitted Garnett on charges for the assaults allegedly occurring on January 19, 2003, and April
29, 2003.

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 Before trial, Garnett requested the tape recordings and transcripts of the victim’s

statements to police, arguing the evidence was exculpatory and could be used to impeach her

credibility. The Commonwealth provided Garnett with summaries of her statements, which also

specifically described the inconsistencies with her preliminary hearing testimony, but it did not

release the recordings and transcripts. At the pretrial hearing, the Commonwealth represented

that it had disclosed all exculpatory statements and that there were no inconsistencies between

the victim’s two recorded statements. Garnett accepted the Commonwealth’s representations

and withdrew his request for the court to conduct an in camera review of the statements. Garnett

nevertheless persisted in his request for the recordings, contending that the “manner” in which

the victim “articulate[d]” her statements was “potentially exculpatory.” The trial court denied

the request but directed the Commonwealth’s attorney to review the recorded statements prior to

trial and disclose further exculpatory evidence, if any.3

3
The trial court stated:

Based on the representations of the Commonwealth’s
attorney concerning what is covered by those statements, and
based on the acceptance of those representations by the defense,
the Court will simply confirm that the Commonwealth has a
continuing duty to disclose any exculpatory evidence that exists
with regard to either of those two statements. The Court will direct
the Commonwealth’s attorney to review them again prior to trial
and disclose any further information to the defense that it deems
exculpatory, in light of the hearing that we’ve conducted.
Specifically, Mr. Webb, if, in fact, upon subsequent review there
are embellishments, additions or supplemental factual statements
and assertions that would be exculpatory as opposed to further
explanation, . . . those would be subject to disclosure. Now based
on what you said, I’m not suggesting there are any such
statements, and it may well be that there are not, but we’ll simply
make that observation that that is one area which we find the
defense motion to be well-taken, so we’ll simply direct that you do
that.

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 After he was convicted, Garnett filed a motion to set aside the verdict. He maintained

that the Commonwealth violated the mandates of Brady by responding to his discovery request

for the victim’s verbatim statements by providing only typed summaries of the statements.

Before ruling on Garnett’s motion, the trial court reviewed in camera the recordings and

transcripts of the statements and compared them to the typewritten summaries. The court found

that the victim’s statements revealed material inconsistencies in her testimony, but that the

Commonwealth sufficiently disclosed the exculpatory material. The court further held that, by

virtue of the Commonwealth’s disclosure of the summaries in lieu of “the exact words that [she]

uttered” in their entirety, Garnett was not prejudiced under Brady and not entitled to a new trial.

II. ANALYSIS

“A Brady violation occurs when the government fails to disclose evidence materially

favorable to the accused.” Youngblood v. West Virginia, 126 S. Ct. 2188, 2190 (2006). “There

are three components of a true Brady violation: The evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; that evidence must have

been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”

Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The Commonwealth’s duty to disclose

exculpatory information includes evidence that can be used to impeach prosecution witnesses.

United States v. Bagley, 473 U.S. 667, 676 (1985); Youngblood, 126 S. Ct. at 2190; Robinson v.

Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986) (“The impeachment value alone

makes the information exculpatory.”).

Garnett contends the victim’s verbatim statements constituted impeachment evidence the

Commonwealth was required to disclose under Brady. The Commonwealth argues Garnett

failed to establish it withheld exculpatory evidence and failed to establish that he suffered

prejudice sufficient to require a reversal of his convictions.

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 A. The Commonwealth made the required disclosure of the Brady material in
the specific summaries of the victim’s statements.

Once a Brady claim is asserted, and a dispute arises as to whether information is indeed

exculpatory, the trial court has the discretion to review the evidence in camera and assess

whether the Commonwealth has favorable evidence which, if not disclosed, would prejudice the

defendant. Bowman v. Commonwealth, 248 Va. 130, 135, 445 S.E.2d 110, 113 (1994); Lemons

v. Commonwealth, 18 Va. App. 617, 621, 446 S.E.2d 158, 161 (1994) (“If in doubt about the

exculpatory nature of the material, a prosecutor should submit it to the trial court for an in

camera review to determine if it is exculpatory and should be disclosed.”).

Prior to trial, Garnett requested all exculpatory materials, including the tape recordings

and transcripts, but then withdrew his request for an in camera review at the pretrial hearing. In

response to Garnett’s motion to set aside the verdict after his conviction, the trial judge

conducted the in camera review and found:

The Commonwealth made two separate disclosures regarding
statements of the victim. The first disclosure was---was very
specific and it revealed material inconsistencies. The second
disclosure was even more detailed. It described in a
comprehensive way exactly what the victim said in her statements
to Investigator Michael, and the Court has compared the
disclosures that took place and the statements that were actually
provided to the in-camera materials that the Commonwealth has
delivered to the Court, and here, in the Court’s view, all of the
exculpatory evidence and the impeachment materials was actually
provided to the defense. The Commonwealth even points out in
one of its disclosures, very clearly, what the inconsistencies
actually consist of. There’s something of a road map to
impeachment, so, in the Court’s view, the disclosure was sufficient
when one compares what was disclosed to the in-camera material.

(Emphasis added). Accordingly, the trial court ruled that the statements were indeed exculpatory

but that there was no Brady violation because the Commonwealth sufficiently disclosed the

exculpatory evidence—providing the defendant “a road map to impeachment” through its

summary disclosures.

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 Contrary to Garnett’s argument, Brady does not require disclosure of the recordings or

transcripts. See United States v. Grunewald, 987 F.2d 531, 535 (8th Cir. 1993) (government

complied with Brady by providing defendant typed summaries of interview notes instead of the

available handwritten notes containing material favorable to defendant); United States v.

Phillips, 854 F.2d 273, 278 (7th Cir. 1988) (government complied with Brady by providing

defendant with exculpatory evidence in the form of detailed summaries); United States v. Van

Brandy, 726 F.2d 548, 551-52 (9th Cir. 1984) (same). Garnett was provided the substance of the

victim’s statements, and he attacked her credibility as to each inconsistency. He thoroughly

cross-examined the victim, challenging her recollection of the facts regarding the rape including

how long she was in the barn, whether he sexually assaulted her orally, and why she was willing

to follow him into the secluded barn after he had previously assaulted her. Garnett also pointed

out the lack of corroborating evidence. He questioned the victim about when she terminated her

intimate relationship with him, the extent of their business relationship, and her possible motive

for testifying falsely.

We recognize that “the more prudent and expeditious route would have been for the

government to provide” the recordings or transcripts. Grunewald, 987 F.2d at 535; see Lemons,

18 Va. App. at 621-22, 446 S.E.2d at 161. However, given the specificity of the disclosures,

Garnett was able to carefully attack the victim’s account in an effort to impeach her regarding

her prior inconsistent statements. We do not believe the verbatim statements would have

provided Garnett with “such compelling cross-examination as to render an acquittal more

likely.” United States v. Wadlington, 233 F.3d 1067, 1076-77 (8th Cir. 2000) (where defendant

“was already aware of the substance of the government witnesses’ exculpatory and impeaching

statements prior to trial, he cannot establish a Brady violation”); see Van Brandy, 726 F.2d at

552 (defense witness “was exhaustively cross-examined” and “his credibility was thoroughly

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questioned” based on government’s disclosure of exculpatory evidence in the form of detailed

summaries).

Upon our review of the record, including an in camera comparison of the verbatim

statements to the disclosed summaries, we cannot say that the trial court erred in ruling that the

Commonwealth did not suppress any Brady material. Garnett failed to prove a Brady violation

because the Commonwealth disclosed the exculpatory evidence. See Wadlington, 233 F.3d at

1076; Grunewald, 987 F.2d at 535; Phillips, 854 F.2d at 278: Van Brandy, 726 F.2d at 551-52;

see also Basden v. Lee, 290 F.3d 602, 610-11 (4th Cir. 2002) (no Brady violation where

defendant had access to most of the information contained in nondisclosed report of witness’

interview).4

4
The dissent hypothesizes the police conducted at least one additional interview with the
victim between the recorded interviews conducted on July 24 and July 31, 2003, and on that
basis asserts that Garnett’s convictions should be reversed under Brady. Neither the record nor
the law supports that assertion. Moreover, even though we now address it, this argument was not
made by Garnett on appeal and is thus waived pursuant to Rule 5A:18.
The dissent relies on a discrepancy in the victim’s July 24 and July 31, 2003 interviews.
In her July 24th interview, she stated Garnett raped her a total of “two or three times,” and she
thought one of those rapes occurred at the end of May 2003. The July 31st interview was
conducted in reference to the victim’s allegations that two earlier rapes occurred on January 19,
2003 and April 29, 2003. The discrepancy between the April and May dates did not give rise to
a Brady violation. First, the fact the victim initially indicated that one of the three alleged rapes
occurred in May was disclosed to Garnett in the Commonwealth’s summaries of exculpatory
evidence. Second, the victim’s subsequent representation as to the specific dates of the two
earlier alleged rapes was not necessarily the product of a third interview. Thus, assertions that
the police conducted a third interview with the victim and that it “may have contained
‘potentially exculpatory evidence’” amount to mere “speculation,” which is insufficient to
establish a Brady violation. Ramdass v. Commonwealth, 246 Va. 413, 420, 437 S.E.2d 566, 570
(1993), vacated on other grounds, 512 U.S. 1217 (1994), cert. denied after remand, 514 U.S.
1085 (1995); see Lowe v. Commonwealth, 218 Va. 670, 679, 239 S.E.2d 112, 118 (1977)
(“critical basic fact” may not be assumed by appellate court where not demonstrated in the
record and “conjecture” is insufficient to establish a Brady claim); see also United States v.
Agurs, 427 U.S. 97, 109-10 (1976) (“The mere possibility 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.”); Juniper v. Commonwealth, 271 Va. 362,
394, 626 S.E.2d 383, 404 (2006) (Brady motion may not be used as “a speculative search for
evidence” (internal quotation marks omitted)); Hughes v. Commonwealth, 18 Va. App. 510, 516,
446 S.E.2d 451, 461 (1994) (“[s]peculative allegations” of “the presence of favorable material”

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 B. Garnett was not prejudiced by the Commonwealth’s disclosure of the summaries
of the victim’s statements, instead of the verbatim statements.

Garnett also failed to show he was prejudiced by the nondisclosure of the victim’s

verbatim statements, the third element of a Brady claim, in light of the Commonwealth’s

disclosure of the summaries of the exculpatory evidence. See Deville v. Commonwealth, 47

Va. App. 754, 756-57, 627 S.E.2d 530, 532 (2006); see also Lemons, 18 Va. App. at 620-22, 446

S.E.2d at 160-61.

In the context of Brady, prejudice is shown if the nondisclosed evidence favorable to the

accused is material. Robinson, 231 Va. at 150-51, 341 S.E.2d at 164; see also Deville, 47

Va. App. at 756-57, 627 S.E.2d at 532; Lemons, 18 Va. App. at 620-22, 446 S.E.2d at 160-61.

Such “‘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.’” Robinson,

231 Va. at 151, 341 S.E.2d at 164 (quoting Bagley, 473 U.S. at 682); see Kyles v. Whitley, 514

U.S. 419, 437 (1995) (nondisclosure of evidence favorable to the accused “does not amount to a

Brady violation, without more”); Hillman v. Hinkle, 114 F. Supp. 2d 497, 502 (E.D. Va. 2000).

“[A] constitutional error occurs, and the conviction must be reversed, only if the evidence is

material in the sense that its suppression undermines confidence in the outcome of the trial.”

Bagley, 473 U.S. at 678; see Lovitt v. Warden, 266 Va. 216, 244-45, 585 S.E.2d 801, 817-18

is insufficient under Brady). Third, even if the police had conducted additional interviews with
the victim, “there is ‘no constitutional requirement that the prosecution make a complete and
detailed accounting to the defense of all police investigatory work on a case.’” Agurs, 427 U.S.
at 109 (quoting Moore v. Illinois, 408 U.S. 786, 795 (1972)); see Ramdass, 246 Va. at 420, 437
S.E.2d at 570 (“[T]here is no general constitutional right to discovery in a criminal case, and
Brady did not establish one.” (citing Lowe, 218 Va. at 679, 239 S.E.2d at 118)); Goins v.
Commonwealth, 251 Va. 442, 456, 470 S.E.2d 114, 124 (1996) (same). Disclosure under Brady
extends only to exculpatory evidence. Brady, 373 U.S. at 87.

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(2003), cert. denied, 541 U.S. 1006 (2004).5 “In other words, [appellant] must show that when

the case is evaluated in the context of the entire record, including the [purportedly] omitted

evidence, a jury would have entertained a reasonable doubt” as to appellant’s guilt. Soering v.

Deeds, 255 Va. 457, 464, 499 S.E.2d 514, 517 (1998).

We thus consider the cumulative effect of the disclosure of the summaries instead of the

recordings and transcripts, to determine on appeal whether such nondisclosure was material and

resulted in prejudice. See Lovitt, 266 Va. at 245, 585 S.E.2d at 818; Robinson, 231 Va. at 152,

341 S.E.2d at 165. The crux of the convictions involved what transpired in the barn, not before

or afterwards. The evidence established that Garnett pushed her inside the barn, prevented her

from exiting, ignored her protests to stop groping her, shoved her upstairs to a secluded area,

sexually assaulted, and then raped her. Her physical appearance and demeanor at the police

station corroborated her recent complaint. While denying that any assault took place, the

defendant conceded he was present with the victim on the day of the offense at the barn, that

they were in the barn, and that the victim’s clothes should have been dirty.6

5
As the United States Supreme Court later explained in Strickler,

the term “Brady violation” is sometimes used to refer to any
breach of the broad obligation to disclose exculpatory evidence—
that is, to any suppression of so-called “Brady material”—
although, strictly speaking, there is never a real “Brady violation”
unless the nondisclosure was so serious that there is a reasonable
probability that the suppressed evidence would have produced a
different verdict.

Strickler, 527 U.S. at 281 (footnote omitted).
6
The defendant admitted that he spoke with the victim when she came to his property,
that they went to his mother’s house, and then into the barn. He denied assaulting her or
touching her. He conceded “she should have been dirty and muddy because . . . these mats were
right on this red soil and uhm she had fell . . . and that’s the end of it.” When asked if he had
sexual relations with the victim that day, the defendant said, “No sir I’m to [sic] wore out from
my present girlfriend . . . I haven’t been with [the victim] over a month and a half to two months
. . . .”

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 Many of the inconsistencies between the victim’s statements and her preliminary hearing

testimony concern matters unrelated to the charges or matters that occurred outside the barn.7

Garnett cross-examined the victim regarding how long she was detained in the barn and

regarding any possible bias. Garnett took full advantage of all the inconsistencies the

Commonwealth specifically identified and extensively cross-examined the victim on each

charge. By acquitting Garnett of two of the charges against him, the jury clearly rejected some

of the victim’s testimony.

The Commonwealth’s failure to provide the victim’s verbatim statements, standing alone,

was not “of sufficient significance to result in the denial of the defendant’s right to a fair trial.”

United States v. Agurs, 427 U.S. 97, 108 (1976). We have reviewed the evidence presented at

trial and considered what effect the verbatim statements might have had on the jury’s verdict. As

in Fitzgerald v. Bass, 6 Va. App. 38, 55, 366 S.E.2d 615, 624-25 (1998) (en banc), “we believe

that, given the extent to which [the victim’s] credibility was impeached, it is doubtful that

additional evidence in this regard would have made a difference in the jury’s opinion of [her]

credibility.” On this record, we cannot say there is a reasonable probability that had the verbatim

statements been disclosed, the outcome of the trial would have been different. See Lemons, 18

Va. App. at 621-22, 446 S.E.2d at 161 (conviction affirmed where we were “unable to conclude

to a reasonable degree of probability that the disclosure of the statement would have affected the

outcome of the case”); Robinson, 231 Va. at 152, 341 S.E.2d at 165 (Supreme Court compared

evidence at trial with what defendant claimed could have been presented had exculpatory

evidence been disclosed earlier and found “there is no reasonable probability that an earlier

7
These facts included when the victim ended her intimate relationship with Garnett,
whether Garnett raped her in May, the number of times he previously sexually assaulted her,
whether on the day of the offenses they entered the house before going to the barn, and to whom
she stated she did not know whether she had been subjected to an oral sexual assault.

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disclosure would have resulted in a different outcome.”); Deville, 47 Va. App. at 758 n.2, 627

S.E.2d at 532 n.2 (we affirmed trial judge’s determination that even if disclosed, the evidence

would not have affected the verdict); see also Agurs, 427 U.S. at 108; United States v. Ellis, 121

F.3d 908, 918 (1997); Wadlington, 233 F.3d at 1076.

Accordingly, we affirm Garnett’s convictions.

Affirmed.

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Haley, J., with whom Benton and Elder, JJ., join, dissenting.

We respectfully dissent.

I.

This dissent shall examine the facts in the continuum of the relationship between

appellant and complainant, because:

The proper standard of materiality [in Brady evaluation] must
reflect our overriding concern with the justice of the finding of
guilt. Such a finding is permissible only if supported by evidence
establishing guilt beyond a reasonable doubt. It necessarily
follows that if the omitted evidence creates a reasonable doubt that
did not otherwise exist, constitutional error has been committed.
This means that the omission must be evaluated in the context of
the entire record. If there is no reasonable doubt about guilt
whether or not the additional evidence is considered, there is no
justification for a new trial. On the other hand, if the verdict is
already of questionable validity, additional evidence of relatively
minor importance might be sufficient to create a reasonable doubt.

United States v. Agurs, 427 U.S. 97, 112-13 (1976) (emphasis added), cited with approval in

Dozier v. Commonwealth, 219 Va. 1113, 1116-17, 253 S.E.2d 655, 657 (1979).

In Lovitt v. Warden, 266 Va. 216, 585 S.E.2d 801 (2003), the Supreme Court of Virginia

recognized the foregoing italicized considerations. There, the Court stated that a Brady “due

process analysis requires consideration on an item-by-item basis whether the evidence at issue

was exculpatory. However, the determination whether undisclosed exculpatory evidence was

material must be made by considering its cumulative effect.” Id. at 245, 585 S.E.2d at 818

(emphasis added).

II.

FACTS

With that standard, a detailed summary of relevant facts in the entire record is necessary.

It should be remembered that appellant was indicted and tried on three charges of rape, one on

July 24, 2003, one on January 19, 2003, and one on April 29, 2003.

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 A.

The July 24, 2003 Incident

Complainant is a 53-year-old registered nurse “in labor and delivery, nursery and

postpartum” at Fauquier Hospital. Complainant moved from Delaware8 to Madison County,

Virginia, in 2001. That year she purchased a tract of land from, and adjoining property owned

by, appellant and appellant’s mother. She wished to build a home on the property and develop a

portion of it for resale. In May 2001, complainant began an “intimate relationship” with

appellant and moved into his residence.

In July 2001, complainant filed a complaint under oath, charging appellant with assault

and battery. That charge was dismissed, because as the Commonwealth’s Attorney wrote,

complainant was “non-cooperative, stating that she grabbed him first, and that there was no

violent contact between her and the defendant at that time.” In short, complainant told the

Commonwealth Attorney she had lied while under oath when filing the complaint for the arrest

warrant.

Complainant continued to live with appellant until August 2002, when her home was

completed. After she moved into her home, part of which appellant had constructed on the land

she purchased from him, they were “neighbors.” Appellant continued living with his mother 200

to 300 yards from complainant. Appellant and complainant continued their consensual sexual

relationship until November 2002.

According to complainant, on July 24, 2003, she drove her truck to the barn, which was

located between appellant’s home and complainant’s home, to pick up “personal belongings” she

had stored there. These included garden hoops, a tiller, stall mats, tools, building supplies,

8
On cross-examination complainant answered she had moved to Virginia from
“California.”

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and parts of a dismantled greenhouse. When she arrived at 8:30 a.m., appellant was present and

a VDOT paving crew was working on the road in front of the barn. Appellant, by “squeezing her

hand” and “bending her hand” back for thirty seconds, took her truck keys, and, despite her

requests, refused to return them. After taking her truck keys, complainant claims appellant

“started to walk on towards his house . . . and [she] followed him all the way to his house.”

She followed appellant into the house in which “he gathered a couple of mugs and gave

them to me. They were my property.” During this time in the house complainant knew

appellant’s mother was present, but made no complaint to his mother about appellant taking her

keys from her by force and refusing to return them. Complainant testified they spent “less than

five minutes” in the house. Then, “He walked out the door and I followed him” back to the barn.

She was not “physically restrained” going to the house or back to the barn.

At the barn, appellant made “advances” towards her, but she nonetheless entered the barn

to get her property. In the barn, complainant claimed appellant “pushed me up the stairs and

then we went to the back of the barn,” where appellant allegedly raped her.9 He pushed her

“forward over a [waist-high] wall and pulled [her] shorts down.” When asked if appellant

ejaculated she answered: “I don’t know. I don’t think so.” She testified that she either did not

know, or could not remember, if appellant orally sexually assaulted her. She said the rape

occurred “around noon,” that is, 2½ hours after she initially arrived at the barn. She claimed

appellant threatened her life and appellant was “yelling and screaming.” Also, she testified, “I

was screaming and yelling the whole time it was going on . . . and hoping the people out[side]

who were working in the front would hear.”

9
Apparently the barn is two-storied, with a “milking parlor” on the first floor, and open
space on a second floor.

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 On direct examination the following exchange occurred, referring to the time of the

assault and immediately thereafter:

Q. Was there anybody else around the barn at that time?

A. There was a VDOT work crew working on the road in front of
the barn.

* * * * * * *

Q. Why didn’t you run out to the paving crew? Were they still
outside the barn?

A. I don’t know. . . . By that time I had no idea.

After the attack, complainant testified that she and appellant “were in and out of the barn”

bringing out her stall mats. Appellant “brought my truck around and loaded my stall mats into

it.” He then drove complainant to her home in her truck and “left her keys” in that truck.

Complainant entered her home, did not call 911, “got a drink of water and I went to the police

station.” She stayed in her home “maybe five minutes.”

Complainant’s testimony revealed that since Thanksgiving 2002, appellant had aided her

in various business enterprises. He had advised her on the purchase of plants, tilled the ground

and bedded plants on her property - plants complainant wished to sell. Complainant may have

also purchased garden supplies associated with the venture in the name of “Garnett’s Gardens.”

Complainant purchased a dismantled greenhouse and she and appellant transported the

components, to be re-erected near the barn. In March, April and May 2003, complainant also

had a used furniture business located in a booth at The Emporium,10 and appellant hauled

furniture to and from the same. Appellant’s mother lived with complainant in her home for

approximately a week in January 2003, following a debilitating injury. In the spring of 2003,

10
The Emporium apparently is a form of market in which various vendors can rent space.

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complainant sought to subdivide her property and sought appellant’s advice with respect to the

same, including lay-out, septic fields, and other information.

In addition to the foregoing business and semi-business relationship with appellant,

documentary evidence showed that on June 23, 2003, complainant entered into a contract to

purchase the home of appellant and his mother for $135,000. That contract was terminated by a

release between the parties. Complainant signed the release on July 16, 2003, appellant signed

on July 24, (the day of the incident), and appellant’s mother signed on July 25.

Further, in February 2004, more than six months after the July 24 incident, complainant

sought to obtain 1.87 acres from appellant and his mother, apparently in connection with

complainant’s desire to subdivide her property, by a boundary line adjustment deed. She

retained counsel who prepared a deed to that effect and forwarded it on February 9, 2004, with a

request it be signed. That agreement was not consummated, apparently because of litigation

concerning a deed of trust on that property.

In summary, complainant testified that on July 24, 2003, she went to the barn at

8:30 a.m., had her keys then taken as a result of 30 seconds of violence, walked up to appellant’s

house, stayed there less than 5 minutes, walked back to the barn, and the attack occurred around

noon. After the attack, she and appellant reentered the barn and loaded three stall mats in her

truck; he drove her home; she got a drink of water, and after staying in her home “maybe five

minutes,” went to the police. She saw Deputy Sheriff Shawn Hill.

Deputy Hill testified on direct examination:

Q. Do you know approximately what time it was that you
encountered [the complainant]?

A. [The complainant] came into the office at approximately 2:30
to 2:40 that afternoon.

* * * * * * *

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 Q. What was the complaint that you had from [her]?

A. Okay. Initially, [the complainant] stated that she had been
assaulted . . . and then further, approximately fifteen (15) to
twenty (20) minutes after that, she informed me that she had
been sexually assaulted.

When asked on cross-examination to explain the apparent time gap between 8:30 a.m.,

when she arrived at the barn, and her appearance at the police station, complainant responded

that she believed that appellant held her “until two o’clock in the afternoon.”11

When she did arrive at the police station, Deputy Hill testified that complainant’s

clothing was “dirty” and “in a disarray”; she had “several scratches and bruises”; and “some

redness and puffiness to her face.” Upon learning of her claim of sexual assault, Hill took her to

the emergency room at the University of Virginia Hospital.

At the hospital, complainant saw Sandra Lee Annan, a sexual assault nurse examiner.

She described complainant’s clothes as “sort of dusty, dirty,” and detailed bruises or scratches on

her hands and knees. By using a dye procedure to discern abrasions not visible to the eye, she

found “two small dots” inside the outer lips of the vagina, which were consistent with sexual

intercourse. Such abrasions will remain detectable for up to three days after intercourse. She

found no bruises or scratches on her breasts, back, palms of her hands, elbows, forearms, ears, or

from her waist down to the front of her knees.

The nurse further obtained: (1) swabs from complainant’s ears, neck, cheeks, buttocks,

thighs, and vaginal area; (2) complainant’s clothes; and (3) the results of a comb-through of

complainant’s pubic hair. DNA analyses showed: (1) no sperm, seminal fluid or blood was

found on the vaginal/cervical areas, thighs/external genitalia, perianal/buttocks, left ear, right ear,

cheeks or neck. The DNA profiles from swabs behind the left ear and cheeks and neck were

11
In a written “voluntary statement” made to the police on July 24, 2003, complainant
wrote that appellant “kept me at the barn against my will for 5 hours.”

- 17 -
consistent with a mixture of complainant and appellant components; (2) no evidence of blood or

seminal fluid was found on complainant’s tank top or shorts; and (3) the results of the pubic hair

combing showed no hair except that of complainant.

Investigator Donnie Michael took a written statement from complainant on July 24, 2003,

and interviewed her. Investigator Michael again interviewed her on July 31, 2003. Both

interviews were audio taped and transcribed. These allegedly were the only two interviews of

complainant by the Commonwealth.

On July 28, 2003, appellant voluntarily went to the Sheriff’s department, waived his

Miranda rights, and gave an interview. A transcript of his statement was introduced in evidence.

Appellant denied raping complainant at any time. Appellant stated that, on July 24, 2003, he and

complainant discussed the greenhouse, walked up to his mother’s house, had coffee and

conversation with her for ten minutes, walked back to the barn, discussed the purchase of a

tractor, tried to get a tiller started they used on their joint garden project, and together pulled out

of the barn and loaded dirty stall mats into the back of her truck. During this loading, appellant

stated, complainant slipped and fell and he picked her up. A transcript of this interview was

introduced at trial by the Commonwealth.

The jury found appellant guilty of the July 24, 2003 rape and related crimes.

B.

The Incidents of January 19, 2003 and April 29, 2003

As noted above complainant allegedly gave two transcribed (and audio-taped) statements,

one on July 24 and one on July 31, both conducted by Investigator Michael. At the end of the

July 24 interview the following exchange occurred:

Q. Has he ever done this to you before?

A. Yes

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 Q. He’s raped you before?

A. Yes

Q. Have you reported it?

A. No

Q. How many times has he raped you?

A. Uhm he’s probably forced himself on me two or three times
now.

Q. And do you know when that occurred?

A. Aah well the last time it happened I think it was in the month
of end of May.

Q. Of this year?

A. Yeah

In the interview, complainant mentioned no dates of these assaults except “end of May”

and specifically did not mention any assaults on January 19 or April 29, 2003.

During the July 31 interview, Investigator Michael asked complainant the following

question: “The first one being January 19, 2003 can you tell me what happened and where this

happened?” Complainant said that appellant raped her on that date, that she went to the doctor

but did not tell him she had been raped, and that she had taken pictures of herself on that date

which she provided Investigator Michael. The interview continues: (Q) “O.k. you also told me

of a date on April. April 29th.” (A) “April 29th, right.” Complainant told Investigator Michael

appellant raped her on that date, but she did not report it to the police or seek medical assistance.

She further told Investigator Michael that appellant ejaculated inside her on both January 19 and

April 29, 2003.

At trial complainant testified appellant assaulted and raped her in her home on January

19, 2003, and on April 29, 2003. She produced photographs of herself, which she claims she

- 19 -
took of herself on January 19, and photographs she (and a friend) took on May 3, 2003,

purporting to document the injuries she received from the assaults. Complainant maintained she

did not report either of these rapes to the police because appellant threatened to kill her “and

bury [her] on the property.”

The jury found appellant not guilty of the alleged rapes on January 19 and April 29, 2003.

III.

It is clear from the texts of the two interviews, quoted above, that they were not the only

interviews with complainant conducted by the police and that at least one additional interview

must have occurred between the two transcribed. This is apparent, because complainant never

mentioned the January or the April incidents in the July 24 interview, and yet in the July 31

interview, Investigator Michael is aware of those incidents and those specific dates before the

interview begins, e.g. “[Y]ou also told me of a date . . . April 29th.” Moreover, Investigator

Michael makes no attempt to follow up on the only date supplied for a prior rape in the July 24

interview, one that allegedly occurred at the end of the month of May.

In a discovery motion, and a pretrial hearing on the same, on February 11, 2004, counsel

for appellant sought the transcripts (and audiotapes) of the two interviews, which the

Commonwealth disclosed. The Commonwealth’s position was that its summary of those

interviews, as contained in its response to the discovery motion, in conjunction with the

preliminary hearing, was sufficient disclosure. The trial court agreed.

In a post-trial Brady motion, the trial court reviewed the transcripts of those interviews

(and the initial written statement of July 24) and the trial transcript. The trial court concluded

that the motion did not establish a Brady violation. The trial court sealed those transcripts.

Counsel for appellant has never seen those transcripts and that denial necessarily hampered him

at trial and in the preparation of this appeal. Counsel has not yet had the opportunity to fully

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address any inconsistencies that those transcripts might contain, or to demonstrate how those

transcripts may have been useful to fashion defenses that otherwise might have been available to

appellant.

IV.

ANALYSIS

A.

As the majority acknowledges, “A Brady violation occurs when the government fails to

disclose evidence materially favorable to the accused.” Youngblood v. West Virginia, 126 S. Ct.

2188, 2190 (2006). Evidence that impeaches the credibility of a Commonwealth witness is

exculpatory evidence and falls within the Brady rule. United States v. Bagley, 473 U.S. 667,

676-77 (1985). Finally, as the Supreme Court of Virginia stated in Russell v. Commonwealth,

261 Va. 617, 620-21, 544 S.E.2d 311, 313 (2001), “A . . . fundamental consideration is that the

credibility of a witness may be impeached by showing that the witness made statements on a

prior occasion that are inconsistent with his present testimony.”

On January 23, 2004, the Commonwealth responded to a discovery request by filing a

document in part titled “Exculpatory Evidence.” The document disclosed two inconsistencies:

(1) complainant was unsure if an oral sexual assault had occurred and that it had been two

months since she had “a relationship” with appellant. (The disclosure did not explain the

meaning of “relationship,” i.e. was it an intimate one or a business one.) The document states,

“This is inconsistent with her testimony at the preliminary hearing on October 10, 2003 and with

what she had previously told Investigator Michael”; and (2) complainant “later remembered” she

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had visited appellant’s mother’s house prior to the alleged rape on July 24. These were the only

inconsistencies reported.12

A supplemental response was mailed on February 12, 2004, again in part titled

“Exculpatory Evidence.” No further inconsistencies were acknowledged. This supplemental

response explained complainant’s reasons for not reporting the earlier rapes: because appellant

assured complainant he would “leave her alone” and because appellant threatened her. Of

importance, however, is that in the supplemental response the Commonwealth stated: “A

second interview with Investigator Michael was conducted on July 31, 2003 . . . .” (Emphasis

added).

At the pretrial hearing on the discovery motion, held on February 11, 2004, the trial court

advised the Commonwealth:

The Court will direct the Commonwealth’s attorney to review [the
complainant’s statements] again prior to trial . . . . Specifically . . .
if, in fact, upon subsequent review there are embellishments,
additions or supplemental factual statements and assertions that
would be exculpatory as opposed to further explanation, why, in
the Court’s view, those would be subject to disclosure.

After the post-trial in camera review of the handwritten statement of July 24, the

transcript of the interview later that day, and the transcript of the July 31 interview, the trial court

concluded:

[T]he Commonwealth made two separate disclosures regarding
statements of the victim. The first disclosure was---was very
specific and it revealed material inconsistencies. The second
disclosure was even more detailed. It described in a comprehensive
way exactly what the [complainant] said in her statements to
Investigator Michael, and the Court has compared the disclosures
that took place and the statements that were actually provided to the
in-camera materials that the Commonwealth has delivered to the

12
The disclosure does include, while not inconsistencies, that complainant said she had
been raped “around the end of May,” that complainant did not report to her doctor she had been
raped on January 19 or April 29, and that an assault and battery charge against appellant had
been dismissed because complainant said there was “no contact” between her and appellant.

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 Court, and here, in the Court’s view, all of the exculpatory evidence
and the impeachment material was actually provided to the defense.

(Emphasis added).

Initially, as we point out above, there necessarily was at least one interview of the

complainant by Investigator Michael that occurred between those of July 24 and July 31. In its

second response, the Commonwealth, as quoted above, stated: “A second interview with

Investigator Michael was conducted on July 31.” That is not correct. The July 31 interview was,

at a minimum, a third interview. We do not know the date of the intervening interview(s). We

do not know its or their substance, whether it or they were taped, transcribed or only reflected in

Investigator Michael’s notes or memory. We do know at least one further interview occurred.13

The trial court was never made aware of that interview. Thus, the record suggests the

trial court was misled in concluding the Commonwealth’s discovery responses, and the in

camera material reviewed, “described in a comprehensive way exactly what the victim said in

her statements to Investigator Michael.” We do know, as the trial judge found from the

documents he did review, that there were “material inconsistencies.”

13
In Lemons v. Commonwealth, 18 Va. App. 617, 446 S.E.2d 158 (1994), we wrote:
“We have previously emphasized the importance of the prosecutor’s ethical duty to ‘make [a]
timely disclosure’ of exculpatory material.” Id. at 621, 446 S.E.2d at 160-61 (quoting Humes v.
Commonwealth, 12 Va. App. 1140, 1144 n.2, 408 S.E.2d 553, 555 n.2 (1991)). We justified this
principle, stating, “The failure to carry out this duty reduces ‘the fact finding process . . . to an
exercise in brinkmanship.’” Id. (quoting Stotler v. Commonwealth, 2 Va. App. 481, 484, 346
S.E.2d 39, 41 (1986)). Finally, we explained, “The duty springs from a public prosecutor’s
broader obligation to ‘seek justice, not merely convict.’” Id. (quoting Virginia Code of
Professional Responsibility EC 8-10 (1983)).
In the instant case, the Commonwealth told the trial court at the February 11, 2004
discovery hearing: “Judge, I know I get myself into trouble all the time because I don’t have an
open-file policy, but I don’t believe I’m required to give the victim’s statements unless it is
exculpatory . . . .”

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 The trial court concluded that despite the failure to provide the requested transcripts

documenting known material inconsistencies, there was not a “reasonable probability” that their

disclosure would have resulted in a different verdict. I disagree and now address that conclusion.

B.

Recently, the Supreme Court of Virginia reversed a trial court, and this Court, where both

had concluded that a failure to disclose impeachment evidence “does not rise to a reasonable

probability that the result of the proceeding would have been different.” Workman v.

Commonwealth, 272 Va. 633, 645, 636 S.E.2d 368, 375 (2006). That Court explained:

Stated differently, “[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). “[A] constitutional
error occurs, and the conviction must be reversed, only if the
evidence is material in the sense that its suppression undermines
confidence in the outcome of the trial.” United States v. Bagley,
473 U.S. 667, 678 (1985).

* * * * * * *

In Kyles, the Supreme Court of the United States made
several holdings concerning the test of materiality. First, “a
showing of materiality does not require demonstration by a
preponderance that disclosure of the suppressed evidence would
have resulted ultimately in the defendant’s acquittal (whether
based on the presence of reasonable doubt or acceptance of an
explanation for the crime that does not inculpate the defendant).”
Kyles, 514 U.S. at 434. Second, materiality is not a sufficiency of
the evidence test. “A defendant need not demonstrate that after
discounting the inculpatory evidence in light of the undisclosed
evidence, there would not have been enough left to convict.” Id. at
434-45. Third, a harmless error analysis is unnecessary once
materiality has been determined. Id. at 435. Fourth, suppressed
evidence must be “considered collectively, not item by item.” Id.
at 436. Upon consideration of these factors, a reviewing court is
charged with the responsibility of determining if the suppression of
evidence “undermines confidence in the outcome of the trial.”
Bagley, 473 U.S. at 678.

Id. at 645, 636 S.E.2d at 374-75.

- 24 -
 The majority treats this case like a classic sexual assault case pitting the testimony of the

victim against that of the accused. In such a context, as the Virginia Supreme Court wrote in

Clinebell v. Commonwealth, 235 Va. 319, 324, 368 S.E.2d 263, 265 (1988),14

14
The majority relies in part upon three federal cases in support of their position. The
dissent finds this reliance misplaced.
In United States v. Grunewald, 987 F.2d 531 (8th Cir. 1993), the defendant was charged
with income tax evasion. He sought the investigating IRS agent’s original notes; the government
produced typewritten summaries. The trial court “had reviewed the notes as well as the
typewritten summaries in camera, and [concluded that there was no material difference between
the two” and that they were “duplicative.” Id. at 535.
In United States v. Van Brady, 726 F.2d 548, 551 (9th Cir. 1984), defendant sought the
entire FBI file of an informant because it “may contain exculpatory facts such as whether the
government promised [the informant] immunity from future prosecution for his information.”
The government provided typewritten summaries. The court concluded that the defendant’s
“showing of materiality and favorable content [wa]s marginal.” Id. By contrast, appellant’s
claim of materiality is not “marginal”; it is established by the trial court’s conclusion that the
inconsistencies were “material.” Moreover, the Van Brady court states, “The government, where
doubt exists as to the usefulness of evidence, should resolve such doubts in favor of full
disclosure, but its failure to do so must raise a reasonable possibility that it materially affected
the verdict . . . .” Id. at 552 (citations omitted) (emphasis added). It is that reasonable possibility
that appellant asserts.
In United States v. Phillips, 854 F.2d 273 (7th Cir. 1988), the defendant, admitting he and
another robbed a bank, claimed he did so while acting as an FBI informant. He sought his entire
confidential informant file. The government provided a typewritten summary. Before trial,
defendant asked the court to compare the two and, further, to “address five specific questions
regarding the contents of the informant file.” Id. at 276. The trial court received both and
responded to the questions. The appellate court stated:

On the one hand, we are cognizant of defendant’s expanded
discovery rights under Brady. On the other, we have the
government’s substantial interest in maintaining the secrecy of its
files, which may contain not only the names of the informants
themselves, but also information concerning ongoing
investigations into other matters, government investigation
techniques, and the like. Thus, when a criminal defendant seeks to
discover information contained in confidential government files,
the trial court must balance the competing interests of the
defendant and the government in deciding whether and in what
form such discovery will be allowed.

* * * * * * *

After reviewing Phillips’s FBI informant file, we agree
with the trial judge that the file contains no Brady material other

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 In sex offense cases, however, the weight of authority
recognizes more liberal rules concerning impeachment of
complaining witnesses. Accordingly, a majority of jurisdictions
that have considered the issue hold that evidence of prior false
accusations is admissible to impeach the complaining witness’
credibility or as substantive evidence tending to prove that the
instant offense did not occur.

At trial, the following exchanges occurred upon cross-examination of complainant:

Q. But when you first talked to [Investigator] Michael, you said
that you had been raped at the end of May. Do you remember
telling him that?

A. No, I don’t remember.

Q. Do you deny telling him that?

A. No, I said I don’t remember.

In McGehee v. Perkins, 188 Va. 116, 125, 49 S.E.2d 304, 309 (1948), the Supreme Court

of Virginia wrote:

The fact that his present testimony is inconsistent with his
prior . . . statement justifies the showing of the inconsistency,
provided he is given an opportunity of correcting the present
testimony by directing his attention to the time, place and
circumstances of the prior utterance. He cannot escape the
consequences by saying he does not recall what he said on the
prior occasion.

than that reflected in the summary. The summary and the trial
judge’s conscientious response to Phillips’s March 6 letter together
fairly and accurately reflect the contents of Phillips’s informant
file.

Id. at 277-78.
In the instant case, we are not dealing with the Commonwealth’s “substantial interest in
maintaining the secrecy” of its confidential informant’s files. And, again, here the trial court
found there were “material inconsistencies” in the transcripts it reviewed in camera, not that the
transcripts contained “no Brady material.”
Finally, in each of the above cases, the trial court was provided, in camera, with all
information the government possessed with respect to a Brady inquiry. We have established, we
feel, that was not done in this case.

- 26 -
See also Currie v. Commonwealth, 30 Va. App. 58, 71-73, 515 S.E.2d 335, 342 (1999); Smith v.

Commonwealth, 15 Va. App. 507, 511, 425 S.E.2d 95, 98 (1992).

Counsel for appellant simply could not impeach complainant about a fourth claim of

being raped by appellant, without the transcript denied him by the Commonwealth. Moreover,

absent the transcripts, counsel for appellant could not forcefully demonstrate and document to

the jury, by using those transcripts, those inconsistencies admitted by the Commonwealth and

later deemed “material” by the trial court. By analogy, if the Commonwealth possessed an

exculpatory photograph, does it suffice for the Commonwealth to disclose only a description of

what that photograph shows? Should not that photograph be produced, so a defendant may show

it to a jury.15

15
Code § 19.2-268.1 states in relevant part that: “A witness in a criminal case may be
cross-examined as to previous statements made by him [and] reduced into writing . . . .” This
dissent does not seek to reverse or limit our decision in Newton v. Commonwealth, 29 Va. App.
433, 442, 512 S.E.2d 846, 850 (1999), where we held that Code § 19.2-268.1

was not intended to supplement the discovery provisions of Rule
3A:11. Rather, it was intended to be used as an evidentiary rule by
the trial court to order the production, inspection and use of a
written statement once a witness has been cross-examined about
the existence or contents of a prior statement.

In Newton we reversed the trial court for ordering the production by the defendant during
voir dire of the jury of a transcript of a witness interview. We rejected the Commonwealth’s
argument that “the trial court properly exercised its authority under Code § 19.2-268.1 in
requiring production of the written materials at an earlier time.” Id. at 444, 512 S.E.2d at 851.
In so doing, we noted that “the trial judge recognized that the statement was useful for
impeachment purposes only if the witness provided inconsistent testimony on direct
examination.” Id. at 445, 512 S.E.2d at 851 (emphasis added). We further quoted the trial court
as stating: “I don’t know what this particular witness is going to testify to . . . .” Id. at 446 n.3,
512 S.E.2d at 852 n.3 (emphasis in original).
By contrast, in the instant case, the trial court knew, before trial, that there were
exculpatory inconsistent statements in the transcripts because the Commonwealth admitted the
same at the February 11, 2004 discovery hearing and provided in its discovery responses some of
those inconsistencies.
In Scott v. Commonwealth, 7 Va. App. 252, 258, 372 S.E.2d 771, 775 (1988), cert.
denied, 490 U.S. 1095 (1989), we held that counsel is not permitted, when questioning the
witness, to “paraphrase the questions and answers” in a transcript. Rather, the transcript itself

- 27 -
 V.

This dissent has summarized in detail the evidence presented by the Commonwealth,

resulting in appellant’s conviction for the July 24, 2003 rape and related charges. The first case

quoted in this dissent was Agurs, 427 U.S. at 113. Returning to that quotation, we have

summarized the evidence, first because we believe the trial court’s verdict “is already of

questionable validity”; and, secondly, because we conclude the failure to provide appellant the

transcripts (or any information concerning the intervening interviews of complainant) is

“additional evidence [that] might be sufficient to create a reasonable doubt.” Id. A “reasonable

probability,” under the standard of Brady, is a probability sufficient to undermine confidence in

the outcome of the trial. I lack such confidence.

“It is the province of the jury to pass upon such inconsistent statements and give or

withhold their assent to the truthfulness of the particular statement.” Shelton v. Mullins, 207 Va.

17, 22, 147 S.E.2d 754, 757-58 (1966).16 As Judge Benton wrote in his concurrence and dissent

in Lemons v. Commonwealth, 14 Va. App. 1009, 1011 n.1, 420 S.E.2d 525, 527 n.1 (1992):

shall be shown to the witness. Id. See also Patterson v. Commonwealth, 222 Va. 612, 617, 283
S.E.2d 190, 193 (1981) (“We can perceive no logical reason for requiring counsel to paraphrase
a question propounded in a prior proceeding when the question can be more accurately called to
the witness’ attention by reading from a transcript of the proceeding.”); Edwards v.
Commonwealth, 19 Va. App. 568, 571-72, 454 S.E.2d 1, 3 (1995) (“[U]sing a transcript, if
available, is the preferable means of laying an impeachment foundation . . . . If a transcript is
available, the court may require its production pursuant to the mandate of Code § 19.2-268.1
even if there are other means of impeachment.”).
In the instant case, where the trial court knew before trial that the interview transcript
contained exculpatory inconsistent statements, we believe that knowledge renders the transcript
discoverable. Accordingly, while the above cited decisions addressing Code § 19.2-268.1 are
instructive with respect to the preference of using an available transcript for impeachment, we do
not believe our position in this case limits the application of this Court’s earlier decisions
concerning that statute.
16
We recognize that “When a trial judge, sitting as ‘both trier of fact and arbiter of law,’
finds the Brady evidence inconsequential, there can be ‘no logical possibility’ that its earlier
disclosure ‘would have altered the outcome of the case.’” Deville v. Commonwealth, 47
Va. App. 754, 757, 627 S.E.2d 530, 532 (2006) (quoting Stroik v. State, 671 A.2d 1335, 1340

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 Where “the jury’s estimate of the truthfulness and
reliability of a given witness may well be determinative of guilt or
innocence,” evidence relevant to truthfulness, reliability, and
credibility is as constitutionally material as evidence which goes
directly to the question of guilt. Fitzgerald v. Bass, 4 Va. App.
371, 385, 358 S.E.2d 576, 584 (1987) (quoting Dozier v.
Commonwealth, 219 Va. 1113, 1118, 253 S.E.2d 655, 658 (1979),
aff’d en banc, 6 Va. App. 38, 366 S.E.2d 615 (1988), cert. denied
sub nom. Fitzgerald v. Thompson, 493 U.S. 945 (1989)). “It is
upon such subtle factors as the possible interest of the witness in
testifying falsely that a defendant’s life or liberty may depend.”
Napue v. Illinois, 360 U.S. 264, 269 (1959). The information the
Commonwealth failed to disclose was exculpatory and should have
been disclosed.

In 1864, the Supreme Court of Virginia (then the Supreme Court of Appeals) wrote, in

reversing a conviction:

I think therefore that it was competent for the accused, after asking
the witness . . . upon his cross-examination . . . whether he had not
said in his testimony before . . . and if he denied having made such
a statement, or said that he did not remember making it, to
introduce evidence to prove that he did make such a statement, to
discredit the witness by impeaching his veracity or showing a
defective memory.

Forde v. Commonwealth, 57 Va. (16 Gratt.) 547, 558-59 (1864).

That Court explained, “If the party were precluded by such reply from showing that he

made such contradictory statements, the jury would be left in doubt whether they ever were

made.” Id. at 558.

For the foregoing reasons I would reverse the convictions and remand for retrial, if the

Commonwealth be so advised.

(Del. 1996)). That conclusion, however, and the deference it properly recites, should not be
afforded to a trial judge hearing a post jury trial Brady motion.

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VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 30th day of May, 2006.

Howard Z. Garnett, Jr., Appellant,

against Record No. 3027-04-2
Circuit Court Nos. CR4032 through CR4035

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before Chief Judge Felton, Judges Benton, Elder, Frank, Humphreys,
Clements, Kelsey, McClanahan, Haley, Petty and Beales

On April 25, 2006 came the appellee, by the Attorney General of Virginia, and filed a petition

requesting that the Court set aside the judgment rendered herein on April 11, 2006, and grant a rehearing

en banc thereof.

On consideration whereof, the petition for rehearing en banc is granted, the mandate entered

herein on April 11, 2006 is stayed pending the decision of the Court en banc, and the appeal is reinstated

on the docket of this Court.

Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is

established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the date of

entry of this order; appellee shall file an appellee’s brief upon rehearing en banc within 14 days of the

date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc

within 14 days of the date on which the appellee’s brief is filed. The appellant shall attach as an

addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the
Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the

appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

-2-
 COURT OF APPEALS OF VIRGINIA

Present: Judge McClanahan, Senior Judge Willis and Retired Judge Fitzpatrick∗
Argued at Richmond, Virginia

HOWARD Z. GARNETT, JR.
MEMORANDUM OPINION∗∗ BY
v. Record No. 3027-04-2 JUDGE JERE M.H. WILLIS, JR.
APRIL 11, 2006
COMMONWEALTH OF VIRGINIA,

FROM THE CIRCUIT COURT OF MADISON COUNTY
Daniel R. Bouton, Judge

W. Todd Watson (Hargett &Watson, PLC, on brief), for appellant.

Alice T. Armstrong, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.

On appeal from his convictions in a jury trial of rape, abduction with intent to defile,

assault and battery on a household or family member, and animate object penetration, Howard

Z. Garnett contends that the trial court erroneously denied his motion for a new trial based on the

Commonwealth’s failure to disclose statements given by the victim to the police, which he

claims were exculpatory and could have been used to impeach the victim’s credibility at trial.

We agree, reverse the convictions and remand for a new trial.

Background

Garnett and the victim had been involved in a romantic relationship which, according to

varying accounts, had ended some time prior to July 24, 2003. However, they had continued

doing business. On the morning of July 24, 2003, the victim went to Garnett’s farm to collect

∗
Judge Fitzpatrick participated in the hearing and decision of this case prior to the
effective date of her retirement on March 31, 2006.
∗∗
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
her belongings. She testified that he forcibly took her car keys from her. She followed him into

his barn office to retrieve them. She testified that he prevented her leaving the office by

physically blocking her exit. She testified that he pushed her up the stairs to a more secluded

area of the barn where he verbally and physically attacked her, ultimately raping her.

The victim went to police the day of the attack. She gave the police two statements, the

first in handwriting, the second was recorded and transcribed. On July 31, 2003, she gave the

police a third statement, which was also recorded and transcribed.

Prior to trial, the Commonwealth responded to Garnett’s request for exculpatory

information by paraphrasing information from the victim’s statements. Garnett requested the

statements, recordings, and transcripts themselves. The trial court denied this request. Although

the Commonwealth provided further summaries of information from the statements that it

deemed exculpatory, Garnett was not allowed access to the statements themselves.

Following trial, Garnett moved to set aside the verdicts on the ground that the

Commonwealth had failed to provide the victim’s statements which were exculpatory and would

have enabled him to impeach her testimony.1 The trial court conducted an in camera review of

the statements. It found that the statements revealed “material inconsistencies” in the victim’s

testimony, but held that the Commonwealth had sufficiently disclosed the exculpatory material

through its summaries. It further held that, even if the statements contained exculpatory

evidence not encompassed by the Commonwealth’s summaries, the withheld information was

not “material” and, therefore, the Commonwealth’s failure to disclose it did not warrant a new

trial.

1
Appellant argued the statements would reveal inconsistencies in the victim’s accounts
as they related to the timing and nature of her “relationship” with appellant and the duration of
her alleged detention in appellant’s barn.
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 The Commonwealth’s summaries were an insufficient disclosure. The trial court’s

refusal to require production of the statements themselves denied Garnett his rights under Brady

v. Maryland, 373 U.S. 83 (1963).

Analysis

“We review [Garnett’s claim] under settled constitutional principles concerning the

disclosure of exculpatory evidence.” Lovitt v. Commonwealth, 266 Va. 216, 244, 585 S.E.2d

801, 817 (2003).

In Brady . . . the Supreme Court held that a due process violation
occurs when the prosecution suppresses evidence favorable to an
accused that is material either to guilt or to punishment,
irrespective whether the prosecution acted in good faith or bad
faith.

Exculpatory evidence is material if there is a reasonable
probability that the proceeding would have resulted in a different
outcome had the evidence been disclosed to the defense. A
“reasonable probability” is one that is sufficient to undermine
confidence in the outcome of the proceeding. At the heart of this
inquiry is a determination whether the evidence favorable to the
defendant could reasonably be considered as placing the entire
case in such a different light that confidence in the verdict is
undermined.

The Brady disclosure requirements extend to information
that can be used to impeach a witness’ credibility. A prosecutor’s
suppression of impeachment evidence creates a due process
violation only if the suppression deprives the defendant of a fair
trial under the Brady standard of materiality.

Id. at 244-45, 585 S.E.2d at 817-18 (citations omitted).

“We agree that disclosure of the statement[s] before trial would have aided [Garnett’s]

attorney in his preparation. Furthermore, the absence of such aid lessens our confidence in the

outcome of the case.” Lemons v. Commonwealth, 18 Va. App. 617, 620, 446 S.E.2d 158, 160

(1994). As we stated in Lemons,

[w]e can find no reason for the prosecution’s refusal to disclose the
statement to the defense. The statement does not contain any

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 information regarding any other criminal prosecution, any private
information concerning any person, or any reason to protect the
identity of any person mentioned in it. . . .2

We have previously emphasized the importance of the
prosecutor’s ethical duty to “make [a] timely disclosure” of
exculpatory material. The failure to carry out this duty reduces
“the fact finding process . . . to an exercise in brinkmanship.” The
duty springs from a public prosecutor’s broader obligation to “seek
justice, not merely to convict.” Virginia Code of Professional
Responsibility EC 8-10 (1983).

A prosecutor does not meet his or her ethical and
constitutional duty simply by making a pretrial determination that
the information, if disclosed, would not likely change the outcome
of the trial. A prosecutor is unable to determine the ultimate
“materiality” of evidence in a trial which has not yet occurred. If
in doubt about the exculpatory nature of the material, a prosecutor
should submit it to the trial court for an in camera review to
determine if it is exculpatory and should be disclosed.

Id. at 620-21, 446 S.E.2d at 160-61 (some citations omitted) (footnote added).

The Commonwealth and the trial court agreed that the victim’s statements contained

exculpatory information. Indeed, the Commonwealth disclosed some information from the

statements in discovery, but refused to disclose the statements themselves. While it is proper for

the trial court to review questioned material to determine whether it is exculpatory, a finding that

the material is, in fact, exculpatory, requires the disclosure of the actual evidence to defense

counsel. The accused is entitled to have his counsel review and utilize exculpatory material

itself. Should the material contain information to which a defendant is not entitled, that

information may be redacted, an issue not raised in this case.

To support a claim under Brady, Garnett must demonstrate not merely that the suppressed

evidence was exculpatory; but that it was “material” to his conviction. He must show a

“reasonable probability that the proceeding would have resulted in a different outcome had the

2
The Commonwealth has suggested no need for redaction of any part of the statements.
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evidence been disclosed to the defense.” Lovitt, 266 Va. at 244, 585 S.E.2d at 817. He has met

this burden.

The disparities between the victim’s statements and her trial testimony significantly

challenged her credibility. Because her testimony was essential to prove the charges against

Garnett,3 any information that significantly cast doubt on her credibility provided a reasonable

probability that the proceeding would have resulted in a different outcome and, therefore, was

material.

We reverse appellant’s convictions and remand this matter for a new trial if the

Commonwealth be so advised.

Reversed and remanded.

3
The victim’s credibility was material to all charges, including the rape conviction.
While there was evidence of bruises and scratches, no evidence of semen was recovered, and
prosecution and defense expert witnesses disagreed as to whether photographs of the victim’s
vaginal area showed any injury.
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McClanahan, J., dissenting.

Pursuant to the defendant’s post-trial motion, the trial court conducted an in camera

review of the victim’s statements. It held that the Commonwealth’s disclosures were sufficient

under Brady v. Maryland, 373 U.S. 83 (1963),4 but if a Brady violation did occur, such violation

failed to meet the standard for justifying a new trial. While I agree with the majority’s opinion

that the statements in question were exculpatory, that fact alone does not end our inquiry on

appeal and I, therefore, dissent.

The dispositive issue is whether the trial court erred in determining that disclosure of the

exculpatory evidence would not have affected the verdict.5 Deville v. Commonwealth, __

Va. App. __, __, __ S.E.2d __, __ (March 28, 2006). A defendant “must show that a reasonable

probability exists that the statement’s disclosure would have resulted in a different outcome.”

4
In addressing the Commonwealth’s disclosures, the trial court stated:

The first disclosure was --- was very specific and it revealed
material inconsistencies. The second disclosure was even more detailed.
It described in a comprehensive way exactly what the victim said in her
statements to [the] Investigator [], and the Court has compared the
disclosures that took place and the statements that were actually provided
to the in-camera materials that the Commonwealth has delivered to the
Court, and here, in the Court’s view, all of the exculpatory evidence and
the impeachment materials was actually provided to the defense. The
Commonwealth even points out in one of its disclosures, very clearly,
what the inconsistencies actually consist of. There’s something of a road
map to impeachment, so, in the Court’s view, the disclosure was sufficient
when one compares what was disclosed to the in-camera material.
5
In White v. Commonwealth, 12 Va. App. 99, 402 S.E.2d 692, aff’d en banc, 13
Va. App. 284, 410 S.E.2d 412 (1991), the Commonwealth’s disclosure was sufficient to
determine that a confederate’s confession was at least partially exculpatory, but this Court could
not say “without qualification whether it was material or not. The materiality of the
confederate’s confession can only be determined from an evaluation of the entire document in
light of all the circumstances.” Id. at 105, 402 S.E.2d at 696. This Court vacated the defendant’s
conviction and remanded the case to the trial court for a determination of the confession’s
materiality. In that case, there was no materiality determination for us to review and the
confession was not a part of the record.
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Lemons v. Commonwealth, 18 Va. App. 617, 620, 446 S.E.2d 158, 160 (1994); see also Waters

v. Commonwealth, 43 Va. App. 636, 648, 600 S.E.2d 918, 924 (2004). “‘The mere possibility

that an item of undisclosed information might have helped the defense . . . does not establish

“materiality” in the constitutional sense.’” Frontanilla v. Commonwealth, 38 Va. App. 220, 227,

562 S.E.2d 706, 709 (2002) (quoting United States v. Agurs, 427 U.S. 97, 109-10 (1976)); see

also Hughes v. Commonwealth, 18 Va. App. 510, 526, 446 S.E.2d 451, 461 (1994).

In this case, the defendant attempted to obtain copies of the victim’s verbatim statements

before, during, and after trial. She was a material prosecution witness. While the

Commonwealth provided a summary of the exculpatory evidence, it never provided the verbatim

statements. Post-trial, the court reviewed the statements in camera and determined that there

was no reversible Brady violation. Bowman v. Commonwealth, 248 Va. 130, 135, 445 S.E.2d

110, 113 (1994) (whether a trial court “should undertake the review of the disputed material is a

discretionary matter”); Cherricks v. Commonwealth, 11 Va. App. 96, 102, 396 S.E.2d 397, 400

(1990).

In Wilson v. Commonwealth, 25 Va. App. 263, 487 S.E.2d 857 (1997), this Court

reviewed the trial court’s determination that the undisclosed pretrial statements of several

witnesses were not material. The trial court held that the “the record did not support a finding

that a reasonable probability existed that a different outcome would have resulted” had the

statements been disclosed. Id. at 273-74, 487 S.E.2d at 862. Finding no error, we affirmed.

The defendant cites seven examples of inconsistent, omitted or contradicted testimony

relevant to the trial court’s alleged error in finding that disclosure would not have affected the

verdict – all relating to the issue of impeachment. This alleged error is akin to the error argued in

Fitzgerald v. Bass, 6 Va. App. 38, 366 S.E.2d 615 (1988) (en banc). In Fitzgerald, the

defendant’s cellmate, who testified the defendant confessed to the crime, testified falsely about

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his own criminal record but admitted he was a felon. The trial court reviewed his background

and determined that while the jury was not aware of the cellmate’s complete record, it knew, and

the defense highlighted, that he had an extensive criminal background. As such, it held that

“given the extent to which [the witness’] credibility was impeached, it is doubtful that additional

evidence in this regard would have made a difference in the jury’s opinion of his credibility.” Id.

at 55, 366 S.E.2d at 624-25. Finding no error, we affirmed.

In the instant case, the trial court noted the summary disclosures were “very specific and

. . . revealed material inconsistencies.” The trial court concluded, and the Commonwealth

conceded, that the statements were exculpatory; however, the trial court held that disclosure

would not have affected the verdict. Deville, __ Va. App. at __, __ S.E.2d at __ (defendant’s

Brady claim fails absent a showing of prejudice). The sealed exculpatory statements, the

disclosed summaries, and the victim’s testimony at trial, including the defendant’s extensive

cross-examination, dictate that “[u]nder the totality of the circumstances, there is not a

‘reasonable probability of a different result’ had the materials been disclosed.” Currie v.

Commonwealth, 30 Va. App. 58, 68, 515 S.E.2d 335, 340 (1999). Accordingly, I would affirm.

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