dissenting.
I dissent from that portion of the majority’s opinion concerning the testimony of prosecution witness Wilbur Caviness. I believe that the appellant, Edward B. Fitzgerald, is not precluded from raising on habeas review his claim that the Commonwealth failed to disclose exculpatory evidence pertaining to the prosecution witness Caviness. Furthermore, I believe that Fitzgerald’s petition for a writ of habeas corpus should have been granted because of a denial of due process in connection with the testimony of prosecution witness Caviness.
Prior to trial, the defense filed a motion for discovery and inspection which requested:
Pursuant to Brady v. Maryland, 373 U.S. 1 1963[sic], any and all evidence of any kind whatsoever, known by the Commonwealth’s Attorney to be within the possession, custody or control of the Commonwealth, or which the exercise of due *59diligence should be known by the Commonwealth’s Attorney to be within the possession, custody or control of the Commonwealth, which is favorable, exculpatory, or relevant to the defendant as to guilt or punishment, or which affects the credibility of any of the Commonwealth’s anticipated witnesses, or which is in any way inconsistent with evidence presented, or anticipated to be presented by the Commonwealth.
In response to that motion the Commonwealth stated:
The Commonwealth is not aware of evidence of an exculpatory nature which is clearly supportive of a claim of innocence, or of such substantial value of the defense that elementary fairness requires it to be disclosed. United States v. Agurs, 965 [sic] S. Ct. 2392 (1976), 427 U.S. 97. The Commonwealth is unable to ascertain what may affect the credibility of any of the Commonwealth’s witnesses, nor what may be inconsistent with evidence presented. These are matters counsel must contend with at trial. While some courts recognize the requirement of materiality is met where the evidence would only affect the credibility of witnesses, Virginia is not one of those courts. See paragraph 2 supra, citing Bellfield. While this may not be an attempt to ascertain names of Commonwealth’s witnesses, it would amount to an indirect approach to that which cannot be had directly.
When the Commonwealth filed this response, Caviness was known by the Commonwealth to be a valued witness and was known by an assistant commonwealth’s attorney on the prosecution team to be acting as an active informant for the police. That same assistant commonwealth’s attorney had successfully prosecuted Caviness a few months earlier.
It thus would appear that the Commonwealth’s response, indicating that it “is not aware of evidence ... of such substantial value to the defense that elementary fairness requires it to be disclosed,” was untrue. Although the defense did not know that Caviness would be called as a witness for the Commonwealth and, therefore, could not at the time specify Caviness as the object of its motion, the Commonwealth should have been alerted to the *60fact that among its proposed witnesses was a convicted felon who had a substantial history as an informant for both the local and state police. The Commonwealth’s response was not merely an erroneous statement of the law but, when fairly read, was a representation to the defense that the requested evidence did not exist. Fitzgerald’s trial counsel had no reasonable basis upon which to conclude that the Commonwealth’s response to the Brady request would provide a ground for attack on direct appeal. It follows that Fitzgerald should not now be precluded from obtaining review of this issue in the habeas proceeding.
Additionally, the response made by the Commonwealth creates an error of constitutional dimensions mandating a new trial. In United States v. Bagley, 473 U.S. 667, 678 (1985), the Supreme Court held:
The constitutional error, if any, in this case was the Government’s failure to assist the defense by disclosing information that might have been helpful in conducting the cross-examination .... [S]uch suppression of evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial. Consistent with “our overriding concern with the justice of the finding of guilt,” Unites States v. Agurs, 427 U.S., at 112, 96 S. Ct., at 2401, 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.
The record amply demonstrates that the nature of evidence withheld was such that its suppression undermined confidence in outcome of this trial. In the habeas trial, the Commonwealth’s attorney who prosecuted the case conceded that Caviness’s testimony was “not unimportant” and was an “extremely valuable piece of prosecution evidence.” Caviness testified that Fitzgerald confessed to him that Fitzgerald raped the victim. This was the only evidence in the case which established with a degree of certainty the act of penetration which was necessary to prove the offense of rape. See Elam v. Commonwealth, 229 Va. 113, 115, 326 S.E.2d 685, 686 (1985). Proof of this essential fact was dependent upon Caviness’ credibility as a witness. Thus, the failure of the Commonwealth to provide evidence of Caviness’ extensive criminal record deprived the defense of the opportunity to subject Cavi*61ness to a meaningful probing of his bias, interest, and credibility.
Likewise, the failure to inform the defense of Caviness’ status as an informant substantially disadvantaged Fitzgerald in cross-examination of Caviness. The record in the habeas trial indicates that beginning in 1974 and continuing through the date of Fitzgerald’s trial Caviness was an active informant for Detective William R. Shuman of the Richmond Police Department and had been an informant on a “countless” number of cases, estimated to be “50 maybe.” The same year Caviness was incarcerated with Fitzgerald, Caviness was one of Shuman’s best informers. The victim was also an active informant for the same Detective Shuman. Furthermore, Caviness had several conversations with Detective Shuman while he was incarcerated in the same jail with Fitzgerald. Although Detective Shuman testified that the discussions which he had with Caviness in the jail concerned a third party and the charges pending against Caviness in Henrico County, Caviness testified that he reported his conversations with Fitzgerald to Detective Shuman while he (Caviness) was incarcerated.
Larry Burchett, a state police officer, also visited Caviness in jail approximately six times during the time that Caviness and Fitzgerald were incarcerated in the same jail. Burchett arranged for Caviness to be appointed jail trustee and provided Caviness with other services while he was incarcerated. Burchett testified that Caviness wanted to make amends for his involvement in the Chesterfield burglaries. Additionally, Caviness wanted assistance in getting out of jail and in connection with pending felony charges in Henrico County. During one of his visits, Burchett told Caviness that something would be done about the pending felony charges in Henrico. Burchett recalled learning on the day after he made that promise to Caviness that Caviness had agreed to testify against Fitzgerald. Caviness testified that he was informed in 1981, on a date that he could not recall, by a police officer, whose name he could not recall, that the Commonwealth Attorney, whose office was prosecuting Fitzgerald, would speak to the Henrico County prosecutor concerning the felony charges pending against Caviness in Henrico County.
Additionally, two months before Fitzgerald’s trial, the Commonwealth Attorney in Norfolk prosecuted Caviness for three bad check charges and for violation of his probation on two sodomy *62convictions. Burchett informed him that Caviness was an informant in ongoing investigations, and Burchett testified in the City of Norfolk circuit court that Caviness deserved consideration for his services as an informant. As a result, Caviness was sentenced to probation on the petit larceny charges and his sodomy probationary sentences were continued.
Clearly, a cross-examination of Caviness based upon these and the other voluminous facts disclosed at the habeas corpus hearing could have substantially damaged his credibility by establishing a motive for false testimony and, thus, could have been determinative of the jury’s finding of guilt with respect to the rape charge. “[I]t 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). In my opinion, the suppression of Caviness’ status as a paid informant sufficiently undermines confidence in the' jury’s finding to entitle Fitzgerald to a new trial on the charge of rape.
Even if I were persuaded that Fitzgerald should be precluded from raising on habeas review the failure of the Commonwealth to disclose exculpatory evidence, I would still conclude that Fitzgerald is entitled to a new trial because of my belief that there is a reasonable likelihood that the judgment of the jury was affected by Caviness’ false testimony. Where false testimony, knowingly introduced by the Commonwealth, “may have had an effect on the outcome of the trial,” a new trial is required to fulfill the mandate of due process. Napue v. Illinois, 360 U.S. at 272. In Giglio v. United States, 405 U.S. 150 (1972), the Court stated that the question to be resolved is whether “ ‘the false testimony could ... in any reasonable likelihood have affected the judgment of the jury.’ ” Id. at 154 (quoting Napue, 360 U.S. at 271). The overriding concern of the court, therefore, must be whether the defendant was deprived of a fair trial. See U.S. v. Agurs, 427 U.S. 97, 108 (1976).
I agree with the majority’s determination that the Commonwealth’s attorney should have known that Caviness testified falsely regarding his prior convictions and the pending criminal charges. I disagree, however, with the conclusion that there was no “reasonable likelihood” the false testimony affected the judgment of the jury.
*63By failing to disclose that Caviness was an informant and by offering Caviness’ testimony mis-stating his criminal record, the Commonwealth placed before the jury an incomplete picture of one of its major witnesses. Neither the jury nor the defense had an opportunity to learn the falsity of Caviness’ statement that there was “nothing nobody could offer” him for his testimony. Consequently, the jury never had the opportunity to measure Caviness’ self-serving statement against the significant services that Shuman and Burchett performed for him.
Moreover, there is a significant difference between what the jury was told and the truth regarding Caviness’ criminal history. The jury was informed through direct examination of Caviness that Caviness had been convicted of one felony, that he had been convicted of “something like” a misdemeanor involving moral turpitude, and that he was not charged with anything “right now.” On cross examination, Caviness repeated that he had been convicted of only one felony. What was not disclosed to the defense, and what the jury did not learn, was that at the time of Fitzgerald’s trial Caviness had the following criminal convictions: two felony convictions for sodomy, a felony conviction for breaking and entering, a conviction of contributing to the delinquency of a minor, and nineteen (19) convictions of petit larceny. Furthermore, at the time of the trial Caviness was under indictment for felony charges of breaking and entering and grand larceny.
Disclosure of the fact that Caviness was not merely “a convicted felon” but had a significant criminal history undoubtedly would have had a significant impact upon the jury’s weighing of Caviness’ credibility. “The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence. . . .” Napue v. Illinois, 360 U.S. at 269. In evaluating Caviness’ testimony and determining the credit to be given it, the jury was entitled to know the number and nature of his prior convictions. See Hummel v. Commonwealth, 217 Va. 548, 550, 231 S.E.2d 216, 217 (1977). Additionally, “the fact that the jury was apprised of other grounds for believing that the witness . . . may have had an interest in testifying against petitioner . . . [did not turn] what was otherwise a tainted trial into a fair one.” Napue v. Illinois, 360 U.S. at 270.
Moreover, I find no basis in the record to support the majority’s apparent conclusion that Caviness’ testimony was inherently cred*64ible. Caviness testified that he (Caviness) asked Fitzgerald “why he would do such a thing as kill this woman and cut her up.” The response which Caviness attributed to Fitzgerald does not substantially correspond with either the co-defendant’s testimony or the pathologist’s testimony as to the manner in which the victim’s body was mutilated.
There is also no basis in this record to support the majority’s assertion that “Caviness’ testimony that Fitzgerald committed the crime because Cubbage ‘snitched on him’ corresponded with Johnson’s testimony that . . . Fitzgerald had been mumbling about how [the victim] had ‘ripped him off.’ ” There is no basis for the conclusion that “snitched on him” and “ripped him off” are of the same import. The record reflects that Fitzgerald commented, after he sampled a drug which may have been supplied by the victim, that the victim “ripped him off.” In contrast, the testimony establishes that “snitch” is “another word for ‘informer.’ ”
Thus, the majority’s interpretation of Caviness’ testimony is unsound and undermines its conclusion that Caviness’ testimony “contained aspects of the crime which had not been released to the public” and, therefore, was inherently credible. Even if it is assumed that the majority is correct in its conclusion that Caviness testified as to non-public facts, the habeas record provides a basis upon which had the defense known of Caviness’ status as an informant it could have argued that Caviness had the opportunity to learn those facts from sources other than Fitzgerald.
For the foregoing reasons, I believe that the record in this case supports a conclusion that Fitzgerald was denied a fair trial on the charge of rape and should be granted a new trial.