Garnett v. Com.

PRESENT: All the Justices

HOWARD Z. GARNETT, JR.
OPINION BY
v. Record No. 070980 JUSTICE G. STEVEN AGEE
February 29, 2008
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

A jury in the Circuit Court of Madison County convicted

Howard Z. Garnett, Jr., of four felonies related to the

abduction and rape of Victoria Duff. On appeal to the Court of

Appeals, Garnett contended the circuit court erred in failing to

set aside the verdict because the Commonwealth withheld

exculpatory evidence. Garnett also claimed that he was entitled

to a new trial on the basis of newly discovered evidence. The

Court of Appeals sitting en banc affirmed the judgment of the

circuit court. For the reasons set forth below, we will affirm

the judgment of the Court of Appeals.

I. RELEVANT FACTS AND PROCEEDINGS BELOW

Victoria Duff met Garnett in 2001 when he sold her a parcel

of land in Madison County adjacent to the farm where he lived

with his mother. Duff soon began a consensual sexual

relationship with Garnett and lived with the Garnetts in their

farmhouse while Duff built a house on the parcel she had

purchased. When her house was completed in August 2002, Duff

moved out of the Garnett home. According to Duff, she ended the

sexual relationship with Garnett around November 2002, but the
two maintained contact because of the proximity of their homes.

Duff alleged that Garnett was verbally and physically abusive

throughout the relationship.

Duff testified at trial that on July 24, 2003, she drove to

the barn on Garnett’s farm to retrieve some property she had

stored there. As Duff loaded the items into her truck, Garnett

approached her and told her not to remove the items. Duff

complied and attempted to leave, but Garnett told her that he

wanted her to stay and took her truck keys by force, painfully

bending her hand back when she attempted to stop him. Garnett

then walked to his nearby house and Duff followed asking for her

keys. After collecting some items from the kitchen of the

house, Garnett returned to the barn with Duff still following

and asking for her keys. Duff did not seek any assistance from

Garnett’s mother, whom she had seen in the kitchen, or a

Department of Transportation road crew paving the road a few

hundred feet from the barn. At that point, Garnett told Duff

“there was something in the barn that was mine that he wanted to

give to me, so I followed him into the barn.”

Garnett sat in a chair in the barn and pulled Duff onto his

lap. Duff said that she repeatedly objected to Garnett’s

advances and demanded Garnett return her keys. When Duff

attempted to leave the barn, Garnett physically blocked her

escape. Garnett then pushed Duff to the back of the barn where

2
he threatened her, swung his fist and a hoe at her, and pulled

her hair and ears. When Duff tried to scream, Garnett held his

hand over her face. Garnett bent Duff over a waist-high wall in

the back of the barn, pulled down her shorts, and penetrated her

vagina with his fingers and penis. Garnett then drove Duff in

her truck to her house, left the keys, and walked home. Duff

then drove herself to the Madison County Sheriff’s Office.

When Duff arrived at the sheriff’s office, her clothes were

dirty and in disarray. Her face was red and puffy and she bore

scratches and bruises on her body. She made a short written

statement of the foregoing events on a one-page police form. A

deputy drove her to the emergency room at the University of

Virginia hospital for a sexual assault examination by a forensic

nurse. During the examination, the forensic nurse detected

bruising and abrasions on Duff’s hands, legs, buttocks, and

face, as well as genital injuries consistent with recent sexual

penetration. However, no trace of ejaculate was detected. DNA

recovered from Duff’s ears, cheeks, and neck was subsequently

analyzed by the Division of Forensic Science, which determined

that it was between 55 trillion to 440 trillion times more

likely that the DNA originated from Duff and Garnett than from

Duff and any unidentified third person.

Following the forensic examination, Duff returned to the

sheriff’s office where she was interviewed by Investigator

3
Michael. Duff participated in another interview with

Investigator Michael on July 31, 2003. Both of the interviews

were audio recorded and subsequently transcribed. In the July

24 interview, Duff indicated that Garnett had raped her on prior

occasions. In the July 31 interview, Duff provided additional

information alleging Garnett had previously raped her on January

19 and April 29, 2003. Garnett was arrested and later indicted

upon charges of felony abduction with intent to defile, felony

assault and battery of a former household member, animate object

penetration, and three counts of rape.

The controversy in this case centers, in large part, on the

verbatim content of the three statements noted above

(collectively, the “Duff Statements”). The Duff Statements

comprise: (1) the one-page written statement Duff gave at the

Madison County Sheriff’s Office on July 24, 2003, when she first

reported the events of that day to police and consisting of 12

handwritten lines on a police form; (2) the transcript of Duff’s

July 24, 2003, recorded interview with Investigator Michael,

which consists of 12 typewritten pages; (3) the transcript of

Duff’s July 31, 2003, recorded interview with Investigator

Michael, which consists of 5 typewritten pages.

The Commonwealth disclosed to Garnett statements that he

made to police, his criminal record, photographs and diagrams

relating to the July 24 incident, as well as Duff’s medical

4
records and certificates of DNA analysis. The Commonwealth also

provided to Garnett two, four-page documents summarizing the

Duff Statements (the “Commonwealth’s Summary”), describing

certain inconsistencies within those statements and between the

statements and her testimony at a preliminary hearing in the

case. The Commonwealth did not disclose the Duff Statements

verbatim--that is, Garnett was not given either the audiotapes

or transcripts of the July 24 or July 31 interviews, nor was he

given a copy of the July 24th written statement.

Garnett filed a motion for discovery seeking access to the

audiotapes of the Duff Statements “on the grounds that their

content is potentially exculpatory.” Garnett stated in his

motion “these conversations are potentially exculpatory, but

cannot be known simply having the Commonwealth identify

inconsistencies . . . . For example, [Duff’s] demeanor is

potentially exculpatory.”

In a hearing on the motion, Garnett argued that

by listening to the tape you can tell that [Duff’s]
demeanor was calm, that she is not crying, that she is
not upset, that those are things that are also
potentially exculpatory. . . . [I]nflections in her
voice and things of that sort have value for us in
cross-examining her, perhaps. . . . There are
subtleties and the inflection of a voice, the length
of time it takes to answer a question, somebody’s
demeanor, and all of those things that I think are
potentially exculpatory.

5
The Commonwealth proffered that it had reviewed the Duff

Statements and “turned over to the defense what it finds to be

exculpatory as that term has been defined under case law and

under the rules of ethics that govern prosecutorial duties.”

Ruling from the bench on Garnett’s motion, the circuit

court stated that it understood Garnett’s argument “about things

such as whether the alleged victim is crying or whether the

alleged victim appears upset or whether voice inflections and

hesitation in answering questions are factors that should be

taken into account in terms of the demeanor of the person giving

the statement. However, absent some authority that defines

those matters either to be exculpatory or potentially

exculpatory, we would deny the motion to have access to the

tapes for that limited purpose.” The circuit court then offered

to conduct an in camera review of the Duff Statements to

determine whether any exculpatory evidence had been withheld,

but Garnett accepted the Commonwealth’s proffer that disclosure

had been made: “if he’s representing that to the [c]ourt as an

officer of this [c]ourt, I certainly accept that.”

Garnett was tried by a jury and convicted of felony

abduction with intent to defile, felony assault and battery of a

former household member, animate object penetration, and the

charge of raping Duff on July 24, 2003. The jury acquitted

6
Garnett of the charges of raping Duff on January 19 and April

29, 2003.

Following his conviction, Garnett filed a motion to set

aside the verdict contending that the Commonwealth had violated

Garnett’s rights under Brady v. Maryland, 373 U.S. 83 (1963),

because it had failed to disclose the verbatim content of the

Duff Statements. Garnett pled that “[e]xculpatory evidence

revealed for the purposes of impeachment must therefore include

the best evidence available for impeachment.” Pointing to the

Commonwealth’s introduction of a transcript of Garnett’s

statements, Garnett contended that the exact words of the Duff

Statements were necessary in order to impeach Duff’s testimony

at trial and that he had been prejudiced by the non-disclosure

when Duff testified at trial that she could not recall specific

statements she had made.

Garnett also filed a motion for a new trial based on an

allegation of newly discovered evidence. After trial, Duff sent

Garnett a list of items that she claimed to own but that

remained on his farm, and which Duff wanted returned. To

substantiate her claim of ownership, Duff included a number of

purchase receipts. Garnett’s motion described the list and

collection of receipts as new evidence that so undermined Duff’s

credibility as would lead a jury to an opposite result had those

items been in evidence at trial.

7
 At a subsequent hearing on both motions, the circuit court

reviewed the Duff Statements in camera and determined that the

Commonwealth had disclosed all exculpatory evidence and

impeachment material: 1

[T]he [c]ourt 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 [c]ourt, and here, in the [c]ourt’s
view, all of the exculpatory evidence and the
impeachment material was actually provided to the
defense. The Commonwealth 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 [c]ourt’s view, the
disclosure was sufficient when one compares what was
disclosed to the in-camera materials.

The circuit court also held, in the alternative, “that if,

in fact, any Brady violation did occur . . . it does not meet

the standard that would be required to justify setting aside the

verdict and granting a new trial.”

The circuit court further held that Duff’s list of items

and purchase receipts could have been obtained by Garnett had he

exercised due diligence. In addition, the “new” evidence was

corroborative or collateral of existing evidence and would not

have produced an opposite result if introduced at trial.

Accordingly, the circuit court denied both motions, and

sentenced Garnett to an active term of incarceration of 65

years.

1
The circuit court ordered the Duff Statements admitted

8
 By a per curiam order, the Court of Appeals refused

Garnett’s appeal as to the issue of the circuit court’s denial

of his motion for a new trial based on his claim of after-

discovered evidence. Garnett v. Commonwealth, Record No. 3027-

04-2, slip op. at 5 (Aug. 17, 2005). However, Garnett’s

petition for appeal was granted as to his Brady claim. Id.,

slip op. at 1.

A divided three-judge panel of the Court of Appeals

reversed the judgment of the circuit court because it determined

that Garnett had met his burden to show a reasonable probability

of a different outcome had the Duff Statements been disclosed.

Garnett v. Commonwealth, Record No. 3027-04-2, slip op. at 5

(Apr. 11, 2006). Thus, the panel determined the Duff Statements

were material under Brady and “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.”

The panel cited no authority for its conclusion. Id., slip op.

at 4.

Upon rehearing en banc, the Court of Appeals reviewed the

Duff Statements and determined that the Commonwealth had

disclosed all exculpatory evidence. The court cited cases from

various federal courts of appeal holding that detailed summaries

into the record under seal.

9
satisfy the prosecution’s obligation to disclose exculpatory

evidence under Brady even where verbatim statements are

available. The court also determined that the disclosure in the

Commonwealth’s Summary of the exculpatory information from the

Duff Statements gave Garnett the exculpatory information for

impeachment required by Brady. The majority of the Court of

Appeals affirmed the judgment of the circuit court. Garnett v.

Commonwealth, 49 Va. App. 524, 642 S.E.2d 782 (2007).

Three members of the Court of Appeals dissented, apparently

concluding the verbatim Duff statements were material under

Brady. In the dissent’s view, Duff’s cross-examination without

the actual transcripts in hand raised “a probability sufficient

to undermine confidence in the outcome of the trial.” This

conclusion was preceded by an extensive discussion of

“prejudice” to Garnett caused by the Commonwealth’s failure to

disclose other interviews with Duff, which the dissent

hypothesized to have occurred. Id. at 554, 642 S.E.2d at 797

(Haley, J., dissenting). We awarded Garnett this appeal.

II. ANALYSIS

Garnett essentially raises two assignments of error to the

judgment of the Court of Appeals. 2 First, Garnett argues his

rights under Brady were violated because the Commonwealth failed

2
Garnett makes four actual assignments of error, but these
can be condensed to the two issues discussed herein.

10
to “fully and fairly reveal the complete exculpatory evidence

. . . in the form of the best evidence available for

impeachment.” 3 Separately, Garnett assigns error to the denial

of his motion for a new trial based on his claim of newly

discovered evidence.

A. THE BRADY CLAIM

In Brady, the Supreme Court of the United States held that

due process requires the prosecution to disclose to the

defendant all favorable evidence material to his guilt or

punishment. 373 U.S. at 86-87. We recently discussed the

elements of a Brady claim in Workman v. Commonwealth, 272 Va.

633, 636 S.E.2d 368 (2006):

There are three components of a violation of the rule
of disclosure first enunciated in Brady: a) The
evidence not disclosed to the accused must be
favorable to the accused, either because it is
exculpatory, or because it may be used for
impeachment; b) the evidence not disclosed must have
been withheld by the Commonwealth either willfully or
inadvertently; and c) the accused must have been
prejudiced. Stated differently, the question is not

3
The Commonwealth argues that, in accepting the
Commonwealth’s proffer of full disclosure and waiving in camera
comparison of the summaries to the Duff Statements, Garnett
procedurally defaulted his Brady claim under Rule 5:25. This
argument ignores the distinction between a request for in camera
review and the Commonwealth’s constitutional obligation to
disclose exculpatory material. A request for in camera review
and the Brady right to exculpatory evidence are two distinct
concepts. Brady disclosure is mandatory, and the duty to
disclose exists whether the defendant requests disclosure or
not. Waiving an in camera comparison of the Commonwealth’s
Summary to the Duff Statements was not a waiver of Garnett’s
constitutional right to all exculpatory evidence.

11
 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. 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.

Id. at 644-45, 636 S.E.2d at 374 (internal quotation marks,

alterations, and citations omitted).

Garnett argues that the verbatim Duff Statements, not just

the disclosed impeachment information contained within them, is

the material evidence required under Brady. Citing to the

majority opinion of the Court of Appeals panel decision that any

exculpatory material “require[s] the disclosure of the actual

evidence to defense counsel,” Garnett says “[i]t is precisely

this rule that Garnett asks this Court to accept . . . .”

“Exculpatory evidence revealed for purposes of impeachment must

therefore include the best evidence available for impeachment.”

Thus, Garnett contends, his Brady rights were violated because

that particular form of impeachment evidence was not disclosed

by the Commonwealth’s Summary and, as a consequence, he was

prejudiced by an incomplete ability to cross-examine Duff.

The Commonwealth responds that Garnett is mixing diverse

claims which are not a constitutional claim under Brady. The

Commonwealth posits that Garnett actually makes a discovery

claim for a particular form of evidence as opposed to

12
exculpatory information. That argument should fail, the

Commonwealth contends, because Garnett’s discovery rights were

governed by Rule 3A:11, which prohibits disclosure of

“statements made by Commonwealth witnesses” and provides no

“best evidence” rule. In effect, the Commonwealth argues that

Garnett did receive disclosure of the exculpatory information

about Duff required by Brady, through the Commonwealth’s

Summary, and is now conflating rights to discovery he does not

have under Rule 3A:11 with his preferred method of cross-

examination, neither of which make a Brady claim.

We have reviewed the Duff Statements and begin by

acknowledging that Garnett is at a disadvantage in presenting

his case as he has never seen the Duff Statements. Had the

Commonwealth simply disclosed the Duff Statements in full, it

seems likely Garnett’s case would have taken a shorter appellate

route. As did the majority of the Court of Appeals sitting en

banc, we recognize that, ordinarily, “the more prudent and

expeditious route would have been for the government to provide

the recordings and transcripts.” 49 Va. App. at 532, 642 S.E.2d

at 786. That being said, however, does not add weight to

Garnett’s claim of a constitutional deficiency under Brady.

Garnett contends Brady requires “the complete exculpatory

evidence in the possession of the Commonwealth in the form of

the best evidence available for impeachment of the complaining

13
witness.” He argues this rule is necessary because Duff’s

cross-examination was hindered without the exact language in the

Duff Statements to use to impeach Duff with her prior

inconsistent statements. To support this argument, Garnett

cites our decision in Keatts v. Shelton, 191 Va. 758, 63 S.E.2d

10 (1951), which sets out the methodology for impeachment of a

witness with a prior inconsistent statement. However, Keatts

has nothing to do with a failure to disclose exculpatory

evidence. See, e.g., 191 Va. at 765, 63 S.E.2d at 13.

Garnett’s argument has more to do with what he perceives, post-

trial, as the most efficacious method to have cross-examined

Duff than denial of exculpatory evidence under Brady. Moreover,

Garnett could have proceeded on cross-examination of Duff by

other means. 4

4
While Garnett correctly perceives that impeachment of a
witness with prior inconsistent statements requires proof that
the witness actually made the inconsistent statement, Patterson
v. Commonwealth, 222 Va. 612, 616-17, 283 S.E.2d 190, 193
(1981), Garnett ignores the fact that introduction of the Duff
Statements was not the only method of proof available. As we
noted in Patterson, when the witness fails to recall at trial
having made an inconsistent statement during a preliminary
hearing, “the proper procedure . . . is to use another witness”
to prove that the inconsistent statement has been made. Id. at
617, 283 S.E.2d at 193. In Patterson, the witness was the court
reporter who transcribed the preliminary hearing testimony, id.
at 615, 283 S.E.2d at 192. In the case at bar, the witness
could have been the investigator who interviewed Duff, who was
identified in the Commonwealth’s Summary. The Duff Statements
were therefore not the only evidence of Duff’s prior
inconsistencies, and Garnett’s reliance on the Keatts

14
 Garnett cites no precedent that embraces his argument of a

Brady “best evidence” claim. The reason is that there is none,

as many appellate courts have examined the issue and rejected a

similar argument.

In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court

confirmed that Brady does not require prosecutors to disclose

all evidence to the defendant. “[T]he Constitution is not

violated every time the government fails or chooses not to

disclose evidence that might prove helpful to the defense. We

have never held that the Constitution demands an open file

policy (however such a policy might work out in practice)

. . . .” Id. at 436-37 (internal citations omitted). Numerous

federal and state appellate courts have shared that observation

and none has embraced a mandatory Brady “best evidence” rule for

disclosure of exculpatory evidence. For example, in United

States v. Phillips, 854 F.2d 273 (7th Cir. 1988), the United

States Court of Appeals for the Seventh Circuit determined that

the form in which Brady material is produced is within the sound

discretion of the trial judge and “Brady does not grant criminal

defendants unfettered access to government files.” Id. at 277.

In Phillips, the United States Attorney provided a summary of an

FBI informant’s file pursuant to the defendant’s Brady request.

impeachment procedure has no nexus to the issue of whether Brady
mandates their disclosure as exculpatory evidence.

15
When the defendant objected and demanded the verbatim

statements, the trial court conducted an in camera review and

determined “that the file contains no Brady material other than

that reflected in the summary.” Id. at 278.

Upon appeal, the Seventh Circuit rejected the defendant’s

claim of error for failing to disclose the verbatim statements,

noting that “[f]ederal appellate courts have approved the use of

complete and accurate summaries of confidential files as an

appropriate means of balancing the due process rights of the

defendant and the privacy interests of the government and its

witnesses.” Id. The court concluded by stating that:

We reiterate that a Brady request does not entitle a
criminal defendant to embark upon an unwarranted
fishing expedition through government files, nor does
it mandate that a trial judge conduct an in camera
inspection of the government’s files in every case.
Such matters are committed to the sound discretion of
the trial judge. We will reverse the judge’s actions
only upon a showing of abuse of discretion.

Id.

In United States v. Grunewald, 987 F.2d 531 (8th Cir. 1993)

the United States Court of Appeals for the Eighth Circuit

similarly found no violation of Brady when the government

produced only summaries of an IRS agent’s investigation notes

rather than the notes themselves. Id. at 535.

[E]ven here where the notes may have been available,
absent a showing that the typewritten summaries
departed in substance from the handwritten notes, or
that the government acted in bad faith, the

16
 typewritten equivalent should be sufficient. We are
unable to conclude that Grunewald has been prejudiced
by the government’s failure to produce the handwritten
notes.

Id.; accord United States v. Van Brandy, 726 F.2d 548, 551 (9th

Cir. 1984); Banks v. People, 696 P.2d 293, 297-98 (Colo. 1985).

While Brady does not embrace a “best evidence” rule

prohibiting the use of summaries, such summaries of exculpatory

evidence must be complete and accurate. Compare United States

v. Service Deli, 151 F.3d 938, 942-44 (9th Cir. 1998) (reversing

conviction when the prosecution’s summary of undisclosed

evidence was inaccurate) with Phillips, 854 F.2d at 278

(affirming conviction when appellate court’s comparison of

summaries to the undisclosed evidence confirmed trial court’s

assessment that summaries “fairly and accurately reflect[ed] the

contents” of the undisclosed evidence). An incomplete or

inaccurate summary could be constitutionally insufficient under

Brady when the omissions or inaccuracies resulted in the

prejudicial suppression of material evidence favorable to the

defendant. Therefore, we cannot conclude our review without

assessing the adequacy of the disclosures in the Commonwealth’s

Summary.

As we noted earlier, to establish a Brady right to the

disclosure of evidence, the defendant must show that the items

in question are (1) exculpatory, (2) not disclosed, and (3)

17
prejudicial as a result of the failure to disclose. Workman,

272 Va. at 644-45, 636 S.E.2d at 374. It is not contested that

there was exculpatory information in the Duff Statements. What

Garnett places at issue is that the Duff Statements, the

verbatim text, is in and of itself exculpatory. Thus, under

Brady, Garnett contends there was a failure to disclose and he

was subsequently prejudiced.

Based on our in camera review of the Duff Statements, we

agree with the circuit court and the majority of the en banc

Court of Appeals that the Commonwealth’s Summary was a

sufficient disclosure under Brady. A review of several portions

of the sealed Duff Statements are instructive in that regard.

The Commonwealth’s Summary stated that the disclosures made to

Garnett from the Duff Statements contained information that “is

inconsistent with her testimony at the preliminary hearing."

Garnett had and used a transcript of Duff’s preliminary hearing

testimony to cross-examine Duff.

The following portion of the July 24, 2003, interview

appears to contain much of the dialogue relevant to Garnett’s

nondisclosure argument.

INVESTIGATOR MICHAEL: How many times do you think you
told him no you didn’t want to do that?
VICTORIA DUFF: Well I was telling him no when we
first went in and he told me I had to sit on his
lap.
INVESTIGATOR MICHAEL: Right.

18
 VICTORIA DUFF: I was just telling him then, I don’t
want you to kiss me, I don’t want to sit on your
lap I don’t want this is not a relationship.
INVESTIGATOR MICHAEL: Right.
VICTORIA DUFF: I I’m not interested in this from that
moment until we left the farm I was telling him
to stop doing it because he wouldn’t stop he was
fondling me he was uhm trying to make me kept on
saying hug me hug me hug me, I don’t want to hug
you.
INVESTIGATOR MICHAEL: Right.
VICTORIA DUFF: I don’t want to do this. This is not
appropriate. I I you know I’m just a neighbor.
Just leave me alone.
INVESTIGATOR MICHAEL: How long had it been since yall
had a relationship?
VICTORIA DUFF: Uhm I think its been about 2 months
now.
INVESTIGATOR MICHAEL: O.k and you haven’t seen him
[unintelligible]
VICTORIA DUFF: Well I see him he comes just as a
neighbor yeah. And I been tempted to go over and
get my belongings which I’ve done a couple times
there uhm because there a lot my things there.
Building materials and things.
INVESTIGATOR MICHAEL: Has he ever done this to you
before?
VICTORIA DUFF: Yes.
INVESTIGATOR MICHAEL: He’s raped you before?
VICTORIA DUFF: Yes.
INVESTIGATOR MICHAEL: Have you reported it?
VICTORIA DUFF: No.
INVESTIGATOR MICHAEL: How many times has he raped
you?
VICTORIA DUFF: Uhm he’s probably forced himself on me
two or three times now.
INVESTIGATOR MICHAEL: And do you know when that
occurred?
VICTORIA DUFF: Aah well the last time it happened I
think it was in the month of end of May.
INVESTIGATOR MICHAEL: Of this year?
VICTORIA DUFF: Yeah.

Specifically, Garnett contends he could not effectively

cross-examine Duff on the meaning of her “relationship”

19
with Garnett when she testified the relationship terminated

prior to the July 24, 2003, rape. Further, he argues a

similar limitation in cross-examining Duff on her reference

to a May rape, the number of rapes, her failure to mention

seeing Garnett’s mother on July 24, 2003, the contents of

the July 31, 2003, statement, and the duration of the July

24, 2003, abduction.

1. “RELATIONSHIP”

The Commonwealth’s Summary informed Garnett that Duff told

Investigator Michael “that it had been two (2) months since she

had a relationship with the defendant.” Garnett contends this

was inadequate disclosure under Brady because it is too

ambiguous to be meaningful as impeachment: “it is impossible to

determine what type of relationship she is referring to:

business, social or sexual?” Garnett observes that Duff twice

denied at trial that she meant a sexual relationship; rather,

Duff testified that she meant “that was the last time he did

anything, you know, like till the garden or did anything for me

at that time.”

The Commonwealth’s Summary accurately reflected what Duff

said, complete with any latent ambiguity it may have contained.

Having the verbatim transcript would have been no more an

impeachment disclosure than what Garnett received. Moreover,

Garnett could have called Investigator Michael to testify as to

20
his exchange with Duff and establish any prior inconsistent

statement by which to further impeach Duff. Patterson, 222 Va.

at 617, 283 S.E.2d at 193. Garnett chose not to do so and he

cannot now try to bootstrap a Brady claim from his failure to

pursue his cross-examination options.

2. DURATION OF ABDUCTION

The Commonwealth’s Summary reveals Duff “told Investigator

Michael that defendant kept her at the barn from approximately

8:45 a.m. to approximately 1:00 p.m.” This disclosure is

substantially correct as the written statement Duff gave on July

24, 2003, included the statement, “[Garnett] let me go at about

1:30 p.m.” In all other respects, the Duff Statements say

nothing different from the Commonwealth’s Summary.

Garnett argues “[t]his disclosed time period does not match

the time period given at the preliminary hearing (which was

transcribed and available for use at trial), nor does it match

the extended time period that she apparently stated for the very

first time at trial (until 2:00 p.m.).” While that is true, it

has nothing to do with any failure to disclose, as the

Commonwealth’s Summary alerted Garnett to the timeframe. Having

the verbatim Duff Statements would have made no difference in

Garnett’s intensive cross-examination of Duff on this point as

he knew from the Commonwealth’s Summary all of the exculpatory

information for impeachment.

21
Q: Now, you testified or told Donnie Michael, I
believe, that you were held hostage in the barn
for five hours.
A: That’s corr-
Q: Do you remember telling that?
A: Yes.
Q: And your testimony today is that you got there
around 8:30 and what time do you claim this rape
occurred?
A: I would guess around noon.
* * * *
Q: Then how come you didn’t get to the police
department until 2:45?
A: I believe I got there before 2:45.
Q: Okay.
A: And I also believe that Mr. Garnett held me until
two o’clock in the afternoon.
Q: He held you until two o’clock in the afternoon?
A: Yes.
Q: Wow. Ms. Duff, you have never said that before
today, isn’t that true?
* * * *
Q: Ma’am you’ve never said that before today, isn’t
that true?
A: You mean to you I’ve never said that?
THE COURT: To anyone.
Q: To anyone.
A: I believe that I discussed it with Mr. Webb and–
Q: When you testified in court under oath back in
October–
A: Uh-huh.
Q: What time did you say all of this had ended?
A: I don’t know what time I said it had ended. You
can read that back to me and I’ll know.
* * * *
Q: Could you turn to page 19 of your testimony,
please–
A: Uh-huh.
Q: –and then do you see when I asked you, what time
of the day or night was it when you allege that
this thing happened at the barn? What’s your
answer?
A: What line are you looking at?
Q: I’m looking at line five through eight.
A: Okay.

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 Q: See where I say, what time of day or night was it
when you allege this thing happened at the barn?
What do you say?
A: Between 8:30 in the morning until about one
o’clock in the afternoon.
Q: And you testified before that you thought you were
raped at about 12:30–about 12:30, correct?
A: About Noon-ish, I guess, yes.
Q: About Noon-ish?
A: Uh-huh. I really didn’t have a clock, you know, a
watch. I wasn’t watching my watch the whole time
this was going on.

3. PRIOR RAPES

The Commonwealth’s Summary disclosed to Garnett that Duff

told Investigator Michael “that she had been raped by the

defendant around the end of May; that the defendant had forced

himself on her probably two or three times now.” Garnett

contends the foregoing disclosure was defective under Brady

because he needed the verbatim Duff Statements to make a proper

impeachment of Duff when the following exchange occurred at

trial:

Q: But when you first talked to Donnie 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.
Q: And today you’re telling us that you were raped in
January and raped in April. When you talked to
Donnie Michael, you told him that it had been
probably two or three times, correct?
A: Right. It was three times altogether that I
recall.
Q: So just let me make clear, how many times today
are you saying that Mr. Garnett raped you?
A: Three times.

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 The Commonwealth’s Summary was accurate and complete on

this point as the total verbatim exchange from the Duff

Statements confirms:

INVESTIGATOR MICHAEL: He’s raped you before?
VICTORIA DUFF: Yes.
INVESTIGATOR MICHAEL: Have you reported it?
VICTORIA DUFF: No.
INVESTIGATOR MICHAEL: How many times has he raped
you?
VICTORIA DUFF: Uhm he’s probably forced himself on me
two or three times now.
INVESTIGATOR MICHAEL: And do you know when that
occurred?
VICTORIA DUFF: Aah well the last time it happened I
think it was in the month of end of May.
INVESTIGATOR MICHAEL: Of this year?
VICTORIA DUFF: Yeah.

The Commonwealth’s Summary disclosed all the exculpatory

information that was relevant to Garnett’s cross-

examination of Duff on this point.

4. INTERVIEW OF JULY 31, 2003

The Commonwealth’s Summary disclosed to Garnett that in

Duff’s July 31, 2003, interview with Investigator Michael, “the

victim was only asked about the alleged rape of January 19,

2003, and of April 29, 2003.” Garnett contends “[t]his

disclosure leaves open too many questions when those dates were

first reported and to whom.” However, the remainder of the

Commonwealth’s Summary specifically describes the remaining

information in the July 31st interview. Our in camera review

confirms there is nothing exculpatory for impeachment purposes

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on this topic contained in the Duff Statements that was not

fully disclosed by the Commonwealth’s Summary. 5

5. STATEMENTS TO THE COMMONWEALTH’S ATTORNEY

The Commonwealth’s Summary informed Garnett that:

[Duff] told the [C]ommonwealth[’s ] [A]ttorney when
preparing for trial that she remembered following the
defendant to his mother’s (Hilda Garnett’s) home
during the beginning sequence of the events that took
place on July 24, 2003 and that she had seen his
mother at the sink. She stated that she followed him
into the house because he had her car keys and
wouldn’t give them back. This is inconsistent with
her testimony at the preliminary hearing on October
10, 2003 and with what she had previously told
Investigator Michael.

There is nothing in the Duff Statements on this matter. Garnett

was aware of Duff’s failure to include the walk to Garnett’s

house before the events in the barn occurred in some of her

early statements and he cross-examined her on that point. There

was simply no other disclosure to be made other than those in

the Commonwealth’s Summary.

In sum, there is no precedent to support Garnett’s claim

that Brady encompasses a “best evidence” rule for impeachment

material that required the disclosure of the Duff Statements

verbatim. The Commonwealth’s Summary is an accurate summary of

5
The en banc Court of Appeals dissent took a much different
approach than the panel majority. The dissent seemed to premise
its holding of prejudice and non-disclosure on its conclusion
there were other interviews of Duff that the Commonwealth failed
to disclose. Garnett, 49 Va. App. at 545, 642 S.E.2d at 792-93

25
the exculpatory information contained in the Duff Statements.

There was not a failure to disclose on the part of the

Commonwealth and thus Garnett fails to show a necessary element

of a Brady claim. A fortiori, there was no prejudice to

Garnett. 6 That is to say, the verbatim Duff Statements were not

material in a Brady sense because there is not a reasonable

probability that the trial would have resulted in a different

outcome had Garnett had the verbatim statements. Lovitt v.

Warden, 266 Va. 216, 244, 585 S.E.2d 801, 817 (2003).

Accordingly, there is no error in the denial of Garnett’s motion

to set aside the verdict for a violation of Brady.

B. NEWLY DISCOVERED EVIDENCE

We have repeatedly and consistently stated that
motions for new trials based on after-discovered
evidence are addressed to the sound discretion of the
trial judge, are not looked upon with favor, are
considered with special care and caution, and are
awarded with great reluctance. A party who seeks a
new trial based upon after-discovered evidence bears
the burden to establish that the evidence (1) appears
to have been discovered subsequent to the trial; (2)
could not have been secured for use at the trial in
the exercise of reasonable diligence by the movant;
(3) is not merely cumulative, corroborative or

(Haley, J., dissenting). That conclusion has no basis in the
record, including the Duff Statements.
6
In the circuit court, Garnett specifically asked for the
audiotapes of the Duff Statements based on his claim that
“demeanor [is] potentially exculpatory.” While we agree with
the circuit court’s judgment denying the disclosure of the
audiotapes because there is no “authority that defines those
matters . . . to be exculpatory,” we also note that Garnett did
not make this argument on brief and it is therefore defaulted
under Rule 5:17(c).

26
 collateral; and (4) is material, and such as should
produce opposite results on the merits at another
trial. The moving party must establish each of these
mandatory criteria.

Commonwealth v. Tweed, 264 Va. 524, 528-29, 570 S.E.2d 797, 800

(2002) (internal quotation marks, alterations, and citations

omitted).

Even if we assume, as did the circuit court, that Garnett

discovered Duff’s records after the trial, he has plainly failed

to prove any of the remaining criteria required for the grant of

a new trial. As the circuit court noted, the records were not

created after trial but existed at the time of trial.

In the [c]ourt’s view, a subpoena duces tecum to the
victim or to other entities could have produced these
records. . . . Had it been issued to her, it could
have covered any purchases, transactions, business
dealings with the defendant . . . . She never denied
that she had these records. . . . [S]uch evidence and
any documents that might relate to it would certainly
be something that the defense would know about and, if
deemed appropriate, would want to explore before
trial. In short, in the [c]ourt’s view, there was
nothing secret about it. These documents do not
involve a subject that was what could be called a new
development or a surprise of any type that was
revealed for the first time on the eve of trial, so
the [c]ourt is not persuaded that the due diligence
requirement is met here.

We agree with the circuit court’s conclusion. The records

could have been obtained by Garnett prior to trial by an

exercise of due diligence, which he simply failed to perform.

The circuit court continued by observing that “[t]here was

extensive evidence in cross-examination about” the business

27
relationship between Duff and Garnett and found that the records

were merely “corroborative or collateral” to that evidence. The

circuit court concluded by citing our decision in Tweed:

The standard is not whether there’s a reasonable
probability of a different result. That argument was
made and rejected by the Tweed [C]ourt; rather, the
standard, as set forth by the Tweed [C]ourt, was
whether the defense establishes that the evidence was
. . . such as should have produced opposite results on
the merits at another trial . . . . Here the [c]ourt
is not persuaded that, had these records been
available, that under the standard in Tweed, they
would have or should have produced an opposite result
on the merits of the trial.

We agree with the determination of the circuit court and

therefore conclude that the Court of Appeals did not err in

holding that the circuit court did not abuse its discretion in

denying Garnett’s motion to set aside the verdict and for a new

trial.

CONCLUSION

For the foregoing reasons, we will affirm the judgment of

the Court of Appeals.

Affirmed.

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