Taylor v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia

KEITH MARVELLE TAYLOR, A/K/A
KEITH WILLIAMS
OPINION BY
v. Record No. 3410-01-2 JUDGE SAM W. COLEMAN III
SEPTEMBER 2, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge

John W. Luxton (Morchower, Luxton & Whaley,
on brief), for appellant.

Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Linwood T. Wells, Jr., Assistant Attorney
General, on brief), for appellee.

Keith M. Taylor was convicted in a bench trial of attempted

malicious wounding, shooting at an occupied dwelling, and using

a firearm in the commission of a felony. Taylor contends the

Commonwealth committed a Brady violation that deprived him of a

fair trial. He argues that the undisclosed investigatory notes

of the two detectives who interviewed witnesses at the crime

scene contained accounts that were exculpatory and inconsistent

with the witnesses' trial testimony. Specifically, he claims

that several of the witnesses' accounts did not mention that

Taylor was "out there shooting at the scene of the crime" and

that the failure to mention Taylor as one of the shooters was
inconsistent with their testimony. The trial court ruled that

the investigatory accounts contained in the detectives' notes

were not inconsistent with the witnesses' trial testimony and,

therefore, the trial court denied the motion for a new trial.

Finding no error, we affirm the convictions.

I.

Taylor was indicted for attempted malicious wounding, Code

§ 18.2-51, maliciously shooting at an occupied building, Code

§ 18.2-279, and using a firearm while committing a felony, Code

§ 18.2-53.1. Prior to trial, Taylor's attorney filed a

discovery motion, requesting exculpatory information and

evidence affecting the credibility of any of the prosecution

witnesses. The prosecutor responded she was unaware of any

evidence tending to exculpate Taylor or affecting the

credibility of the Commonwealth's witnesses.

At trial, James Hill, one of the Commonwealth's witnesses,

testified that following a confrontation between himself and

Taylor and James Nash, during which Hill displayed a handgun,

Taylor and Nash drove to his residence in separate vehicles.

According to Hill, they exited their vehicles and both began

firing handguns at him while he stood on his front porch. Hill

and his wife, Vicky Hill, resided at the house with their adult

children, Felicia and Sentel Hill. Vicky and Felicia Hill

testified that appellant was one of the two "guys" involved in

the shooting at their home. Felicia Hill repeatedly testified
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that she "saw them shooting." (Emphasis added.) Sentel Hill

did not testify that Taylor was one of the shooters; nor did

Florissa Banks testify to that effect. At trial there was a

discrepancy between the testimony of James, Felicia and Sentel

Hill as to which of two cars the appellant and Nash exited.

Detective McTernan's notes recorded the events that

preceded the shooting and notes that "Nash . . . starts firing."

She also records the statement that a "burgundy Cadillac pulled

up [and the] guy got out [and] started walking toward [the]

house [and] starts firing." However, specific statements were

not attributed to particular witnesses.

Detective Thompson's notes of his interview with James Hill

disclose that Hill identified both Keith Taylor and James Nash

as armed with guns and shooting. His notes recounting his

interview with Sentel Hill included descriptions of appellant

and Nash and statements that they "started fighting." The

notes, however did not reflect any comment from Sentel Hill on

the shooting that ensued. Thompson's notes of Felicia Hill's

pretrial interview state "guy got out of car and walked toward

house started shooting randomly." Thompson's notes of the

interview with Florissa Banks, a neighbor of the Hills, state,

"Keith [Taylor] started shooting walked toward house."

After the convictions, Taylor's attorney filed a motion to

set aside and vacate the verdicts. Following an evidentiary

hearing, the trial judge found that "[n]ot one person has said
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anything inconsistent with the fact that your client [was] out

there shooting." The trial judge denied Taylor's motion for a

new trial, and this appeal followed.

II.

"[T]he suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution."

Brady v. Maryland, 373 U.S. 83, 87 (1963). The Supreme Court

reasoned that:

[a] prosecution that withholds evidence
. . . which, if made available, would tend
to exculpate [the accused] or reduce the
penalty helps shape a trial that bears
heavily on the defendant. That casts the
prosecutor in the role of an architect of a
proceeding that does not comport with
standards of justice, even though . . . his
action is not "the result of guile."

Id. at 87-88 (citation omitted).

The Supreme Court has held that "[i]mpeachment evidence

. . . , as well as exculpatory evidence, falls within the Brady

rule." United States v. Bagley, 473 U.S. 667, 676 (1985)

(citing Giglio v. United States, 405 U.S. 150, 154 (1972)). The

Bagley Court stated:

The present case . . . does not involve
any direct restriction on the scope of
cross-examination. The defense was free to
cross-examine the witnesses on any relevant
subject, including possible bias or interest
. . . . The constitutional error, if any,
in this case was the Government's failure to
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 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" 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 678 (citation omitted).

Explaining Bagley's materiality analysis, the Supreme Court

has said:

Although the constitutional duty is
triggered by the potential impact of
favorable but undisclosed evidence, a
showing of materiality does not require
demonstration by a preponderance that
disclosure of the suppressed evidence would
have resulted unlimitedly 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). Bagley's
touchstone of materiality is a "reasonable
probability" of a different result, and the
adjective is important. The 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. A "reasonable probability" of a
different result is accordingly shown when
the government's evidentiary suppression
"undermines confidence in the outcome of the
trial."

Kyles v. Whitley, 514 U.S. 419, 434 (1995) (citations omitted).

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 III.

The testimony of Detectives McTernan and Thompson

concerning the witnesses' pretrial statements did not identify

inconsistent or contradictory statements that could have been

used to impeach a particular witness. The investigatory notes,

to the effect that "they" were shooting, or that "they" got out

of their cars and started shooting, or which specifically

identified Nash, but did not specifically mention Taylor by

name, are not inconsistent with the witnesses' trial testimony.

Moreover, to the extent that the detectives' notes would support

a claim that the witnesses identified only Nash and did not

mention Taylor, we do not believe that on this record the

disclosure would have materially affected the outcome of the

case. Therefore, the trial court did not err in concluding that

the Commonwealth did not withhold exculpatory evidence from the

accused.

First, neither the investigative notes nor the evidentiary

hearing testimony of Detective McTernan contains specific

statements attributable to a particular witness. At best, her

notes contained general accounts and sketchy conclusions without

attribution of what various witnesses said about how the events

unfolded. Absent attribution to a particular witness,

McTernan's general account of inconsistent or contradictory

statements would not have been admissible as a prior

inconsistent statement to impeach a particular witness.
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Furthermore, the appellant has not shown how the disclosure of

McTernan's notes would have led to the discovery of exculpatory

evidence which would have been admissible at trial. Evidence

that is not admissible at trial or which does not lead to

admissible exculpatory evidence cannot violate Brady because

there is no "reasonable probability" that its disclosure would

have affected the trial. Wood v. Bartholomew, 516 U.S. 1, 5-6

(1995) (no Brady violation for failure to disclose polygraph

tests which are inadmissible under state law).

Second, none of the accounts which Detective Thompson

attributed to specific witnesses were materially contradictory

of or inconsistent with those witnesses' trial testimony.

Thompson indicated that he interviewed James Hill, Sentel Hill,

Felicia Hill, and Florissa Banks. 1 Thompson's notes indicated

that James Hill identified both Keith Taylor and James Nash as

being armed and firing shots. That account was consistent with

James Hill's trial testimony. According to Thompson's testimony

and his notes, none of the witnesses he interviewed stated

during the investigative interviews that Taylor was not "a

shooter," that he did not fire shots, that he did not possess a

gun, or that he was not there. Furthermore, although Felicia

1
Florissa Banks told Detective Thompson pre-trial that
"Keith [Taylor] started shooting [as he] walked toward [the
Hill] house. However, at trial she denied that she saw Taylor
with a gun or that he was shooting. The failure to disclose
this material cannot be deemed a violation of Taylor's rights
under Brady.
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Hill's account to Thompson appears to identify James Nash as the

person who first exited a car and advanced toward James Hill

firing a handgun, she did not exclude Taylor from being "a

shooter." Thus, although Felicia Hill testified at trial that

Taylor fired shots, we cannot say that her pretrial statements

to Thompson were inconsistent with or contradictory to her trial

testimony. Although Sentel Hill's trial testimony implicated

Taylor as one of the shooters, this testimony was not

inconsistent with a pretrial statement that merely failed to

address the shooting at all. Finally, to the extent that

various witnesses may have given different accounts during the

investigative interviews, as they did at trial, as to whether

Nash or Taylor or the person with "braids" or "corn rows" exited

the Cadillac or Toyota, the description and designation of which

car Nash or Taylor exited was not critical to the identification

of who was shooting. Any confusion or inconsistency in the

investigative reports or at trial as to which car Nash or Taylor

occupied was not material because had that "inconsistency" been

disclosed it would not have changed the trial result.

In summary, no witness reported during the investigation

that Nash was the sole shooter or that Taylor did not shoot. No

investigative statement of any witness who testified at trial

was exculpatory or inconsistent with their trial testimony.

Accordingly, the Commonwealth was not required to provide Taylor

with the investigative notes of McTernan and Thompson because
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1) they contained no statements by a particular witness that

were inconsistent with or contradictory to that witness' or

another witness' material testimony, and 2) no specific

statement by a particular witness constituted a prior

inconsistent statement which could have been used to impeach

either the declarant or another witness. The information

reflected in the pretrial accounts of the witnesses' statements

would not have produced a "reasonable probability" of a

different result. For these reasons, the ruling of the trial

court is affirmed.

Affirmed.

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Benton, J., dissenting.

At the heart of the trial judge's decision to deny Keith M.

Taylor's motion for a new trial is the absence of what he

perceived as exculpatory evidence. The judge explained that

"[m]ost people testify to, you know, what they remember, and from

what the [officers'] notes say, there is absolutely nothing here

that is exculpatory. Not one person has said anything

inconsistent with the fact that [Taylor was] out there shooting."

He further posed the question: "Don't you think that if anybody

had said that he wasn't shooting, that he didn't have nothing to

do with it, that they would have reported it and they would have

testified?" Because I believe the judge used the wrong standard

and erred in his ruling, I would reverse the convictions and

remand for a new trial.
I.

To put the judge's ruling in context, a comprehensive review

of the evidence is warranted. At trial, the Commonwealth's

evidence proved that Keith Taylor and James Nash, who were

teenagers, fought with James Hill's son in the driveway at Hill's

house. When Hill went to investigate the commotion, Taylor and

Nash walked away. A short time later, a group of girls argued

with Hill's daughter about a gold chain and began to fight her.

During that fight, Hill intervened and threw one of the girls to

the ground. After the girls ran away, Hill drove his car to find

Taylor and Nash. When he saw them a short distance from his

house, he exited his car and asked "what was going on?" Taylor

did not speak. Hill was holding a gun and left after he had a

discussion with Nash.

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 Hill and his wife testified that they were sitting on their

front porch when Taylor and Nash returned half an hour later.

Nash arrived first in a burgundy Cadillac that was driven by

Kelly Hicks, the girl that Hill earlier threw to the ground.

Taylor arrived in a green Toyota Camry. Hill testified that

Hicks was the first to exit the vehicle, followed by Taylor and

Nash, who were both holding .22 caliber long barrel pistols.

When they began to shoot, Hill went to his kitchen and retrieved

a "357" revolver. He testified that "[a]bout three or four"

shots had been fired before he returned to his porch and began to

shoot at them. He also testified that Taylor was standing by the

mailbox, that Nash was standing closer to Hill, and that Taylor

and Nash fired a total of 12 shots. Hill said he shot six times

and believed he hit Taylor because Taylor appeared to fall onto

the car.
Hill's wife testified that Nash and Taylor arrived in

separate cars and "came out shooting." She also testified that

she saw a gun in Taylor's hand and noticed he was "walking as he

was pointing and shooting." After she heard three shots, two of

which came from Taylor's direction, Hill pushed her into the

house. She testified, however, that she could still see Nash and

Taylor through the window and saw Taylor near the mailbox. She

testified that she saw "the other guy," meaning Nash, fall back

into his car as her husband was shooting. Although she initially

testified that Taylor exited the second car, which she described

as the "large car," she later testified that "the car behind

[Taylor] . . . was the bigger car."

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 Hill's daughter was in the doorway holding her baby when

Taylor and Nash arrived. She testified she had "blacked out"

after the fight and had only a brief period to recover before the

shooting incident. She also testified that "[w]hen the two cars

drove up, one girl got out . . . ranting and raving, and then a

whole bunch of other people jumped out." She said Taylor was "at

the mailbox, and the other guy [was] . . . coming down the

driveway." She heard two shots and then "ran further into the

house," but she repeatedly testified that she "saw them

shooting."
Hill's son testified that he was sitting in his car in the

driveway and facing the house when "Nash walk[ed] up, not even

ten feet from the house and started shooting." Nash shot twice.

He then saw Taylor near the mailbox. After three bullets struck

the rear of his car, he ducked. He testified, however, that he

"didn't see who shot [his car, and] just saw [Taylor] behind

[his] car." He also indicated that "when [Nash fired], that's

when the bullet holes came." He further testified that his

father was returning fire in Nash's direction as Nash was

"running back toward the street" and that one of Hill's bullets

hit Hill's own car.

At the conclusion of the Commonwealth's case-in-chief,

Taylor's attorney called as a witness the detective to whom the

case had been assigned. Detective William Thompson testified

that he took photographs at the residence but did not photograph

any of the vehicles. He also testified that other officers who

investigated the events delivered to him their reports and

several cartridge cases. When the prosecutor objected to the

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admission of the certificate of analysis concerning those

cartridge cases, Taylor's attorney requested a continuance and

argued that "this evidence we've been furnished has turned out to

be exculpatory evidence." The judge admitted the certificate as

evidence and denied the request for a continuance. The

certificate of analysis indicated that "a total of six . . .

caliber 22 Long/Long Rifle cartridge cases" were submitted for

examination and that all had "been fired in one . . . firearm."

Taylor's witnesses gave a different account of the shooting.

Nash testified that he and Hill's son had a fistfight while

Taylor watched. After Hill arrived and stopped the fight, Nash

and Taylor left but were later confronted by Hill, who pointed a

gun at Nash and demanded to know why he was fighting Hill's son.

After Hill left, Nash retrieved a twenty-two caliber pistol and

returned to Hill's house in Hicks's burgundy Cadillac. He said

Taylor was in a green Toyota. Nash testified that he saw Hill

run into the house and he noticed four other people on the porch.

When he exited the car, Hill had returned with a gun. Nash

testified that Hill shot first and he and Hill then "started

shooting at each other." He shot his gun "five or six" times,

and Hill shot six times. Nash testified that Taylor and the

people on the porch ran away during the shooting. He also

testified that Taylor did not have a gun. Nash said his own hair

was in braids at the time of the incident.
Vanielle Miller testified that she had been involved in the

fight with Hill's daughter. Later, she and Taylor arrived at

Hill's house in a green Toyota, which was being driven by another

teenager. She said Taylor exited the car, remained behind the

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car, and did not go toward the yard. She also said Taylor was

not near the mailbox and did not have a gun. She testified that,

although she saw Hill shoot, she did not see Nash shoot.

Taylor testified that he had been involved in the fight with

Hill's son. He denied having a gun when he arrived at Hill's

residence and also denied standing next to the mailbox. He

testified that he had no reason to be armed because Hill did not

threaten him with the gun when Hill earlier exited his car and

pointed a gun at Nash. He also denied knowing Nash had a gun.

Taylor testified that when the first shot was fired, he was close

to the Toyota's door and immediately reentered the Toyota. He

said he did not fall back on the car. Taylor admitted he

initially lied when he told a detective that he was not present

at the shooting.
Florissa Banks, Hill's neighbor, testified that she saw

Taylor fighting Hill's son. From her house across the street,

she later observed two cars stop in front of Hill's house. She

saw a man, who was not Taylor, exit a burgundy Cadillac. That

man, who had braids in his hair, "pulled out a gun and was

walking across the driveway and across the lawn." Hill was

coming out his door and trying to get his family inside. Banks

then saw Taylor exit his car, but did not see anything in his

hands. From "the way [Taylor] was standing," Banks could not see

whether Taylor had a gun in his hands. She testified that "[t]he

one that was shooting was [wearing] braids." Once shooting

commenced, Banks turned to get the children into the house. She

saw the man with the braided hair and Hill shoot at each other

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"approximately five or six" times. Banks only observed Taylor

get out of his car and stand next to it.

On rebuttal, Hill testified that two bullets hit his house

and that he believed "at least three" hit his car. He also

testified that he gave a detective cartridge cases from his .357

caliber weapon and that he and the detective found "eight to

twelve" .22 caliber cartridge cases on his porch and yard.

Recalling Hill's testimony, the trial judge noted that he

"said it looked like both of them had revolvers. He apparently

knows the difference in a revolver if he has one himself."

Finding that the group of people went to the Hill residence to

"continue this and that [Taylor] was right in the middle of it,"

the trial judge convicted Taylor of attempted malicious wounding,

Code § 18.2-51, shooting at an occupied dwelling, Code

§ 18.2-279, and using a firearm in the commission of a felony,

Code § 18.2-53.1.
II.

After the conviction, Taylor's attorney filed a post-trial

motion to vacate the verdict. At the evidentiary hearing,

Detective Jan McTernan testified that she interviewed several

people at the Hill residence after the shooting. She recalled

talking to Hill and "believed [she] also talked to . . . Hill's

son." Her notes indicate that she was told a "green car stopped,

popped the trunk, [Cadillac] stops too." Her notes then indicate

"Nash with braids walks out and starts firing" and "today Nash

confronts him." In addition, Detective McTernan wrote the

following:

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 "Lady gets out of dark green Camry,
. . . several people out side of the house,
burgundy Cadillac pulled up, guy got out,
started walking toward house [and] starts
firing. Father returned fire . . . the Camry
left on Goodwood Road, and [Cadillac] went
straight out of Deter."

Detective McTernan did not recall seeing bullet holes in Hill's

son's car.

Detective Thompson also testified about notes he made during

telephone conversations with various witnesses. Hill told him

that, "Keith [Taylor] got out of the Cadillac, walked towards

house with gun in hand, James Nash got out of Toyota, they both

started shooting." Hill's daughter, on the other hand, said,

"two cars pulled up. . . . Guy got out of car and walked and up

toward house, started shooting randomly. . . . Hill shot back at

guy with gun." She also identified Nash as having "corn rows."
Reasoning that "[n]ot one person has said anything

inconsistent with the fact that [Taylor was] out there shooting,"

the trial judge denied Taylor's motion for a new trial.

III.

The majority concludes that the Commonwealth was not

required to provide Taylor with the officers' notes.

Significantly, however, the Commonwealth does not contend on

appeal that the undisclosed material was not favorable to Taylor.

The Commonwealth contends, instead, only that Taylor is not

entitled to a new trial because he was not "prejudiced by not

receiving complete discovery." Taylor contends that the notes

would have allowed significant impeachment of the Commonwealth's

witnesses and would have strengthened his defense.

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 The Commonwealth's duty to disclose extends beyond evidence

that clearly exculpates. The Supreme Court has unambiguously

"rejected any . . . distinction between impeachment evidence and

exculpatory evidence." United States v. Bagley, 473 U.S. 667,

676 (1985). In this case, portions of the officers' notes would

have allowed Taylor to impeach the testimonies of some of the

Commonwealth's witnesses. The majority misses the point when it

concludes that the officers' notes are inadmissible because the

statements were not "attributable to a particular witness."

Addressing a contention that the undisclosed evidence might not

be admissible, we have ruled as follows:

Even if the [evidence] was
inadmissible, it may have affected the
defendant's trial preparation. A factor in
determining the materiality of undisclosed
information is "[a]ny adverse effect that
the prosecutor's failure to respond might
have had on the preparation and presentation
of the defendant's case."

An extrajudicial statement may be
vitally important in the preparation and
conduct of a criminal trial. It may
identify witnesses and other resources for
further investigation. It may be used to
refresh a witness' recollection. It may be
used under certain circumstances as evidence
of a past recollection recorded.

Such a statement may also be used as a
basis for cross-examining witnesses.

White v. Commonwealth, 12 Va. App. 99, 103-04, 402 S.E.2d 692,

695, aff'd on reh'g en banc, 13 Va. App. 284, 410 S.E.2d 412

(1991) (citations omitted). Obviously, if the Commonwealth had

properly disclosed the notes, Taylor's attorney could have asked

the officers at trial to identify the witnesses who made the

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statements. Taylor's attorney also could have directly asked the

witnesses whether they made the statements. Edwards v.

Commonwealth, 19 Va. App. 568, 571, 454 S.E.2d 1, 2 (1995). "It

is generally held in Virginia and elsewhere that, after a proper

foundation has been laid, the credibility of a witness may be

impeached by proof of statements made by him on some prior

occasion that are inconsistent with or contradictory of the

evidence he has given on the trial." Cassady v. Martin, 220 Va.

1093, 1099, 266 S.E.2d 104, 107 (1980). Therefore, in this case,

the notes would have utility at trial and certainly would have

allowed Taylor to pursue these issues when preparing for trial.
The posture of this case is similar to the circumstances

addressed in Bagley.

The present case . . . does not involve
any direct restriction on the scope of
cross-examination. The defense was free to
cross-examine the witnesses on any relevant
subject, including possible bias or
interest. . . . 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 . . . if it
deprives the defendant of a fair trial.
Consistent with "our overriding concern with
the justice of the finding of guilt" a
constitutional error occurs, and the
conviction must be reversed, . . . if the
evidence is material in the sense that its
suppression undermines confidence in the
outcome of the trial.

473 U.S. at 678 (citation omitted). The prosecutor further had a

"duty to disclose exculpatory [and impeachment] material in a

timely manner." Monroe v. Angelone, 323 F.3d 286, 316 (4th Cir.

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2003). That duty "'illustrate[s] the special role played by the

American prosecutor in the search for truth in criminal trials.'"

Id. (citation omitted). As the Supreme Court long ago noted:

The [prosecutor] is the representative not
of an ordinary party to a controversy, but
of a sovereignty whose obligation to govern
impartially is as compelling as its
obligation to govern at all; and whose
interest, therefore, in a criminal
prosecution is not that it shall win a case,
but that justice shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935).
At trial, Hill's daughter testified that Taylor and Nash

were both involved in the shooting. She indicated that Taylor

stood next to a mailbox and walked to the "halfway point" of the

yard. Even though she did not see the position of Taylor's hands

and body, she testified that "[she] just saw them shooting." Her

testimony, however, could have been severely undermined if

Taylor's attorney had known of her pretrial statements.

According to Officer Thompson's notes, Hill's daughter said:

"Guy got out of car and walked and up toward house, started

shooting randomly, Mr. Hill shot back at guy with gun."
(Emphases added.) This statement is entirely consistent with

Taylor's contention that Nash alone did the shooting, and it is

inconsistent with Hill's daughter's trial testimony and the

Commonwealth's theory that both men fired guns.
Furthermore, Hill's daughter's pretrial statements had the

effect of confirming Banks's testimony. Hill's daughter

described Nash to the detectives as having "corn rows" in his

hair. Although Banks did not know the name of the shooter, she

testified that "[t]he one that was shooting was [in] braids."
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The evidence established that only Nash had the "braids" or "corn

rows" hairstyle. In addition, neither Hill's daughter's

statement nor Banks's testimony established that a second shooter

actually existed. Hill's daughter implicated one "[g]uy," and

Banks testified that "[t]he one that was shooting was [in]

braids." (Emphasis added.)

Banks, who did not know Taylor prior to this incident,

testified that he was standing by the mailbox and that she did

not see a gun in his hand. The undisputed evidence at trial was

that Nash, not Taylor, wore his hair in the style of "corn rows."

Although the majority observes that Banks told Detective Thompson

pre-trial that "Keith [Taylor] started shooting [as he] walked

toward [the Hill] house," the detective's notes also indicate

that Banks said "Keith" had "corn rows." This fact likely

explains why the prosecutor did not seek to impeach Banks's

testimony at trial when she testified that "the one that was

shooting [had] braids" and was walking up the driveway to house.
Detective McTernan's notes of the pretrial interviews

specifically indicate: "Cadillac pulled up, guy got out, started

walking toward house and started firing." Her notes also contain

the sentence, "Nash w/ braids walks up and starts firing." The

notes are consistent with Taylor's defense that Nash was the only

shooter and also are consistent with the certificate of analysis,

which indicates that the police submitted for examination six

cartridge cases -- all of which were identified as having been

fired from one gun. No police witness supports Hill's testimony

that "eight to twelve" .22 caliber cartridge cases were

recovered.

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 Perhaps even with this impeachment, the trial judge could

still rely on testimonies of the witnesses to convict Taylor.

"But, the question is not whether the State would have had a case

. . . if it had disclosed the favorable evidence, but whether we

can be confident that the . . . verdict would have been the

same." Kyles v. Whitley, 514 U.S. 419, 453 (1995). The Supreme

Court has explained the test as follows:

Although the constitutional duty is triggered
by the potential impact of favorable but
undisclosed evidence, a showing of
materiality does not require demonstration by
a preponderance that disclosure of the
suppressed evidence would have resulted
unlimitedly 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).
Bagley's touchstone of materiality is a
"reasonable probability" of a different
result, and the adjective is important. The
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. A "reasonable
probability" of a different result is
accordingly shown when the government's
evidentiary suppression "undermines
confidence in the outcome of the trial."
Id. at 434 (citations omitted).

The Supreme Court also has placed "emphasis" on the

principle that the materiality analysis "is not a sufficiency of

evidence test." Id. at 434. Thus, "[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 434-35. Instead, a defendant

only needs to show "that the favorable evidence could reasonably

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be taken to put the whole case in such a different light as to

undermine confidence in the verdict." Id. at 435.

The reliability of the Commonwealth's witnesses' versions of

events was not unimpeachable. Although both Hill and his wife

identified two shooters, portions of Hill's testimony are

inconsistent with the detective's notes, which indicate Hill

said, "[Taylor] got out Cadillac." Testifying she observed the

bulk of the shootings from inside the house, Hill's wife also

demonstrated inaccuracies that question the quality of her

account. For example, although other testimonies proved that

Nash was the first to shoot, that Taylor was standing next to

either the Toyota or the mailbox, and that Hill pushed his wife

into the house immediately after the initial shots, Hill's wife

nevertheless testified that she was able to observe a gun in

Taylor's hands and that Taylor "was walking as he was pointing

and shooting." Other witnesses testified that it was Nash who

was shooting as he walked toward the house. In addition,

contrary to Hill's testimony, his wife indicated that Nash was

the person who fell back onto the car.
Likewise, although Hill's daughter testified "they" were

shooting, she ran further into the house after hearing two shots.

Hill's son testified, however, that Nash fired the first two

shots. Hill's son also testified that he observed Taylor by the

mailbox, but he was ducking in the vehicle and did not actually

see Taylor in the act of shooting a gun. In light of these

accounts and the disclosures in the pretrial interviews, Taylor's

defense, that the Commonwealth's witnesses mistook Nash for

Taylor as the events quickly unfolded, certainly would be

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strengthened. In short, as the Supreme Court noted in Kyles,

"[d]isclosure of their statements would have resulted in a

markedly weaker case for the prosecution and a markedly stronger

one for the defense." 514 U.S. at 441.

This evidence "if disclosed and used effectively," Bagley,

473 U.S. at 676, would have brought into sharp focus Taylor's

defense that the witnesses' trial testimony was simply mistaken

and, in some instances, contradictory to their pretrial

recollection of the events. Confidence that the verdict would

have been unaffected cannot survive when suppressed evidence

would have allowed the fact finder to conclude that some key

witnesses previously failed to implicate Taylor as a shooter,

that pretrial statements are consistent with the certificate of

analysis' finding that a single gun fired all the recovered

bullets, and that the only disinterested witness, Banks, did not

observe Taylor with a gun or fire a shot. I would hold,

therefore, that the notes that the Commonwealth should have

disclosed to Taylor's attorney contained impeachment and

exculpatory evidence and were material. Because the suppression

of the evidence in this case "undermines confidence in the

outcome of the trial," Bagley, 473 U.S. at 678, I dissent.

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