Present: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and
Agee, JJ., and Stephenson, S.J.
TIMOTHY GLEN WORKMAN
v. Record No. 052411 OPINION BY JUSTICE DONALD W. LEMONS
November 3, 2006
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether evidence discovered
by the defendant after trial and before sentencing was
exculpatory in nature and should have been disclosed to
Timothy Glen Workman (“Workman”) by the Commonwealth prior to
trial.
I. FACTS AND PROCEEDINGS BELOW
Workman was an agent for the United States Drug
Enforcement Administration ("DEA") on temporary assignment in
Roanoke, Virginia. While off-duty, he was involved in an
altercation with Keith E. Bailey ("Bailey") and James A.
Bumbry, II (“Bumbry”). Workman shot and killed Bailey.
Although he claimed that he acted in self-defense, Workman was
charged with first-degree murder and use of a firearm in the
commission of murder. A jury acquitted him of murder and use
of a firearm in the commission of murder; however, the jury
found Workman guilty of voluntary manslaughter. The trial
court sentenced Workman to six years and nine months in prison
in accordance with the jury's verdict; however, the trial
court suspended one year and nine months of the sentence.
On the evening preceding the early morning shooting,
Workman had been drinking alcoholic beverages at the bar of a
restaurant. When the restaurant closed in the early morning
hours, Workman accompanied a woman he had met at the bar,
Melissa Booth (“Booth”), to her car in the parking lot. While
they were sitting in Booth's car, another car came beside them
facing the same direction. Bailey and Bumbry, who had been in
the restaurant that evening, were in the adjacent car. They
motioned for Booth to roll down her window. Workman testified
that Booth "seemed kind of alarmed or confused, who are these
guys, why are they pulling up beside me." Nonetheless, Booth
rolled down her window. Bailey and Bumbry questioned why
Booth was with Workman. The verbal exchange escalated when
Workman "flipped the finger" to Bailey and Bumbry in response
to their comments. Both Bailey and Bumbry left their car.
Workman testified that he heard Bailey say, "I'll fucking kill
you, you bitch." At that time, Workman retrieved a pistol
from his ankle holster and put it in his right rear pocket.
Booth saw Workman transfer the gun at which time Workman
identified himself to Booth as "a cop." When Workman opened
the passenger side door of Booth's car, he saw Bailey "at the
end of the trunk coming straight at [him] yelling" that he
2
knew Booth and that Workman did not have "any business in
[Booth's] vehicle."
Workman responded by telling Bailey to "get [his] ass
back in the car." According to Workman, Bailey was undeterred
and grabbed Workman by the throat and pinned him against the
open passenger side door. Workman testified that as he was
being assaulted by Bailey, he saw Bumbry coming toward the two
men from the front of the car. Workman said that Bumbry was
"draw[ing] a small frame automatic [weapon] from his pocket"
and that the weapon was "coming towards the back of
[Workman's] head."
According to Workman, at this point in the struggle, he
drew his own weapon and "began to raise it" hoping that Bailey
would step back and Workman could confront Bumbry. But Bailey
grabbed Workman's gun and the two men struggled for the weapon
while falling toward the passenger seat of the car. Workman
testified that he told Bailey that he was "a cop" but the
struggle for the gun continued. Workman stated that "[w]ith
one man coming behind [him] with a gun, at that time [he]
figured [he] had nothing else to do. So [he] tried pulling
the trigger." The first shot missed Bailey. As they fell
into Booth's car, Workman shot two more times because Bailey
was "kind of on top of [him]" and "pull[ed] the trigger one
more time" as the fight continued. When Bailey finally fell
3
to the pavement, Workman saw Bumbry and Booth drive away in
their cars.
Booth testified that she did not know Bailey or Bumbry
but had seen them earlier that night in the bar. She stated
that she saw Workman with a gun but did not see Bailey with a
weapon. Further, she testified that she did not know whether
Bumbry had a gun. Two bystanders each testified that they
witnessed an argument between Bailey and Workman and that
Bailey was choking Workman by his throat. They heard shots
and saw both Bumbry and Booth drive away.
Forensic evidence revealed that four shots were fired
from Workman's gun with one lodging in the car seat and three
others making close-range "contact" wounds to Bailey's body.
Bailey's hands tested positive for the presence of gunpowder
residue. Furthermore, DNA testing revealed the presence of
Workman's flesh under Bailey's fingernails. Blood alcohol
analysis revealed that both Workman and Bailey were
intoxicated at the time of the altercation.
Workman was indicted for first-degree murder and use of a
firearm in the commission of murder. Workman’s counsel filed
a motion for discovery and inspection and for exculpatory
evidence and a motion for a bill of particulars. The trial
court entered an order requiring the Commonwealth to provide
all information to which the defendant was entitled pursuant
4
to Brady v. Maryland, 373 U.S. 83 (1963). Following the
discovery order and in exchange for the defendant’s
withdrawing his motion for a bill of particulars, the
Commonwealth’s Attorney "opened" the entire file to the
defendant and his counsel for review.
At trial, the central issue was whether Workman acted in
self-defense, which depended in part upon whether Bumbry
possessed a weapon as he approached Workman and Bailey.
Workman testified that Bumbry was armed; Bumbry testified that
he was not.
After the trial but prior to sentencing, Workman learned
for the first time of previously undisclosed evidence that he
maintains could have been used to impeach the credibility of
Bumbry and that supports the contention that Workman acted in
self-defense. The undisclosed evidence was a pre-trial
statement made by Jerry Lee Mackey, Jr. (“Mackey”) to
Detective M. E. Meador ("Meador") of the Roanoke City Police
Department and Officer Kenneth Garrett ("Garrett") of the
Roanoke City Police Department who was also cross-designated
as a DEA agent. Mackey stated that a man, later identified as
George T. Fitzgerald (“Fitzgerald”), told him that Bumbry
tried to pass a gun to Bailey during the altercation in the
parking lot and that Bumbry "fled the scene with the weapon."
After learning of Mackey’s pre-trial statement, Workman’s
5
private investigator, Peter W. Sullivan (“Sullivan”),
interviewed Mackey and learned of two recent incidents
witnessed by Mackey when Bumbry had used a firearm in
altercations with others. One incident took place at a
nightclub called "Ghost of Hollywood." Mackey reported that
he saw Bumbry shooting at people with a .40 caliber Desert
Eagle pistol. Mackey personally witnessed another recent
shooting incident at "Iris' Barbershop" where Bumbry had
"several guns" and was shooting at a man named J. D. Kasey.
Additionally, Mackey’s statements led to the discovery of a
pre-trial statement by Fitzgerald that Bumbry recently fired a
gun at Fitzgerald. Workman filed a motion for a new trial
based upon the discovery of this undisclosed exculpatory
information.
The trial court denied Workman’s request for a new trial.
The trial court characterized Mackey’s first statement as
inadmissible hearsay that did not meet the Brady materiality
test. Nonetheless, the trial court stated that it was
exculpatory evidence that should have been disclosed because
it reasonably would have led to Mackey’s subsequent
statements. However, the trial court held that Mackey’s other
statements were cumulative evidence that were not material
under Brady. Finally, the trial court concluded that
Fitzgerald’s statement would have resulted in "a separate
6
trial within a trial" and noted that it was Fitzgerald who was
found guilty of maliciously wounding Bumbry. For these
reasons, the trial court concluded that Workman’s claims did
“not rise to a reasonable probability that the result of the
proceeding would have been different.”
The Court of Appeals of Virginia affirmed Workman's
conviction in an unpublished opinion. After a petition for
rehearing and petition for rehearing en banc were denied,
Workman filed a notice of appeal to this Court. We granted
the appeal on the sole issue of whether the Commonwealth’s
failure to provide Workman with exculpatory evidence about
Bumbry deprived Workman of a fair trial under Brady v.
Maryland, 373 U.S. 83 (1963) and its progeny so as to require
reversal of Workman’s conviction.
II. EXCULPATORY EVIDENCE
Workman alleges that the Commonwealth erroneously denied
him the exculpatory evidence we will refer to as "Mackey I"
wherein Mackey told Detective Meador and Officer Garrett on
February 15, 2002, that Bumbry tried to pass Bailey a gun in
the restaurant's parking lot. As Meador and Garrett
interviewed Mackey on a homicide unrelated to the Workman
case, Mackey said:
“So uh also on a DEA matter, at the Ole Charley’s
Restaurant, uh, JAMES, JAMES II BUMBRY, JAMES
BUMBRY, II, uh was with KEITH, what’s his last
7
name. He’s the one . . . tried to pass KEITH a
gun and the officer, DEA had to respond, whatever
happened and JAY II, . . . all that JAY II fled
the scene with the weapon. . . . I got that
information over the phone from several uh people
that’s been out there in the streets, just
calling friends, reliable friends, . . . said.”
Meador told the lead investigator on the Workman case,
Detective Shawn Lukacs (“Lukacs”) of the Roanoke City Police
Department, about Mackey’s statement. Meador told Lukacs that
Mackey refused to provide the source of the information.
Garrett indicated that the interview was tape-recorded.
Mackey, however, told Workman’s private investigator,
Sullivan, that he told the police that Fitzgerald was his
source.
Lukacs interviewed Mackey in mid-March 2002 on a separate
case; however, Mackey did not provide Lukacs with additional
information on the Workman case. Significantly, Lukacs’
testimony does not indicate if he asked Mackey questions
regarding the Workman case. In fact, Mackey told Sullivan
that no one from the police department or the prosecutor’s
office followed up with him to learn more information
regarding Bailey's shooting.
Lukacs knew the contents of Mackey I, however, it did not
become a part of Workman’s investigative case folder. After
the defense received the DEA’s permission to interview
Garrett, Garrett did not disclose Mackey I to the defense.
8
Garrett was only permitted by the DEA to answer questions that
were asked in writing. There is no indication in the
transcripts that Garrett was asked any questions about
exculpatory evidence. In fact, the first time Garrett
mentioned Mackey I to anyone was when he spoke with Sullivan
after Workman’s trial.
In summary, the evidence shows that Meador, Lukacs and
Garrett all had knowledge of Mackey I, however, it was not
disclosed to Workman prior to trial. Additionally, there is
no indication that the prosecutor had actual knowledge of
Mackey I. In fact, the Commonwealth emphasized in its closing
argument before the jury that there was “no corroboration for”
Workman’s claim that Bumbry was coming at him with a gun
during the incident. Workman asserts that if the Commonwealth
had properly turned over the exculpatory statement of Mackey
I, it would have led to additional exculpatory statements
including "Mackey II," "Mackey III," and "Fitzgerald I."
Mackey II includes two statements that Mackey made to
Sullivan on November 20, 2002. First, Mackey stated that
Bumbry always carried a gun and that he had access to several
guns. In fact, Mackey saw Bumbry with guns “very often, all
the time, in clubs and just on the block hanging.” Second,
Mackey personally observed James Bumbry with a gun shooting at
individuals on two separate occasions. Mackey was at the
9
"Ghost of Hollywood" where Bumbry pulled out a .40 caliber
firearm and began shooting at Mackey and his friends. Mackey
was also at "Iris’ Barbershop" when Bumbry and J.D. Kasey
began arguing. After leaving Iris’, Bumbry returned with
several guns and with his friend Timmy Cunningham. Mackey was
getting his hair cut at Iris’ when Bumbry ran out of Iris’ and
started shooting at Kasey.
Mackey III includes two additional statements that Mackey
made to Sullivan on November 20, 2002. First, Mackey stated
that Bumbry shot Fitzgerald. Mackey did not have personal
knowledge of this shooting because he was in jail at the time
of the incident. According to Mackey, Bumbry and Fitzgerald
“had words” and were “supposed to had got in a fist fight,”
without guns. After picking up Timmy Cunningham and Shawn
Hogney and on his way to fight Fitzgerald at Melrose Park,
Bumbry stopped at a stoplight. Mackey said that Bumbry
“pulled out a gun and somebody out of the car with, umm,
[Fitzgerald] started shooting” and Bumbry was shot in the
head. Second, Mackey directly identified Fitzgerald as his
source of Mackey I. Mackey said that Fitzgerald told him
that: Bumbry “pulled out a gun, tried to pass Keith [Bailey]
the gun, and the [DEA] agent shot [Bailey], and [Bumbry] sped
off and left, left the scene.” Mackey also indicated that
10
Fitzgerald was at the restaurant the night Bailey was killed
and thought Bumbry was carrying a gun.
Mackey III led Workman's investigator to interview
Fitzgerald. On November 30, 2002, Sullivan visited Fitzgerald
in the Roanoke City Jail to verify that Fitzgerald had a
conversation with Mackey regarding the Workman case.
Fitzgerald refused to identify someone present at the
restaurant who could testify that Bumbry had a gun. Then, on
April 9, 2003, Sullivan visited Fitzgerald at the Bland
Correctional Facility trying to again find out who called
Fitzgerald from the restaurant stating that Bumbry had a gun.
While Fitzgerald did not disclose his source, Fitzgerald did
tell Sullivan that Bumbry had previously threatened and shot
at Fitzgerald. Sullivan subsequently learned that Officer J.
W. Michael with the Roanoke City Police Department had taken
Fitzgerald’s written statement ("Fitzgerald I") with respect
to the shooting between Fitzgerald and Bumbry.
Fitzgerald stated in Fitzgerald I that on November 9,
2001, Bumbry had an altercation with Fitzgerald’s associate at
the Z-Mart on Melrose Avenue, in Roanoke. Later that day,
Fitzgerald and some friends were in a car stopped at a red
light. A vehicle occupied by Bumbry, Tim Cunningham, and
others came beside Fitzgerald’s vehicle. Fitzgerald saw
“Bumbry stick his arm out the window thats when I ducked and I
11
heard some 7 shots.” Officer Michael stated Fitzgerald’s
videotaped statement could not be found, however, a written
transcription admitted as Defendant’s Exhibit 4 in post-trial
motions provides: “[Bumbry] rolled down the rear window and
shot out of that, as well. Fitzgerald admitted that there
were shots fired from his car, but did not know who fired
them.” Officer Michael testified that Fitzgerald’s videotaped
statement and his written statement would have gone to the
records division at the police department. Fitzgerald was
later tried and convicted of maliciously wounding Bumbry in
Roanoke City Circuit Court. At Workman’s trial, Bumbry
testified that he was involved in a shooting incident in which
he was shot in the head, however, he did not identify
Fitzgerald as the shooter.
III. ANALYSIS
Our analysis must begin with consideration of the
evidence we have identified herein as "Mackey I." Workman
maintains that the Commonwealth was required under Brady v.
Maryland, 373 U.S. 83 (1963) and its progeny to disclose this
statement and further that disclosure would have led to the
evidence we have identified herein as Mackey II, Mackey III,
and Fitzgerald I.
In Strickler v. Greene, 527 U.S. 263, 280-81 (1999), the
Supreme Court of the United States stated:
12
In Brady, this Court held "that the
suppression by the prosecution of evidence
favorable to an accused upon request violates due
process where the evidence is material either to
guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution." 373 U.S.
at 87. We have since held that the duty to
disclose such evidence is applicable even though
there has been no request by the accused, United
States v. Agurs, 427 U.S. 97, 107 (1976), and
that the duty encompasses impeachment evidence as
well as exculpatory evidence, United States v.
Bagley, 473 U.S. 667, 676 (1985). Such evidence
is material "if there is a reasonable probability
that, had the evidence been disclosed to the
defense, the result of the proceeding would have
been different." Id., at 682; see also Kyles v.
Whitley, 514 U.S. 419, 433-434 (1995). Moreover,
the rule encompasses evidence "known only to
police investigators and not to the prosecutor."
Id. at 438. In order to comply with Brady,
therefore, "the individual prosecutor has a duty
to learn of any favorable evidence known to the
others acting on the government's behalf in this
case, including the police." Kyles, 514 U.S. at
437.
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.
Id. at 281-82. Stated differently, "[t]he question is not
whether the defendant would more likely than not have received
a different verdict with the evidence, but whether in its
13
absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence." Kyles v.
Whitley, 514 U.S. 419, 434 (1995). "[A] constitutional error
occurs, and the conviction must be reversed, only if the
evidence is material in the sense that its suppression
undermines confidence in the outcome of the trial." United
States v. Bagley, 473 U.S. 667, 678 (1985).
Clearly, the withheld evidence including that which
Workman maintains the Mackey I statement would have led to
must be considered to be favorable to him for impeachment of
Bumbry and contradiction of one of the Commonwealth's primary
themes in the case, namely, that Bumbry was unarmed.
Additionally, it is not contested that the evidence was not
disclosed to Workman. Therefore, materiality of the evidence
in question becomes an issue for consideration.
In Kyles, the Supreme Court of the United States made
several holdings concerning the test of materiality. First,
"a showing of materiality does not require demonstration by a
preponderance that disclosure of the suppressed evidence would
have resulted ultimately in the defendant's acquittal (whether
based on the presence of reasonable doubt or acceptance of an
explanation for the crime that does not inculpate the
defendant.)” Kyles, 514 U.S. at 434. Second, materiality is
not a sufficiency of the evidence test. "A defendant need not
14
demonstrate that after discounting the inculpatory evidence in
light of the undisclosed evidence, there would not have been
enough left to convict." Id., at 434-45. Third, a harmless
error analysis is unnecessary once materiality has been
determined. Id. at 435. Fourth, suppressed evidence must be
"considered collectively, not item by item." Id. at 436.
Upon consideration of these factors, a reviewing court is
charged with the responsibility of determining if the
suppression of evidence "undermines confidence in the outcome
of the trial." Bagley, 473 U.S. at 678.
The trial court held that Mackey I did not meet the
materiality test because it was "mired in hearsay, opinion and
conjecture" and inadmissible. The trial court further held
that the statement should have been disclosed to Workman and
that its disclosure would have led to Mackey's statement about
Fitzgerald. However, the trial court held that the Fitzgerald
statement "does not rise to a reasonable probability that the
result of the proceeding would have been different."
On appeal, the Court of Appeals held that both the Mackey
I and the Fitzgerald I statements were inadmissible. Although
the Court of Appeals did not mention Mackey II and III, it
further held that "[n]o evidence tended to show that the
prosecutor or the police had undisclosed information about
Bumbry's specific acts of violence and propensity toward
15
violence." As a consequence, the Court of Appeals affirmed
the conviction stating, "We hold that the record supports the
trial judge's finding that the evidence failed to establish
materiality in the constitutional sense."
We disagree with the trial court and the Court of
Appeals. First, while Mackey I may not have been admissible
for the truth of the matter asserted, it was admissible for a
different reason. See Winston v. Commonwealth, 268 Va. 564,
591, 604 S.E.2d 21, 36 (2004). In particular, pursuant to
Kyles, Mackey I was admissible to discredit the police
investigation.
In a criminal case, the prosecutor must “ ‘make timely
disclosure to the defense of all evidence or information known
to the prosecutor that tends to negate the guilt of the
accused or mitigates the offense.’ ” Kyles, 514 U.S. at 437
(1984) (citations omitted). In fact, "the prosecutor remains
responsible for gauging [the] effect [of undisclosed evidence]
regardless of any failure by the police to bring favorable
evidence to the prosecutor’s attention.” Id. at 421. More
specifically, "the individual prosecutor has a duty to learn
of any favorable evidence known to the others acting on the
government’s behalf in the case, including the police.” Id.
at 437. In this case, the Commonwealth concedes that the
investigators’ knowledge of Mackey I was chargeable to the
16
Commonwealth. Furthermore, the trial court’s discovery order
plainly mandated disclosure of such information.
In Kyles, the Supreme Court held that evidence concerning
the reliability of police investigations may be admissible.
Kyles, 514 U.S. at 446. The Court favorably cited Bowen v.
Maynard, 799 F.2d 593, 613 (10th Cir. 1986) ("A common trial
tactic of defense lawyers is to discredit the caliber of the
investigation or the decision to charge the defendant, and we
may consider such use in assessing a possible Brady
violation."). The Court also favorably cited Lindsey v. King,
769 F.2d 1034, 1042 (5th Cir. 1985) (awarding new trial of
prisoner convicted in Louisiana state court because withheld
Brady evidence "carried within it the potential . . . for the
. . . discrediting . . . of the police methods employed in
assembling the case.").
Workman could have used Mackey I to discredit the police
investigation by attacking the “thoroughness and even the good
faith of the investigation” by failing to adequately follow up
on Mackey I. Kyles, 514 U.S. at 445. Detective Meador was
interviewing Mackey on an unrelated crime when he learned of
Mackey I. Officer Garrett was present as well. Meador
subsequently shared the contents of Mackey I with Detective
Lukacs, the lead investigator on Workman’s case. Neither
17
Lukacs, Meador, nor Garrett further investigated Mackey's
statement.
Additionally, the police officers did not inform the
prosecutor of Mackey I and the transcript of Mackey I was not
in the investigative file on Workman. Had this information
been known to Workman, he could “have attacked the reliability
of the investigation in failing even to consider” Mackey I’s
import. Kyles, 514 U.S. at 446. Mackey I would have been a
powerful tool for the defense not for its truth but rather to
support its contention that police investigation was
inadequate because it failed to further investigate
conflicting evidence regarding Bumbry’s contention that he did
not have a gun at the scene of the shooting.
Having determined that Mackey I was admissible and was
material in every sense under Brady and its progeny, we must
consider what would have reasonably been discovered from
proper disclosure. It is quite clear that Workman's
investigator, Sullivan, when apprised of Mackey I after jury
verdict but before sentencing, interviewed Mackey and
discovered Mackey's personal knowledge of two recent "shoot
outs" involving Bumbry (Mackey II). Clearly, there was
nothing inadmissible about Mackey's firsthand observations of
Bumbry discharging firearms in Mackey's presence.
Additionally, Sullivan was led to Fitzgerald, who recounted
18
another recent shooting incident, which he personally
observed, where Bumbry discharged a firearm. There was
nothing inadmissible about Fitzgerald recounting his personal
knowledge of Bumbry's use and discharge of a firearm.
As we have stated, Mackey I was admissible to attack the
reliability of the police investigation. But even if not
admissible, admissibility at trial is not the final arbiter of
any Brady violation.
Evidence may be material under Brady even
though it is inadmissible. When assessing the
materiality of inadmissible evidence, we apply
the general Brady test and "ask only . . .
whether the disclosure of the evidence would have
created a reasonable probability that the result
of the proceeding would have been different."
Because of the requirement that the outcome of
the proceeding be affected, we often consider
whether the suppressed, inadmissible evidence
would have led to admissible evidence.
United States v. Sipe, 388 F.3d 471, 485 (5th Cir. 2004)
(citing Felder v. Johnson, 180 F.3d 206, 212 (5th Cir. 1999));
see also United States v. Gil, 297 F.3d 93, 104 (2nd Cir.
2002) (" '[I]nadmissible evidence may be material under
Brady.' ") (quoting Spence v. Johnson, 80 F.3d 989, 1005 n.14
(5th Cir. 1996); Wright v. Hopper, 169 F.3d 695, 703 (11th
Cir. 1999) (“Inadmissible evidence may be material if the
evidence would have led to admissible evidence.”); Coleman v.
Calderon, 150 F.3d 1105, 1116 (9th Cir. 1998) (“To be
material, evidence must be admissible or must lead to
19
admissible evidence.”); United States v. Phillip, 948 F.2d
241, 249 (6th Cir. 1991) ("Certainly, information withheld by
the prosecution is not material unless the information
consists of, or would lead directly to, evidence admissible at
trial for either substantive or impeachment purposes.").
The reliance of the trial court and the Court of Appeals
on Wood v. Bartholomew, 516 U.S. 1 (1995) and Soering v.
Deeds, 255 Va. 457, 499 S.E.2d 514 (1998) is misplaced. In
Wood, the habeas corpus petitioner maintained that the
prosecution improperly withheld the results of a polygraph
exam. 516 U.S. at 2. The polygraph exam was not admissible
under state law. Id. at 6. The petitioner could point to no
admissible evidence that knowledge of the polygraph testing
results would have revealed. Id. at 6-7. The Supreme Court
labeled as "speculation" that the disclosure of inadmissible
evidence would have led to admissible evidence. Similarly, in
Soering, the inadmissible evidence in question raised no more
than an abstract, "'mere possibility that an item of
undisclosed information might have helped the defense.'" 255
Va. at 465, 499 S.E.2d at 518 (quoting United States v. Agurs,
427 U.S. 97, 109-10 (1976). Here, by contrast, Workman
proffers admissible evidence that would have been discovered
if he had known of Mackey I.
20
The Commonwealth maintains that its agents are only
required to disclose what they knew at the time and that they
did not know of Mackey II and III and Fitzgerald I. The
evidence is not contested that Meador, Garrett, and Lukacs
knew of Mackey I even if the prosecutor did not. As the
previously cited cases demonstrate, it is not necessary that
the Commonwealth know what would have been discovered if
proper disclosure of Mackey I had been made.
Additionally, the Commonwealth maintains that Workman's
Brady claims fail because if Workman had exercised reasonable
diligence, Workman could have discovered Mackey I on his own.
The Commonwealth notes that Garrett interviewed Mackey,
Workman interviewed Garrett and Garrett testified at trial.
Based on these factors, the Commonwealth submits that if
Workman "exercised reasonable diligence" in interviewing
Garrett, Workman "could have located" Mackey I,
"notwithstanding the absence of the information in the
Commonwealth's file." This argument ignores Workman's
reasonable reliance upon the Commonwealth's "open file"
response to his discovery motion. In Strickler, the Supreme
Court stated that "if a prosecutor asserts that he complies
with Brady through an open file policy, defense counsel may
reasonably rely on that file to contain all materials the
State is constitutionally obligated to disclose under Brady."
21
527 U.S. at 283. Consequently, under Strickler, Workman
cannot be faulted for relying on the Commonwealth's open file
policy and cannot, on these facts, be found to have failed to
exercise reasonable diligence.
Workman's claim of self-defense would have been
significantly aided by knowledge of Mackey I, II, and III and
Fitzgerald I. We have very recently held:
In Virginia, the rule in criminal cases is that,
when a defendant adduces evidence of self-
defense, proof of specific acts is admissible to
show the character of the victim for turbulence
and violence, even when the defendant is unaware
of such character. Barnes v. Commonwealth, 214
Va. 24, 25-26, 197 S.E.2d 189, 190 (1973); Stover
v. Commonwealth, 211 Va. 789, 794, 180 S.E.2d
504, 508 (1971). When admissible, such evidence
bears upon the questions of who was the aggressor
or what was the reasonable apprehension of the
defendant for his safety.
Upon the question of who was the aggressor,
the issue is what the victim probably did, and
evidence of recent acts of violence toward third
persons ought to be received, if connected in
time, place, and circumstance with the crime, as
to likely characterize the victim's conduct
toward the defendant. Randolph v. Commonwealth,
190 Va. 256, 265, 56 S.E.2d 226, 230 (1949). See
Burford v. Commonwealth, 179 Va. 752, 766-67, 20
S.E.2d 509, 515 (1942); Rasnake v. Commonwealth,
135 Va. 677, 697-98, 115 S.E. 543, 549-50 (1923).
McMinn v. Rounds, 267 Va. 277, 281, 591 S.E.2d 694, 697
(2004). Here, Workman was deprived of introducing evidence of
three recent incidents involving Bumbry firing weapons at
others. Most certainly, such evidence has the potential to be
22
powerful impeachment of Bumbry's statement at trial that he
did not have a gun at the scene and his denial that he "had
been involved with a criminal offense involving firearms . . .
[or had been] [p]ulling a firearm on somebody? Pointing a gun
at somebody?" Additionally, it comprised evidence of
Workman's reasonable apprehension for his safety and evidence
of who was the aggressor in this altercation.
The credibility of Bumbry versus that of Workman was a
significant issue at trial. The prosecution and the Court of
Appeals in its opinion place great emphasis upon Bumbry's
testimony. Their emphasis demonstrates how critical
impeachment evidence was to Workman's case.
The Commonwealth maintains that there was evidence before
the jury that Bumbry had displayed a weapon and even pointed
the weapon at a Deputy Sheriff four years before the incident
in this case. The Commonwealth argues that further evidence
of Bumbry's possession and use of weapons would have been
cumulative. However, the Commonwealth discounted the incident
as isolated and not recent. The more recent incidents
represented by Mackey II and III and Fitzgerald I had the
potential to powerfully contradict the Commonwealth's argument
to the jury. We do not consider these incidents to be
cumulative in nature.
23
We hold that the Commonwealth breached its duty under
Brady and its progeny to disclose the statement we have
identified as Mackey I. Furthermore, it was admissible to
attack the reliability of the police investigation especially
considering that no further investigation of the statement was
made by police. Even if inadmissible, Mackey I would have led
to admissible evidence and consequently, was subject to
disclosure. The undisclosed evidence and the evidence that
would have been discovered before trial were material. The
nondisclosure under the circumstances of this case undermines
confidence in the outcome of the trial.
IV. CONCLUSION
The trial court and the Court of Appeals erred in denying
Workman a new trial because of Brady violations. We will
reverse the judgment of the Court of Appeals and reverse
Workman's voluntary manslaughter conviction, and remand this
case for retrial if the Commonwealth be so advised for an
offense no greater than voluntary manslaughter.
In Price v. Georgia, the Supreme Court considered whether
the state of Georgia could retry an accused for murder after
an earlier guilty verdict on the lesser included offense of
voluntary manslaughter had been set aside because of an error
at trial. 398 U.S. 323, 324 (1970). The Supreme Court held
that jeopardy for an offense does not continue after an
24
acquittal, "whether that acquittal is express or implied by a
conviction on a lesser included offense when the jury was
given a full opportunity to return a verdict on the greater
charge." Id. at 329; see Powell v. Commonwealth, 261 Va. 512,
545-46, 552 S.E.2d 344, 363 (2001). Consequently, having been
placed in jeopardy on the charge of murder and acquitted of
murder by the jury, Workman may be retried only for an offense
not greater than that upon which his conviction was based,
namely, voluntary manslaughter.
Accordingly, we will remand the case for a new trial on a
charge no greater than voluntary manslaughter for the killing
of Keith E. Bailey, if the Commonwealth be so advised.
Reversed and remanded.
25