Tuma v. Commonwealth

726 S.E.2d 365, 60 Va. App. 273, 2012 WL 2092798, 2012 Va. App. LEXIS 203
CourtCourt of Appeals of Virginia
DecidedJune 12, 2012
DocketRecord 0919-10-2
StatusPublished
Cited by4 cases

This text of 726 S.E.2d 365 (Tuma v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tuma v. Commonwealth, 726 S.E.2d 365, 60 Va. App. 273, 2012 WL 2092798, 2012 Va. App. LEXIS 203 (Va. Ct. App. 2012).

Opinions

BEALES, J.,

dissenting.

Today I fear the Court effectively creates a broader rule under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), than the United States Supreme Court and Virginia’s appellate courts have ever before established under Brady. The majority opinion effectively holds in this case that the failure to disclose any prior inconsistencies by a complaining witness in a child sexual abuse case per se renders that evidence “material” under Brady and its progeny, and, therefore, will require reversal of the conviction.20 Today’s holding, I fear, waters down the clear and settled requirement for a defendant to establish that he has actually been prejudiced by the failure to disclose impeachment evidence in order to prevail in a Brady claim and get his conviction overturned.

I find no basis in the case law for applying the materiality requirement of a Brady claim as loosely as the majority does [315]*315here—particularly in a case, such as this one, where the new impeachment evidence does not call into question whether the witness misidentified the defendant, does not call into question whether the witness had a motive to fabricate the allegation of sexual abuse, and does not call into question whether the witness revealed something during her interview with the authorities that otherwise would significantly damage the credibility of her core accusation of sexual abuse at trial. To the extent L.S.’s statements before trial and at trial were inconsistent (and were not already known from the pre-trial disclosure of the written summary of the interview), several such inconsistencies were presented to the jury by defense counsel and others could have been presented by defense counsel based on what was learned during the trial. Moreover, as I discuss more at length below, the only actual type of inconsistency here from L.S. that would even be the proper subject of a Brady analysis in this case concerned the same type of inconsistency that was already presented to—and considered by—the jury.

For these reasons—and for the reasons that follow—I respectfully dissent from the majority’s opinion that reverses appellant’s convictions for taking indecent liberties with a child, for aggravated sexual battery of a child, and for animate object sexual penetration of a child. I would affirm each of those convictions.21

[316]*316I. The Brady Rule

In Brady, the United States Supreme 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.” Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. “ ‘If the defendant does not receive such evidence, or if the defendant learns of the evidence at a point in the proceedings when he cannot effectively use it, his due process rights as enunciated in Brady are violated.’ ” Muhammad v. Warden of Sussex I State Prison, 274 Va. 3, 4, 646 S.E.2d 182, 186 (2007) (quoting Muhammad v. Commonwealth, 269 Va. 451, 510, 619 S.E.2d 16, 49-50 (2005)).

However, case law makes very clear that “constitutional error occurs, and the conviction must be reversed, only if the evidence is material” in the Brady sense. Teleguz v. Commonwealth, 273 Va. 458, 488, 643 S.E.2d 708, 727 (2007); see United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381-82, 87 L.Ed.2d 481 (1985). According to the United States Supreme Court’s decision in Bagley, evidence is material under Brady “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.

The “reasonable probability” discussed in Bagley is defined as “a probability sufficient to undermine confidence in the outcome.” Id. (emphasis added). Thus, what the Brady rule really tests is whether the defendant “received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). If the verdict is no longer worthy of confidence, then the defendant has been prejudiced under Brady and is entitled to a new trial. Conversely, if the verdict remains worthy of confidence, then the defendant has not been prejudiced under Brady and a new trial is not required. Thus, materiality under Brady is dependent on [317]*317prejudice to the defendant, as the Supreme Court of Virginia has explained:

“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.”

Garnett v. Commonwealth, 275 Va. 397, 406, 657 S.E.2d 100, 106 (2008) (emphasis added) (quoting Workman v. Commonwealth, 272 Va. 633, 644-45, 636 S.E.2d 368, 374 (2006)).

Viewed in this light, the withholding of impeachment evidence is not enough to constitute a Brady violation—rather, the withheld impeachment evidence must be “material” in the Brady sense, thereby causing prejudice to the defendant sufficient to undermine confidence in the outcome. See Lovitt v. Warden of Sussex I State Prison, 266 Va. 216, 245, 585 S.E.2d 801, 818 (2003) (“A prosecutor’s suppression of impeachment evidence creates a due process violation only if the suppression deprives the defendant of a fair trial under the Brady standard of materiality.” (emphasis added) (citing Bagley, 473 U.S. at 678, 105 S.Ct. at 3381; McDowell v. Dixon, 858 F.2d 945, 949 (4th Cir.1988))).

I largely agree with the majority opinion’s very thorough description of a prosecutor’s responsibilities and duties to uphold the principles of justice. Furthermore, I would assume without deciding for the purposes of this case that the prosecutor here should have listened to the audiotape of L.S.’s interview by Ms. Jon Webster Scheid of Dinwiddie County’s Department of Social Services and Investigator Dwayne Gilliam of the Dinwiddie County Sheriffs Office prior to trial— or, at least, once the issue of the audiotape was raised during the trial. As the majority correctly notes, the prosecutor in this case made certain representations to the trial court [318]*318concerning the contents of the audiotape without first having actually listened to the audiotape.

However, the ultimate focus of the Brady test is not and never has been to determine what steps the prosecutor should or should not have taken in a given case. Moreover, the purpose of the Brady test is not to catalog the areas where a witness’ testimony differs from her prior statements.

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726 S.E.2d 365 (Court of Appeals of Virginia, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
726 S.E.2d 365, 60 Va. App. 273, 2012 WL 2092798, 2012 Va. App. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tuma-v-commonwealth-vactapp-2012.