                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, ∗ Willis and Annunziata
Argued at Richmond, Virginia


DAVID EDWARD McCORD
                                            MEMORANDUM OPINION ∗∗ BY
v.   Record No. 2071-99-2                  JUDGE SAM W. COLEMAN III
                                                JANUARY 9, 2001
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                      Herbert C. Gill, Jr., Judge

             Steven D. Benjamin (Betty Layne DesPortes;
             Benjamin & DesPortes, P.C., on briefs), for
             appellant.

             John H. McLees, Jr., Senior Assistant
             Attorney General (Mark L. Earley, Attorney
             General, on brief), for appellee.


         David Edward McCord was convicted in a bench trial of two

counts of attempted forcible sodomy, two counts of forcible

sodomy, rape, and abduction with intent to defile.     On appeal,

McCord contends that the Commonwealth failed to disclose

exculpatory evidence in violation of the court's discovery order

and, as a result of those discovery violations, the trial court


     ∗
       Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
     ∗∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
erred by failing to declare a mistrial.       Finding no error, we

affirm.

                            I.   BACKGROUND

       On February 4, 1998, at approximately 7:00 p.m., the

twelve-year-old victim was walking her neighbor's dog.      The

defendant, David McCord, approached the victim and attempted to

befriend her by asking permission to pet and walk the dog.        As the

child attempted to leave, McCord grabbed and physically restrained

her.   He then sodomized and raped her, and then carried her to a

parking lot where he released her when he heard the child's mother

calling for her.

       The victim immediately reported the incident to the police.

She gave them a physical description of her attacker, including

his clothing.   Chesterfield County Police Officer Yager Burke

testified that the victim described her assailant as a "white

male, 15 or 16 years old.   Wearing a black coat, black shirt with

silver or light color on the shirt, khaki pants, black tennis

shoes."   She described him as having "very short, buzz cut blond

hair."    When she was interviewed again at the hospital, she added

that he had a bony nose and acne.

       On the night of the assault, Chesterfield Police Officer

Elizabeth Baker showed the victim two photo lineups.      The victim

did not identify anyone from either photo lineup as her assailant,

even though a photo of McCord with longer hair taken four months


                                 - 2 -
before the assault was in the second photo array.    The next day,

the victim worked with a police officer to complete a

computer-generated composite of the suspect.   Later that day, the

victim was shown a third photo lineup which contained a recent

photograph of McCord.   According to Officer Baker, the victim

"almost immediately" identified McCord as her assailant.   Baker

testified, however, that the victim displayed "somewhat" of a

reservation in identifying McCord.    Baker explained that the

victim told her that McCord's face looked "a little washed out"

and he "did not have as much acne as she thought."   However, on

cross-examination, Baker further stated that the victim

"positively" identified McCord in the third lineup, stating that

the photo looked exactly like her assailant.   Baker testified that

there appeared to be "no doubt" in the victim's mind when she

identified McCord as her assailant from the third photo lineup.

After the victim identified McCord from the third photo lineup,

Baker showed her a Polaroid photo of McCord that was used to make

the photo that was actually used in the third lineup.   Upon seeing

the original Polaroid photo, the victim stated that the photo "was

exactly like him."

     Based on the victim's identification of McCord in the third

photo lineup, McCord was arrested.    At the time he was arrested,

McCord gave Officer Baker his coat and a black shirt, which McCord

maintained his brother had been wearing on the day of the alleged


                              - 3 -
assault.   After McCord's arrest, the officers obtained a search

warrant for his home.    As a result of the search, the officers

seized a pair of shoes, which matched the victim's description of

the assailant's shoes.   The victim identified the clothing items

to be like those worn by the assailant.    She stated that the shoes

were identical to those worn by her assailant and that the style

of the coat looked liked the assailant's coat but she remembered

it as being "lighter [in color] than she thought."    She stated

that the coat smelled like the assailant.    The victim also

identified the shirt as being like the one worn by her assailant,

but she stated that she did not remember "that red was on the

shirt."

     A forensic scientist, who was qualified as an expert in trace

evidence, examined McCord's coat and the coat and sweater the

victim was wearing when she was assaulted.    The expert testified

that fibers found on McCord's coat were physically, chemically,

and optically consistent with fibers from the victim's clothing.

     Prior to trial, McCord requested disclosure of exculpatory

evidence from the Commonwealth.   He specifically requested and the

court ordered, "[a] description of any identification procedure

involving the defendant in which a witness failed to identify or

expressed any reservation about identifying the defendant."    The

discovery order further compelled the Commonwealth to produce "all

photographs or photograph arrays."     In response to the discovery


                               - 4 -
order, the Commonwealth disclosed the photos that were used in the

photo lineups that where shown to the victim.    The Commonwealth

did not give McCord the single Polaroid photo or disclose to him

that it was shown to the victim.

     At the conclusion of the Commonwealth's case, McCord moved

for a mistrial and dismissal of the charges.    He argued that the

Commonwealth failed to turn over the Polaroid photo in violation

of the discovery order that required the Commonwealth to provide

the defendant with "all photographs or photograph arrays."      He

also argued that the Commonwealth failed to disclose exculpatory

information because the Commonwealth failed to inform him that the

victim was uncertain or reluctant to identify him until after she

had been shown the single Polaroid photo.   McCord also argued

that, because the photo lineup was "tainted" by showing the victim

the single Polaroid photo, the evidence obtained as a result of

the search warrant and the victim's in-court identification of him

should be suppressed.

                          II.   ANALYSIS

     "[S]uppression 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).    "Favorable evidence is

material 'only if there is a reasonable probability that, had


                             - 5 -
the evidence been disclosed to the defense, the result of the

proceeding would have been different.    A "reasonable

probability" is a probability sufficient to undermine confidence

in the outcome.'"     Soering v. Deeds, 255 Va. 457, 464, 499

S.E.2d 514, 517 (1998) (quoting United States v. Bagley, 473

U.S. 667, 682 (1985)).    The reviewing court must "assess the

reasonable probability of a different result in 'light of the

totality of circumstances and with an awareness of the

difficulty of reconstructing in a post-trial proceeding the

course that the defense and the trial would have taken had the

defense not been misled by the [nondisclosure].'"     Taitano v.

Commonwealth, 4 Va. App. 342, 349, 358 S.E.2d 590, 594 (1987)

(citation omitted).    This test requires that the effect of the

suppressed evidence be considered collectively.     See Kyles v.

Whitley, 514 U.S. 419, 436 (1995).     Moreover, we have stated:

               Late disclosure does not take on
          constitutional proportions unless an accused
          is prejudiced by the discovery violations
          depriving him of a fair trial. So long as
          exculpatory evidence is obtained in time
          that it can be used effectively by the
          defendant, and there is no showing that an
          accused has been prejudiced, there is no due
          process violation. Read v. Virginia State
          Bar, 233 Va. 560, 564, 357 S.E.2d 544,
          546-47 (1987). It is the defendant's
          ability to utilize the evidence at trial,
          and not the timing of the disclosure, that
          is determinative of prejudice. See Robinson
          v. Commonwealth, 231 Va. 142, 152, 341
          S.E.2d 159, 165 (1986).



                               - 6 -
Moreno v. Commonwealth, 10 Va. App. 408, 417, 392 S.E.2d 836,

842 (1990).   Exculpatory evidence includes evidence that may be

used by the defendant for impeachment purposes.      See Robinson,

231 Va. at 150, 341 S.E.2d at 164.

     On appeal, McCord argues that the victim's reservations in

identifying him in the photo lineup and in identifying his

clothes is exculpatory evidence.      He asserts that the untimely

disclosure of the exculpatory evidence deprived him of (1) due

process because he was unable to effectively utilize the

information at trial, (2) effective assistance of counsel, 1 and

(3) the right to a jury trial.   Further, he argues that had the

circumstances surrounding the identification procedure and the

use of the single Polaroid photo been disclosed, he would have

filed a pretrial motion to suppress the identification.

                   A.   Photograph Identification

     We accept for purposes of our analysis that the Commonwealth

violated the court's discovery order, which compelled the

Commonwealth to provide McCord "all photographs or photograph

arrays," by failing to give McCord the single Polaroid photo used


     1
       After McCord was convicted, but before he was sentenced,
he filed a motion for substitution of counsel. New counsel then
filed his first motion for new trial, arguing, among other
things, that trial counsel was ineffective because of "counsel's
acts and omissions during counsel's pretrial and trial
representation." New counsel also contended that but for trial
counsel's promise that McCord would have been acquitted, McCord
would have demanded a jury trial.


                              - 7 -
to make the photo in the third photo lineup or to tell him that

the Polaroid was used to assist the victim in the identification

procedure.   However, we hold that McCord learned of the Polaroid

photo in time to use it effectively at trial and that there is no

reasonable probability that, had the Commonwealth given or

informed the defendant regarding the use of the Polaroid

photograph, the outcome of the proceedings would have been

different.   McCord vigorously cross-examined the officer regarding

the identification procedures, and he vigorously cross-examined

the victim about the identification and her level of certainty in

identifying him.   Further, the record reflects that McCord made no

request for a continuance at any time during trial after he

learned of the purported discovery violations.

     The record does not support McCord's contention that the

victim expressed reservations when identifying McCord or that the

victim identified McCord only after seeing the single Polaroid

photo of him.   At trial, the victim testified that she identified

McCord from the third photo lineup, before she was shown the

single Polaroid photo.   She testified that after she identified

McCord, she told Officer Baker that the photo looked "washed out"

and that the person did not appear to have as much acne as she

remembered her assailant having.   The victim stated that the

photograph "didn't look totally like him.   Because of the acne."

At that point, Officer Baker showed the victim the Polaroid photo.


                              - 8 -
On cross-examination, the victim testified that when she was shown

the third photo lineup she identified McCord, stating "this looks

exactly like the person who attacked me.   But his face is very

washed out.    Do you have a better picture?"   After the victim was

shown the Polaroid, she stated, "Yes, this is the man that did

this to me."    Officer Baker also testified that the victim

identified McCord from the third photo lineup.    Baker stated that

there appeared to be "no doubt" in the victim's mind in

identifying McCord from the third photo lineup.

     McCord has failed to demonstrate that the undisclosed

evidence concerning the Polaroid photo was exculpatory.    Because

the evidence was not exculpatory, the Commonwealth was not

required under Brady to disclose it.    Therefore, the trial court

did not err in denying McCord's motion for a mistrial.

     To the extent that McCord argues that had the Commonwealth

disclosed the evidence he would have moved to suppress the

identification and insisted on a jury trial, McCord failed to

present these arguments to the trial court when arguing his motion

for a mistrial.    By failing to argue that the nondisclosure of

this evidence deprived him of his right to a fair trial and his

right to a jury trial at the time he moved for a mistrial, the

trial judge was unable to consider the merits of this argument.

Accordingly, we will not consider those issues on appeal.      See

Rule 5A:18.


                               - 9 -
                       B.   Clothing Description

     McCord next asserts that the Commonwealth violated the

discovery order by failing to disclose that the victim had

reservations in identifying the clothing obtained from his home as

being the same as worn by the assailant.

     We find that McCord obtained the evidence regarding the

victim's identification of the clothing in time to effectively use

it at trial.   Assuming that some aspects of the victim's clothing

identification were exculpatory, McCord has failed to demonstrate

that he was prejudiced by the late disclosure.     When interviewed

by law enforcement officials after the assault, the victim

described her assailant as wearing a black shirt with silver

lettering, khaki pants, a mid-thigh black or dark-colored coat

with a drawstring waist, and black suede sneakers with a thick

white sole.    Based on the victim's description of the clothing,

Officer Baker obtained from McCord a black T-shirt with white

lettering, a pair of black suede sneakers, and a khaki-colored,

mid-thigh length coat with a drawstring waist.     The items of

clothing were shown to the victim prior to trial, and she

identified them as those worn by her assailant.    The victim stated

that the shoes were identical to those worn by the assailant.

Although the coat was a lighter color than the coat she had

remembered, the victim stated that the coat was the same style as

the one worn by the assailant and that the coat smelled like her


                               - 10 -
assailant.   The victim identified the shirt but stated that she

did not remember "that red was on the shirt."

     At trial, the victim identified the shirt that was obtained

from McCord but stated that she remembered the letters as being

silver not white.   The victim unequivocally identified the shoes

as those worn by the assailant.    The victim also identified the

coat as being worn by the assailant because, although it was not

the same color, it was the same style and it smelled like her

assailant.   McCord objected to the admissibility of the shirt,

arguing that the victim failed to sufficiently identify it.     On

cross-examination, the victim explained that she may have believed

the letters on the shirt were silver because of the reflection of

the light in the area where she had been accosted.   She also

testified that she may have remembered the coat being black rather

than khaki because it was dark that evening.

     Assuming that the statements the victim made when identifying

the clothing were exculpatory, any failure by the Commonwealth to

disclose the evidence did not prevent McCord from effectively

using the evidence at trial.    The record reflects that McCord

vigorously cross-examined the victim about the discrepancies

between the description of the clothes she stated her assailant

was wearing and the clothes that were obtained from McCord.

Moreover, McCord was also aware of the discrepancies from the

transcript of the preliminary hearing and he used the transcript


                               - 11 -
in cross-examining the victim.   Further, McCord did not object to

the admissibility of the evidence at trial, move for a

continuance, or seek to suppress the evidence.

     Although McCord asserts that had the Commonwealth disclosed

the victim's reservations in identifying the clothing he would

have insisted on proceeding with a jury trial, he argued in his

second motion for a new trial that he made the tactical decision

to waive a jury trial after evaluating the weight of the fiber

evidence.   Further, in his first motion for a new trial, McCord

asserted that he waived his right to a jury trial based on trial

counsel's assurance that he would be acquitted of all charges.

"The mere possibility that 'undisclosed information might have

helped the defense, or might have affected the outcome of the

trial, does not establish "materiality" in the constitutional

sense.'"    Goins v. Commonwealth, 251 Va. 442, 456, 470 S.E.2d

114, 124 (1996) (citation omitted).    McCord's assertions that

had he known of the evidence earlier he would have elected a

jury trial and that the outcome of the proceeding with a jury

trial would have been different from a judge trial is

speculative and insufficient to establish prejudice.

     Accordingly, we find that the trial court did not err in

denying McCord's motions for a mistrial and for a new trial.

We, therefore, affirm the convictions.

                                                          Affirmed.


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