                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Fitzpatrick, Overton and Senior Judge Hodges


HENRY COON DAVIS, A/K/A
 H. C. DAVIS
                                          MEMORANDUM OPINION *
v.   Record No. 0517-95-3             BY JUDGE WILLIAM H. HODGES
                                          SEPTEMBER 24, 1996
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
                    Charles H. Smith, Jr., Judge
           James T. Ward (Reelia R. Watson, on brief),
           for appellant.

           (James S. Gilmore, III, Attorney General;
           Leah A. Darron, Assistant Attorney General,
           on brief), for appellee. Appellee submitting
           on brief.



     The appellant, Henry Davis, was convicted of arson and the

murders of Sherry and Savannah Stamper, which resulted from the

arson.   On appeal, Davis contends that the trial court erred in

refusing to grant his motion for a new trial based on one of two

alternative grounds: (1) the Commonwealth's failure to provide

exculpatory evidence; or (2) newly discovered evidence.   For the

reasons that follow, we affirm the trial court's denial of

appellant's new trial motion.

                            BACKGROUND

                      The Preliminary Hearing

     On May 25, 1994, a joint preliminary hearing was held for

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appellant and two codefendants, Ralph Allen Phillips, Jr.

(Phillips) and William Ray Davis (Billy).    During that hearing,

the prosecution's key witness, Lonnie Buryl Pierce, testified.

Pierce was charged with two counts of conspiracy to commit

murder.   Pierce testified that around 11:00 p.m. on the night of

the crimes, he left his girlfriend's house in Chilhowie and

arrived "at the intersection at [Routes] 58 and 603" in Konnarock

around 11:20 p.m.   He was sitting in his parked car when a car

containing appellant, Phillips, and Billy "pulled in beside"

Pierce's car.    Billy invited Pierce to ride with them, and Pierce

accepted the invitation.   The foursome visited the home of Tammy

Perrin, where appellant obtained a can.   They left Perrin's home

and travelled to the Stamper home, where Pierce saw appellant

pour something around the house and on the porch.   Pierce then

saw a "flame like a matchlight" originate from appellant.    After

Pierce turned to run, he heard "something go 'whew' real loud

behind [him]."
     Counsel for appellant and the codefendants cross-examined

Pierce and discovered that Pierce made numerous statements to the

police and to the Commonwealth's Attorney.   Pierce admitted

giving two written statements to the Commonwealth's Attorney.

One statement was consistent with his testimony and described the

conduct of the four men culminating in appellant's actions at the

Stamper home.    The other statement differed only in that it did

not include Phillips' name as the fourth person in the car.




                                  2
     Pierce also admitted talking with Officer Don Hash three or

four times before he was charged with any crimes.   Pierce

admitted that, "[i]n addition to a written statement [he] gave to

Don Hash, [he] gave them [sic] some verbal statements."   Pierce

related a written statement that he gave to Hash in which he

falsely told Hash that he "went straight from Chilhowie to [his

home in] White Top [and] didn't see anybody; didn't talk to

anybody."

                         Appellant's Trial

     On September 27, 1994, appellant was tried separately from

his codefendants.   Danny Stamper, the husband and father of the

murder victims, testified that he and Billy, appellant's brother,

fought twice during the afternoon preceding the fire, and that

Stamper "got the better of" Billy.

     Pierce gave substantially the same incriminating testimony

that he provided at the preliminary hearing, after which defense

counsel cross-examined him.   Pierce said that his first statement

to the police was made to Grayson County Sheriff D. B. Taylor.

In the statement, Pierce "denied knowing anything about it."

Pierce agreed with defense counsel that, on March 12, 1994, a few

days after the statement to Taylor, he told the police that he

saw appellant start the fire.   During cross-examination, defense

counsel asked Pierce to explain the inconsistency between his

statement made on March 12, 1994 that he was intoxicated on the

night of the fire, and his testimony at the preliminary hearing



                                 3
that he was not drunk that night.      Pierce admitted that he lied

in the March 12, 1994 statement.

     On redirect, Pierce described his prior convictions,

including the fact that he pleaded guilty to conspiracy to commit

both murders.   He also admitted giving various prior statements

that differed from his trial testimony.

                          Codefendants' Trial

     On October 20, 1994, Billy and Phillips were tried jointly.

During that trial, an additional statement written by Pierce was

disclosed.
                       Motion for New Trial

     On February 7, 1995, at sentencing, appellant argued his

motion for a new trial.    Appellant represented that "a statement

signed by Lonnie B. Pierce, Jr." "was placed in evidence" at the

"trial of the co-defendants [Billy and Phillips]."

     Appellant contended that the statement was never disclosed.

In it, Pierce stated that when he arrived at Konnarock, he saw a

man with long hair and a beard walking along the road.     After he

passed the man, Pierce "saw a light in the direction of the

Stamper house which [Pierce] thought was a porch light."     On his

way to his house, Pierce saw "a loud old truck."     He arrived home

around 11:40 p.m. and went to bed.     When he awoke the next

morning, his "mother told [him] what had happen[ed]."

     Appellant asserted that the statement was exculpatory, and

that it was the only statement by Pierce corroborated by "other



                                   4
witnesses that said 'they saw a man walking along that road at

the time this happened.'"   Specifically, appellant alleged that,

by having access to the statement, the codefendants were able to

cross-examine witnesses Cathy Lowe, Barbara Trivette, and

Jennifer Graham about seeing "a man walking along that road at

the time they would have seen the fire."   Appellant contended

that he was prejudiced by not having the statement and that he

could not have discovered it before trial because he was unaware

of its existence.
     The Commonwealth's Attorney told the trial court that he

gave appellant "every single piece of paper we had that had

anything that contained anything."   The prosecutor argued that,

at most, the statement was evidence to impeach Pierce.    He

asserted that the recently discovered statement was substantially

similar to the statement Pierce gave to Sheriff Taylor on March

8, 1994, in which Pierce said that he "passed a[n] old, red, loud

pick-up truck" that belonged to appellant.   In the March 8, 1994

statement, Pierce said he was unable to see the driver of the

truck and he denied any involvement in or knowledge of the fire.

     At the hearing, appellant offered two exhibits for

admission:   a copy of Pierce's statement and a portion of the

transcript of the codefendant's trial containing the testimony of

Cathy Lowe, Barbara Trivette and Jennifer Graham.   No witnesses

testified, and no further evidence was presented.

     On appeal, appellant contends that because he was unaware of




                                 5
Pierce's statement, in which Pierce identified an unknown person

in the area at the time of the fire, he was unable to call

witnesses Lowe, Trivette, and Graham.         Alternatively, appellant

contends that "it would have been senseless" to call these

witnesses to testify about the pickup truck and strange man

without having corroborative evidence from Pierce.

              DISCOVERY VIOLATION:       EXCULPATORY EVIDENCE

     For a new trial to be granted based on the failure to

disclose exculpatory evidence, the nondisclosed evidence must be

material so as to create "a reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different."         United States v. Bagley,

473 U.S. 667, 682 (1985).    It is well established that "no

constitutional right to discovery exists in a criminal case in

this Commonwealth," but due process requires the prosecution to

produce, upon request, evidence material to guilt or punishment

which is favorable to the accused.         Keener v. Commonwealth, 8 Va.

App. 208, 212, 380 S.E.2d 21, 23 (1989) (citation omitted).

     "The remedial relief to be granted by the trial court

following a discovery violation or upon the late disclosure of

evidence is within the trial court's discretion and will not be

disturbed on appeal unless plainly wrong."         Moreno v.

Commonwealth, 10 Va. App. 408, 420, 392 S.E.2d 836, 844 (1990).

See also Frye v. Commonwealth, 231 Va. 370, 383, 345 S.E.2d 267,

277 (1986).



                                     6
     Evidence is exculpatory under Brady and, therefore

discoverable, if the defendant could have used it for impeachment

purposes.    Bagley, 473 U.S. at 676; Robinson v. Commonwealth, 231

Va. 142, 150, 341 S.E.2d 159, 164 (1986); MacKenzie v.

Commonwealth, 8 Va. App. 236, 243, 380 S.E.2d 173, 177 (1989).

Because the statement could have been used to impeach Pierce's

testimony, it was exculpatory.   However, even if evidence is

deemed exculpatory, a defendant is not entitled to new a trial

unless the evidence is material.       See Humes v. Commonwealth, 12

Va. App. 1140, 1143, 408 S.E.2d 553, 555 (1991).

     In determining whether undisclosed evidence is material, the

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,

593-94 (1987).

            The suppression of evidence sought by

            discovery amounts to a due process violation

            only if it deprives the defendant of a fair

            trial, and the conviction will be reversed

            only if the evidence is material in the sense

            that its suppression undermines confidence in

            the outcome of the trial.    Thus, failure to



                                   7
            disclose exculpatory or impeachment evidence

            requires reversal only if the evidence was

            "material," and evidence is "material" 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.   A reasonable probability is a

            probability sufficient to undermine the

            confidence in the outcome.
MacKenzie, 8 Va. App. at 244, 380 S.E.2d at 177 (citations

omitted).

     Pierce did not come forward with any information until four

years after the fire.    The undisclosed statement was merely one

of many denials by Pierce of any involvement in the fire.    It was

substantially similar to the statement given to Sheriff Taylor in

that Pierce denied any knowledge of or involvement in the fire.

In both statements, he stated that he saw a loud, old truck.      The

statements differed only in the fact that Pierce did not say that

the truck belonged to appellant in the undisclosed statement, and

he failed to mention a tall, long-haired, bearded man walking on

the road in the statement to Taylor.

     Defense counsel possessed numerous statements made by Pierce

which contained falsehoods.    In fact, Pierce readily admitted

lying to the authorities in prior statements.    At trial, defense

counsel reviewed Pierce's preliminary hearing testimony and



                                   8
pointed out inconsistencies.   Moreover, the fact finder was made

aware that he had a number of relevant criminal convictions which

further affected his credibility.    Because appellant possessed

Pierce's statement to Taylor, he was able to sufficiently impeach

Pierce.

     After examining the record and viewing the totality of

circumstances, we do not find that the undisclosed statement was

material so as to create "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.

 Accordingly, the trial court did not abuse its discretion in

refusing to grant a new trial based on a Brady violation.

     Appellant also contends that the failure to disclose the

statement affected his ability to effectively use testimony from

other witnesses.   A claim that the prosecution has caused the

defense to lose an opportunity to investigate and uncover

potentially exculpatory evidence must be supported by a showing

of bad faith.   See Arizona v. Youngblood, 488 U.S. 51, 58 (1988);

Tickel v. Commonwealth, 11 Va. App. 558, 563, 400 S.E.2d 534, 537

(1991).   Appellant conceded at the hearing for a new trial that

the statement "was not intentionally withheld."   Accordingly, he

cannot now allege the requisite bad faith to warrant review of

his claim of potentially exculpatory evidence.

                     NEWLY DISCOVERED EVIDENCE
           "Motions for new trials based on
           after-discovered evidence are addressed to
           the sound discretion of the trial judge, are



                                 9
           not looked upon with favor, are considered
           with special care and caution, and are
           awarded with great reluctance. . . . The
           applicant bears the burden to establish that
           the evidence (1) appears to have been
           discovered subsequent to trial; (2) could not
           have been secured for use at the trial in the
           exercise of reasonable diligence by the
           movant; (3) is not merely cumulative,
           corroborative or collateral; and (4) is
           material, and such as should produce opposite
           results on the merits at another trial."


Hopkins v. Commonwealth, 20 Va. App. 242, 249, 456 S.E.2d 147,

150 (1995) (en banc) (quoting Stockton v. Commonwealth, 227 Va.

124, 149, 314 S.E.2d 371, 387, cert. denied, 469 U.S. 873
(1984)).   See also Odum v. Commonwealth, 225 Va. 123, 301 S.E.2d

145 (1983).

     "'The applicant for a new trial must set forth in affidavits

facts showing what his efforts were to obtain the evidence and

explaining why he was prevented from securing it.'"   Yeager v.

Commonwealth, 16 Va. App. 761, 768, 433 S.E.2d 248, 252 (1993)

(quoting Fulcher v. Whitlow, 208 Va. 34, 38, 155 S.E.2d 362, 365

(1967)); see also Yarborough v. Commonwealth, 15 Va. App. 638,

647, 426 S.E.2d 131, 136 (1993) (finding that appellant failed to

file the required affidavits and that he failed to show that he

made any effort to discover the evidence he relied upon to obtain

a new trial), rev'd in part on other grounds, 247 Va. 215, 441
S.E.2d 342 (1994).

     Appellant bore the burden of establishing that he could not

have discovered the statement through the exercise of due

diligence; however, he failed to file an affidavit or otherwise



                                10
present evidence at the hearing to show that he exercised any

diligence in procuring the statement.   The record does not show

that appellant interviewed Pierce or Hash or was prevented from

doing so.   The record also indicates that the codefendants were

able to procure the statement three weeks after appellant's

trial.   Thus, appellant failed to show that he could not have

acquired the statement through due diligence.

     Moreover, as discussed above, the statement was not material

such that its disclosure would have produced a different outcome.

Accordingly, the trial court did not abuse its discretion in

denying a new trial based on after discovered evidence.
     For the foregoing reasons, we affirm appellant's

convictions.

                                                Affirmed.




                                11
