                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Beales and Senior Judge Clements
UNPUBLISHED


              Argued at Richmond, Virginia


              WILLIAM EDWARD TUMA
                                                                             MEMORANDUM OPINION* BY
              v.      Record No. 0919-10-2                                 JUDGE JEAN HARRISON CLEMENTS
                                                                                  SEPTEMBER 24, 2013
              COMMONWEALTH OF VIRGINIA


                                UPON REMAND FROM THE SUPREME COURT OF VIRGINIA

                                   FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
                                               Thomas V. Warren, Judge

                                Linwood T. Wells, III, for appellant.

                                Craig W. Stallard, Assistant Attorney General (Kenneth T.
                                Cuccinelli, II, Attorney General, on brief), for appellee.


                      William Edward Tuma was convicted following a jury trial of taking indecent liberties with

              a child, aggravated sexual battery, and animate object sexual penetration. This case returns to us on

              remand from the Virginia Supreme Court “to address Tuma’s second assignment of error in which

              he challenged the trial court’s denial of his request to admit the tape into evidence,” an evidentiary

              ruling. Commonwealth v. Tuma, 285 Va. 629, 639, 740 S.E.2d 14, 20 (2013).

                      In Tuma v. Commonwealth, 60 Va. App. 273, 726 S.E.2d 365 (2012) (en banc), noting that

              “[t]he trial court did not admit the audio tape into evidence because Tuma had not listened to the

              tape and did not know what was on the tape at the time he asked the trial court to admit it into

              evidence and to play it for the jury,” we concluded we need not address Tuma’s second assignment

              of error as “[o]ur resolution of the first assignment of error is dispositive of our ultimate holding


                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
reversing Tuma’s convictions . . . .” Id. at 303-04, 726 S.E.2d at 380, rev’d, 285 Va. at 632, 726

S.E.2d at 16. Having now reviewed Tuma’s second assignment of error, as directed by the Supreme

Court, we find it meritless and therefore affirm the trial court’s ruling and Tuma’s convictions. We

also remand the matter to the trial court for the limited purpose of correcting a clerical error in the

sentencing order.1

                                              Background

        Tuma was accused of sexually molesting his stepdaughter, L.S., beginning when the child

was five years old. She eventually reported the incidents, and on February 6, 2008, Jon Webster

Scheid, a Department of Social Services supervisor, and Dinwiddie Sheriff’s Office Investigator

Dwayne Gilliam interviewed the victim. Investigator Gilliam indicated to Tuma’s counsel prior

to trial that he believed the interview with the child may have been recorded, and Scheid

confirmed during the trial that there was indeed an audiotape of that interview.

        Although the Commonwealth provided defense counsel with a written summary of the

initial interview, prior to trial, the Commonwealth did not provide counsel with the actual

recording. Tuma’s counsel did not actually acquire the tape until after trial, at which time he

moved for a new trial based on an alleged Brady violation.




        1
         According to its sentencing order entered on April 22, 2010, Tuma was convicted of
(1) indecent liberties, see Code § 18.2-370.1, (2) aggravated sexual battery, see Code
§ 18.2-67.3(A)(1), and (3) animate object sexual penetration, see Code § 18.2-67.2. The
sentencing order states that appellant’s sentence for aggravated sexual battery was 25 years —
which is greater than the statutory maximum of 20 years of imprisonment for an aggravated
sexual battery conviction. However, it is clear from the trial transcript that the jury
recommended a 25-year sentence for animate object sexual penetration (which is within the
statutory maximum of life in prison) — not for aggravated sexual battery (for which the jury
recommended a 5-year sentence). It is also clear from the trial transcript that the trial judge
sentenced appellant in accordance with the jury’s recommendations. Thus, the trial court’s final
order simply reverses appellant’s sentences for aggravated sexual battery and for animate object
sexual penetration. Therefore, we remand the matter to the trial court for the specific purpose of
correcting this clerical error.
                                                -2-
        Both Scheid and Gilliam testified at trial and, after having reviewed their notes, indicated

that the contents of the recording comported with the summary provided to the defense. They

also testified about their interview with the victim and were subject to cross-examination by

defense counsel. The victim, as well, testified at trial and recounted the interview. Tuma sought

to have the tape played at trial, but the trial court denied his request.

                                                Analysis

        On appeal, Tuma initially argued the trial court erred by ruling “that the evidence discovered

by the defense during the jury trial, an audiotape, was not exculpatory in nature and therefore need

not have been disclosed by the Commonwealth prior to trial pursuant to Brady v. Maryland,” 373

U.S. 83 (1963). As noted, the Supreme Court reversed this Court and concluded “the

Commonwealth committed no Brady violation, as the recording was made available to Tuma in

sufficient time for its use at trial . . . .” Tuma, 285 Va. at 632, 740 S.E.2d at 16.

        Tuma’s second assignment of error stated the trial court erred by “refusing to allow the jury

to hear the tape and admit it into evidence.” Specifically, he asserts “[t]he audio tape recording

was clearly relevant and the court abused its discretion and committed error by not introducing

it.”

        Preliminarily, we note that at trial, Tuma sought to play the tape before the jury arguing

only that “it is the best evidence in the case in terms of what the child said on that audio tape.”

        “The Court of Appeals will not consider an argument on appeal which was not presented

to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).

See Rule 5A:18. We will not consider an argument on appeal that is different from the specific

argument presented to the trial court, even if it relates to the same issue. See Buck v.

Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994) (holding that appellant’s

failure to raise the same specific arguments “before the trial court precludes him from raising

                                                   -3-
them for the first time on appeal”). Thus, Rule 5A:18 bars our consideration of any but the best

evidence argument Tuma presented to the trial court.

                       Although Rule 5A:18 allows exceptions for good cause or
               to meet the ends of justice, appellant does not argue that we should
               invoke these exceptions. See e.g., Redman v. Commonwealth, 25
               Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail
               oneself of the exception, a defendant must affirmatively show that a
               miscarriage of justice has occurred, not that a miscarriage might
               have occurred.” (emphasis added)). We will not consider, sua
               sponte, a “miscarriage of justice” argument under Rule 5A:18.

Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).

       In Brown v. Commonwealth, 54 Va. App. 107, 676 S.E.2d 326 (2009), we held that the

best evidence rule applies only to writings, and concluded videotapes are not writings for the

purposes of the rule. Id. at 115-17, 676 S.E.2d at 329-30. “Because we decline to expand the

scope of the best evidence rule, we hold that the trial court did not abuse its discretion by

admitting [the witness’] testimony describing the contents of the surveillance videotape.” Id. at

118, 676 S.E.2d at 331. Similarly, in this case, Tuma sought to introduce the audiotape of the

initial interview, arguing it was the “best evidence” of what was said at the time. Instead, the

Commonwealth introduced the evidence through the testimony of the victim and the two

interviewers. As in Brown, because the audiotape is not a writing for purposes of the best

evidence rule, we find no abuse of discretion with the trial court’s decision not to admit the tape.

       Furthermore, we note that “‘[t]he admissibility of evidence is within the broad discretion

of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of

discretion.’” Bell v. Commonwealth, 49 Va. App. 570, 576, 643 S.E.2d 497, 500 (2007)

(quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)).

       Neither Tuma’s counsel nor the attorney for the Commonwealth had listened to the tape

recording at the time Tuma requested that it be played for the jury. Thus, not knowing the actual

content of the recording, the trial court was unable to determine whether the evidence was
                                                -4-
relevant and admissible. The trial judge specifically admonished counsel, noting “[y]ou haven’t

heard it. So we’ll not just play a tape and run this thing sort of off beat, off horse back without

any sort of thought or notion as to what is there.” Later, the trial judge also emphasized that “I

don’t think you are entitled just to play something because you think it may be exculpatory or

there may be something in there . . . slightly inconsistent . . . .” Although addressing the

admissibility of a videotape, we believe the following language from Brooks v. Commonwealth,

15 Va. App. 407, 410, 424 S.E.2d 566, 569 (1992), is applicable: “Before asking the court to

admit a videotape into evidence . . . the party offering it must authenticate it and show that it is

relevant.”

       Instead of asking the trial court for permission to listen to the recording, Tuma’s counsel

simply moved to admit the entire recorded interview into evidence. It is well settled that to

impeach a witness by a prior inconsistent statement, the foundation should be laid by first calling

the attention of the witness to the alleged inconsistent statement and inquiring whether he made

it. Via v. Commonwealth, 42 Va. App. 164, 185, 590 S.E.2d 583, 593 (2004). Therefore, as

Tuma had not reviewed the evidence at the time he sought to introduce it, he was unable to lay

any foundation to support its introduction. The trial judge correctly refused to admit the tape

into evidence under such circumstances.

       Accordingly, the judgment of the trial court is affirmed and we remand the matter to the

trial court for the sole purpose of correcting the sentencing order to reflect that appellant’s

sentence for aggravated sexual battery is five years and his sentence for animate object sexual

penetration is twenty-five years.

                                                                            Affirmed and remanded.




                                                 -5-
Humphreys, J., concurring.

       I join completely in the analysis and judgment of my colleagues on the issue before us on

remand from the Supreme Court of Virginia as a result of its decision in Commonwealth v.

Tuma, 285 Va. 629, 740 S.E.2d 14 (2013). I write separately only to observe the dilemma now

created for this Court and the trial courts of the Commonwealth by our Supreme Court’s decision

regarding the other assignment of error in that case.

       Before the Supreme Court the Commonwealth did not challenge whether the audiotape of

the victim’s interview with Investigator Gilliam and social worker Scheid was exculpatory

within the meaning of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. There is no

question that the tape contained evidence that could have been used to potentially impeach the

credibility of the seven-year-old victim, Investigator Gilliam, and Ms. Scheid. Indeed, the

Supreme Court majority aptly noted that “Brady is ‘a disclosure rule, not a discovery rule.’”

Tuma, 285 Va. at 635, 740 S.E.2d at 18 (quoting United States v. Higgins, 75 F.3d 332, 335 (7th

Cir. 1996)).

       Nevertheless, despite its lip service to the concept that the prosecutor in a criminal case

has an ongoing constitutional obligation to learn of and affirmatively disclose such evidence to

the accused, our Supreme Court concluded “the Commonwealth committed no Brady violation,

as the recording was made available to Tuma in sufficient time for its use at trial . . . .” Id. at

632, 740 S.E.2d at 16. Our Supreme Court reached this conclusion despite the fact that the

record clearly reflects that the prosecutor, not only failed in her Brady duty to learn of the tape’s

existence, but also in her duty to produce the tape at any point before, during, or after trial. All

this while repeatedly denying that an audiotape she never listened to was exculpatory in the first

place, thereby forcing the appellant to seek post-trial relief from the trial court to get actual




                                                 -6-
access to a tape that Brady required the prosecutor to deliver to Tuma’s counsel as soon as its

exculpatory nature was apparent.

       Thus, Tuma now stands for the proposition that a prosecutor in possession of exculpatory

evidence who does nothing more than state that “He can listen to it if he wants to,” without

taking any steps whatsoever to actually make the tape available or otherwise affirmatively

disclose its contents, has satisfied her obligation under Brady. As the Supreme Court dissenters

point out, the majority “ignores the fact that the burden of production of exculpatory evidence

falls on the prosecution.” Id. at 646, 740 S.E.2d at 24.

       The suppression by the prosecution of evidence favorable to the defendant “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. Even an accused child molester is

entitled to a fair trial. Implicit in the Supreme Court’s majority opinion is the conclusion that

any failure to receive a fair trial is the fault of Tuma for failing to seek immediate relief from the

trial court. This conclusion stands in stark contrast to Brady and its progeny, which places both

the responsibility to disclose exculpatory evidence and the consequences for failure to do so, on

the prosecution and not the defendant. Those men and women who have the honor of

representing the interests of the people of the Commonwealth and their communities in criminal

cases should be ever mindful of their special obligations to seek fairness and justice in the

criminal proceedings they institute that attend their unique position among legal professionals.

Our adversary system of justice ought not continue to descend to a gladiatorial level unmitigated

by any prosecutorial obligation for fairness and a search for the truth.

       In my view, this Court and the trial courts are now faced with the dilemma of

irreconcilable conflict on this point between the jurisprudence of the Commonwealth as

annunciated by our Supreme Court with that of the Supreme Court of the United States as

                                                 -7-
annunciated in Brady and in Kyles v. Whitley, 514 U.S. 419, 437-38 (1995) (“[T]he

prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material

level of importance is inescapable.” (emphasis added)).




                                               -8-
                              COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, Petty, Beales, Alston
          and Huff
Argued at Richmond, Virginia


WILLIAM EDWARD TUMA
                                                                    OPINION BY
v.     Record No. 0919-10-2                                  JUDGE ROBERT J. HUMPHREYS
                                                                    JUNE 12, 2012
COMMONWEALTH OF VIRGINIA


                                UPON A REHEARING EN BANC

                   FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
                           Thomas V. Warren, Judge Designate

               Linwood T. Wells, III, for appellant.

               Craig W. Stallard, Assistant Attorney General (Kenneth T.
               Cuccinelli, II, Attorney General, on brief), for appellee.


       A jury convicted William Edward Tuma (“Tuma”) in the Circuit Court of Dinwiddie

County (“trial court”) of taking indecent liberties with a child, aggravated sexual battery, and

animate object sexual penetration. On appeal, Tuma contends that the trial court erred by

1) ruling “on several occasions, during the jury trial and prior to sentencing, that the evidence

discovered by [Tuma] during the jury trial, an audio tape, was not exculpatory in nature, and

therefore need not have been disclosed by the Commonwealth prior to trial, pursuant to Brady v.

Maryland,” 373 U.S. 83 (1963), and 2) “refusing to allow the jury to hear the audio tape and

admit it into evidence.” A panel majority of this Court reversed Tuma’s convictions. We

granted the Commonwealth’s petition for rehearing en banc and stayed the mandate of the panel

decision.
                                          I. Background

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the facts establish the following.

       In early February 2008, L.S., a five-year-old girl, told her stepmother and biological

father that Tuma, her stepfather, had touched her inappropriately. A joint investigation by police

investigators and the Dinwiddie County Department of Social Services (Dinwiddie DSS) ensued

which led to Tuma’s indictment on the three charges for which he was later convicted by a jury.

Prior to trial, Tuma’s counsel filed a motion for discovery which included a request for “[a]ny

other information or evidence known to the Commonwealth which is or may be exculpatory.”

       At trial on January 12, 2009, L.S. testified that Tuma assaulted her when she lived in the

“house next to horses.” She specifically stated that Tuma touched her in her “bottom privates”

and that it usually happened in Tuma’s room after they watched movies that they should not have

been watching because they included “[p]eople touching each other on their privates.” L.S.

testified that Debra Tuma, her mother, was also in the room when the movies were on, but that

she would leave the room once the movies were finished. L.S. then stated that once Debra Tuma

left the room, Tuma would tell her to take her clothes off and lie on the bed. L.S. stated that he

would touch her only in her “down” private parts, that he would put his fingers on and inside of

her more than once, and that she could feel his fingers inside of her. L.S. could not recall how

many times Tuma touched her when she lived in the house near the horses, but testified that it

was “a lot.” L.S. also testified that the sexual assaults sometimes took place in her bedroom.

L.S. further testified that Tuma told her to touch her brother, who was three or four years old,

when he was in the bathtub in “his down privates” while Tuma watched. At some point while

                                                -2-
the abuse was ongoing, Tuma, Debra, and L.S. moved from the house with the horses into an RV

park. Prior to Christmas of 2007, L.S. went to live with her biological father and stepmother, but

Debra Tuma still had visitation with L.S. The last time Tuma touched L.S. was around

Christmas of 2007 in Tuma’s bedroom when she was visiting her mother at the trailer.

         On cross-examination, L.S. testified that she lived with her grandmother at one point and

that Tuma also touched her there, but she could not remember the number of times it occurred.

L.S. also replied on cross-examination that Tuma touched her more than ten times in the house

with horses. L.S. further stated that Tuma touched her about three times a week at the “RV

park.”

         When she lived with her biological father, L.S. inappropriately touched her male nephew.

It was after the incident with her nephew that L.S. told her stepmother and biological father what

Tuma had been doing to her and what he made her do to her brother.

         Ms. Jon Scheid of Dinwiddie DSS and Sheriff’s Department Investigator Dwayne

Gilliam interviewed L.S. regarding L.S.’s allegations against Tuma. Investigator Gilliam

testified at trial that L.S. reported during the interview that Tuma had “been touching her

inappropriately for a period of time” and that the abuse occurred at two locations, one of which

was Green Acres Trailer Park. An investigation was initiated based on this report, and the

alleged assaults were determined to have occurred in Dinwiddie at 9617 Boydton Plank Road

(L.S. refers to this location in her statement and testimony as “the house with the horses”), and

7901 Lot 36 Boydton Plank Road at Green Acres Trailer Park. Tuma was then arrested and

charged with animate object penetration, aggravated sexual battery, and indecent liberties with a

minor. On cross-examination, Investigator Gilliam testified that he believed the interview with

L.S., Ms. Scheid, and himself may have been recorded on an audio tape, but he did not know if a

transcript was ever made from the tape.

                                                -3-
       Ms. Scheid testified at trial that she had recorded the interview with L.S. and Investigator

Gilliam and she had the audio tape in her possession; she stated that the recording was about

thirty to forty minutes in length. 1 Ms. Scheid further testified that L.S. stated in the interview

that the sexual abuse occurred at two locations, with the majority of incidents occurring at the

house with the horses and one incident occurring at a residence in Green Acres Trailer Park.

Ms. Scheid also stated that the tape included L.S.’s reference to the one incident at the trailer

park. Upon discovering that Ms. Scheid had the tape in her possession, Tuma’s counsel asked

the trial court to play the audio tape. The Commonwealth objected, and the following colloquy

took place:

       THE COURT:                                    Have you heard it?

       [TUMA’S COUNSEL]:                             No, sir.

       THE COURT:                                    I am not going to play it. You
                                                     can go listen to it if you want
                                                     on your own time. We are not
                                                     going to just - - I don’t know
                                                     what is there. We don’t know
                                                     what is in there. We will not
                                                     just play a tape. You have
                                                     already asked her about what
                                                     was said.

       [TUMA’S COUNSEL]:                             Well, the argument is that it is
                                                     the best evidence in the case in
                                                     terms of what the child said on
                                                     that audio tape.

       THE COURT:                                    I don’t think it is the best
                                                     evidence in the case. It might
                                                     be some evidence. You can
                                                     take it off and listen to it. Has


       1
         The Virginia Administrative Code requires that most such interviews be recorded. 22
VAC 40-705-80(B)(1) provides in pertinent part: “The child protective services worker shall
conduct a face-to-face interview with and observation of the alleged victim child and siblings.
All interviews with alleged victim children must be electronically recorded [except in certain
circumstances, none of which are applicable here].”
                                                 -4-
                                                    this been denied to [Tuma’s
                                                    counsel], this tape?

       [COMMONWEALTH’S ATTORNEY]: No, sir.

       THE COURT:                                   He had access to it?

       [COMMONWEALTH’S ATTORNEY]: He can listen to it if he wants
                                  to.

       THE COURT:                                   We’ll not play it now because
                                                    you want to play it. It is not
                                                    admissible unless it contradicts
                                                    something that she has said.
                                                    You haven’t heard it. So we’ll
                                                    not just play a tape and run this
                                                    thing sort of offbeat, off horse
                                                    back without any sort of
                                                    thought or notion as to what is
                                                    there. It is not going to be
                                                    played. . . .

       After reporting the sexual assaults, L.S. began seeing Amy Holloman, a counselor.

Ms. Holloman testified at trial, and was qualified as an expert on adolescent trauma. She

testified that it is uncommon for a child victim of this type of trauma to report the abuse right

after it occurs. She also opined that it was uncommon for children to be able to remember

specific dates and instances because “[t]hey try to repress as much as possible.” However, she

stated that it is very common in therapeutic situations for more information to come out once the

child has established a trusting relationship with the counselor, which is what occurred with her

and L.S. Ms. Holloman then testified that she personally observed the following behavior in

L.S.: “pacing in my office, avoiding eye contact, avoiding the subject matter, leaving my

office.” According to Ms. Holloman, these specific behaviors coupled with the actual reporting

of the incident are consistent with claims of sex abuse.

       At the conclusion of the Commonwealth’s case, Tuma’s counsel moved to strike the

evidence on the basis that the audio tape is the best evidence and that it is exculpatory. The

following exchange then took place:
                                                -5-
THE COURT:                    Have you listened to the tape?

[COMMONWEALTH’S ATTORNEY]: No, sir.

THE COURT:                    So you don’t know whether it
                              is exculpatory or not?

[COMMONWEALTH’S ATTORNEY]: No, sir.

THE COURT:                    So therefore you didn’t give it
                              to him as being exculpatory
                              because you never listened to
                              it? You don’t think it is - - he
                              is entitled to it because it is not
                              exculpatory? You just don’t
                              know?

[COMMONWEALTH’S ATTONEY]:     I relied on my investigator who
                              had given me his notes and
                              transformed that into a
                              typewritten statement that
                              codified what went on at that
                              particular interview.

THE COURT:                    So you are satisfied there is
                              nothing significant or
                              exculpatory? Are you willing
                              to stand on that? If it is you
                              will not have complied with
                              Brady.

[COMMONWEALTH’S ATTORNEY]: Yes, sir.

THE COURT:                    You are willing to let that go?

[COMMONWEALTH’S ATTORNEY]: Yes, sir.

THE COURT:                    You don’t know what is on
                              there either?

[COMMONWEALTH’S ATTORNEY]: Yes, sir.

THE COURT:                    We have heard from two
                              witnesses as to what was done,
                              Mrs. Scheid and Mr. Gilliam
                              both of them were cross
                              examined. This is just a tape of
                              what they heard, correct?


                            -6-
                                                    You are saying that you think it
                                                    is exculpatory?

       [TUMA’S COUNSEL]:                            Yes, sir.

       THE COURT:                                   In some way?

       [TUMA’S COUNSEL]:                            Yes, I mean I can’t get the
                                                    material. I have asked the
                                                    representatives.

       THE COURT:                                   Well, I don’t think you are
                                                    entitled just to play something
                                                    because you think it may be
                                                    exculpatory or there may be
                                                    something in there as slightly
                                                    inconsistent three or four times
                                                    they don’t remember you had
                                                    ham and eggs for breakfast one
                                                    morning and another time you
                                                    say sausage and eggs. I just
                                                    don’t think it is admissible,
                                                    [Tuma’s counsel]. The Court
                                                    is not going to admit it. If at
                                                    some point if your client is
                                                    convicted that tape shows
                                                    something that is significant,
                                                    exculpatory, he gets a new trial.
                                                    So that is the way we are going
                                                    with it. We will just not play a
                                                    tape I don’t know if it is 15
                                                    minutes or two hours about a
                                                    conversation we have heard
                                                    two people testify to.

       [TUMA’S COUNSEL]:                            Actually we have heard from
                                                    three people about that
                                                    conversation. We have heard
                                                    from the victim herself, the
                                                    conversation. We have heard
                                                    from Mrs. Scheid, and we have
                                                    heard from the investigator.

       On January 12, 2009, the jury returned a verdict of guilty on all three charges. On

February 19, 2009, after the jury verdict but prior to entry of the conviction or sentencing orders,

Tuma’s counsel filed a subpoena duces tecum to obtain the audio tape from Dinwiddie DSS. On

                                                -7-
February 27, 2009, Tuma’s counsel filed a motion to compel the Commonwealth to deliver a

copy of the audio tape to him. The Commonwealth’s Attorney did not respond to Tuma’s

motion, but on or around March 7, 2009, Dinwiddie DSS filed a response to Tuma’s motion to

compel and subpoena duces tecum and stated that neither the Commonwealth’s Attorney nor

Tuma’s counsel were entitled to the tape, because it was produced as a result of a social services

investigation. On March 9, 2009, the trial court entered the conviction order confirming the

jury’s verdict. The proof of service for the subpoena duces tecum on Ms. Scheid of Dinwiddie

DSS was returned on March 11, 2009, marked “too late for service.” On April 17, 2009, Tuma’s

counsel filed a motion to preserve the tape recording with the trial court. The motion noted a

hearing scheduled for April 30, 2009 on Tuma’s motion to compel. At the hearing on April 30,

2009, the trial court ordered the attorney for Dinwiddie DSS to listen to the tape, remove any

extraneous confidential information, and give the remainder to Tuma’s counsel.

       The transcript of the audio tape reflects that L.S. told Investigator Gilliam that the abuse

occurred at the white house with the horses. L.S. initially did not remember how many times

Tuma touched her, but Investigator Gilliam, upon more questioning, narrowed it down to

“between five and ten times” while at the white house. Investigator Gilliam asked: “When he

touched you um it would always be at the white house?” L.S. replied: “Yes.” When asked if

the abuse happened at any other house, L.S. replied that it did not. Ms. Scheid then asked more

specifically if Tuma ever touched L.S. at Green Acres in the trailer or at Grandma’s house. L.S.

again replied “No” to both questions. When Ms. Scheid asked, “So everything you are telling

me everything happened at the white house?” L.S. replied, “Yes.” In fact, L.S. indicated five

times throughout the interview that the touching occurred at the white house. When asked,

“What part of the house would this happen in? Do you remember?” L.S. replied, “um yes in his

room.” L.S. never mentioned abuse occurring in her bedroom during the interview.

                                               -8-
       As part of his report, Investigator Gilliam summarized the interview of L.S. This

summary was all that was provided to Tuma’s counsel pursuant to his discovery requests, and

Tuma’s counsel used it to cross-examine Investigator Gilliam at trial. The summary stated, in

part, “[L.S.] was asked when Billy touched her, she replied during visitation with her mother

Debra.” This question and answer is not found in the transcript of L.S.’s taped interview. The

summary also reads: “[L.S.] was asked when was the last time Billy touched her, she replied at

Nikki’s house in December 07, Christmas holiday visitation.” This statement also is not found in

the interview transcript. The summary fails to convey L.S.’s difficulty remembering how many

times Tuma touched her in the white house: in the interview transcript L.S. stated “I don’t

remember,” before Investigator Gilliam, through questioning, helped her narrow it down to

“between five and ten times.” Most notably, the summary does not include L.S.’s three separate

negative responses to the questions of (1) whether the touching occurred at any house other than

the white house, (2) “[d]id anything ever happen at Grandma’s house?”, and (3) “has he ever

touched you at Green Acres in the trailer?”

       After listening to the tape, Tuma filed a motion to set aside the jury verdict based on

exculpatory evidence discovered post-trial and a motion to strike the evidence as not sufficient to

convict. On January 4, 2010, the trial court held a hearing on the motions, subsequently

reviewed the trial transcripts, the audio tape of the interview, and the transcript of the audio taped

interview. On January 29, 2010, the trial court entered an order denying the motions and entered

the Commonwealth’s drafted findings of fact and conclusions of law. On April 16, 2010, Tuma

filed an objection to the trial court’s finding of fact, conclusions of law, and January 29, 2010

order. On April 22, 2010, the trial court entered the sentencing order, which imposed the

sentencing verdict of the jury, a sentence of thirty-five years. This appeal followed.




                                                -9-
                                               II. Analysis

                           A. The Failure to Disclose Exculpatory Evidence

                             1. The Special Responsibilities of a Prosecutor

         The role of public prosecutor, an attorney who represents the interests of the sovereign in

criminal cases, has evolved in parallel with that of the Common Law of England and traces its

pedigree back more than 750 years. Lawrence del Brok in 1243 is considered the first

professional attorney to prosecute pleas on behalf of the Crown. J. Ll. J. Edwards, The Law

Officers of the Crown 15 (Sweet & Maxwell) (1964).

         In America, the earliest example of a public prosecutor is in the colony of Connecticut in

1704.

                   [H]enceforth there shall be in every countie a sober, discreet and
                   religious person appointed by the Countie Courts, to be Attorney
                   for the Queen, to prosecute and implead in the lawe all criminall
                   offenders, and to doe all other things necessary or convenient as an
                   attorney to suppresse vice and imorallitie.

Charles J. Hoadly, The Public Records Of The Colony Of Connecticut: From August, 1689, To

May, 1706 468 (Press of Case, Lockwood and Brainard) (1868); see also Jack M. Kress,

Progress and Prosecution, in Annals of the American Academy of Political and Social Sciences

423 99, 103 (1976) (“In May of 1704, the Connecticut Assembly passed the law which is

generally recognized as creating the first permanent office of public prosecutor on a colony-wide

basis . . . .”).

         Early American case law also reflects the necessity that those who represent the

government and its citizens be fair and honorable.

                   He is to judge between the people and the government; he is to be
                   the safeguard of the one and the advocate for the rights of the
                   other; he ought not to suffer the innocent to be oppressed or
                   vexatiously harassed, any more than those who deserve
                   prosecution to escape; he is to pursue guilt; he is to protect
                   innocence; he is to judge the circumstances, and according to their
                                                  - 10 -
               true complexion, to combine the public welfare and the safety of
               the citizens, preserving both, and not impairing either. He is to
               decline the use of individual passions, and individual malevolence,
               when he cannot use them for the advantage of the public; he is to
               lay hold of them where public justice, in sound discretion, requires
               it.

Foute v. State, 4 Tenn. 98, 99 (1816).

               The [prosecutor] is a quasi-judicial officer. He represents the
               commonwealth, and the commonwealth demands no victims. It
               seeks justice only, equal and impartial justice, and it is as much the
               duty of the [prosecutor] to see that no innocent man suffers, as it is
               to see that no guilty man escapes. Hence, he should act
               impartially. He should present the commonwealth’s case fairly,
               and should not press upon the jury any deductions from the
               evidence that are not strictly legitimate.

Appeal of Nicely, 18 A. 737, 738 (Pa. 1889).

       The higher standard of professionalism and duty applicable to those who represent the

interests of the public and their government was succinctly restated in 1935 by Justice

Sutherland, and his words are often quoted:

               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. As such, he is in a
               peculiar and very definite sense the servant of the law, the twofold
               aim of which is that guilt shall not escape or innocence suffer. He
               may prosecute with earnestness and vigor -- indeed, he should do
               so. But, while he may strike hard blows, he is not at liberty to
               strike foul ones. It is as much his duty to refrain from improper
               methods calculated to produce a wrongful conviction as it is to use
               every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935).

       Our Anglo-American system of justice presumes innocence in criminal cases and places a

high burden on the attorney for the Commonwealth to overcome that presumption. However,

other attorneys have no such obligation nor should they.



                                               - 11 -
               Law enforcement officers have the obligation to convict the guilty
               and to make sure they do not convict the innocent. They must be
               dedicated to making the criminal trial a procedure for the
               ascertainment of the true facts surrounding the commission of the
               crime. To this extent, our so-called adversary system is not
               adversary at all; nor should it be. But defense counsel has no
               comparable obligation to ascertain or present the truth. Our system
               assigns him a different mission. He must be and is interested in
               preventing the conviction of the innocent, but, absent a voluntary
               plea of guilty, we must also insist that he defend his client whether
               he is innocent or guilty. The State has the obligation to present the
               evidence. Defense counsel need present nothing, even if he knows
               what the truth is. He need not furnish any witnesses to the police,
               or reveal any confidences of his client, or furnish any other
               information to help the prosecutor’s case. If he can confuse a
               witness, even a truthful one, or make him appear at a disadvantage,
               unsure or indecisive, that will be his normal course. Our interest in
               not convicting the innocent permits counsel to put the State to its
               proof, to put the State’s case in the worst possible light, regardless
               of what he thinks or knows to be the truth.

United States v. Wade, 388 U.S. 218, 256-58 (1967) (White, J., concurring and dissenting).

       The asymmetry of the criminal justice system certainly places onerous demands on

prosecutors. Defense attorneys may pursue acquittals notwithstanding all evidence to the

contrary. While this provides fertile ground for many lawyer jokes, such zealous advocacy,

despite any apparent hopelessness of the effort, is an essential ingredient to a fair trial and

buttresses the foundation of our system of justice. Prosecutors may be understandably frustrated

by the notion of unequal combat and with trials structured as zero-sum competitions featuring a

clear winner and loser, they may be tempted to resist allowing their opponent any tactical

advantage. However, the higher obligation to fairness and justice required of prosecutors is as

integral to the effective operation of our system of justice as the duty of zealous representation of

the defendant is for their courtroom opponents. Prosecutors must never forget that they are

public servants whose oath requires them to serve their clients though a commitment to the fair,

impartial, and objective administration of justice rather than the single-minded pursuit of victory,

and they ignore that difference at their peril.
                                                  - 12 -
                    2. The Prosecutor’s Duty with Respect to Exculpatory Evidence

            Tuma argues that the audio tape made by Dinwiddie DSS of L.S.’s interview where she

complained of sexual abuse “contained exculpatory evidence and should have been disclosed to

defense counsel prior to trial.” He contends that had the Commonwealth provided the tape to

him, he could have used it to impeach the credibility of L.S., Ms. Scheid, Investigator Gilliam,

and the counselor, Amy Holloman, and “the investigation against the defendant as a whole at

trial.” 2

            The prosecution’s affirmative duty to disclose evidence favorable to a defendant can trace

its origins to early 20th century strictures against the use of perjured testimony and is most

prominently associated with the decision by the Supreme Court of the United States in Brady v.

Maryland, 373 U.S. 83 (1963). Brady held “that the suppression by the prosecution of evidence

favorable to an accused . . . 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; see

also Moore v. Illinois, 408 U.S. 786, 794-95 (1972).

            However, “[w]hen an exculpatory evidence claim is reviewed ‘on appeal, the burden is

on [the] appellant to show that the trial court erred.’” Gagelonia v. Commonwealth, 52 Va. App.

99, 112, 661 S.E.2d 502, 509 (2008) (quoting Galbraith v. Commonwealth, 18 Va. App. 734,

739, 446 S.E.2d 633, 637 (1994)). A “‘constitutional error occurs, and the conviction must be

reversed, only if the evidence is material in the sense that its suppression undermines confidence


            2
          As discussed more fully below, we conclude that the evidence at issue is material and
exculpatory because of its impeachment value with regard to L.S.’s testimony as well as with
respect to the testimony of Investigator Gilliam and Ms. Scheid, whose testimony was based in
part on L.S.’s interview statements. However, we find that the audio tape of L.S.’s interview
with Investigator Gilliam and Ms. Scheid has no impeachment value with respect to
Ms. Holloman’s trial testimony, as her testimony only related to her opinion based on her
expertise and L.S.’s statements made and behavior exhibited during counseling sessions. She did
not testify to or comment on L.S.’s interview with Ms. Scheid and Investigator Gilliam.

                                                  - 13 -
in the outcome of the trial.’” Teleguz v. Commonwealth, 273 Va. 458, 488, 643 S.E.2d 708, 727

(2007) (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). “In determining the

question of materiality, we consider the suppressed evidence as a whole, not item by item and if

a Brady violation is established, we do not engage in a harmless error review.” Id. 3

       The suppression by the prosecution of evidence favorable to the defendant “violates due

process where the evidence is material either to guilt or to punishment, irrespective of the good


       3
          Judge Beales’ dissent ignores this approach as well as the definition of Brady
materiality as recited in Kyles v. Whitley, 514 U.S. 419, 434 (1995). Instead, Judge Beales
parses L.S.’s testimony item by item, concludes that he would have found the discrepancies
regarding the quantum and location of her assaults insignificant and then performs exactly the
sort of harmless error analysis found inappropriate in Bagley. His methodology fails to heed the
Supreme Court’s admonition that

               Kyles instructed that the materiality standard for Brady claims is
               met when “the favorable evidence could reasonably be taken to put
               the whole case in such a different light as to undermine confidence
               in the verdict.” [Kyles,] 514 U.S. at 435; see also id. at 434-35 (“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.”).

Banks v. Dretke, 540 U.S. 668, 698-99 (2004).
         His dissent also displays a lack of appreciation for the basic concept that inconsistent
statements that conflict on the details of alleged criminal acts are by definition material, not
because they must affirmatively demonstrate innocence as suggested by Judge Beales, but rather
they are material because the inconsistencies with regard to the facts surrounding the offense
may be reasonably considered by the factfinder on the question of the witnesses’ credibility and
the weight to be given their testimony. Those tasked with assigning credibility to the witnesses
are not appellate judges reviewing a bare transcript; they are the citizens sitting on the jury.
Their credibility assessments take into account not only the words uttered by the witnesses, but
also the manner in which they spoke them along with any non-verbal mannerisms that were
observable but which no record can adequately document. Thus, the jury should have been
permitted to include any inconsistencies from prior statements that related to any details of the
alleged offenses in their overall credibility analysis and weigh them accordingly. In the context
presented by this record, the Brady issue is whether the inability to cross-examine the witnesses
in front of the factfinder with respect to inconsistencies between their trial testimony and an
earlier interview regarding details of the criminal acts undermines confidence that a fair trial was
had. While a properly conducted new trial may well achieve the same result, the point we must
decide today is whether the totality of the record in this case supports a high degree of
confidence that the trial conducted in this case, was fair. For the reasons discussed more fully
below, we reach the conclusion that it was not.
                                                 - 14 -
faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. “There are three components of a

true Brady violation: The evidence at issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; that evidence must have been suppressed by the State,

either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S.

263, 281-82 (1999). “[E]vidence is ‘material’ within the meaning of Brady when there is a

reasonable probability that, had the evidence been disclosed, the result of the proceeding would

have been different.” Cone v. Bell, 556 U.S. 449, 469-70 (2009). “A reasonable probability

does not mean that the defendant ‘would more likely than not have received a different verdict

with the evidence,’ only that the likelihood of a different result is great enough to ‘undermine

confidence in the outcome of the trial.’” Smith v. Cain, 132 S. Ct. 627, 630 (2012) (quoting

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

               While the definition of Bagley materiality in terms of the
               cumulative effect of suppression must accordingly be seen as
               leaving the government with a degree of discretion, it must also be
               understood as imposing a corresponding burden. On the one side,
               showing that the prosecution knew of an item of favorable
               evidence unknown to the defense does not amount to a Brady
               violation, without more. But the prosecution, which alone can
               know what is undisclosed, must be assigned the consequent
               responsibility to gauge the likely net effect of all such evidence
               and make disclosure when the point of “reasonable probability” is
               reached. This in turn means that 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. But
               whether the prosecutor succeeds or fails in meeting this obligation,
               . . . the prosecution’s responsibility for failing to disclose known,
               favorable evidence rising to a material level of importance is
               inescapable.

Kyles, 514 U.S at 437-38.

       Indeed, as Justice Souter went on to observe in Kyles, “‘The prudent prosecutor will

resolve doubtful questions in favor of disclosure.’” Id. at 439 (quoting United States v. Agurs,

427 U.S. 97, 108 (1976)). “This is as it should be. Such disclosure will serve to justify trust in


                                               - 15 -
the prosecutor as ‘the representative . . . of a sovereignty . . . whose interest . . . in a criminal

prosecution is not that it shall win a case, but that justice shall be done.’” Id. (quoting Berger,

295 U.S. at 88).

        Nevertheless, for evidence to be exculpatory, it must necessarily be material with respect

to innocence or the degree of guilt with regard to lesser offenses, the degree of punishment that

would be appropriate, or the impeachment of the credibility of a witness with regard to material

facts. In Smith, the United States Supreme Court recently held that the undisclosed statements of

an eyewitness were “plainly material” where the eyewitness’ testimony was the only evidence

linking the defendant to the crime. 132 S. Ct. at 630. At trial, the eyewitness identified Smith as

the “first gunman to come through the door” and stated that he had been “face to face with

Smith” during the robbery. Id. “No other witnesses and no physical evidence implicated Smith

in the crime.” Id. at 629. After his conviction, Smith found previously undisclosed notes of the

lead investigator of the murder. Id. The investigator wrote on the night of the murder that the

eyewitness could not supply a description of the perpetrators. Id. In notes taken five days after

the crime, the investigator recorded that the eyewitness said he could not see faces and would not

know the perpetrators if he saw them. Id. at 629-30. The investigator’s typewritten report of his

conversation with the eyewitness five days after the crime states that the eyewitness “‘could not

identify any of the perpetrators of the murder.’” Id. at 630. The Court observed that “evidence

impeaching an eyewitness may not be material if the State’s other evidence is strong enough to

sustain confidence in the verdict.” Id. However, such was not the case where the eyewitness’

testimony was the only evidence linking the defendant to the crime, and his undisclosed

statements directly contradicted his trial testimony. Id. While “the jury could have disbelieved

[the eyewitness’] undisclosed statements,” the Court had “no confidence that it would have done

so.” Id.

                                                  - 16 -
       Smith controls our analysis here. Just as in Smith, L.S.’s testimony is the only evidence

linking Tuma to the crimes in this case, and there is no physical evidence implicating Tuma. As

the Commonwealth’s entire case depended on L.S.’s account of Tuma’s sexual abuse of her,

L.S.’s undisclosed interview responses, where they materially varied from her trial testimony,

constituted impeachment evidence material to Tuma’s guilt or punishment. 4

       On cross-examination at trial, L.S. testified that Tuma touched her at her grandmother’s

house and about three times a week at the RV park. However, during the interview, L.S. replied

that Tuma did not touch her at her grandmother’s house and he did not touch her at the trailer

park. 5 Investigator Gilliam asked during the interview, “When he touched you um [sic] it would

always be at the white house?” L.S. replied, “Yes.” Ms. Scheid asked, “So everything you are

telling me everything happened at the white house?” L.S. replied, “Yes.” L.S. affirmed five

times during the interview that the touching occurred at the white house, which is the “house

near the horses.”

       Further, at trial L.S. testified that the sexual assaults sometimes took place in her

bedroom, but during the interview L.S. only stated that the assaults occurred in Tuma’s room.

       As for the number of times Tuma assaulted L.S., on direct examination at trial, L.S. could

not recall how many times Tuma touched her when she lived in the house near the horses, but

testified that it was “a lot.” On cross-examination, L.S. stated that Tuma touched her more than

ten times at the house next to the horses. During the interview, L.S. could not remember how


       4
        In Bagley, the United States Supreme Court “disavowed any difference between
exculpatory and impeachment evidence for Brady purposes.” Kyles, 514 U.S. at 434. See also
Robinson v. Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986) (impeachment value
alone makes information exculpatory).

       5
         The exculpatory nature of this discrepancy in the locations where the alleged abuse
occurred was compounded by the Commonwealth’s response to Tuma’s motion for a bill of
particulars advising that L.S. had been sexually abused at both locations.
                                               - 17 -
many times Tuma touched her at the house next to the horses; but after questioning, Investigator

Gilliam narrowed her response to “between five and ten times.”

       The evidence contained in the undisclosed audio tape could have been used by Tuma for

impeachment purposes to challenge the credibility of L.S., his accuser, and the only eyewitness

against him. “When the ‘reliability of a given witness may well be determinative of guilt or

innocence,’ evidence affecting the credibility of that witness should not be concealed by the

prosecution.” Burrows v. Commonwealth, 17 Va. App. 469, 472, 438 S.E.2d 300, 303 (1993)

(quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). In order to convict Tuma, the jury in this

case had to believe L.S.’s testimony. Thus, Tuma’s guilt or innocence depended entirely on

L.S.’s reliability as a witness and any evidence affecting her credibility should have been

revealed by the Commonwealth. However, it is important to note that the prosecutor’s duty to

disclose exculpatory evidence under Brady is not congruent with any obligation to disclose

information under the rules and statutes regarding discovery, and the constitutional duty is

triggered only when the information in the prosecutor’s control becomes exculpatory. Thus, had

L.S. testified consistently in the interview with Investigator Gilliam and Ms. Scheid, any pre-trial

interviews with the prosecutor, and at trial, the audio tape would not have been exculpatory

evidence, and there would have been no constitutional obligation on the part of the prosecutor to

disclose it. See Taylor v. Commonwealth, 41 Va. App. 429, 436, 585 S.E.2d 839, 843 (2003)

(the Commonwealth is not required to provide a defendant with investigative notes of witness

statements unless the notes contain witness statements that are inconsistent or contradictory to

that witness’ or another witness’ material testimony and could have been used to impeach the

declarant or another witness). However, once L.S.’s interview statements proved inconsistent

with her later account of the sexual assaults, whether when interviewed by the prosecutor before




                                               - 18 -
trial 6 or, at the latest, at trial immediately following her inconsistent direct testimony, the audio

tape of the interview became evidence material to Tuma’s guilt and/or punishment and should

have been immediately disclosed when the discrepancy became known or should have become

known to the prosecutor. 7 For the same reason, the audio tape also became exculpatory when

Investigator Gilliam and Ms. Scheid testified to statements made by L.S. to them that were

materially different from those reflected in the audio tape of their interview. 8



        6
           Constitutional error may occur when the prosecution fails to assist the defense by
disclosing information that might have been helpful in conducting the cross-examination.
Bagley, 473 U.S. at 678. “[S]uch suppression of evidence amounts to a constitutional violation
only if it deprives the defendant of a fair trial.” Id.
        7
          That the prosecutor gave Tuma’s counsel Investigator Gilliam’s one-page written
summary of L.S.’s “30 to 40 minute” interview prior to trial and relied upon it herself did not
satisfy her responsibility under Brady. A single-page summary of such a lengthy interview, must
necessarily have been incomplete and indeed, among other discrepancies with the transcript, the
written summary does not include L.S.’s interview responses that nothing ever happened at
Grandma’s house, that Tuma never touched her at the Green Acres trailer, and that everything
happened at the white house.

                While Brady does not embrace a “best evidence” rule prohibiting
                the use of summaries, such summaries of exculpatory evidence
                must be complete and accurate. . . . An incomplete or inaccurate
                summary could be constitutionally insufficient under Brady when
                the omissions or inaccuracies resulted in the prejudicial
                suppression of material evidence favorable to the defendant.

Garnett v. Commonwealth, 275 Va. 397, 409, 657 S.E.2d 100, 108 (2008).
       This case aptly illustrates the inherent risk, noted by our Supreme Court in Garnett, which
a prosecutor takes on when only providing a “summary” of an interview in lieu of a verbatim
recording or transcript. The written summary in this case does not include L.S.’s statements
about where the abuse did not occur. The written summary also contained statements
purportedly from L.S. that were not found in the transcript of the interview, without any
explanation as to the discrepancy. Thus, the written summary was significantly incomplete.
        8
           Ms. Scheid’s trial testimony that L.S. reported abuse at Green Acres Trailer Park in the
interview is not supported by the interview transcript. As previously noted, L.S. specifically
stated in the interview, “it wasn’t when we were living in the trailer . . . ,” and further that the
abuse did not occur at any other house than the white house. Thus, although Ms. Scheid testified
at trial that the audio tape contained L.S. stating that the abuse occurred in the trailer, the record
establishes that the tape did not contain such information. Therefore, Tuma’s counsel could have
                                                 - 19 -
       We note that the record in this case reflects that the Commonwealth’s Attorney never

listened to the audio tape of L.S.’s statements to Investigator Gilliam and Ms. Scheid to

determine whether it conflicted in any material way with her pre-trial interviews with L.S.,

Ms. Scheid, or Investigator Gilliam, or their trial testimony. Moreover, when asked by the trial

court, “Has this been denied to [Tuma’s counsel], this tape?”, the Commonwealth’s Attorney

responded, “No.” In fact and despite this response and her later statement to the trial court that

counsel for Tuma “could listen to it if he wants to,” the prosecutor nevertheless failed to produce

the tape or assist Tuma in obtaining it from Dinwiddie DSS when they refused to produce it upon

Tuma’s subsequent request. We also note that Dinwiddie DSS took the position that it would not

disclose the contents of the audio tape to either the prosecutor or counsel for Tuma.

       The law provides no support for the position taken by Dinwiddie DSS. To the contrary,

the law is clear that the prosecutor is charged with the clear and affirmative duty of disclosing all

exculpatory evidence in the possession, custody, or control of the Commonwealth and its agents.

Any claim of Dinwiddie DSS that the audio tape was privileged information to DSS is easily

dispensed with in light of this Court’s well-settled precedent establishing otherwise. In Ramirez

v. Commonwealth, 20 Va. App. 292, 296, 456 S.E.2d 531, 533 (1995), this Court held that

employees of a local department of social services who were “involved in the investigation of the

child abuse allegation were agents of the Commonwealth for purposes of Rule 3A:11(b)(2).”

Specifically, this Court stated that, “where an agency is involved in the investigation or

used the audio tape to impeach Ms. Scheid’s testimony stating that L.S.’s allegation regarding
the Green Acres Trailer Park was on the audio tape.
         Tuma also alleges that he could have used the audio tape to impeach Investigator
Gilliam’s testimony that L.S. mentioned the abuse at the Green Acres Trailer Park in the
interview. As previously mentioned, L.S. specifically stated in the interview, “it wasn’t when we
were living in the trailer . . . ,” and further that the abuse did not occur at any other house than
the white house. Thus, although Investigator Gilliam testified at trial that L.S. had mentioned the
trailer in the interview, the record establishes that the audio tape did not contain such
information. Therefore, Tuma’s counsel could have used the audio tape to impeach Investigator
Gilliam’s testimony that L.S. reported in the interview that Tuma abused her at the trailer.
                                                    - 20 -
prosecution of a particular criminal case, agency employees become agents of the

Commonwealth for purposes of Rule 3A:11 and must be considered a party to the action for

purposes of Rule 3A:12.” Id. at 296-97, 456 S.E.2d at 533. “‘The Commonwealth is charged

with the responsibility to interview all government personnel involved in a case in order to

comply with its discovery obligations.’” Knight v. Commonwealth, 18 Va. App. 207, 214, 443

S.E.2d 165, 169 (1994) (quoting Harrison v. Commonwealth, 12 Va. App. 581, 585, 405 S.E.2d

854, 857 (1991)). It is axiomatic that if personnel of a department of social services are agents of

the Commonwealth for the purposes of discovery under Rule 3A:11, they are certainly such for

the purpose of providing constitutional due process for a criminal defendant. By participating in

a criminal investigation, Dinwiddie DSS was “acting on the government’s behalf,” Kyles, 514

U.S. at 437, and became an agent of the prosecutor for the purpose of Brady and its progeny, and

it certainly had no authority to withhold evidence from either the prosecutor or Tuma that due

process principles required be disclosed. Moreover, the Code of Virginia specifies that when a

department of social services participates in a criminal investigation, it is the law enforcement

agency and the prosecutor who determine what information to release to third parties and not the

department. 9 The prosecutor in this case had a clear, unequivocal, and ongoing constitutional

duty to learn of any favorable evidence known to Dinwiddie DSS, an agent acting on behalf of


       9
           Code § 63.2-1516.1 provides that

                [i]n all cases in which an alleged act of child abuse or neglect is
                also being criminally investigated by a law-enforcement agency,
                and the local department is conducting a joint investigation with a
                law-enforcement officer in regard to such an alleged act, no
                information in the possession of the local department from such
                joint investigation shall be released by the local department except
                as authorized by the investigating law-enforcement officer or his
                supervisor or the local attorney for the Commonwealth.

See also Code § 63.2-105(A) (“Persons having a legitimate interest in child-protective services
records of local departments include . . . attorneys for the Commonwealth.”).
                                                 - 21 -
the Commonwealth, and to take active steps to disclose any that existed to Tuma. Therefore,

beyond her initial duty to inquire about potentially exculpatory evidence in the possession of

Dinwiddie DSS, once the prosecutor became aware of the existence of the tape, she had an

affirmative responsibility to ensure that if its contents were or later became exculpatory, she

disclose and produce it to the defense with sufficient timeliness that it could be used for possible

impeachment.

       The Commonwealth argues on brief that “even if” any of L.S.’s post-interview statements

contradicted her interview responses, any impeachment value would be minimal considering

Ms. Holloman’s expert testimony that children attempt to repress events of abuse. However, the

“jury determines the weight of the evidence and the credibility of the witnesses,” Bloom v.

Commonwealth, 262 Va. 814, 821, 554 S.E.2d 84, 87 (2001), and resolution of factual questions

is “wholly within the province of the jury,” Keener v. Commonwealth, 8 Va. App. 208, 214, 380

S.E.2d 21, 25 (1989). The jury is not required to accept the testimony of an expert witness;

rather the “‘jury has a right to weigh the testimony of all the witnesses, experts and otherwise.’”

Walrod v. Matthews, 210 Va. 382, 390, 171 S.E.2d 180, 186 (1969) (quoting Pepsi-Cola Bottling

Co. of Norfolk v. McCullers, 189 Va. 89, 99, 52 S.E.2d 257, 261 (1949)).

       The Commonwealth asserts that in the context of the entire record, any impeachment

value the audio tape would have provided does not undermine confidence in the jury’s

determination of Tuma’s guilt. The Commonwealth’s argument is essentially that, if the audio

tape had been disclosed in a timely fashion, the jury could nevertheless have found L.S. credible

and convicted Tuma, but given that the Commonwealth’s case rested entirely on her testimony

and applying the Supreme Court’s holding in Smith, we have no confidence that it necessarily

would have done so. Moreover, even if we agreed with the Commonwealth, our analysis

regarding a Brady violation would not end there. A Brady violation occurs when the prosecution

                                               - 22 -
suppresses evidence favorable to the defendant that is material either to guilt or to punishment.

Brady, 373 U.S. at 87. In Cone, the United States Supreme Court found that the trial court

should have considered the materiality of the evidence with respect to punishment in determining

whether the suppressed evidence was material within the meaning of Brady. Cone, 556 U.S. at

472. The Court concluded that because “the evidence suppressed at Cone’s trial may well have

been material to the jury’s assessment of the proper punishment in [the] case, . . . a full review of

the suppressed evidence and its effect is warranted.” Id. at 475.

       In criminal cases in Virginia, “the power to determine punishment of one convicted of a

criminal offense rests in the jury . . . . The jury’s role has long been construed to be more than

advisory, resulting in more than just a recommendation of punishment.” Frye v.

Commonwealth, 231 Va. 370, 397, 345 S.E.2d 267, 286 (1986). See Code § 19.2-295 (In a case

tried by a jury, the jury shall ascertain the term of confinement and the amount of fine, if any, of

a person convicted of a criminal offense).

       That the impeachment evidence in the tape could have affected the credibility of L.S. in

the eyes of the jury goes not only to the confidence in the outcome of the trial concerning

Tuma’s guilt or innocence, but also to the confidence in the sentence fixed by the jury. Had the

jury known of L.S.’s recorded interview statements, that the abuse occurred only at the white

house between five and ten times and not at the trailer or her grandmother’s house, the jury very

well could have doubted the number of times Tuma sexually abused L.S., considering that her

interview statements contradicted her trial testimony. It is reasonable to conclude that the

evidence of repeated occurrences of the sexual abuse at three separate locations impacted the

jury’s assessment of a proper punishment for Tuma. The evidence in the interview would have

been favorable to Tuma as it could have been used to impeach the credibility of L.S.’s testimony

on the number of times and different locations where Tuma sexually abused her. Therefore, the

                                               - 23 -
evidence was also material to Tuma’s degree of punishment, and suppression of the recorded

interview constituted a separate Brady violation on that basis.

       We now turn to the ongoing nature of the prosecutor’s burden to comply with the

requirements of Brady in the context of the record before us. “[T]he reviewing court may

consider directly any adverse effect that the prosecutor’s failure to respond [to a Brady request]

might have had on the preparation or presentation of the defendant’s case.” Bagley, 473 U.S. at

683. The Supreme Court noted in Kyles that,

               While the definition of Bagley materiality in terms of the
               cumulative effect of suppression must accordingly be seen as
               leaving the government with a degree of discretion, it must also be
               understood as imposing a corresponding burden. On the one side,
               showing that the prosecution knew of an item of favorable
               evidence unknown to the defense does not amount to a Brady
               violation, without more. But the prosecution, which alone can
               know what is undisclosed, must be assigned the consequent
               responsibility to gauge the likely net effect of all such evidence
               and make disclosure when the point of “reasonable probability” is
               reached. This in turn means that 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. But
               whether the prosecutor succeeds or fails in meeting this obligation
               (whether, that is, a failure to disclose is in good faith or bad faith,
               see Brady, 373 U.S. at 87), the prosecution’s responsibility for
               failing to disclose known, favorable evidence rising to a material
               level of importance is inescapable.

Kyles, 514 U.S. at 437-38 (emphasis added). We further note the United States Supreme Court’s

decision in Agurs, which made clear the prosecutor’s duty to volunteer material exculpatory

evidence to the defense even absent a specific request for such evidence by the defense. Agurs,

427 U.S. at 110.

       While Tuma’s counsel could have asked for a recess to listen to the audio tape of L.S.’s

interview once he became aware of it during the trial, his failure to do so did not excuse or




                                                - 24 -
dispense with the prosecutor’s affirmative duty to discover any favorable evidence known to

others acting on the Commonwealth’s behalf and to turn it over to Tuma. 10 The


       10
          Aside from the straw men not part of our analysis or ultimate holding in this case that
Judge Kelsey raises and promptly strikes down with respect to any application of the Rules of
Professional Conduct for attorneys and any foundational deficiencies regarding the admission of
the audio tape, the thrust of Judge Kelsey’s dissent flows from his initial flawed premise that the
audio tape was “available during trial.” Judge Kelsey reasons that, since Tuma’s counsel became
aware of the audio tape’s existence during the trial, any burden to learn the particulars of the
exculpatory nature of the tape’s contents fell upon Tuma, and he relies upon our Supreme
Court’s decision in Read v. Virginia State Bar, 233 Va. 560, 357 S.E.2d 544 (1987), to support
his analysis.
        Read, in turn, relied upon a decision of the United States Court of Appeals for the Tenth
Circuit holding that “‘Brady is not violated when Brady material is available to defendants
during trial.’” Id. at 565, 357 S.E.2d at 547 (quoting United States v. Behrens, 689 F.2d 154,
158 (10th Cir. 1982)). In Read, the Court held that there was no Brady violation where the
exculpatory information was already available for use by the defense. Id. at 563-64, 357 S.E.2d
at 546. We fail to see how Read provides any support for the conclusion ultimately reached by
Judge Kelsey. In Read, unlike this case, the defense had possession of the exculpatory
information from both the witnesses themselves and from the proffer made by the prosecutor on
the record after it rested its case.
        Judge Kelsey’s dissent also quotes United States v. Elmore, 423 F.2d 775 (4th Cir. 1970),
and observes that “no Brady violation occurs when the impeachment information was disclosed
‘well before the end of the trial.’” In Judge Kelsey’s view, it is apparently enough to satisfy
Brady by merely acknowledging the existence of the tape without the necessity for a prosecutor
to do more to satisfy the rigors of due process. However, the law is clear that a prosecutor’s
burden under Brady is not so amorphous and the approach taken by Judge Kelsey has been
affirmatively rejected by the Supreme Court in Banks. The notion that

               [a] rule thus declaring “prosecutor may hide, defendant must seek”
               is not tenable in a system constitutionally bound to accord
               defendants due process. “Ordinarily, we presume that public
               officials have properly discharged their official duties. We have
               several times underscored the special role played by the American
               prosecutor in the search for truth in criminal trials.” Courts,
               litigants, and juries properly anticipate that “obligations [to refrain
               from improper methods to secure a conviction] . . . plainly rest[ing]
               upon the prosecuting attorney, will be faithfully observed.”

Banks, 540 U.S. at 696 (internal citations omitted). It is the factual contents of the statements
memorialized by the recording that the prosecutor was obligated to disclose, not the mere
existence of their container.
        Moreover, Judge Kelsey’s dissent also contends that the judgment should be affirmed on
what is essentially a “right result, wrong reason” basis since the prosecutor in this case never
argued at trial the position Judge Kelsey’s dissent adopts on appeal – that the strictures of Brady
had been satisfied because Tuma “had access to the tape during trial.” To the contrary, such an
                                                - 25 -
Commonwealth’s Attorney should have reviewed the audio tape of L.S.’s interview in order to

satisfy her duty to learn of any favorable evidence known to Dinwiddie DSS or the police

investigating the case. The prosecutor’s negligible efforts to comply with her responsibilities fell

far short of what her oath of office and the law required of her. She did not listen to the tape yet

represented to the trial court that it was not exculpatory, she relied on the investigator’s

inaccurate and incomplete notes of the interview without exercising any independent judgment in

the matter, and she offered no assistance at any point in obtaining the tape for examination by

Tuma’s counsel. The record before us does not indicate when the prosecutor became aware of

the existence of the audio tape, but it does reflect that after becoming aware of it, she simply

turned a blind eye to an accessible audio recording of an investigatory interview of the only

victim and eyewitness in the case on whose testimony the conviction rested. Never having

listened to it, the prosecutor could not have known if the evidence in the audio tape was

exculpatory, yet she nevertheless represented to the trial court that it was not.

       Further, despite the prosecutor’s representation to the trial court that counsel for Tuma

“can listen to it if he wants to,” with the benefit of the hindsight provided by the record in this

case, the futility of any request Tuma might have made at trial for a recess to listen to the audio



analysis is inconsistent with the factual finding actually made. Relying on the representations of
the prosecutor, the trial court concluded that the contents of the tape were not exculpatory and
therefore the prosecutor had no duty to produce it. See Perry v. Commonwealth, 280 Va. 572,
579, 701 S.E.2d 431, 435 (2010) (“[C]ases are only proper for application of the right result for
the wrong reason doctrine when the evidence in the record supports the new argument on appeal,
and the development of additional facts is not necessary.”).
        Finally, despite Judge Kelsey’s apparent conclusion that the prosecutor’s statement that
Tuma’s counsel “can listen to it if he wants to” satisfied her affirmative duty under Brady, no
timely disclosure ever actually occurred, because the prosecutor never produced the tape for the
defense or disclosed the exculpatory nature of its contents at trial or at any other time.
Furthermore, the prosecution’s agent, Dinwiddie DSS, resisted every effort by the defense to
obtain the tape and while it was ultimately produced after Dinwiddie DSS’s efforts to resist
doing so were exhausted, this was not done until well after trial and certainly not in a timely
fashion such that it could be used to cross-examine L.S., Investigator Gilliam, or Ms. Scheid.

                                                - 26 -
tape is obvious. The prosecutor never produced the tape, either during the trial or during Tuma’s

post-trial efforts to obtain access to the tape even as Dinwiddie DSS resisted Tuma’s repeated

requests to turn the tape over.

       We hold that on this record, the failure of the prosecution to turn over L.S.’s interview

statements to Tuma prior to cross-examination of L.S. at trial violated his due process right to a

fair trial and undermines confidence in the outcome of the trial, regarding both the jury’s

determination of Tuma’s guilt and their decision with respect to Tuma’s sentence. On this basis,

we find that the trial court erred in not granting Tuma’s motion for a new trial based upon

after-discovered exculpatory evidence and we reverse Tuma’s convictions and remand for a new

trial if the Commonwealth so elects.

                                  B. Admissibility of the Audio Tape

       In Tuma’s remaining assignment of error, he argues that the trial court erred in refusing

to allow the jury to hear the audio tape and admit it into evidence, as it was clearly relevant to the

case. Our resolution of the first assignment of error is dispositive of our ultimate holding

reversing Tuma’s convictions, thus we need not address the admissibility of the audio tape. See

Powell v. Commonwealth, 261 Va. 512, 531-32, 552 S.E.2d 344, 355 (2001) (the Court does not

need to address all assignments of error where the Court’s opinion on other issues raised are

dispositive of the ultimate holding reversing the appellant’s convictions). Further, the issue

raised in Tuma’s second assignment of error will not arise at a new trial. See e.g. 1924 Leonard

Rd., L.L.C. v. Van Roekel, 272 Va. 543, 559, 636 S.E.2d 378, 388 (2006) (the Court declined to

address issues that would not affect its judgment and would not arise at a new trial); cf. Powell,

261 Va. at 535, 552 S.E.2d at 357 (where the Court reversed a capital murder conviction, it

found that it must consider other issues that may be relevant to a trial on remand for the murder

offense). The trial court did not admit the audio tape into evidence because Tuma had not

                                                - 27 -
listened to the tape and did not know what was on the tape at the time he asked the trial court to

admit it into evidence and to play it for the jury. Should the Commonwealth elect to retry the

case, the same issue regarding the admissibility of the audio tape would not arise because

Tuma’s counsel now has access to the tape. The question of admissibility of the tape into

evidence would then be within the discretion of the trial court and governed by the applicable

rules of evidence. Midkiff v. Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578 (2010).

Therefore, we need not address this assignment of error.

                                         III. Conclusion

       For these reasons, we reverse the judgment of conviction and remand this case to the trial

court for a new trial consistent with this opinion if the Commonwealth is so advised.

                                                                          Reversed and remanded.




                                               - 28 -
Kelsey, J., dissenting.

        On appeal, Tuma has the burden of making “each of three showings,” Skinner v. Switzer,

131 S. Ct. 1289, 1300 (2011) (emphasis added), to undermine his criminal conviction under

Brady v. Maryland, 373 U.S. 83 (1963).

              ▪ First, Tuma must establish the undisclosed evidence was
                “favorable to the accused, either because it is exculpatory, or
                because it is impeaching.” Skinner, 131 S. Ct. at 1300 (quoting
                Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).

              ▪ Second, he must prove “the State suppressed the evidence,
                ‘either willfully or inadvertently.’” Id.

              ▪ Third, Tuma must show he suffered “prejudice,” id., by proving
                a “reasonable probability that, had the evidence been disclosed,
                the result of the proceeding would have been different.” Smith
                v. Cain, 132 S. Ct. 627, 630 (2012) (quoting Cone v. Bell, 556
                U.S. 449, 469-70 (2009)).

These factors are not to be weighed in aggregate, with a strong showing on one compensating for

a weak showing on another. Nor should they be blurred together into indistinct variables. Each

of the “three components of a true Brady violation,” Strickler, 527 U.S. at 281, must be

independently proven on appeal by the defendant.

        In this case, Tuma lays heavy emphasis on the first and third components of his claimed

Brady violation. He addresses the second component — proof that the “State suppressed the

evidence,” Skinner, 131 S. Ct. at 1300 — almost as an afterthought. To be sure, he all but

assumes it away in a highly emotive narrative claiming the trial judge joined in the suppression

effort by denying Tuma access to the evidence at trial. Neither the law nor the record supports

this assertion.

                                                I.
                          BRADY & DSS VICTIM WITNESS STATEMENTS

        With few exceptions, DSS interviews of sexual assault victims must be orally recorded.

See Jones v. West, 46 Va. App. 309, 323, 616 S.E.2d 790, 798 (2005) (citing 22 Va. Admin.
                                              - 29 -
Code § 40-705-80(B)(1)). For Brady purposes, the audio recording is nothing more than a

statement by a victim witness. If the statement claims the defendant committed the crime and

does not suggest otherwise, it is inculpatory — not exculpatory. Neither the constitutional Brady

doctrine nor state law governing discovery in criminal cases 11 requires a prosecutor to provide

inculpatory witness statements to a defendant before, during, or after trial. After all, “the

Constitution does not require the prosecutor to share all useful information with the defendant.”

United States v. Ruiz, 536 U.S. 622, 629 (2002). “There is no general constitutional right to

discovery in a criminal case, and Brady did not create one.” Weatherford v. Bursey, 429 U.S.

545, 559 (1977).

       A witness statement, even if facially inculpatory before trial, can become exculpatory at

trial if the victim takes the stand and testifies in a manner inconsistent with the prior statement.

If this occurs, prosecutors then have an obligation to produce the inconsistent prior statement for

defense counsel to possibly use for impeachment purposes. This disclosure obligation, however,

only arises at trial — not prior to trial — where, as here, the pretrial statement allegedly

contradicts the declarant’s testimony at trial. In this context, impeachment evidence does not

exist until a witness takes the stand and says something impeachable.

       For this reason, Virginia follows the prevailing view that “Brady is not violated” when

impeachment material “is available to defendants during trial.” Read v. Va. State Bar, 233 Va.

560, 565, 357 S.E.2d 544, 547 (1987) (emphasis added) (quoting United States v. Behrens, 689

F.2d 154, 158 (10th Cir. 1982)). As a matter of law, “no Brady violation” can occur when the




       11
          Rule 3A:11 governs a defendant’s discovery rights in a criminal proceeding. “The
Rule specifically does not authorize discovery of ‘statements made by Commonwealth witnesses
or prospective . . . witnesses to agents of the Commonwealth . . . in connection with the
investigation or prosecution of the case.’” Juniper v. Commonwealth, 271 Va. 362, 394, 626
S.E.2d 383, 404 (2006) (quoting Rule 3A:11(b)(2)).
                                                 - 30 -
defendant learns of the potential impeachment evidence “in sufficient time to make use of [it] at

trial.” Read, 233 Va. at 564, 357 S.E.2d at 546. As Judge Easterbrook has explained: “A

prosecutor must disclose information favorable to the defense, but disclosure need not precede

trial. Brady thus is a disclosure rule, not a discovery rule. Disclosure even in mid-trial suffices

if time remains for the defendant to make effective use of the exculpatory material.” United

States v. Higgins, 75 F.3d 332, 335 (7th Cir. 1996) (citation omitted); see generally 6 Wayne R.

LaFave, Criminal Procedure § 24.3(b), at 365 (3d ed. 2007) (observing that “the prosecution

should be able to satisfy its constitutional obligation by disclosure at trial”).

        It does not matter that the prosecutor was or should have been “aware of the information”

prior to trial. Read, 233 Va. at 564, 357 S.E.2d at 546 (citing United States v. Darwin, 757 F.2d

1193 (11th Cir. 1985)). Nor does it matter if the defendant must recall a witness for the purpose

of impeachment:

                The point in the trial when a disclosure is made, however, is not in
                itself determinative of timeliness. We agree with those circuits
                holding that a defendant must show that the failure to earlier
                disclose prejudiced him because it came so late that the
                information disclosed could not be effectively used at trial.
                Appellant here made no such showing. In fact, although Dunn had
                completed his testimony, the trial itself was far from over.
                Appellant could have recalled Dunn for further questioning but
                chose not to.

Darwin, 757 F.2d at 1201 (emphasis added and citations omitted), quoted in part by Read, 233

Va. at 564-65, 357 S.E.2d at 546-47; see also United States v. Davis, 306 F.3d 398, 421 (6th Cir.

2002) (holding disclosure of impeachment material during trial, when witnesses were subject to

recall, satisfied Brady). 12




        12
         See also United States v. Mangual-Garcia, 505 F.3d 1, 5-6 (1st Cir. 2007); United States
v. Delgado, 350 F.3d 520, 527 (6th Cir. 2003); United States v. Kime, 99 F.3d 870, 882 (8th Cir.
1996); United States v. Catano, 65 F.3d 219, 227 (1st Cir. 1995); United States v. Gordon, 844
                                              - 31 -
        In Read, the Virginia Supreme Court relied on United States v. Elmore, 423 F.2d 775

(4th Cir. 1970), which held no Brady violation occurs when the impeachment information was

disclosed “well before the end of the trial,” particularly given that defense counsel could have

requested “a continuance for whatever further time might have been necessary.” Id. at 780. This

common-sense principle parallels the disclosure requirements of Rule 3A:11. A defendant who

“failed to move for a continuance or even for a recess in order to consider the material” cannot

“be heard to complain that he had insufficient time to prepare for trial.” Frye v. Commonwealth,

231 Va. 370, 384, 345 S.E.2d 267, 277 (1986); see Madsen v. Dormire, 137 F.3d 602, 605 (8th

Cir. 1998) (finding no Brady violation because defendant “did not request a continuance” to

examine the evidence disclosed for the first time at trial); Higgins, 75 F.3d at 335 (“If counsel

needed more time, she had only to ask; yet she did not seek a continuance. Nothing more need

be said.”). 13

        Brady is not a canon of prosecutorial ethics, as the majority mistakenly assumes. Ante, at

10-12. Brady enforces the threshold requirements of the Due Process Clause, not a state’s code

of ethics. See Cone, 556 U.S. at 470 n.15 (“Although the Due Process Clause of the Fourteenth




F.2d 1397, 1403 (9th Cir. 1988); United States v. Adams, 834 F.2d 632, 634-35 (7th Cir. 1987);
United States v. Kopituk, 690 F.2d 1289, 1340 (11th Cir. 1982); State v. Aikins, 932 P.2d 408,
437 (Kan. 1997); People v. Monroe, 17 A.D. 3d 863, 864 (N.Y. App. Div. 2005).
        13
          This point has been made in many different disclosure contexts. See, e.g., Davis v.
Commonwealth, 230 Va. 201, 204, 335 S.E.2d 375, 377 (1985) (finding no prejudice under Rule
3A:11 where defendant “did not request either a postponement or a continuance”); Knight v.
Commonwealth, 18 Va. App. 207, 215, 443 S.E.2d 165, 170 (1994) (taking into account that the
defendant “did not request a continuance in light of the late disclosure”). Accord United States
v. Collins, 415 F.3d 304, 310-11 (4th Cir. 2005); United States v. Gamez-Orduno, 235 F.3d 453,
461-62 (9th Cir. 2000); United States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir. 1993); United
States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir. 1989); United States v. Holloway, 740 F.2d
1373, 1381 (6th Cir. 1984); Apolinar v. State, 106 S.W.3d 407, 421 (Tex. Crim. App. 2003),
aff’d on other grounds, 155 S.W.3d 184 (Tex. Crim. App. 2005); Gutierrez v. State, 85 S.W.3d
446, 452 (Tex. Crim. App. 2002); Rodriguez v. State, 962 P.2d 141, 145-46 (Wyo. 1998);
LaFave, supra, at 365.
                                               - 32 -
Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the

obligation to disclose evidence favorable to the defense may arise more broadly under a

prosecutor’s ethical or statutory obligations.” (citing inter alia ABA Model Rule of Prof’l

Conduct 3.8(d), which Virginia adopted in 2000 as Va. Rule of Prof’l Conduct 3.8(d))); see also

Kyles v. Whitley, 514 U.S. 419, 437 (1995) (noting that Brady “requires less of the prosecution

than” ABA Model Rule 3.8(d)); see also VSB Legal Ethics Op. 1862 (draft published Mar. 15,

2012). 14 In Brady cases, therefore, an appellate court sits not as a disciplinary committee of the

state bar — but rather as a court of review, ensuring only that the criminal conviction satisfies

the threshold requirements of due process.

                                                 II.
                                DISCLOSURE OF THE TAPE AT TRIAL

       In this case, a recorded pretrial interview of the victim witness alleged Tuma’s guilt in

considerable detail. The recorded statement was internally consistent and, thus, inculpatory on

its face. The Commonwealth had no duty to provide Tuma with the recorded interview unless

and until the victim took the stand and testified inconsistently with it. Several statements from

the recorded interview, Tuma claims, could have been used to impeach the victim’s testimony at

trial. Perhaps so — but that only meant the recording had to be made “available” to Tuma’s

counsel “during trial,” Read, 233 Va. at 565, 357 S.E.2d at 547, so counsel could decide

whether, and if so, how, to use the recorded statement.




       14
           Accord Brooks v. Tennessee, 626 F.3d 878, 892-93 (6th Cir. 2010) (noting “the Brady
standard for materiality is less demanding than the ethical obligations imposed on a prosecutor”).
See also ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 09-454 (2009) (rejecting
the “incorrect assumption” that Rule 3.8(d) merely “codif[ied] the Supreme Court’s landmark
decision in Brady v. Maryland” and acknowledging that the “ethical duty” of the rule is “separate
from disclosure obligations imposed under the Constitution, statutes, procedural rules, court
rules, or court orders”).
                                              - 33 -
       It was certainly no secret that the recording existed. Prior to trial, Tuma’s counsel met

with the investigating officer and directly “asked him whether or not there was a tape” of the

victim’s interview. App. at 516. The investigator said he believed so, but was not sure. Id. On

appeal, Tuma’s counsel admits he had an “indication” and a “feeling” prior to trial that a tape

existed. See Oral Argument Audio at 6:45 to 6:55.

       The existence of the tape was confirmed early in the trial. The investigating officer, the

second of the Commonwealth’s six witnesses, testified he believed the interview was recorded.

The DSS investigator, the third witness, testified the interview was recorded and she had the tape

with her in the courtroom. The entire interview, she added, lasted only thirty to forty minutes.

       When Tuma’s counsel learned of the tape’s presence in the courtroom, he did not ask for

permission to listen to it. Instead, he inexplicably moved to admit the recorded interview, in its

entirety, into evidence — even though neither he, the prosecutor, nor the trial judge had listened

to it. The trial judge correctly refused to admit the tape into evidence under such circumstances.

Even if portions of the audiotape had qualified for impeachment, only those specific portions

could have been presented to the jury, and only after Tuma’s counsel had laid the proper

foundation necessary for impeachment. 15 He could not do that without first listening to the

recorded statement.




       15
           Tuma’s counsel apparently thought it appropriate to put the tape in the player, press the
play button, and admit into evidence every word, from start to finish. Suffice it to say, the trial
judge correctly understood impeachment simply does not work that way. “Extrinsic evidence of
a prior inconsistent oral statement by a witness is not admissible unless the witness is first
afforded an opportunity to explain or deny the statement and the opposite party is afforded an
opportunity to interrogate him thereon, or the interests of justice otherwise require. . . . Extrinsic
evidence of a witness’s prior inconsistent statement is not admissible unless the witness denies or
does not remember the prior inconsistent statement. Extrinsic evidence of collateral statements
is not admissible.” Boyd-Graves Conference, A Guide to Evidence in Virginia § 613(a)(ii), at 75
(2012), soon to be Va. Rule of Evid. 2:613(a)(ii) (effective July 1, 2012); see also Charles E.
Friend, The Law of Evidence in Virginia § 4-5(c)(1), at 147 (6th ed. 2003).
                                                - 34 -
        The trial judge’s evidentiary ruling, however, was not a Brady ruling precluding Tuma’s

counsel from listening to the tape. Indeed, the record shows the judge twice made clear to

Tuma’s counsel that he could listen to the tape: “You can go listen to it if you want to on your

own time,” the judge explained. App. at 318. “You can take it off and listen to it,” the judge

clarified. Id. “He can listen to it if he wants to,” the prosecutor concurred. Id. at 319. Yet, as

Tuma’s counsel concedes, he never once asked for the opportunity to listen to the tape outside

the jury’s presence. See Oral Argument Audio at 32:30 to 32:40. 16

        In his post-trial hearing on the Brady issue, Tuma’s counsel argued he was denied access

to the tape before and after trial but conceded he had access to the tape during trial. App. at

523-24. Tuma’s counsel admitted the prosecutor “at the trial said I could have access to it and

things of that nature.” Id. at 523 (emphasis added). Counsel similarly acknowledged the trial

court “was clear at the trial that I would be able to get it and listen to it.” Id. at 537 (emphasis

added). These concessions refute any suggestion that the trial court precluded Tuma’s counsel

from listening to the tape at trial. 17

        These facts also belie the inapt characterization of this case as one which, if affirmed,

would suggest the “prosecutor may hide” but the “defendant must seek.” Ante, at 25 n.10. The




        16
          The majority’s criticism of DSS’s reluctance to release the tape after trial contributes
nothing to the analysis. The Brady violation either occurred or did not occur at trial. Just as a
disclosure after trial cannot remedy a Brady violation at trial, a nondisclosure after trial cannot
violate Brady if a proper disclosure was made at trial.
        17
           These undisputed facts, coupled with Tuma’s concessions, undermine the majority’s
effort to mischaracterize my dissent as a right-result-wrong-reason scenario requiring additional
factfinding. See ante, at 25 n.10. I also find no merit in the assertion that my reasoning is
“inconsistent” with the trial court’s factual findings. Id. The trial court concluded no Brady
violation occurred because the tape was not exculpatory or prejudicial. I conclude no Brady
violation occurred even if the tape were exculpatory and prejudicial because Tuma’s counsel had
access to it during trial. The two views are entirely consistent — both conclude no Brady
violation occurred (relying on different prongs of the Brady test) and neither logically nor legally
negates the other.
                                                 - 35 -
majority lifts this language from Banks v. Dretke, 540 U.S. 668 (2004), which involved a

prosecutor successfully hiding information from a defendant at trial. Here, unlike Banks, the

prosecutor did not hide anything: Two of her witnesses openly disclosed the existence of the

tape, and the prosecutor (as well as the trial judge) suggested Tuma’s counsel “listen to it if he

wants to.” App. at 319. This was not a game of “hide” and “seek.” Ante, at 25 n.10. The tape

was found — in the courtroom, early in the trial, with plenty of time to put it to whatever use

Tuma’s counsel may have desired.

       In short, Tuma’s argument on appeal — that the “denial of the information contained on

the tape amounted to a prejudice against the defendant,” Appellant’s Br. at 32 — rests on one of

two false assumptions. If Tuma means he was denied the tape before trial, he mistakenly

assumes Brady required pretrial disclosure. It did not. The tape did not become exculpatory

until the victim testified in a manner inconsistent with it. “Brady is not violated” when

impeachment material “is available to defendants during trial.” Read, 233 Va. at 565, 357

S.E.2d at 547 (emphasis added and citation omitted).

       If Tuma means he was denied the tape at trial, he mistakenly assumes the court’s refusal

to “play the tape” in the presence of the jury meant that he could not play it for himself. The trial

judge could not have been clearer: Tuma’s counsel could listen to it, but the tape would not be

admitted into evidence without the proper foundation — necessarily requiring that someone in

the courtroom (usually the proponent of the evidence) listen to it first.

       The majority excuses counsel’s failure to listen to the tape on the paradoxical ground that

it will not excuse the prosecutor for her failure to do the same. “While Tuma’s counsel could

have asked for a recess to listen to the audio tape of L.S.’s interview once he became aware of it

during the trial,” the majority reasons, “his failure to do so did not excuse or dispense with the

prosecutor’s affirmative duty to discover any favorable evidence known to others acting on the

                                                - 36 -
Commonwealth’s behalf and to turn it over to Tuma.” Ante, at 24-25 (emphasis added). The

majority cites no authority in support of this reasoning, because none exists.

        Under settled principles, if Tuma’s counsel truly had access to the tape during trial for the

purpose of impeachment, there was no Brady violation as a matter of law — no matter what the

prosecutor did or did not do. See United States v. Smith Grading & Paving, Inc., 760 F.2d 527,

532 n.6 (4th Cir. 1985) (explaining that “the fact that disclosure came from a source other than

the prosecutor is of no consequence”); see also supra, at 31 n.12, 32 n.13 (citing Brady cases not

excusing a defendant’s failure to ask for a recess, continuance, or an opportunity to recall a

witness). 18

        In the end, the majority sidelines this debate as unimportant because “the futility of any

request Tuma might have made at trial for a recess to listen to the audio tape is obvious.” Id. at

26-27. This ipse dixit implies a bold accusation. 19 The majority apparently believes it “obvious”

the trial judge would have arbitrarily denied a brief recess (if one had been requested) for Tuma’s

counsel to listen to the tape — after twice suggesting that he do so. Nothing in the record

suggests this censorious supposition is true, much less obvious. We will never truly know, of




        18
           It is for this reason we can say “no Brady violation occurs ‘if the evidence in question
is available to the defendant from . . . sources [other than the Commonwealth].’” Gagelonia v.
Commonwealth, 52 Va. App. 99, 113, 661 S.E.2d 502, 509-10 (2008) (alteration in original)
(quoting United States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990)).
        19
           I also question other rhetorical excesses in the majority opinion, such as the description
of the “asymmetry” of the criminal justice system, the “fertile ground for many lawyer jokes,”
the “apparent hopelessness” of advocacy of defense counsel, and prosecutors’ alleged frustration
with the “unequal combat” required by due process. Ante, at 12. I similarly wince at the
declaration that criminal defense counsel have no “obligation to ascertain or present the truth,”
but, rather, may use whatever stratagem available to “confuse a witness, even a truthful one, or
make him appear at a disadvantage, unsure or indecisive” in pursuit of an acquittal. Id. (citation
omitted). If the majority means only to say Brady requires prosecutors to divulge exculpatory
evidence but does not similarly require defense counsel to divulge inculpatory evidence, simply
saying so should suffice to make the point.
                                               - 37 -
course, because Tuma’s counsel never asked for a brief recess to listen to the tape. I do not see

how the trial judge can be blamed for that.

       I respectfully dissent.




                                              - 38 -
Beales, J., dissenting.

        Today I fear the Court effectively creates a broader rule under Brady v. Maryland, 373

U.S. 83 (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 here – 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

        20
             Specifically, the majority opinion in this case holds,

                  [O]nce L.S.’s interview statements proved inconsistent with her
                  later account of the sexual assaults, whether when interviewed by
                  the prosecutor before trial, or, at the latest, at trial immediately
                  following her direct testimony, the audio tape of the interview
                  became evidence material to Tuma’s guilt and/or punishment and
                  should have been immediately disclosed when the discrepancy
                  became known or should have become known to the prosecutor.

(Emphasis added).

                                                  - 39 -
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

                                        I. 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. “‘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




       21
           I would remand the matter to the trial court for the very limited purpose of correcting a
clerical error in the final sentencing order. The sentencing order states that appellant’s sentence
for aggravated sexual battery was 25 years – which is greater than the statutory maximum of 20
years of imprisonment for an aggravated sexual battery conviction. However, it is clear from the
trial transcript that the jury recommended a 25-year sentence for animate object sexual
penetration (which is within the statutory maximum of life in prison) – not for aggravated sexual
battery (for which the jury recommended a 5-year sentence). It is also clear from the trial
transcript that the trial judge sentenced appellant in accordance with the jury’s recommendations.
Thus, the trial court’s final order simply reverses appellant’s sentences for aggravated sexual
battery and for animate object sexual penetration, and I would remand the matter to the trial
court for the specific purpose of correcting this clerical error.
                                                - 40 -
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 (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.

       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 (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 prejudice 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)).




                                                 - 41 -
       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; 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 Sheriff’s 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

concerning 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. Both of these inquiries certainly can be relevant considerations within a Brady

analysis, but the ultimate issue under Brady is whether the defendant has or has not been

prejudiced to a constitutionally significant degree. In the words of the United States Supreme

Court, “prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 282 (1999).




                                                - 42 -
       “The absence of prejudice, by itself, defeats [a] Brady claim and renders all other issues

analytically superfluous.” Deville v. Commonwealth, 47 Va. App. 754, 758, 627 S.E.2d 530,

532 (2006). In the final analysis, therefore, the rule in Brady tests whether the defendant has

been prejudiced to the extent that confidence in the outcome of the trial has, to “a reasonable

probability,” been undermined. See Bagley, 473 U.S. at 682. Simply put, confidence in the

outcome of the trial has not been undermined here.

                           II. ANALYSIS OF APPELLANT’S BRADY CLAIM

       Here, we have a seven-year-old witness, L.S., who, despite her young age, has

consistently asserted that she was sexually abused and has consistently asserted that appellant

William Tuma was the perpetrator of the sexual abuse. Nothing that L.S. said that was recorded

on the audiotape of the interview with Ms. Scheid and Investigator Gilliam in any way

contradicts the allegation that she was sexually abused and that appellant sexually abused her.

For example, appellant cites no statements from L.S. during the audiotaped interview calling into

question whether L.S. misidentified the perpetrator of the sexual abuse, or raising the possibility

that someone else (and not appellant) sexually abused her, or revealing even the slightest hint of

a motive to fabricate the sexual abuse allegation on her part.

       L.S. also has consistently asserted that appellant sexually abused her at the white house

next to the horses on Boydton Plank Road in Dinwiddie County, 22 and absolutely no statements

that were recorded during the interview contradict that assertion either. L.S. testified at trial, of

course, that the sexual abuse occurred at other locations in addition to the white house – even

though the audiotape of the interview reflects that she told Ms. Scheid and Investigator Gilliam

that the sexual abuse occurred only at the white house and stated that the sexual abuse did not


       22
          At trial, this residence was referred to as both the “white house” and the house “next to
the horses.” For purposes of this dissent, this residence simply will be referred to as the “white
house.”
                                                 - 43 -
occur at two of these other locations she mentioned at trial (i.e., the Green Acres Trailer Park and

her grandmother’s house). This inconsistency is the essence of appellant’s Brady claim – the

only real inconsistency in L.S.’s account that could not have been discovered based on

Investigator Gilliam’s written summary of the interview with L.S.

       However, any conceivable impact arising from this inconsistency must be considered

minimal when appellant’s Brady claim is “‘evaluated in the context of the entire record’” – in the

manner that binding authority instructs this Court to review any claim under Brady. Robinson v.

Commonwealth, 220 Va. 673, 676, 261 S.E.2d 318, 320 (1980) (quoting United States v. Agurs,

427 U.S. 97, 104, 112 (1976)).

              A. The Jury Was Aware that L.S. Made Prior Inconsistent Statements

       Appellant was charged with one count of taking indecent liberties with a child, one count

of aggravated sexual battery, and one count of animate object sexual penetration. At a minimum,

L.S., despite her young age, has consistently asserted that appellant sexually abused her five to

ten times at the white house – an assertion that was reflected both on the audiotape of the

interview with Ms. Scheid and Investigator Gilliam and in the investigator’s written summary of

the interview, which was provided to the defense before trial. Appellant could have been

convicted of all three charged offenses if the jury believed that even one episode of sexual abuse

occurred at the white house, as asserted by L.S. during the interview and then at trial. 23



       23
            This statement does not end the analysis – on appeal in this case, we are not, of course,
reviewing the sufficiency of the evidence supporting appellant’s convictions (which would be
overwhelming) or reviewing for harmless error. Kyles, 514 U.S. at 434-36. However, it is
certainly significant to consider that the jury was not asked to determine if one and only one
specific allegation of abuse was credible and true. From the five to ten times – or, based on her
trial testimony, more than ten times – that L.S. alleged that the sexual abuse occurred, the jury in
this case was entitled to convict appellant of the charged offenses even if it believed that the
charged sexual abuse occurred only once and rejected all of L.S.’s other assertions of sexual
abuse on other occasions. And the same principle holds true with a new jury, of course, now that
the matter has been remanded for a new trial.
                                                 - 44 -
       The trial transcript establishes that L.S.’s credibility was challenged by the defense at

trial. The jury could readily compare statements L.S. made to Ms. Scheid and Investigator

Gilliam during her pre-trial interview with the statements L.S. made during her testimony at trial.

Inconsistencies were pointed out during cross-examination of the Commonwealth’s witnesses

and by appellant’s trial attorney during closing argument.

       Based on the defense’s cross-examination of Investigator Gilliam and Ms. Scheid, the

jury was aware that L.S. asserted for the first time at trial that appellant sexually abused her three

times per week while they were staying at an RV park in Prince George County. This assertion

was never made during the audiotaped interview. In fact, the Prince George RV park was never

even mentioned during this interview.

       To be sure, this prior inconsistency was underscored during Ms. Scheid’s

cross-examination, during which the following exchange with appellant’s trial attorney occurred:

               Q: Nothing happened in a RV park in Prince George?

               A: I know nothing.

               Q: That never came [up]?

               A: I know nothing.

Moreover, appellant’s trial attorney alluded to L.S.’s testimony about the Prince George RV park

during closing argument, when counsel reminded the jury that L.S. at one point testified “that it

happened three times a week” – a clear reference to L.S.’s testimony about the sexual abuse at

the Prince George RV park.

       In addition, while L.S. testified at trial that appellant sexually abused her at her

grandmother’s house, the jury became aware during the trial that L.S. had informed Ms. Scheid

and Investigator Gilliam at the time of the interview that she was never sexually abused at her

grandmother’s house. On cross-examination at trial, L.S. testified that appellant sexually abused

                                                - 45 -
her at her grandmother’s house – which is not located in Dinwiddie County, as was clearly

established during L.S.’s cross-examination. During Ms. Scheid’s cross-examination, however,

Ms. Scheid testified:

               Q: Did you ask her if this man here touched her anywhere other
               than Dinwiddie?

               A: Yes.

               Q: You did?

               A: Yes.

               Q: Her answer was?

               A: Only in Dinwiddie.

(Emphasis added). Although Ms. Scheid’s recollection of this portion of the interview with L.S.

was not fully accurate at the time of trial, 24 this testimony conveyed the essentials of what L.S.

indicated during the audiotaped interview – that appellant did not sexually abuse her at L.S.’s

grandmother’s home, which is located outside of Dinwiddie County.

       Therefore, Ms. Scheid’s testimony that is excerpted above: (a) categorically excluded

L.S.’s grandmother’s home from being a place where L.S. asserted during the interview that

appellant sexually abused her; and (b) categorically included L.S.’s grandmother’s home as a

place where L.S. indicated during the interview that appellant did not sexually abuse her. The

defense learned of this information in time to call into question the credibility of L.S.’s trial

testimony that appellant sexually abused her at her grandmother’s house. Appellant cannot now

establish the required prejudice under Brady simply because his defense counsel did not use this

known inconsistency for impeachment purposes during the trial, even though, as just noted, his

defense counsel knew about it.

       24
          The audiotape of the interview reflects that L.S. said that appellant did not sexually
abuse her at her grandmother’s house, not that appellant did not sexually abuse her outside of
Dinwiddie County.
                                              - 46 -
       The jury was also aware that L.S. testified at trial that the sexual abuse occurred more

than ten times – based on a fair reading of the trial transcript, perhaps a lot more than ten times –

and that L.S.’s testimony, therefore, contradicted her earlier statement during the interview with

Ms. Scheid and Investigator Gilliam that appellant sexually abused her between five and ten

times. Appellant’s trial attorney actually highlighted this discrepancy for the jury during his

closing argument, asserting that “we have had answers all over the map as to how many times it

happened.” Thus, the jury heard substantial impeachment evidence and argument concerning the

consistency of the details of L.S.’s assertions of sexual abuse.

                 B. Appellant Presents the Same Type of Impeachment Evidence
                              that Was Already Presented at Trial

       On appeal, the impeachment evidence that appellant presents in his Brady claim is really

just the same type of impeachment evidence that the jury already considered at trial, when the

jury could compare L.S.’s statements reflected in Investigator Gilliam’s summary of the

interview with L.S.’s testimony at trial. See Lockhart v. Commonwealth, 34 Va. App. 329, 346,

542 S.E.2d 1, 9 (2001) (noting that Lockhart’s Brady evidence “was simply more of the same

type of evidence and would not, we conclude, have put the whole case in such a different light as

to undermine confidence in the verdict”); see also Byrd v. Collins, 209 F.3d 486, 518 (6th Cir.

2000) (“‘[W]here the undisclosed evidence merely furnishes an additional basis on which to

challenge a witness whose credibility has already been shown to be questionable or who is

subject to extensive attack by reason of other evidence, the undisclosed evidence may be

cumulative, and hence not material.’” (quoting United States v. Avellino, 136 F.3d 249, 257 (2d

Cir. 1998))); United States v. Cuffie, 80 F.3d 514, 518 (D.C. Cir. 1996) (explaining that

“undisclosed impeachment evidence can be immaterial because of its cumulative nature only if

the witness was already impeached at trial by the same kind of evidence”).



                                                - 47 -
       In this case, some of the details of L.S.’s inconsistencies cited by the majority opinion are

now different, in light of the specific statements from L.S. that are reflected on the audiotape, but

they concern the same types of inconsistencies from L.S. that the jury already considered – i.e.,

where the sexual abuse occurred and how many times the sexual abuse occurred. However, even

this assessment of appellant’s Brady claim overstates the strength of his argument on appeal.

This is because the audiotape and the investigator’s summary reflect no differences in the

number of times that L.S. asserted she had been sexually abused during the interview. 25

Appellant’s trial attorney actually used the information in the investigator’s summary to impeach

L.S. on this subject just as effectively as he could have used the audiotape. Consequently, what

appellant’s Brady claim actually boils down to is L.S.’s inconsistency concerning where, in

addition to the white house, the sexual abuse occurred. However, as noted above, the jury was

already aware that L.S. had been inconsistent on this very same subject of where the sexual

abuse occurred.



       25
           On brief, appellant refers to other “areas of interest” of L.S.’s trial testimony that, he
claims, could have been the subject of impeachment if the audiotape had been disclosed by the
time of trial. While the analysis of a Brady claim must reflect “the cumulative effect” of all
asserted Brady evidence, Kyles, 514 U.S. at 459, these additional subjects presented in
appellant’s brief present essentially no new impeachment value. As to whether the alleged
sexual abuse of L.S. occurred only in appellant’s bedroom or in his bedroom and also in L.S.’s
bedroom, the audiotape of L.S.’s interview and Investigator Gilliam’s written summary of the
interview both contain the same information. As to whether L.S.’s mother was present in the
bedroom when the alleged sexual abuse occurred, nothing that L.S. stated during the audiotaped
interview was in tension with her trial testimony that her mother was not present during the
sexual abuse. As to L.S.’s testimony at trial that appellant told L.S. to fondle her younger
brother (on her mother’s side of the family) in the bathtub, neither the audiotape of the interview
nor the investigator’s written summary of the interview contains this assertion. Thus, the defense
could have impeached L.S.’s testimony on that subject just as effectively using the written
summary of the interview as it could have using the audiotape of the interview. Furthermore, it
should be noted that L.S. actually referred to this specific incident well before trial – indeed,
before her interview with Ms. Scheid and Investigator Gilliam – when L.S. told her father about
this incident after she fondled her younger nephew (on her father’s side of the family).
Therefore, the jury was certainly aware that L.S.’s assertion that appellant directed her to fondle
her younger brother in the bathtub was not an assertion made for the first time at trial.
                                                 - 48 -
                       C. The Decision in Smith v. Cain is Distinguishable

        According to the majority opinion in this case, the United States Supreme Court’s recent

decision in Smith v. Cain, 132 S. Ct. 627 (2012), is controlling on the facts of this case. I

respectfully disagree. In my view, the circumstances in Smith were very different than the

circumstances are here. See Lockhart, 34 Va. App. at 346, 542 S.E.2d at 9 (“The materiality

inquiry is a context-specific determination; evidence that is material in one setting could be

immaterial in another.”). The circumstances that rendered the undisclosed impeachment

evidence material in Smith do not somehow make appellant’s asserted Brady evidence material

in this case.

        In Smith, the issue was the eyewitness’ identification of Smith as one of three gunmen

who committed murder during a home invasion and armed robbery. At trial, the prosecution’s

star eyewitness (Boatner) testified that Smith was the first gunman to come through the door and

that he had been face-to-face with Smith during the robbery. Boatner testified that he had “[n]o

doubt” that Smith was the gunman with whom he had stood face-to-face on the night of the

crime. However, the prosecution had failed to disclose to the defense statements that Boatner

made on the night of the crime and five days after the crime indicating that Boatner could not

identify any of the gunmen. Smith, 132 S. Ct. at 629-30.

        On appeal from the lower courts’ refusal to grant Smith post-conviction relief under

Brady, the United States Supreme Court held that “Boatner’s undisclosed statements were

plainly material,” explaining:

                We have observed that evidence impeaching an eyewitness may
                not be material if the State’s other evidence is strong enough to
                sustain confidence in the verdict. See United States v. Agurs, 427
                U. S. 97, 112-113, 96 S. Ct. 2392, 49 L. Ed. 2d 342, and n. 21
                (1976). That is not the case here. Boatner’s testimony was the
                only evidence linking Smith to the crime. And Boatner’s
                undisclosed statements directly contradict his testimony: Boatner
                told the jury that he had “[n]o doubt” that Smith was the gunman
                                               - 49 -
               he stood “face to face” with on the night of the crime, but
               Ronquillo’s notes show Boatner saying that he “could not ID
               anyone because [he] couldn’t see faces” and “would not know
               them if [he] saw them.” App. 196, 200, 308. Boatner’s
               undisclosed statements were plainly material.

Smith, 132 S. Ct. at 630 (emphasis in original).

       In context, the Supreme Court’s statement that “Boatner’s testimony was the only

evidence linking Smith to the crime” means that Boatner was the only witness at Smith’s trial

who could identify Smith as one of the gunmen present on the night of the crime. 26 The jury

believed Boatner’s testimony that Smith was one of the gunmen and convicted him. However, if

the jury had been presented evidence that Boatner was unable to identify any of the gunmen,

including Smith, at the time of the crime, then the jury could well have disbelieved Boatner’s

testimony that Smith was one of the gunmen. The inconsistencies between Boatner’s trial

testimony and his earlier statements implicated the very basic, highly material question of

whether Smith was even there when the crimes were committed. Because the question of

Smith’s presence at the crime scene suddenly appeared in a new and different light, Smith’s



       26
           I disagree with the majority’s assertion that L.S.’s testimony is “the only evidence
linking” appellant to the crimes here. L.S.’s father testified at trial that L.S. told him that
appellant “had abused her” by “sticking his fingers inside of her.” Moreover, L.S.’s stepmother
testified that L.S. told her that she “had been sexually abused” and that “[appellant] had been
placing his fingers on her private parts and that had been going on for some time.” These
statements from L.S. were not made during the recorded interview – and, in fact, predated that
interview. Furthermore, Ms. Amy Holloman, L.S.’s counselor who spent many hours with L.S.,
has concluded that L.S. was sexually abused, given the symptoms and behavior manifested by
this child and Ms. Holloman’s extensive experience in evaluating such children. No objection
was made against any of this testimony, and there is no indication from the record that this
testimony was admitted for any purpose other than the truth of the matter asserted. While all of
this evidence, of course, originated from L.S.’s own statements and behavior, the very nature of
sexual assault and sexual abuse cases is that there are no eyewitnesses to the sexual abuse other
than the perpetrator and the victim. That is why the testimony of the victim in such cases is
enough to obtain a conviction. See, e.g., Fisher v. Commonwealth, 228 Va. 296, 299, 321 S.E.2d
202, 204 (1984) (noting that “the victim’s testimony, if credible and accepted by the finder of
fact, is sufficient evidence, standing alone, to support the conviction” in a rape or sexual abuse
case).
                                                 - 50 -
asserted Brady evidence “‘undermine[d] confidence in the outcome of the trial.’” Id. (quoting

Kyles, 514 U. S. at 434).

       Aside from its recitation of general Brady principles, the decision in Smith has essentially

no application to the context of the record of this particular case. There was no question at

appellant’s trial that L.S. could accurately identify appellant – and the audiotape of L.S.’s

interview certainly contains nothing new on this subject.

       The Supreme Court of Virginia’s opinion in Bly v. Commonwealth, 280 Va. 656, 702

S.E.2d 120 (2010), also provides a useful contrast with the facts of this case. To prove Bly’s

guilt, the Commonwealth relied on a confidential informant’s testimony attesting that he had

participated in two alleged controlled drug transactions with Bly – but the Commonwealth did

not disclose to the defense that the police were aware that the confidential informant had been

providing false accounts of controlled transactions, was only paid by the authorities if he

reported a drug transaction, and had reported a total of eighty-three controlled buys during a

seven-month period. Id. at 658-60, 702 S.E.2d at 121-22. The Supreme Court granted Bly a

new trial under Brady, explaining:

               In the present case, in view of (1) the Commonwealth’s failure to
               introduce the audio recordings Hoyle was equipped to make of his
               dealings with Bly, (2) the lack of any other evidence to corroborate
               Hoyle’s testimony as to those transactions, and (3) Hoyle’s
               obvious pecuniary incentive to fabricate drug “buys,” the
               suppression of evidence that could have led to a devastating
               impeachment of Hoyle’s credibility undermines confidence in the
               outcome of the trial.

Id. at 663, 702 S.E.2d at 124 (emphasis added). In Bly, therefore, the suppression of evidence

that the confidential informant had a substantial motive to fabricate drug buys was material under

Brady because the confidential informant’s credibility could have been devastated if the jury had

known this information.



                                               - 51 -
       What Smith and Bly (and other Brady decisions 27) have in common is the suppression of

significant evidence that affects the credibility of a prosecution witness to the degree that it truly

impacts and undermines confidence in the verdict. In such cases, “the omitted evidence creates a

reasonable doubt that did not otherwise exist” based on solely the evidence that was presented at

trial. Agurs, 427 U.S. at 112. This case is very different than those cases. The audiotape of

L.S.’s interview did not contain any new information that would suggest that L.S. misidentified

appellant, that someone other than appellant had sexually abused L.S., or that L.S. had not been

sexually abused at all and had simply fabricated the allegation that she had been sexually abused.

Instead, appellant’s asserted Brady evidence only concerns certain inconsistencies in

comparatively minor details associated with her allegation that appellant sexually abused her –

i.e., where, in addition to the white house, the sexual abuse occurred. And the jury was already

aware from the evidence and argument at trial that L.S. had been inconsistent in this regard.

       Unlike in Smith, appellant’s asserted Brady evidence “was of a no more significant

nature than the impeachment evidence already presented at trial,” Lockhart, 34 Va. App. at 346,

542 S.E.2d at 9 – or that defense counsel could have exploited at trial, based on the evidence as it

developed during the trial. Appellant’s asserted Brady evidence is “simply more of the same

type of evidence and would not . . . have put the whole case in such a different light as to

undermine confidence in the verdict.” Id.

       27
           For example, in Kyles, the United States Supreme Court held that the suppressed Brady
evidence significantly eroded the reliability of identifications of Kyles made by two key
prosecution witnesses – and also called into question whether the informant in that case should
have been considered a suspect. Kyles, 514 U.S. at 441-43, 445-47. Moreover, in Workman, the
Supreme Court of Virginia held that, as to Workman’s claim of self-defense, “Workman was
deprived of introducing evidence of three recent incidents involving Bumbry firing weapons at
others.” Workman, 272 Va. at 650, 636 S.E.2d at 377. “Most certainly, such evidence has the
potential to be powerful impeachment of Bumbry’s statement at trial that he did not have a gun at
the scene and his denial” that he carried firearms.” Id. at 650, 636 S.E.2d at 377-78 (emphasis
added). Therefore, Workman’s Brady claim implicated “evidence of Workman’s reasonable
apprehension for his safety and evidence of who was the aggressor in this altercation.” Id. at
650, 636 S.E.2d at 378.
                                                - 52 -
            D. Applying Appellant’s Brady Claim to the Context of the Record Here

       Appellant’s Brady claim essentially concerns the precise location or locations where L.S.

asserted that appellant sexually abused her – not any misidentification of appellant on L.S.’s part,

and not anything relating to a motive to fabricate the allegation on L.S.’s part, but simply the

location or locations where appellant committed the sexual abuse against L.S.

       Appellant’s Brady claim does not detract in any way from L.S.’s consistent assertion that

appellant sexually abused her at the white house in Dinwiddie County. Furthermore, L.S.’s

inconsistency on the question of whether appellant sexually abused her at her grandmother’s

house outside of Dinwiddie County was learned by the defense at trial and could have been

exploited by the defense at trial. Moreover, L.S.’s inconsistency concerning her accusation that

appellant sexually abused her at the Prince George RV park was known by the defense at trial,

based on both Investigator Gilliam’s written summary of the prior interview with L.S. and

Ms. Scheid’s testimony at trial – and was exploited by the defense at trial.

       Thus, distilled to its essence, what appellant’s Brady claim really boils down to is an

unresolved factual question of whether L.S. asserted that appellant sexually abused her one time

at the Green Acres Trailer Park – stated apparently after the tape recorder stopped recording

L.S.’s statement to Ms. Scheid and Investigator Gilliam. 28 In my view, this one question does


       28
           In response to Investigator Gilliam’s final question asking where the last incident of
sexual abuse occurred, L.S. stated, “um the last time was last year after I saw last year um when I
was seeing him um it wasn’t when we were living in the trailer it was when I was like living
with” – and then the tape recorder stopped recording the rest of her answer. According to
Investigator Gilliam’s summary of the interview, L.S. subsequently indicated that the last
incident of sexual abuse occurred at the family friend’s trailer home, which the investigator
determined was in the Green Acres Trailer Park in Dinwiddie County. The audiotape reflects
that L.S. stated earlier in the interview that appellant did not sexually abuse her at that trailer
home. While it is true that L.S. is never actually heard saying at the conclusion of the interview
that the last incident of sexual abuse occurred there, it should be noted that the Commonwealth’s
response to appellant’s pre-trial motion for a bill of particulars indicated that appellant was
alleged to have committed criminal acts at the Green Acres Trailer Park – in addition to the
white house. Thus, the Commonwealth’s bill of particulars response could be used to
                                                 - 53 -
not come close to undermining confidence in the outcome of appellant’s trial, especially when

the entire record is considered, as case law demands that we do.

       I certainly disagree with the majority’s broad assertion that my analysis in this dissenting

opinion simply ignores the Brady materiality standard that the United States Supreme Court

stated in Kyles. On the contrary, my analysis is actually grounded in the Kyles standard – i.e.,

that evidence becomes material under Brady only when it could “reasonably be taken to put the

whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S.

at 435 (emphasis added). I emphasize the United States Supreme Court’s use of the words “the

whole case” because those words reflect the longstanding principle that a Brady claim must be

“evaluated in the context of the entire record” of the case. Agurs, 427 U.S. at 112. The majority

opinion would appear to find any undisclosed statements that a seven-year-old witness makes in

a child sexual abuse case that are even slightly inconsistent on the details of the alleged offense

are enough to trigger the Brady materiality rule – and thus, require the reversal of the

convictions. However, Brady and its progeny do not establish a per se rule that inconsistent

statements concerning the details of alleged child sexual abuse “are by definition material” in

such a situation under Brady, as the majority contends. As an appellate court, we are required to

evaluate the inconsistent statements – at first individually, 29 and then consider them collectively



corroborate Ms. Scheid’s and Investigator Gilliam’s testimony that L.S. stated that she was
sexually abused at the trailer park, as reflected by the investigator’s written summary of the
interview.
       29
           While the majority opinion vaguely criticizes this dissenting opinion for “pars[ing]
L.S.’s testimony item by item,” I am simply following the United States Supreme Court’s
instructions for reviewing a Brady claim. As the Supreme Court explained in Kyles, an appellate
court reviewing a Brady claim must “evaluate the tendency and force of the undisclosed
evidence item by item; there is no other way.” Kyles, 514 U.S. at 437 n.10. The appellate court
should then determine the “cumulative effect [of this evidence] for purposes of materiality
separately” at the conclusion of the Brady analysis. Id. I have, therefore, evaluated each of
appellant’s contentions regarding L.S.’s pre-trial interview and trial testimony item by item (and
have noted that several of appellant’s contentions simply lack force for the purpose of a Brady
                                               - 54 -
– and determine whether the asserted Brady evidence could “reasonably be taken to put the

whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S.

at 435 (emphasis added). Accordingly, we must consider not just the inconsistent statements –

but also the broader context of the record in this case.

       Here, the Commonwealth also presented expert testimony from L.S.’s child therapist,

who explained that it is uncommon for children who have been sexually abused “to remember

specific dates and instances of sexual abuse” because “they try to repress that as much as

possible” and that it is common “for more information to come out” after a young victim of

sexual abuse begins therapy. L.S.’s therapist testified, in her expert opinion, that the behavior

L.S. exhibited in front of her was consistent with the behavior of a child who had been sexually

abused and that she did not believe that L.S. was lying to her. The majority notes that a jury

need not accept an expert’s opinion – which is, of course, true. However, viewing “the evidence

in the light most favorable to the Commonwealth, as we must since it was the prevailing party”

in the trial court, Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), this

Court must accept as a historical fact that L.S. fondled her younger nephew during a Super Bowl

party in early 2008. Both L.S. and her nephew were naked from the waist down at the time. L.S.

explained after the incident that she touched her nephew inappropriately because appellant had

touched her in a similar manner.

       The incident between the young L.S. and her nephew during the Super Bowl party

provides an important layer of context to the analysis here. Evidence that L.S. acted out sexually




analysis). Based on United States Supreme Court precedent, there is no other way of conducting
a Brady materiality analysis to determine, in the end by considering the whole case, whether
confidence in the verdict has been undermined.

                                                - 55 -
in this way is evidence corroborating her contention that she had been sexually abused 30 – and

the issue of whether she had been sexually abused at all was the issue of contention at

appellant’s trial. (Neither the evidence at trial nor the audiotape of the interview provides even

the slightest suggestion that someone else had sexually abused L.S.) No new ground could have

been developed on the issue of whether L.S. had actually been sexually abused – even if the

defense had been given the audiotape of L.S.’s interview with Ms. Scheid and Investigator

Gilliam before or during the trial.

          Appellant simply was not prejudiced by the Commonwealth’s earlier failure to disclose

the audiotape to the defense. As the majority notes, it is appellant’s burden to establish a

reasonable probability that, if his claimed Brady evidence had been disclosed to the defense, the

result of the proceeding would have been different. See, e.g., Gagelonia v. Commonwealth, 52

Va. App. 99, 112, 661 S.E.2d 502, 509 (2008). In short, appellant simply has not shown that

confidence in the outcome of his trial has been undermined to a reasonable probability – as

required by the Brady rule.

                                   E. Materiality as to Punishment

          The majority also provides an alternative basis for reversal under Brady here. Even if

appellant’s asserted Brady evidence is not material as to guilt, the majority states that it is still

material as to punishment. Certainly, as a general matter, reversal is required under Brady where

the suppressed “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; see Cone v. Bell, 556 U.S. 449, 451

(2009).



          30
          Significantly, this incident with L.S.’s nephew was entirely consistent with
Ms. Holloman’s expert testimony reflecting her very common sense observation that, as she
indicated, young children who have been the victims of sexual abuse will then tend to “act[] out
sexually” towards others.
                                                - 56 -
       Here, however, I see no indication in the record that appellant ever raised in the trial court

a Brady claim as to punishment. Instead, appellant’s arguments in the trial court centered solely

on materiality as to guilt under Brady. On this basis, I would hold that any argument raised on

appeal that there was suppression of evidence that is material as to punishment is barred under

Rule 5A:18. Furthermore, appellant has not requested that this Court apply an exception to Rule

5A:18, and this Court does not apply such an exception sua sponte.

       In addition, having reviewed the record in this case, I do not believe that appellant has

satisfied Brady’s materiality standard even as to punishment. The only real basis in the record

that I can detect for even arguing that appellant here was prejudiced as to punishment is to note

that he was sentenced above the statutory minimum for his offenses. Certainly, however, the fact

that an inconsistency by a witness was not disclosed to the defense in time to be used at trial

cannot be considered material simply because the defendant did not receive the minimum

possible punishment. Otherwise, any time there is a lack of disclosure and the minimum

sentence is not given for each conviction, this would be a per se violation of Brady.

       In my view, appellant has failed to establish a reasonable probability that his punishment

would have been different if the audiotape of L.S.’s interview had been disclosed to the defense.

                                         III. CONCLUSION

       Assuming without deciding that the Commonwealth should have listened to the tape

recording of L.S.’s interview to determine if it had exculpatory material, the failure to do so,

under these particular circumstances, does not establish the required materiality in the

constitutional sense under Brady. There was not much more or truly different impeachment

evidence that could be brought forward to impeach this seven-year-old child that was not already

available to the defense to provide to the factfinder, and the victim here was always consistent

that appellant sexually abused her at the “white house.” Appellant was not prejudiced in any

                                               - 57 -
material way under the standard set forth by the United States Supreme Court in Brady and by

the opinions of the United States Supreme Court and the Supreme Court of Virginia interpreting

and applying Brady. Accordingly, since I believe appellant’s “trial result[ed] in a verdict worthy

of confidence,” Kyles, 514 U.S. at 434, I would affirm the convictions in this case.




                                              - 58 -
VIRGINIA:
           In the Court of Appeals of Virginia on Tuesday            the 13th day of December, 2011.


William Edward Tuma,                                                                              Appellant,

against             Record No. 0919-10-2
                    Circuit Court Nos. CR08-145 through CR08-147

Commonwealth of Virginia,                                                                         Appellee.


                                  Upon a Petition for Rehearing En Banc

 Before Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, Haley, Petty, Beales, Alston and
                                                 Huff


       On November 22, 2011 came the appellee, by the Attorney General of Virginia, and filed a

petition requesting that the Court set aside the judgment rendered herein on November 8, 2011, and grant

a rehearing en banc on the issue(s) raised in the petition.

       On consideration whereof, the petition for rehearing en banc is granted with regard to the

issue(s) raised therein, the mandate entered herein on November 8, 2011 is stayed pending the decision

of the Court en banc, and the appeal is reinstated on the docket of this Court.

       The parties shall file briefs in compliance with Rule 5A:35(b). The appellant shall attach as an

addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the

Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the

appendix previously filed in this case. In addition, any party represented by counsel shall file twelve

electronic copies of their brief with the clerk of this Court. The electronic copies must be filed on
twelve separate CDs or DVDs and must be filed in Adobe Acrobat Portable Document Format (PDF). 1



                                        A Copy,

                                               Teste:

                                                                     Cynthia L. McCoy, Clerk

                                                        original order signed by a deputy clerk of the
                                               By:      Court of Appeals of Virginia at the direction
                                                        of the Court

                                                                     Deputy Clerk




       1
       The guidelines for the creation and submission of a digital brief package can be found at
www.courts.state.va.us, in the Court of Appeals section under “Resources and Reference Materials.”
                                                  -2-
                                COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Beales and Senior Judge Clements
Argued at Richmond, Virginia


WILLIAM EDWARD TUMA
                                                              MEMORANDUM OPINION * BY
v.      Record No. 0919-10-2                                JUDGE JEAN HARRISON CLEMENTS
                                                                   NOVEMBER 8, 2011
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
                             Thomas V. Warren, Judge Designate

                    Linwood T. Wells, III, for appellant.

                    Craig W. Stallard, Assistant Attorney General (Kenneth T.
                    Cuccinelli, II, Attorney General, on brief), for appellee.


        William Edward Tuma was convicted following a jury trial of taking indecent liberties with

a child, aggravated sexual battery, and animate object penetration. On appeal, Tuma contends the

trial court erred by 1) ruling “that the evidence discovered by the defense during the jury trial, an

audiotape, was not exculpatory in nature and therefore need not have been disclosed by the

Commonwealth prior to trial pursuant to Brady v. Maryland,” 373 U.S. 83 (1963), and 2) “refusing

to allow the jury to hear the tape and admit it into evidence.” We agree the trial court erroneously

denied his motion for a new trial based on the Commonwealth’s failure to disclose the statement.

Therefore, we reverse the convictions and remand for a new trial.

        As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

this appeal.

                                         BACKGROUND

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)).

       Tuma was accused of sexually molesting his stepdaughter, L.S., beginning in January

2006 when the child was five years old. She eventually reported the incidents, and on February

6, 2008, Jon Webster Scheid, a Department of Social Services supervisor, and Investigator

Dwayne Gilliam interviewed the victim. During the trial, Tuma’s counsel learned that Scheid

and Gilliam had recorded the interview with the child.

       Although the Commonwealth provided defense counsel with a written summary of the

initial interview, prior to trial, the Commonwealth did not provide counsel with the actual

recording. In fact, Tuma’s counsel was unable to acquire the tape until after trial, at which time

he moved for a new trial based on the alleged Brady violation.

       Both Scheid and Gilliam testified at trial and, after having reviewed their notes, indicated

that the contents of the recording comported with the summary provided to the defense. They

also testified about their interview with the victim and were subject to cross-examination by

defense counsel. The victim, as well, testified at trial and recounted the interview.

       The Commonwealth also introduced the testimony of the victim’s counselor, Amy

Holloman. She explained that children often do not recall specific dates or instances of abuse

because they attempt to repress such events. She indicated it was typical for a child victim to




                                                -2-
recall more details about sexual abuse over time as the victim establishes a “trusting

relationship.”

       Tuma sought to have the tape played at trial, but the trial court overruled the motion.

Tuma also asserted the Commonwealth failed to properly disclose the existence of the tape prior

to trial pursuant to Brady.

                                           ANAYLSIS

                                                 I.

       Tuma contends that had the tape been provided to him pre-trial, “he could have used it to

impeach the credibility of four witnesses, [the victim], Jon Webster Scheid, Investigator Gilliam

and the counselor, Amy Hollman, and the investigation against the defendant as a whole at

trial.” 1 He maintains that the evidence “was exculpatory in nature and should have been

disclosed by the Commonwealth prior to trial.”

       When we review an exculpatory evidence claim, “‘[o]n appeal, the burden is on appellant

to show that the trial court erred.’” Gagelonia v. Commonwealth, 52 Va. App. 99, 112, 661

S.E.2d 502, 509 (2008) (quoting Galbraith v. Commonwealth, 18 Va. App. 734, 739, 446 S.E.2d

633, 637 (1994)).

       Due process requires the Commonwealth to disclose to the defendant all favorable

evidence material to his guilt or punishment. Brady, 373 U.S. at 86-87; see also Youngblood v.

West Virginia, 547 U.S. 867, 869 (2006); Garnett v. Commonwealth, 275 Va. 397, 406, 657

S.E.2d 100, 106 (2008). “‘There are three components of a true Brady violation: The evidence at



       1
         Because we conclude the contested evidence was exculpatory and material as to the
complaining witness, we need not decide whether the evidence was also exculpatory and
material as to the other witnesses. “An appellate court decides cases ‘on the best and narrowest
ground available.’” Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006)
(en banc) (quoting Air Courier Conf. v. Am. Postal Workers Union, 498 U.S. 517, 531 (1991)
(Stevens, J., concurring)).
                                               -3-
issue must be favorable to the accused, either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued.’” Coley v. Commonwealth, 55 Va. App. 624,

631, 688 S.E.2d 288, 292 (2010) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).

“Stated differently, ‘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.’” Workman v. Commonwealth,

272 Va. 633, 645, 636 S.E.2d 368, 374 (2006) (quoting Kyles v. Whitley, 514 U.S. 419, 434

(1995)).

       Exculpatory evidence is evidence that is favorable to the accused and includes

impeachment evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). Exculpatory

“information known to the police is information within the Commonwealth’s knowledge and the

prosecutor is obliged to disclose [it] regardless of the state of his actual knowledge.” Moreno v.

Commonwealth, 10 Va. App. 408, 418, 392 S.E.2d 836, 842-43 (1990).

       In its ruling, the trial court concluded “the tape . . . is material but inadequate that it

should produce opposite results on the merits at another trial. It is not exculpatory.” However,

the statements on the recording contradict to varying degrees the child’s trial testimony, and,

thus, had impeachment value. Accordingly, the trial court erred by holding the statements were

not exculpatory.

       Even though the statements were exculpatory, Tuma is not entitled to a new trial unless

the statements were also material. See Lockhart v. Commonwealth, 34 Va. App. 329, 345, 542

S.E.2d 1, 8 (2001). “[E]vidence 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.




                                                 -4-
A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.”

Bagley, 473 U.S. at 682.

       Because the victim’s testimony was the only evidence supporting the charges, L.S.’s

credibility was a crucial factor for the jury in reaching its verdict. Accordingly, any evidence

tending to cast doubt on her credibility was highly relevant to Tuma’s claim that L.S. was

fabricating the charges and that he did not commit the offenses. The Commonwealth’s failure to

provide defense counsel with the recording prevented Tuma from being able to effectively

cross-examine the child. “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.’” White v. Commonwealth, 12 Va. App. 99, 103, 402

S.E.2d 692, 695 (quoting Bagley, 473 U.S. at 683), aff’d on reh’g en banc, 13 Va. App. 284, 410

S.E.2d 412 (1991).

       Regarding the victim’s testimony, Tuma asserts her original statement contradicted her

trial testimony in six separate areas: 1) how many times the abuse occurred, 2) the location

where the abuse occurred, 3) her statement in the interview that no abuse occurred at the Green

Acres trailer park, 4) whether her mother was present when the abuse occurred, 5) where in the

house the abuse occurred, and 6) whether the victim inappropriately touched her brother at

Tuma’s request.

       In the recorded statement, L.S. said she was abused more than five times but less than ten

times when she was at the “white house.” At trial, she initially stated she was abused “a lot” at

the house and on cross-examination stated it was more than ten times. L.S. also recounted at trial

other places where the abuse occurred, including her grandmother’s house and a recreational

vehicle park. She made no mention of abuse occurring at the other locations in the recorded

statement.

                                               -5-
       In the initial interview, L.S. indicated her mother would go “out grocery shopping

sometimes” when the abused occurred. At trial, she testified her mother was in the room while

Tuma watched pornographic movies with her, but that her mother was not in the room when the

abuse actually occurred. On the tape, L.S. stated the abuse occurred only in Tuma’s bedroom.

At trial, she testified the abuse occurred both in Tuma’s bedroom as well as in her own bedroom,

but indicated she was “usually” in Tuma’s room when it happened. At trial, L.S. testified Tuma

forced her to touch her younger brother in the bath. On the tape, she made no mention of the

incident.

                       In determining the question of materiality, we consider the
               suppressed evidence as a whole, not item by item and if a Brady
               violation is established, we do not engage in a harmless error
               review. Instead, 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.”

Teleguz v. Commonwealth, 273 Va. 458, 488, 643 S.E.2d 708, 727 (2007) (quoting Bagley, 473

U.S. at 678) (citations omitted).

       Although the Commonwealth asserts the prior statement was not contradictory, but

“merely different,” it still could have been used for impeachment purposes. “‘[W]itnesses [can]

be impeached by their previous failure to state a fact in circumstances in which that fact naturally

would have been asserted.’” Jones v. Commonwealth, 50 Va. App. 437, 447, 650 S.E.2d 859,

864 (2007) (quoting Jenkins v. Anderson, 447 U.S. 231, 239 (1980)). Additionally, even if, as

the Commonwealth contends, the differences between the statements can be explained by the

expert testimony that child victims commonly provide greater details of abuse as they become

more comfortable with a counselor or advisor, whether to accept the explanation and believe

L.S.’s trial testimony “was wholly within the province of the jury.” Keener v. Commonwealth, 8

Va. App. 208, 214, 380 S.E.2d 21, 25 (1989). Credibility was the singular decisive issue in the

case. The Commonwealth’s failure to disclose the recorded statement precluded Tuma from
                                               -6-
presenting the prior inconsistent statement to the jury, and “prevented [him] from effectively

using the [statements] for purposes of challenging [L.S.’s] credibility.” Bowman v.

Commonwealth, 248 Va. 130, 134, 445 S.E.2d 110, 112 (1994). “When the ‘reliability of a

given witness may well be determinative of guilt or innocence,’ evidence affecting the credibility

of that witness should not be concealed by the prosecution.” Burrows v. Commonwealth, 17

Va. App. 469, 472, 438 S.E.2d 300, 303 (1993) (quoting Napue v. Illinois, 360 U.S. 264, 269

(1959)).

       In Lockhart, this Court concluded the suppressed impeachment evidence was not material

because “the victim was subjected at trial to substantial impeachment on the details of his story.”

Lockhart, 34 Va. App. at 346, 542 S.E.2d at 9. In that case, “the victim’s credibility would not

have been damaged by the additional impeachment evidence any more than it already had been

damaged at trial, particularly because the suppressed evidence was of no more significant nature

than the impeachment evidence already presented at trial.” Id. In this case, on the other hand,

L.S. was not impeached at trial at all and was not confronted with any prior statements.

Accordingly, we cannot conclude, as we did in Lockhart, that the suppressed impeachment

evidence was merely cumulative and therefore immaterial. Instead, the recording represents the

only evidence defense counsel could have used to impeach the victim’s testimony. The jury’s

findings depended entirely upon L.S.’s credibility as there was no physical or other corroborating

evidence presented at trial. Accordingly, L.S.’s pretrial statements would have been critical to

evaluating her credibility and the Commonwealth’s failure to provide defense counsel with the

recorded statement prevented counsel from impeaching the witness. The recording of the

victim’s initial interview was relevant and material to determining the victim’s credibility and

was, therefore, useful to Tuma’s ability to impeach the victim’s credibility. In a case such as this

where credibility is the most important issue, the withholding of the prior statement deprived

                                               -7-
Tuma of his due process right to a fair trial and warrants a reversal of his convictions as the

suppression of this evidence “‘undermines confidence in the outcome of the trial.’” Teleguz, 273

Va. at 488, 643 S.E.2d at 727 (quoting Bagley, 473 U.S. at 678).

                                                 II.

       Tuma also argues the trial court erred by refusing to allow the jury to hear the tape

recording of the interview with the victim. Specifically, he asserts “[t]he audio tape recording

was clearly relevant and the court abused its discretion and committed error by not introducing

it.”

       Because we reverse the convictions on the grounds that the evidence should have been

disclosed to the defense prior to trial, and the issue of whether the tape, which had not been heard

by either the defense or the Commonwealth at the time of the trial, should have been admitted

into evidence will not arise at a new trial, we do not address this issue in this opinion. See, for

example, 1924 Leonard Road, L.L.C. v. Van Roekel, 272 Va. 543, 559, 636 S.E.2d 378, 387

(2006); Bellfield v. Commonwealth, 11 Va. App. 310, 316, 398 S.E.2d 90, 93 (1990).

       For the reasons stated, the judgment appealed from will be reversed, and the case

remanded to the trial court for such further proceedings as the Commonwealth may be advised,

not inconsistent with this opinion.

                                                                            Reversed and remanded.




                                                -8-
Beales, J., dissenting.

        I respectfully dissent. The United States Supreme Court has explained that a defendant

“‘is entitled to a fair trial but not a perfect one,’ for there are no perfect trials.” Brown v. United

States, 411 U.S. 223, 231-32 (1973) (quoting Bruton v. United States, 391 U.S. 123, 135 (1968));

see Blevins v. Commonwealth, 267 Va. 291, 297, 590 S.E.2d 365, 369 (2004). Thus, the

Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963), reflects that a defendant in

a criminal prosecution is entitled to “a fair trial, understood as a trial resulting in a verdict worthy

of confidence.” Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).

        Here, the tape recording of L.S.’s February 6, 2008 interview should have been provided

to the defense prior to trial. 2 After reviewing the entire record in this case, however, I simply do

not believe that “there is a reasonable probability that, had th[is] 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); Bly v. Commonwealth, 280 Va. 656, 662, 702 S.E.2d 120, 123 (2010).

Therefore, in my view, appellant received a fair trial under the standard that has been set forth by

the United States Supreme Court and the Supreme Court of Virginia, and, thus, appellant’s

convictions should be affirmed.

                                         I. THE BRADY TEST

        As the United States Supreme Court has stated, “[T]he Constitution is not violated every

time the government fails or chooses not to disclose evidence that might prove helpful to the



        2
           The Supreme Court of Virginia has explained that the prosecution has a duty to disclose
evidence favorable to the accused even though there has been no request by the accused – and
that this duty encompasses impeachment evidence as well as exculpatory evidence. Workman v.
Commonwealth, 272 Va. 633, 644, 636 S.E.2d 368, 374 (2006) (citations omitted). Here,
appellant’s counsel zealously attempted to obtain, and eventually did obtain, the tape recording
of the February 6, 2008 interview after he learned of its existence at trial. However, as the tape
recording of the February 6, 2008 interview with L.S. contains potential impeachment evidence,
it really should have been disclosed to appellant’s counsel prior to trial.
                                               -9-
defense.” Kyles, 514 U.S. at 436-37. In Workman v. Commonwealth, 272 Va. 633, 644-45, 636

S.E.2d 368, 374 (2006), the Supreme Court of Virginia recognized

               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. (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). “‘[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 645, 636 S.E.2d at

374-75 (quoting Bagley, 473 U.S. at 678); see Strickler, 527 U.S. at 280 (“‘[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.’” (quoting Brady, 373 U.S. at 87)).

                                         II. BACKGROUND

       Here, appellant was charged with one count of taking indecent liberties with a child

(L.S.), one count of aggravated sexual battery, and one count of animate object sexual

penetration. The indictments alleged that these offenses occurred between January 1, 2006 and

December 31, 2007. The Commonwealth’s response to appellant’s motion for a bill of

particulars alleged that appellant committed criminal acts at two locations – a residence at 9617

Boydton Plank Road and at a home in the Green Acres Trailer Park.

       In addition, prior to trial, the Commonwealth provided the defense with a written

summary of L.S.’s interview with a child protective services officer and a police officer on

February 6, 2008. According to this written summary, L.S. alleged, inter alia, that appellant had

been inappropriately touching L.S. and putting his finger in her vagina since she was four years


                                                - 10 -
old; that appellant had touched L.S. in this way “at a white house with horses inside of a fence”;

that appellant had touched her in this way five to ten times at the “white house”; and that the last

time appellant touched her was in December 2007, at a home of a family friend. The written

summary indicated that the “white house” was the residence at 9617 Boydton Plank Road and

that the friend’s home was inside Green Acres Trailer Park – which were both mentioned in the

Commonwealth’s response to the motion for a bill of particulars.

       At trial, L.S. testified that the sexual abuse occurred at four different locations – at the

“white house,” at the Green Acres trailer, at her grandmother’s house, and at an R.V. park.

                         III. NO PREJUDICE UNDER BRADY IN THIS CASE

       On appeal, appellant contends that he was prejudiced under Brady by the

Commonwealth’s failure to provide the defense, prior to trial, with the tape recording of the

February 6, 2008 interview with L.S. Appellant claims that the tape recording of the February 6,

2008 interview contains significantly different allegations from what was provided in the written

summary of the interview and also differed significantly from L.S.’s testimony at trial.

Appellant argues that the Commonwealth’s failure to provide the tape recording impeded his

ability to conduct an effective cross-examination and now undermines such confidence in the

verdict that he is entitled to relief under Brady. Although appellant raises several different

assertions in support of this Brady claim, 3 his argument essentially boils down to L.S.’s

statement during the middle of the interview that the sexual abuse occurred only at the “white

house” – 9617 Boydton Plank Road – and not anywhere else. The written summary of the

interview did not include this statement, but instead noted L.S.’s statement that the last incident


       3
          Although Brady evidence must be “considered collectively, not item by item,” Kyles,
514 U.S. at 436, all of the other alleged inconsistencies are either very minor or do not directly
relate to the credibility of L.S.’s allegation that appellant actually committed the criminal acts
charged in the indictments. Therefore, I would hold that these other alleged inconsistencies
certainly are not “material” under Brady.
                                                  - 11 -
of sexual abuse occurred at the Green Acres Trailer Park – while, at trial, L.S. testified that the

sexual abuse occurred at four different locations.

       “[T]he burden is on appellant to show that the trial court erred.’” Gagelonia v.

Commonwealth, 52 Va. App. 99, 112, 661 S.E.2d 502, 509 (2008) (quoting Galbraith v.

Commonwealth, 18 Va. App. 734, 739, 446 S.E.2d 633, 637 (1994)). On appeal, appellant must

demonstrate that the tape recording of the February 6, 2008 interview was “material” in the

Brady sense by establishing that the contents of the tape recording “‘could reasonably be taken to

put the whole case in such a different light as to undermine confidence in the verdict.’”

Strickler, 527 U.S. at 290 (quoting Kyles, 514 U.S. at 435). “The materiality inquiry is a

context-specific determination; evidence that is material in one setting could be immaterial in

another.” Lockhart v. Commonwealth, 34 Va. App. 329, 346, 542 S.E.2d 1, 9 (2001). In my

view, under the particular circumstances of this case, I believe that appellant has not met the

materiality requirement under Brady.

         A. L.S.’S CONSISTENT ALLEGATION OF SEXUAL ABUSE AT THE “WHITE HOUSE”

       In this case, it is especially important to emphasize that L.S. has always been consistent

in her allegation – both in the interview before trial and during her testimony at trial – that

appellant sexually abused her at the “white house.” Some of the details of L.S.’s allegation of

sexual abuse have differed, but L.S. has always alleged that appellant sexually abused her at the

“white house.”

       Thus, while the defense could perhaps have attempted to impeach L.S. to some extent if it

had known that she stated during a portion of the tape-recorded interview that the sexual abuse

occurred only at the “white house,” the jury was always entitled to disbelieve parts of L.S.’s

testimony while at the same time accepting her consistent allegation that appellant indeed

sexually abused her (and committed the charged offenses) at the “white house.” See Rollston v.

                                                - 12 -
Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991). The jury’s acceptance of

L.S.’s testimony, standing alone, that the charged offenses occurred at the “white house” would

support the guilty verdicts in this case. See Fisher v. Commonwealth, 228 Va. 296, 299, 321

S.E.2d 202, 204 (1984) (noting that “the victim’s testimony, if credible and accepted by the

finder of fact, is sufficient evidence, standing alone, to support the conviction” in a rape or

sexual abuse case).

             B. L.S. DID ALLEGE SEXUAL ABUSE AT THE GREEN ACRES TRAILER PARK

        Furthermore, the written summary of the February 6, 2008 interview correctly states that

L.S. indicated the last incident of sexual abuse occurred at the Green Acres Trailer Park. While

L.S. said during the middle of the tape-recorded interview that the sexual abuse only occurred at

the “white house” (and not anywhere else), she apparently added a correction to this statement

later in the interview. Near the very end of the tape-recorded interview, L.S. was asked when

was the last time that appellant touched her sexually. The transcript of the interview indicates

that the “tape ran out” while L.S. was answering this question. At the point that the tape cut off,

L.S. was in the middle of stating that the last time appellant touched her sexually “was when I

was like living with . . . .”

        The written summary of the interview (which was provided to the defense prior to trial)

indicates that L.S. then alleged that appellant touched her sexually at the home of the family

friend – in the Green Acres Trailer Park. The allegation that appellant committed criminal acts

at the Green Acres Trailer Park, of course, had already been provided to the defense in the

Commonwealth’s response to the motion for a bill of particulars – further corroborating the

Commonwealth’s explanation that L.S. mentioned a second location of sexual abuse

immediately after the tape recording of the February 6, 2008 interview “ran out.”




                                                - 13 -
          C. THE DEFENSE COULD HAVE ALREADY IMPEACHED L.S. BASED ON DIFFERENCES
       BETWEEN THE WRITTEN SUMMARY OF HER INTERVIEW AND HER TRIAL TESTIMONY

       Even if the defense had been aware that L.S. said during the middle of the February 6,

2008 tape-recorded interview that the sexual abuse occurred only at the “white house” (and not

anywhere else), there is not “a reasonable probability that, had th[is] evidence been disclosed to

the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682

(emphasis added). This is because, prior to trial, the defense was already aware that L.S. alleged

during this interview that the sexual abuse occurred at two locations – at the “white house” and at

the Green Acres Trailer Park. At trial, however, L.S. alleged that appellant sexually abused her

at four locations – at the “white house,” at the Green Acres trailer, at her grandmother’s house,

and at an R.V. park.

       Thus, the defense was already aware of an inconsistency in L.S.’s statements concerning

the locations of the sexual abuse – and certainly could have attempted to impeach L.S.’s

credibility on that basis. Whether L.S. alleged earlier that the sexual abuse occurred at one or

two locations simply is not material in the Brady sense, given that L.S. mentioned two entirely

new locations of abuse for the first time at trial. Since the defense was aware prior to trial that

L.S. had alleged during the February 6, 2008 interview that the sexual abuse occurred at two

locations and L.S. then testified at trial that the sexual abuse occurred at four locations, L.S.’s

statement earlier in the February 6, 2008 interview that the abuse occurred only at one location is

essentially the “same type” of impeachment evidence that was already at the defense’s disposal.

Lockhart, 34 Va. App. at 346, 542 S.E.2d at 9. Disclosure of this statement by L.S. would not,




                                                - 14 -
therefore, “have put the whole case in such a different light as to undermine confidence in the

verdict.” Id. 4

        Unlike in Bly, 280 Va. at 663, 702 S.E.2d at 124, no previously undisclosed

impeachment evidence could have led to significantly more “devastating impeachment” of L.S.’s

credibility in this case. 5 For example, L.S. made no statements during the tape-recorded

February 6, 2008 interview that pointed to a motive to fabricate her allegation of sexual abuse by

appellant or that could have rendered her allegation improbable. Instead, the entirety of this

interview reveals comparatively minor differences from the information that was already

disclosed to the defense prior to trial. There is only a “‘mere possibility,’” at most, that

disclosure of the tape recording of the February 6, 2008 interview might have helped the defense

any more than the written summary of the interview. Soering v. Deeds, 255 Va. 457, 465, 499

S.E.2d 514, 519 (1998) (quoting United States v. Agurs, 427 U.S. 97, 109 (1976)). And, of

course, as the United States Supreme Court has instructed us, “‘[t]he mere possibility that an

item of undisclosed information might have helped the defense, or might have affected the




        4
          In addition, L.S.’s child counselor – who was admitted as an expert in adolescent
trauma – testified at trial that it is uncommon for children “to remember specific dates and
instances of sexual abuse” because “they try to repress that as much as possible.” The expert
also testified that it is common “for more information to come out” after a young victim of
sexual abuse begins therapy.
        5
         In Bly, the Commonwealth relied on a confidential informant’s testimony about two
alleged drug transactions with Bly to prove Bly’s guilt at trial – but the Commonwealth did not
disclose to the defense that the police were aware that the confidential informant had been
providing false accounts of controlled transactions, was only paid by the authorities if he
reported a drug transaction, and had reported a total of eighty-three controlled buys during a
seven-month period. Bly, 280 Va. at 658-60, 702 S.E.2d at 121-22. On appeal, the Supreme
Court held that the failure to disclose this impeachment evidence that “could have led to a
devastating impeachment” of the confidential informant’s credibility “undermines confidence in
the outcome of the trial.” Id. at 663, 702 S.E.2d at 124 (emphasis added).

                                                - 15 -
outcome of the trial, does not establish “materiality” in the constitutional sense.’” Id. (quoting

Agurs, 427 U.S. at 109-10).

       Accordingly, I would hold that appellant simply was not prejudiced under Brady. 6

                                          IV. CONCLUSION

       Although the tape recording of L.S.’s interview should have been provided to the defense

prior to trial, the failure to do so, under these particular circumstances, does not establish the

required materiality in the constitutional sense. There was not much more or truly different

impeachment evidence that could be brought forward to impeach this seven-year-old child on

cross-examination that was not already available to the defense to provide to the factfinder, and

the victim here was always consistent that appellant sexually abused her at the “white house.”

Appellant was not prejudiced in any material way under the standard set forth by the United

States Supreme Court in Brady and in Kyles and by the Supreme Court of Virginia in Workman.

Accordingly, since I believe appellant’s “trial result[ed] in a verdict worthy of confidence,”

Kyles, 514 U.S. at 434, I respectfully dissent from the decision of the majority to reverse the

convictions in this case.




       6
         I would also hold that the trial court did not abuse its discretion when it denied
appellant’s request to play the tape recording for the jury. “The admissibility of evidence is
within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the
absence of an abuse of discretion.” Brown v. Commonwealth, 21 Va. App. 552, 555, 466 S.E.2d
116, 117 (1996). At the time of appellant’s request, neither appellant’s counsel nor the trial court
had even heard the audio tape, which turned out to be of poor quality.
                                                 - 16 -
