PRESENT: All the Justices

COMMONWEALTH OF VIRGINIA
                                             OPINION BY
 v.   Record No. 121177           JUSTICE ELIZABETH A. McCLANAHAN
                                           APRIL 18, 2013
WILLIAM EDWARD TUMA


             FROM THE COURT OF APPEALS OF VIRGINIA

      A jury convicted William Edward Tuma (Tuma) of taking

indecent liberties with a child, aggravated sexual battery,

and animate object penetration.    On appeal, we consider

whether the Commonwealth violated Brady v. Maryland, 373 U.S.

83 (1963) by suppressing evidence in the form of an audio tape

recording of an investigative interview with the victim.

Concluding the Commonwealth committed no Brady violation, as

the recording was made available to Tuma in sufficient time

for its use at trial, we will reverse the judgment of the

Court of Appeals of Virginia.

               I. RELEVANT FACTS AND PROCEEDINGS

      Under familiar principles, we review the facts in the

light most favorable to the Commonwealth, the prevailing party

at trial. Bly v. Commonwealth, 280 Va. 656, 658, 702 S.E.2d

120, 121 (2010) (applying the Brady rule).

      The victim, L.S., a seven-year-old girl, indicated to her

father and stepmother that she had been sexually assaulted by

Tuma, her stepfather.     L.S. stated that Tuma had been placing
his fingers "inside" of her "private parts," referring to her

vagina.   When provided with this information, the Dinwiddie

County Sheriff's Office (DCSO), along with the Dinwiddie

County Department of Social Services (DSS), conducted a joint

investigation.   Among other things, DCSO Investigator Dwayne

Gilliam and Jon Scheid, a child protective services worker

with DSS, interviewed L.S.   Scheid audio tape recorded the

interview as required by DSS regulations.   See 22 VAC § 40-

705-80(B)(1)).

     As a result of the investigation, Tuma was indicted on

charges of committing three sex crimes against L.S. for which

he was ultimately convicted in a jury trial - taking indecent

liberties with a child (Code § 18.2-370.1), aggravated sexual

battery (Code § 18.2-67.3(A)(1)), and animate object

penetration (Code § 18.2-67.2).

     Prior to trial, the Commonwealth's Attorney for Dinwiddie

County provided Tuma's counsel with a written summary of the

investigative interview with L.S., which Gilliam prepared as

part of his case report.   Tuma's counsel was not provided pre-

trial access to the tape recording of the interview.    However,

he learned of the tape's probable existence at least a week

before trial when, according to him, he specifically "asked

[Gilliam] whether or not there was a tape" and Gilliam said

"he thought there may have been but he was not sure."

                             2
     At trial, Gilliam, the Commonwealth's second of six

witnesses (L.S. was the first), reiterated on cross-

examination that he believed DSS had tape recorded the

interview.   Scheid, the Commonwealth's third witness, then

confirmed during cross-examination that she recorded the

interview and had the audio tape with her in the court room.

Tuma's counsel immediately moved to admit the tape recording,

in its entirety, into evidence.      At that time, neither he, the

prosecutor, nor the trial judge had listened to it.      Under

those circumstances, the trial judge refused to admit the tape

into evidence.   As the judge explained, "we'll not just play a

tape . . . without any sort of thought or notion as to what is

there."

     In making this evidentiary ruling, the trial judge

nevertheless made clear to defense counsel that he could

listen to the tape:   "You can go listen to it if you want to

on your own time," the judge stated.      "You can take it off and

listen to it," the judge further clarified.      The judge then

asked the prosecutor if defense counsel "had access to [the

tape]," to which the prosecutor replied, "He can listen to it

if he wants to."   Defense counsel did not ask to listen to the

tape outside of the jury's presence, either then or at any

other time during the trial.       Rather, he simply asked the




                               3
judge to "[j]ust note [his] exception" to the ruling on his

request to play the entire tape to the jury.

        Tuma's counsel moved a second time to admit the tape into

evidence before arguing a motion to strike at the conclusion

of the Commonwealth's case.    He asserted that the tape was

"the best evidence of what was said" during the interview, and

that he "would think that it would be exculpatory in terms of

where things occurred and [the] number of times they

occurred," referring to the allegations of sexual assault.

However, Tuma's counsel admittedly had "not heard [the tape]

yet."    The trial judge denied the request, explaining to him,

"I don't think you are entitled just to play something because

you think it may be exculpatory."

        Tuma's counsel first listened to the tape after the trial

ended with guilty verdicts on all charges.    Tuma subsequently

filed motions to strike the evidence as insufficient for

conviction and, alternatively, to set aside the verdicts and

grant him a new trial, based on the contention that the

prosecutor violated Brady by failing to provide pre-trial

access to the tape.    Had he been given such access, Tuma

argued, it could have been used to impeach the credibility of

the Commonwealth's first four witnesses, namely, L.S.,

Gilliam, Scheid, and L.S.'s counselor, Amy Holloman.

According to Tuma, the tape revealed eight certain "areas of

                               4
interest and factual discrepancies" that the defense could

have used to effectively cross-examine those four witnesses.

Tuma's counsel conceded at an earlier post-trial hearing,

however, that he had access to the tape during the trial.

Counsel specifically admitted that "at the trial [the

prosecutor] said I could have access to it and things of that

nature."    He similarly acknowledged that the trial judge "was

clear at the trial that I would be able to get it and listen

to it."    Finding no Brady violation, the trial court denied

Tuma's motions, entered a judgment of conviction and imposed

the sentences fixed by the jury.

     Tuma appealed his convictions to the Court of Appeals,

contending the trial court erred by (i) rejecting his Brady

challenge to the prosecutor's failure to disclose the audio

tape prior to trial, and (ii) refusing to admit the tape into

evidence and allow the jury to hear it.      In a memorandum

opinion, a three judge panel, with one judge dissenting,

reversed the convictions on the Brady issue and remanded the

case for a new trial.       Tuma v. Commonwealth, Record No. 0919-

10-2, 2011 Va. App. LEXIS 337 (November 8, 2011).      Given that

ruling, the panel did not rule on Tuma's second assignment of

error.     Id. at *12-13.   Granting the Commonwealth's petition

for rehearing en banc, the Court of Appeals reached the same




                                 5
decision.   Tuma v. Commonwealth, 60 Va. App. 273, 303-04, 726

S.E.2d 365, 380 (Va. App. 2012).

     We granted the Commonwealth this appeal on two

assignments of error in which it asserts the Court of Appeals

erred by (i) finding a Brady violation when the evidence was

available to Tuma at trial; and (ii) holding that the audio

tape contained evidence that was material under Brady.

                           II. ANALYSIS

                                  A.

     Under the Brady rule, the prosecution's suppression of

evidence favorable to the accused and material to either guilt

or punishment violates due process.     Brady, 373 U.S. at 87.

First, the prosecution's suppression of evidence may be

established "irrespective of the good faith or bad faith of

the prosecution."   Id.   Second, the evidence must be

"'favorable to the accused, either because it is exculpatory,

or because it is impeaching.'"     Skinner v. Switzer, 562 U.S.

___, 131 S. Ct. 1289, 1300 (2011) (quoting Strickler v.

Greene, 527 U.S. 263, 281-82 (1999)).     Third, the "'evidence

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.'"

Smith v. Cain, 565 U.S. ___, 132 S. Ct. 627, 630 (2012)

(quoting Cone v. Bell, 556 U.S. 449, 469-70 (2009)).     The

                              6
accused has the burden of establishing each of these three

components to prevail on a Brady claim.   Skinner, 131 S. Ct.

at 1300.

     In this appeal, the Commonwealth does not challenge

whether the tape recording presented favorable impeachment

evidence for the defense, as Tuma contends.   The Commonwealth

instead limits its challenge to Tuma's showing on the

suppression and materiality prongs of the Brady rule.     Because

we agree with the Commonwealth that the prosecution did not

suppress the tape in violation of Brady, we need not address

the issue of materiality.   See Porter v. Warden of the Sussex

I State Prison, 283 Va. 326, 332, 722 S.E.2d 534, 542 (2012)

(explaining that "we do not reach the issue of materiality"

under Brady "unless we first determine that the evidence was

not available" to the defense).

                                 B.

     Brady is "a disclosure rule, not a discovery rule."

United States v. Higgins, 75 F.3d 332, 335 (7th Cir. 1996).

Indeed, "[t]here 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).   The more

limited purpose of the Brady rule is "'to assure that [the

defendant] will not be denied access to exculpatory [or

impeachment] evidence known to the government but unknown to

                             7
him.'"   Lugo v. Munoz, 682 F.2d 7, 10 (1st Cir. 1982) (quoting

United States v. Ruggiero, 472 F.2d 599, 604 (2d Cir. 1973))

(first emphasis added).   Accordingly, Brady is not violated,

as a matter of law, when impeachment evidence is made

"'available to [a] defendant[] during trial'" if the defendant

has "sufficient time to make use of [it] at trial."     Read v.

Virginia State Bar, 233 Va. 560, 564-65, 357 S.E.2d 544, 546-

47 (1987) (quoting U.S. v. Behrens, 689 F.2d 154, 158 (10th

Cir. 1982)); see Higgins, 75 F.3d at 335 (Under Brady,

"[d]isclosure even in mid-trial suffices if time remains for

the defendant to make effective use of the exculpatory

material."); United States v. Knight, 867 F.2d 1285, 1289

(1989) (holding Brady satisfied where "[a]ppellants received

the information during the trial and have failed to

demonstrate that the disclosure came so late that it could not

be effectively used"); see generally 6 Wayne R. LaFave,

Criminal Procedure § 24.3(b) at 365 (3d ed. 2007) (Under

Brady, "the prosecution should be able to satisfy its

constitutional obligation by disclosure at trial.").

     This principle applies without regard to when the

prosecution was or should have been "aware of the

information."   Read, 233 at 564, 357 S.E.2d at 546, citing

with approval United States v. Darwin, 757 F.2d 1193 (11th

Cir. 1985).   In Darwin, the defendant contended that the

                             8
prosecution violated Brady because the government failed to

disclose certain impeachment evidence about a witness until

after he had testified even though the government had been

aware of the information several days prior to his testimony.

Id. at 1201.   Rejecting defendant's Brady claim, the Court of

Appeals for the Eleventh Circuit explained:

      The point in the trial when a disclosure is
      made . . . 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.

Id. (internal 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); United States v. Mangual-

Garcia, 505 F.3d 1, 5-6 (1st Cir. 2007) (same); United States

v. Kime, 99 F.3d 870, 882 (8th Cir. 1996) (same).

     In Read, this Court further relied upon United States v.

Elmore, 423 F.2d 775 (4th Cir. 1970), which held that no Brady

violation occurred when the impeachment information was

disclosed "well before the end of the trial," particularly


                             9
given that defense counsel requested no continuance "for

whatever further time might have been necessary" to make use

of the information at trial.    Id. at 779-80.   Similarly

rejecting a claim for late disclosure of Brady material, the

Court of Appeals for the Seventh Circuit in Higgins reasoned

that "[i]f counsel needed more time, she had only to ask; yet

she did not seek a continuance.     Nothing more need be said."

75 F.3d at 335; see United States v. Crayton, 357 F.3d 560,

569 (6th Cir. 2004) ("Any disadvantage that a defendant might

suffer because of the tardiness [in the disclosure] of

impeachment material can be cured by asking for a recess."

(citing United States v. Presser, 844 F.2d 1275, 1283-84 (6th

Cir. 1988)). 1   In the analogous context of Rule 3A:11,

governing discovery in criminal cases, this Court has held

that a defendant who "failed to move for a continuance or even

for a recess in order to consider the material" untimely

disclosed by the prosecution would not "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);


     1
       See also United States v. Collins, 415 F.3d 304, 311
(4th Cir. 2005) (holding that the proper response to a late
Brady disclosure was a motion for continuance, not a motion to
dismiss); United States v. Sepulveda, 15 F.3d 1161, 1178 (1st
Cir. 1993) (generally "a defendant who does not request a
continuance will not be heard to complain on appeal that he
suffered prejudice as a result of late arriving" Brady
material).

                               10
see Davis v. Commonwealth, 230 Va. 201, 204, 335 S.E.2d 375,

377 (1985) (holding no prejudice shown under Rule 3A:11 when

defendant "did not request either a postponement or a

continuance").

     Here, Tuma did not have pre-trial access to the audio

tape recording of the investigative interview with L.S., which

purportedly contained impeaching material favorable to him.

His counsel, however, had reason to believe before trial that

the tape existed based on his conversation with Gilliam.    Then

early in the trial, the two prosecution witnesses who

conducted the interview, Gilliam and Scheid, testified that it

was recorded; and Scheid revealed that the tape was in her

possession in the courtroom.    Without first seeking to listen

to the tape outside the jury's presence, Tuma's counsel simply

moved to admit the tape into evidence and play it for the

jury, which the trial judge denied as procedurally improper.

Nevertheless, the judge twice advised defense counsel that he

could "go listen to it," and the prosecutor concurred,

stating, "[h]e can listen to it if he wants to."

     On these facts, we conclude Tuma failed, as a matter of

law, to show he was denied access to the tape recording in

sufficient time to effectively use it at trial.    Upon learning

during Scheid's testimony that she had the tape, Tuma's

counsel could have asked for a recess and listened to it,

                               11
proceeded to cross-examine Scheid using any favorable

impeaching information contained on it, and recalled L.S. and

Gilliam for the same purpose; but defense counsel chose not to

do so.

     Despite such access to the tape at trial, Tuma attempts

to save his Brady claim by pointing to the subsequent exchange

between the trial judge, his counsel, and the prosecutor

following the close of the Commonwealth's case.   At that time,

Tuma's counsel moved for the second time to admit the tape

into evidence without having listened to it, and without

having made any request during the trial to do so.   He instead

asserted that the tape was "the best evidence of what was

said" during the recorded interview, and that he "would think

. . . it would be exculpatory in terms of where [the alleged

sexual assaults] occurred and [the] number of times they

occurred."   The trial judge again denied the request,

explaining that Tuma's counsel was not "entitled just to play

something" because he thought "it may be exculpatory."   When

Tuma's counsel pursued the issue further, the trial judge

reiterated his ruling that "[t]he tape will not be played."

The trial judge committed no error under Brady with this

ruling.   The trial judge was not denying Tuma access to the

tape, as Tuma contends, but rather rejecting the method by

which his counsel sought repeatedly to introduce the tape into

                             12
evidence (an issue to be addressed by the Court of Appeals on

remand, as explained in Part II.C. of this opinion).    We thus

reject Tuma's argument that the ruling was in error under

Brady because it was not a Brady ruling.

     Tuma also asserts that the prosecutor violated Brady

during the same exchange because she represented there was no

exculpatory information on the tape.   What she actually

represented was that she had "relied" on information from

Investigator Gilliam to form her opinion that nothing on the

tape was exculpatory.   Most significantly, when the trial

judge asked her at that time whether she had listened to the

tape and whether she knew if it was exculpatory, she answered

unequivocally, "[n]o, sir."    Tuma thus cannot credibly contend

that the prosecutor's representations about the tape somehow

amounted to its suppression.    Indeed, Tuma's counsel made

clear each time he moved to introduce the tape into evidence

that he had formed his own opinion that it contained favorable

impeachment material based on the testimony of L.S., Gilliam

and Scheid – yet he did not pursue the opportunity to listen

to it when it was made available to him early in the trial.

In short, the tape was not suppressed.   Thus, having had such

access to the tape, Tuma "cannot miraculously resuscitate

[his] defense after conviction by invoking Brady."     United

States v. White, 970 F.2d 328, 337 (7th Cir. 1992).

                               13
     Finally, we disagree that "the futility of any request

Tuma might have made at trial for a recess to listen to the

audio tape is obvious."    Tuma, 60 Va. App. at 303, 726 S.E.2d

at 380.    As Judge Kelsey states in his dissenting opinion:

         This ipse dixit implies a bold accusation. 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 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.

Id. at 313-14, 726 S.E.2d at 385. 2


     2
      We also note the Court of Appeals devotes much of its
opinion to criticizing the prosecutor's handling of the tape
on the basis of essentially ethical considerations. In Brady,
however, the United States Supreme Court made clear that the
"good faith or bad faith of the prosecution" is not
dispositive in deciding a Brady claim. Brady, 373 U.S. at 87.
As the Court explained more recently in Strickler, "under
Brady an inadvertent nondisclosure has the same impact on the
fairness of the proceedings as deliberate concealment. 'If
the suppression of evidence results in constitutional error,
it is because of the character of the evidence, not the
character of the prosecutor.'" 527 U.S. at 288 (quoting
United States v. Agurs, 427 U.S. 97, 110 (1976)). In short,
"Brady is not a canon of prosecutorial ethics . . . . 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." Tuma,
60 Va. App. at 308-09, 726 S.E.2d at 382-83 (Kelsey, J.,
dissenting). Because of the availability of the audio tape
for Tuma's use at trial, those threshold requirements were met
under Brady in this case.


                               14
                               C.

     This appeal is limited to the Commonwealth's challenge to

the Court of Appeals' decision on the Brady issue, which that

court decided in Tuma's favor pursuant to his first assignment

of error.   In light of that decision, the Court of Appeals was

not required 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 (a separate issue from whether

the prosecution violated Brady).    That evidentiary ruling is

thus not before this Court to decide.     Therefore, having now

decided in the Commonwealth's favor on the Brady issue, we

will remand this case to the Court of Appeals to decide Tuma's

second assignment of error.

                        III. CONCLUSION

     For these reasons, we will reverse the judgment appealed

from and remand the case to the Court of Appeals for a

decision on Tuma's second assignment of error challenging the

trial court's ruling on the admissibility of the audio tape of

the investigative interview with the victim.

                                           Reversed and remanded.



JUSTICE LEMONS, concurring.

     I agree with the majority's holding that the

recording was made available to Tuma in sufficient time

                              15
for its use at trial, but I write separately to address

the issue of materiality raised by the dissent.

      The United States Supreme Court held in Brady v.

Maryland, 373 U.S. 83 (1963), 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."     Id. at

87.   That Court later explained that evidence is only

material under Brady "if there is a reasonable probability

that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different."

United States v. Bagley, 473 U.S. 667, 682 (1985).

"Reasonable probability" is defined as "a probability

sufficient to undermine confidence in the outcome."      Id.

      We have held that in order to meet the materiality

prong, "the accused must have been prejudiced."     Workman

v. Commonwealth, 272 Va. 633, 644-45, 636 S.E.2d 368, 374

(2006).   Essentially, "[t]he question is not whether the

defendant would more likely than not have received a

different verdict with the evidence, but whether in its

absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence."     Kyles v.

Whitley, 514 U.S. 419, 434 (1995).   "The mere possibility

                             16
that an item of undisclosed information might have helped

the defense, or might have affected the outcome of the

trial, does not establish 'materiality' in the

constitutional sense."      United States v. Agurs, 427 U.S.

97, 109-10 (1976).

        The dissent fairly points out the prosecutor's

failures in this case, and I agree that the prosecutor's

understanding of her duties under Brady was deficient.

However, the ultimate issue under Brady is whether the

defendant has actually been prejudiced, not what a

prosecutor should or should not have done in a particular

case.       Under the facts of this case, I do not believe that

Tuma was prejudiced.

        The inconsistencies between L.S.'s statements on the

tape and her statements at trial involve where the abuse

occurred and how many times it occurred.      On the tape,

L.S. stated that the abuse only occurred at the "white

house," and that it happened more than five times and less

than ten times.      At trial, L.S. testified that the abuse

occurred in other locations in addition to the "white

house," * and more than ten times.     But the statements on

the tape never indicate that L.S. was not abused, or that


        *
       The "white house" is also referred to as the "house
with horses" and is located in Dinwiddie County.

                                 17
Tuma was not the person who abused her.    In Smith v. Cain,

565 U.S. __, 132 S.Ct. 627 (2012), the United States

Supreme Court held that previously undisclosed impeachment

evidence was material.   However, the evidence in Smith was

material because it directly contradicted the only

eyewitness' identification of the defendant.    Id. at 630.

Because the statements on the tape in no way indicate that

L.S. was not abused, or that someone else was the abuser,

the United States Supreme Court's holding in Smith v. Cain

is not implicated.

     L.S. was consistent in her statements on the tape and

in her trial testimony that Tuma abused her at least 5-10

times at the "white house."    Tuma was only charged with

and convicted of three counts: taking indecent liberties

with a child, aggravated sexual battery, and animate

object sexual penetration.    Perhaps if Tuma had been

charged with more than five counts, then the exact number

of times the abuse occurred would become material.

     The jury in this case was also already aware that

L.S. had made inconsistent statements as to the number of

times the abuse occurred and the locations where the abuse

occurred.   The trial testimony of Jon Webster Scheid, the

social services worker, and Investigator Gilliam, the

police officer who conducted the taped interview, and

                              18
Investigator Gilliam's written summary of that interview,

already demonstrated that L.S.'s trial testimony differed

from her initial interview with them regarding the

frequency and location of the abuse, and her mother's

presence during the abuse.   The audio tape was merely

cumulative of other evidence that had already been used to

impeach L.S. at trial.   Where undisclosed evidence merely

furnishes an additional basis on which to challenge a

witness whose credibility has been attacked, the

undisclosed evidence may be cumulative, and hence not

material.   See Byrd v. Collins, 209 F.3d 486, 518 (6th

Cir. 2000); 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).

     The impeachment value of the statements on the tape

would have been minimal, especially in light of the expert

witness' testimony that it is not uncommon for young

children to not recall specific dates or instances of

abuse because they attempt to repress such events.   Any

impeachment of these issues, taken as a whole, does not

undermine the confidence in this verdict.

     The dissent asserts that the impeachment evidence was

also material to the punishment Tuma received, noting that

Tuma received a sentence of 35 years' imprisonment, nearly

                             19
three times the upper end of the guidelines.    The mere

fact that the jury sentenced Tuma above the guidelines

does not prove materiality.   As discussed above, the jury

was already aware of L.S.'s inconsistent statements.

Despite that, the jury believed her testimony and the

evidence was more than sufficient to prove that Tuma

sexually molested his seven-year-old stepdaughter.    The

jury's sentence was within the statutory range and

arguably supported by the egregious facts of this case,

including the victim's very young age.

     Any Brady claim must be "evaluated in the context of

the entire record" of the case.    Agurs, 427 U.S. at 112.

Favorable evidence is material "only if there is a

reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding

would have been different.    A 'reasonable probability' is

a probability sufficient to undermine confidence in the

outcome."   Bagley, 473 U.S. at 682.    After considering the

entire record of the case and the statements on the audio

tape, I believe that the statements on the tape do not

"put the whole case in such a different light as to

undermine confidence in the verdict."     Kyles, 514 U.S. at

435. I also believe that Tuma has failed to establish a

reasonable probability that his punishment would have been

                              20
different if L.S.'s statements on the audio tape had been

utilized by the defense at trial.   Tuma has failed to

prove that the statements on the audio tape were material

to his guilt or punishment.

     Accordingly, I join the majority opinion and would

further hold that the statements at issue were not

material.



JUSTICE MILLETTE, with whom JUSTICE GOODWYN joins,
dissenting.

     The fundamental principle set forth in Brady v.

Maryland, 373 U.S. 83, 87 (1963), is that "the suppression

by the prosecution of evidence favorable to an accused

. . . violates due process where the evidence is material

either to guilt or punishment, irrespective of the good

faith or bad faith of the prosecution."   To be awarded a

retrial based on a Brady violation, the defendant must

make three showings as set forth in Skinner v. Switzer,

562 U.S. ___, 131 S. Ct. 1289 (2011):   "(1) the evidence

at issue is favorable to the accused, either because it

was exculpatory, or because it is impeaching (2) the State

suppressed the evidence, either willfully or inadvertently

and (3) prejudice . . . ensued."    Id. at 1300 (alteration

in original) (internal quotation marks omitted).   Because


                              21
I find that the defendant in this instance made all of the

above showings, I respectfully dissent.

 1.   Undisclosed evidence is favorable to the accused
      because it is impeaching.

      As to the first prong, the Commonwealth does not

contest on appeal that we are considering impeachment

evidence, and it is clear that we are.    The victim was the

primary witness against the accused, and the content of

the tape when compared to the in-court statements of the

victim raised inconsistencies primarily as to the number

of times the alleged abuse occurred and the locations

where she was allegedly abused.   The content of the tape

would thus have allowed for impeachment through a more

thorough cross-examination of the witnesses, arguably

raising doubts in the jurors' minds as to either the

truthfulness of the victim's statements or the frequency

or severity of the events that occurred.

 2.   Impeachment evidence was suppressed.

      The second prong is where the majority finds a

deficiency in this case.   The majority focuses on the

availability of the tape at trial, holding that there was

no suppression because the evidence was made available

during trial but that the defense attorney declined to

take advantage of it.   The majority concludes that the


                             22
burden fell on the defense attorney to ask for a

continuance to review the tape, and, finding that the tape

was made available to him at trial but that he did not

make such a request, holds that there was no Brady

violation.

     I disagree with the majority's conclusion that the

tape was made available at trial in the form of disclosed

exculpatory evidence.    A close reading of the trial

transcript seems to reveal the opposite.

     During trial, L.S., the first witness, testified that

she was abused in both her stepfather's and her own

bedroom within the original house where they lived (the

"house with the horses"), as well as in the trailer park

and her grandmother's house after they moved out of the

original house.    She also testified that her stepfather

touched her "a lot" – more than ten times – and that when

they moved into the trailer he touched her three times a

week, every week.    She additionally stated that her

stepfather made her touch her younger brother while he was

in the bathtub.

     After the detective and the Department of Social

Services (DSS) worker testified, it first became clear

that the DSS worker had a tape of the original interview

with the girl.    Defense counsel moved to play the tape

                              23
arguing that it was admissible under the "best evidence"

rule.    Over defense counsel's objection, the circuit court

denied the motion as to admissibility as best evidence,

stating:    "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. . . .     It is not

going to be played."    When asked by the circuit court

whether defense counsel had had access to the tape, the

prosecutor, who previously had not provided the tape to

defense counsel, had not listened to the tape, and had

instead produced for the defense a report of the interview

prepared by the detective, responded that defense counsel

"can listen to it if he wants to."     There was no

discussion by the circuit court or admission by the

prosecutor at that time regarding whether the tape was

potentially exculpatory.

        It was not until the motion to strike at the close of

the Commonwealth's evidence that the issue of the

potential exculpatory nature of the tape was raised, when

counsel for the defense argued that the tape "would be

exculpatory in terms of where things occurred and a [sic]

number of times they occurred."     The following exchange

continued:




                               24
The Court [to the
Commonwealth]:       Have you listened to the
                     tape?

[The Commonwealth]: No, sir.

The Court:           So you don't know whether it
                     is exculpatory or not?

[The Commonwealth]: 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?

[The Commonwealth]: 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.

[The Commonwealth]: Yes, sir.

The Court:           You are willing to stand on
                     that?

[The Commonwealth]: Yes, sir.

                     . . . .

The Court:           You are saying that you
                     think it is exculpatory?

[Defense counsel]:   Yes, sir.

                        25
     The Court:            In some way?

     [Defense counsel]:   Yes, I mean I can't get to
                          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. . . .
                           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 not hear any more
                           about that     over your
                           objection. The tape will
                           not be played. Now you have
                           a motion to strike, and I
                           will be glad to hear you on
                           that.

     The above exchange reflects the clear suppression of

the evidence at trial.    The tape was not made available to

the defendant when he requested it, and the prosecutor

conceded her duty to disclose potentially exculpatory

evidence on the tape and acknowledged that she was not

doing so at her own peril.   The circuit court stated that

it would hear no additional argument on the issue.    The

information was therefore not made available to the

defendant at a time when it could be used.

                              26
     According to the majority, this case rises or falls

on the apparent availability of the tape at trial and the

failure of defense counsel to immediately request a

continuance to listen to the tape once it was established

that the tape was in the courtroom.   The majority, in

concluding that this failure of defense counsel is

paramount, ignores the fact that the burden of production

of exculpatory evidence falls on the prosecution.    The

duty to disclose exculpatory evidence requires not merely

a duty to acknowledge the existence of a tape of an

interview, but rather to disclose the exculpatory or

impeachment evidence at least during the course of a

trial, if not earlier.   The Supreme Court of the United

States has stated 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 v. Dretke, 540 U.S. 668, 696 (2004) (internal

quotation marks and citations omitted) (second, third, and

fourth alterations in original).   Our courts have long

                             27
stated that we hold our prosecutors to a higher standard

even than other attorneys:

     The [prosecutor] is the representative not of
     an ordinary party to a controversy, but 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.

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

relying on the declarations by the prosecutor that the

content of the tape was not exculpatory, the circuit court

did not order the production of the evidence.   In fact,

again in reliance on the prosecutor's position, the

circuit court foreclosed any further inquiry.

     The prosecutor's overly narrow view of exculpatory

evidence was only revealed during argument on a post-trial

motion brought by defense counsel more than three months

after the trial was concluded, when defense counsel was

still seeking an opportunity to inspect the tape.    Defense

counsel argued to the circuit court that "in light of what

has gone on[,] there needs to be some sort of inspection

of the tape to see if it has Brady material. . . .     I

don't think it's sufficient for a prosecutor to say, well,

the police officer told me there was nothing exculpatory

                             28
on it."   The prosecutor responded that "[t]he only thing

that would be exculpatory on that tape is if there was [a]

child saying he didn't do it, somebody else did it or it

happened in China or somewhere else."

      Assuming without deciding that the evidence contained

in the tape only became exculpatory once the victim

testified, the prosecutor felt no obligation to turn over

evidence that the Commonwealth does not now contest should

have been disclosed under Brady.    The prosecutor

apparently ignored the mandate of Brady to disclose

evidence favorable to the accused either because it is

exculpatory or because it is impeaching.   Skinner, 131 S.

Ct. at 1300.

      Defense counsel, meanwhile, clearly signaled that he

was seeking impeachment evidence when he claimed during

trial that he was seeking evidence regarding each witness'

credibility based upon discrepancies in the number and

location of occurrences.   In a post-trial motion to set

aside the verdict, defense counsel was even more specific

in addressing what he considered to be eight separate

areas of discrepancies that he believed could have been

utilized in impeaching witnesses' credibility if he could

only have had access to the tape.

 3.   Defendant suffered material prejudice.

                             29
     Because of its finding as to the second prong,

today's majority does not reach the third prong of

materiality or prejudice.   Under Brady, the prosecution's

suppression of evidence favorable to an accused "violates

due process where the evidence is material either to guilt

or to punishment."   Brady, 373 U.S. at 87 (emphasis

added).   This has been more recently phrased as the

defendant's obligation to prove prejudice by showing 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 defense

'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,

565 U.S. ___, 132 S. Ct. 627, 630 (2012) (quoting Kyles v.

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

     Considering the materiality of the impeachment

evidence, I concur with the majority opinion offered by

the Court of Appeals of Virginia that, given that the

Commonwealth's case rested primarily on the victim's

testimony, impeachment testimony concerning the number of

instances of abuse and the places where the abuse occurred

                             30
could have sufficiently undermined the jury's confidence

in the victim as a witness to create a reasonable

probability that the outcome of the proceeding,

potentially as to guilt but at least as to sentencing,

would have been different.   Witness credibility is of the

utmost importance in a case like this one in the absence

of any physical evidence produced by the Commonwealth.

The accusations in the case at bar were such that they

relied primarily on the credibility of a single witness,

one who is young and thus suggestible, on the detective

and DSS worker's accounts of her prior statements, and on

her counselor's observations.     See, e.g., Workman v.

Commonwealth, 272 Va. 633, 650, 636 S.E.2d 368, 378 (2006)

(noting that the credibility of a key witness testifying

against a defendant is "a significant issue at trial," and

that – for Brady purposes – material usable for

impeachment is "critical . . . evidence" in that context).

The case at bar required the jury to weigh these

statements against the testimony of the defendant and the

victim's mother, who denied the abuse.    Under such

circumstances, impeachment evidence goes directly to the

jury's evaluation of which witnesses are being truthful,

and so bears strongly not only on the issue of guilt, but,

since a jury in Virginia also imposes the punishment for

                             31
felony convictions, likewise bears on the issue of

punishment.

     At sentencing before the circuit court judge, defense

counsel argued that the sentencing guidelines for the

crimes for which the defendant was convicted ranged from a

total of five years, two months to thirteen years, one

month.   At trial, the jury had reached a determination

that the combined sentence for the three convictions

should be 35 years, nearly three times the upper end of

the guidelines.   The circuit court refused any reduction

in the sentence, specifically deferring to that jury

verdict.   See Code § 19.2-298.01(A) ("In cases tried by a

jury, the jury shall not be presented any information

regarding sentencing guidelines.")

     Given the severity of the punishment and the

potential for impeachment of the witnesses, the likelihood

of a different result, at least as to sentencing, is

sufficient to undermine confidence in the outcome of the

proceeding.   As explained by Judge Humphreys, writing for

the majority of the Court of Appeals:

     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

                             32
     trial testimony. It is reasonable to conclude
     that the evidence of repeated occurrences of
     sexual abuse at three separate locations
     impacted the jury's assessment of a proper
     punishment for Tuma. . . . Therefore, the
     evidence was also material to Tuma's degree of
     punishment, and suppression of the recorded
     interview constituted a separate Brady violation
     on that basis.

A jury could reasonably have awarded a lengthier sentence

based on the more frequent abuse testified to at trial.

In addition, the tape only referred to abuse in Tuma's

bedroom at one house in which they lived, unlike L.S.'s

testimony at trial which made references to him coming

into her bedroom on multiple occasions and continuing to

abuse her as they moved their residence to multiple

locations, which a jury could have found more

reprehensible.   There was also a discrepancy between the

victim's testimony at trial and on the tape as to her

mother's involvement in the alleged abuse, which may have

had a dual impact on the credibility of the mother and the

jury's determination of the appropriate punishment.

Finally, the tape contained no references involving Tuma

demanding she touch her younger brother in the bathtub, as

testified to at trial, and which could reasonably be

viewed as more significantly offensive behavior on the

part of her stepfather.   Thus, even if Tuma would

ultimately have been found to be guilty of the abuse, due

                             33
process entitled him to use these contradictions to

attempt to mitigate the sentence levied upon him by the

jury.

        For the aforementioned reasons, I would affirm the en

banc judgment of the Court of Appeals of Virginia

reversing the conviction and remanding for retrial as to

both guilt and sentencing.




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