                                COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and Beales
Argued at Richmond, Virginia


JOHN EDWARD STEWART
                                                               MEMORANDUM OPINION* BY
v.      Record No. 2355-05-2                                 JUDGE JEAN HARRISON CLEMENTS
                                                                     JANUARY 16, 2007
COMMONWEALTH OF VIRGINIA


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

                  Keith N. Hurley (Keith N. Hurley, P.C., on brief), for appellant.

                  Karen Misbach, Assistant Attorney General (Robert F. McDonnell,
                  Attorney General, on brief), for appellee.


        John Edward Stewart (appellant) was convicted in a bench trial of two counts of uttering

checks knowing them to have been forged and two counts of forgery, in violation of Code

§ 18.2-172. On appeal, he contends the trial court erred in (1) refusing to grant a mistrial when the

Commonwealth failed to disclose exculpatory information until after the presentation of appellant’s

evidence and (2) admitting photocopies of the subject checks into evidence.1 We agree with

appellant that the trial court erred in not granting a mistrial, and therefore reverse his convictions.

        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.
        1
          Appellant was also granted appellate review on the issue of whether the evidence was
sufficient to prove he altered the checks. However, because he did not address this issue on
brief, we will not consider it here. See Rule 5A:20(e); Buchanan v Buchanan, 14 Va. App. 53, 56,
415 S.E.2d 237, 239 (1992) (holding that claims of error “unsupported by argument, authority, or
citations to the record do not merit appellate consideration”).
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

appeal.

                                         I. BACKGROUND

          Appellant was charged with forging and uttering two checks, one dated September 24, 2004,

which had been altered from $144.00 to $444.00 (check 1), and another dated September 17, 2004,

which had been altered from $280.00 to $880.00 (check 2). Appellant had received check 1 and

check 2, along with three other payroll checks, in payment for wages earned while an employee of

Donald Lewis of Lewis Construction. Lewis had employed appellant for approximately one and a

half months during the late summer and early fall of 2004.

          Appellant cashed the checks at Baldwin Auto Sales (BAS), where he had bought several

cars in the years leading up to the events in question. Over the same period of time, various BAS

employees had cashed more than twenty-five payroll checks a year for appellant, although no

records of those transactions were kept. After BAS deposited check 1 and check 2 into its account

at the bank, the bank returned the checks to BAS because they had been altered.

          Deputy Robert Jones of the Nottoway Sheriff’s Department questioned appellant in two

separate interviews, during each of which appellant denied having altered the checks. Appellant

told Deputy Jones that “no one else had handled the checks” between the time he received them

from Lewis and the time he cashed them at BAS. He also told the deputy that he had received

only the proper, original amounts in exchange for the checks when he cashed them at BAS. At

appellant’s request, Deputy Jones sent check 2 to the “state lab” for handwriting analysis.

          A pretrial discovery order was entered, directing the Commonwealth to “provide the

defendant with all information of whatever form, source or nature that tends to exculpate the

defendant either through indication of his innocence or through the potential impeachment of any

government witness.” The Commonwealth was to provide such information “in writing not less

                                                 -2-
than fifteen (15) days prior to [trial].” The prosecutor informed defense counsel that “there

wasn’t any” such exculpatory evidence.

         At trial on June 1, 2005, the Commonwealth sought to introduce into evidence copies of

each check. The first document was a photocopy of check 1, which was attached to the notice from

the bank indicating that the amount of the check had been altered. Together with the notice from

the bank, the photocopy of the check was marked for identification as “Commonwealth’s Exhibit

#1” (exhibit 1). Lewis identified exhibit 1 as a paycheck from his company made payable to

appellant for work appellant had done while in Lewis’s employ. Lewis testified, without objection,

that the check had been written for $144.00, not the $444.00 amount reflected in exhibit 1. During

Lewis’s testimony, appellant’s counsel objected on hearsay grounds to the admission of any

evidence regarding notices received from the bank stating that the check had been altered. The

prosecutor asserted that such evidence was “not offered to prove that [the check] was altered

because [Lewis had] already testified it was altered.” The trial judge overruled the objection on that

basis.

         Mike Baldwin, treasurer of BAS, testified on direct examination as follows regarding

exhibit 1:

                       [THE PROSECUTOR]: I’m going to show you [a] check
                marked for identification as number one and ask you as treasurer if
                you had any business with that particular --

                       A: Yes, sir. I . . . know about that check and how it was
                cashed and that it came back and we had to pay for this check also.

                        THE COURT:       Cashed it for how much?

                        THE WITNESS:        This was the four hundred and forty-four
                dollar check.

                         THE COURT: Did you cash that one or did your father
                cash it, or do you know?

                        THE WITNESS:        I do not know.
                                                 -3-
                       THE COURT:         But, your records show that it was cashed
                by your company.

                      THE WITNESS: Our company cashed it, but we don’t
                know which one of us cashed it.

Asked on cross-examination if there was any written record of the transaction, Mike Baldwin

responded: “No, sir. No more than the check itself that we did cash it.”

        William Baldwin, Mike Baldwin’s father and a salesman at the business, testified that he

received a photocopy of check 1 when it was returned from the bank, but not the original. Deputy

Jones testified that, despite his attempt to retrieve it, the bank was not able to provide him with

check 1 in its original form.

        The second document was a facsimile from the state lab of check 2. It was marked for

identification as “Commonwealth’s Exhibit #2” (exhibit 2). Lewis identified exhibit 2 as a

paycheck from his company made payable to appellant. Lewis testified the check had been written

for $280.00, not the $880.00 that appeared on exhibit 2. Exhibit 2 showed that check 2 had been

stamped by the bank “returned not paid . . . altered.” Mike Baldwin testified that he saw his father

cash check 2 for appellant but did not see how much it was cashed for. Although he could not recall

the date the check was cashed, he remembered the transaction because appellant expressed interest

that day in purchasing a car, despite still owing BAS a balance on another vehicle. Mike Baldwin

stated that, as treasurer of the company, he was aware that check 2 had been deposited into BAS’s

bank account for $880.00 because, when check 2 was returned from the bank unpaid, BAS had to

pay the bank $880.00 to cover the check. He also testified that he was unaware the check had been

altered until it was returned by the bank. After being shown exhibit 2, William Baldwin testified

that he personally cashed check 2 for appellant for $880.00. He admitted on cross-examination,

however, that he had no record of that transaction and recalled the amount only because he read it




                                                  -4-
off the copy of the check he was just shown.2 William Baldwin also testified that he could not tell

the check had been altered when he cashed it for appellant. Deputy Jones testified that he received

the original check from William Baldwin before sending it to the state lab. The original was still at

the lab at the time of the trial.

        During the direct examination of William Baldwin, appellant’s counsel objected to the

admission of exhibit 2, explaining: “[M]y objection is not to the photocopy of the check, [but to the

stamp] on it. . . . I don’t want the check [itself] to serve as proof that it was altered.” The trial judge

responded, “I don’t consider this stamp that says altered, as somebody at the bank testifying to the

truth of it [having] been altered.” The prosecutor agreed, stating, “[W]e’re relying not on [the

stamp] at all, but on the maker of the check indicating that he wrote it for a different amount and,

ipso facto, somebody altered the check.” Defense counsel replied, “That’s fine.” After the trial

judge reiterated that the stamp on exhibit 2 would not serve as proof that check 2 had been altered,

the direct testimony of William Baldwin continued. Exhibit 2 was not introduced into evidence at

that time.

        Later, after Deputy Jones was recalled as a witness, the Commonwealth offered exhibit 1

and exhibit 2 into evidence. Appellant objected to the admission of exhibit 1, arguing that, in the

absence of testimony by bank personnel, the best evidence rule precluded the admission of the

photocopy of check 1 and the hearsay rule precluded the admission of the attached notice from the

bank. The court overruled the objection, admitting exhibit 1 into evidence as a “business record . . .

[and] despite the best evidence rule.” Appellant made no objection to the admission of exhibit 2 at

the time.




        2
          The Commonwealth expressly concedes in its appellate brief that this is the correct
recitation of William Baldwin’s testimony.
                                           -5-
       At the close of the Commonwealth’s evidence, appellant moved to strike the evidence on

the ground that the Commonwealth failed to prove the checks had been altered when he cashed

them. The evidence did not prove, appellant’s counsel argued, “what happened—how [the

checks] got altered . . . [,] at what stage [they] got altered,” or who altered them. The trial judge

denied the motion, stating: “The checks that were handed to [appellant were] one hundred

forty-four and two hundred eighty. As to whether or not he altered them or somebody else

altered them or what, it’s obvious to me they were altered at the time [appellant] cashed the

checks.”

       Appellant testified in his own defense. He did not dispute that he had received the checks or

that he had cashed them, but maintained he had neither altered nor fraudulently negotiated either

check. He testified that the checks had not been altered at the time he negotiated them to BAS and

that he had received from William Baldwin the original, proper value in exchange for each.

       After listening to appellant’s direct testimony, the prosecutor became aware that he was in

possession of information potentially relevant to appellant’s testimony and to appellant’s guilt or

innocence. The prosecutor immediately informed appellant and the trial judge that, in January

2005, the Commonwealth received a complaint from BAS personnel that an employee named

Jones, who was not authorized to access the cash drawer, had been “caught in the act of trying to

steal the money from the cash drawer.” Jones, according to the prosecutor, was a “multiple

convicted felon and a thief,” who had worked at BAS since before September 2004. There had

been no money missing from the cash drawer, and a grand jury had refused to indict on the

complaint. The prosecutor explained that the information may nevertheless have been exculpatory

because Jones “was in fact working [at BAS] at the same time” appellant cashed the checks at BAS

and “[Jones] could have stolen the money and forged the checks himself.”




                                                 -6-
       Upon receiving the information, appellant’s attorney moved for a mistrial on the ground that

he “should have had that information before, [as] that would have put things in a different light,

certainly, as far as the trial goes.” The prosecutor opposed the motion.

       When asked by the trial judge how such information was relevant, the prosecutor explained

that, without the disclosure of the new information, the trial judge would have had only two theories

to choose from: “Either [appellant] . . . forged [the checks] and got the money or the Baldwins gave

him the original [amounts] and changed [the checks] themselves.” With the disclosure of the new

information, however, the prosecutor continued, defense counsel could now “conceivably argue it

was another employee who could have stolen the money and altered the checks.”

       The trial judge denied the motion for a mistrial, stating: “I don’t think it’s exculpatory. I

think it’s one of those things that’s a stretch . . . . [The crime charged against appellant occurred

in September 2004, so] I don’t think that would be exculpatory evidence that there’s somebody

in [BAS] that was charged with stealing money in January [2005].”

       Appellant recalled Mike Baldwin. He testified that Jones was working at BAS in September

2004. Baldwin explained that Jones cleaned “floors and things like that” for the company, “but

[they] tried not to ever leave him in [the office with the cash drawer] by himself at all.” However,

Baldwin further testified, Jones was in the office helping him stuff envelopes one day when

Baldwin left the room. “And,” Baldwin continued, “something just told me to go back and check,

and I did. . . . I went back and looked, and . . . Jones was in my money drawer just going at it. And,

when I walked in, he dropped the money that was in the drawer.” Baldwin testified that the checks

they cashed “would be kept in the same drawer” as the money. Baldwin fired Jones after the

incident, although Baldwin was unable to say with certainty when the incident occurred. Baldwin

did not know whether Jones “ever attempted to cash any checks that were written to the business.”




                                                 -7-
       Appellant than renewed his motion to strike, and the trial judge denied the motion. After

closing arguments, the judge addressed appellant, stating in part:

                       Again, I acknowledge it hasn’t been as pretty as they
               usually are in so far as connecting up everything, every i being
               dotted and every t being crossed and checked and so forth.
                       What also sort of doesn’t tie in the way I wish it had -- I
               wish the way it would, so it would be a better or clearer picture, is
               who cashed the check exactly, a log and so forth. I’m reluctant to
               say that either Mr. Baldwin is not a good business man . . . but how
               they cash checks is somewhat problematic. And, I’m frankly
               surprised that they don’t have more trouble. . . .

               *          *           *          *          *         *          *

                       As to [your] suggestion that maybe this other person that
               was a dishonest person somehow had something to do with this is
               just a grand stretch in so far as I’m concerned. The notion that
               maybe after Mr. Baldwin cashed the check that [this dishonest
               employee] would have altered it for some reason . . . , that
               suggestion doesn’t make any sense at all to me. You said
               steadfastly you took the checks there, you cashed them for one
               hundred forty-four and you cashed them for two hundred eighty,
               but just because you insist that’s what you did and just because you
               steadfastly said that, doesn’t mean that it’s so.
                       Mr. Baldwin said to the contrary. Why would they lie
               about one of their customers? Why would they say that we gave
               Stewart eight hundred eighty dollars . . . ? We gave Stewart four
               hundred forty-four dollars . . . ? Why would they do that? Why
               would they say that if they didn’t do it? Why would they give you
               the two hundred eighty and one hundred forty-four and then they --
               maybe Mr. Baldwin altered the check. Why would he do it? Why
               would anybody do it but you? It doesn’t make any sense
               whatsoever why anybody would do this but you, Mr. Stewart.

       The trial judge found appellant guilty as charged, and this appeal followed.

                                   II. MOTION FOR MISTRIAL

       Appellant claims the trial court erred in denying his motion for a mistrial. He argues that

the Commonwealth’s failure to timely disclose the information about Jones denied him his

constitutional rights under Brady v. Maryland, 373 U.S. 83 (1963). We agree.




                                                 -8-
       “[W]hether a trial court should grant a mistrial is a matter resting within its discretion,

and absent a showing of abuse of discretion, the court’s ruling will not be disturbed on appeal.”

Cheng v. Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599, 607 (1990). However, “by definition,

when the trial court makes an error of law, an abuse of discretion occurs.” Bass v.

Commonwealth, 31 Va. App. 373, 382, 523 S.E.2d 534, 539 (2000).

       “We review [appellant’s claim] under settled constitutional principles concerning the

disclosure of exculpatory evidence.” Lovitt v. Warden, 266 Va. 216, 244, 585 S.E.2d 801, 817

(2003). “In Brady . . . , the Supreme Court held that a due process violation occurs when the

prosecution suppresses evidence favorable to an accused that is material either to guilt or to

punishment, irrespective whether the prosecution acted in good faith or bad faith.” Id. (citing

Brady, 373 U.S. at 87).

       Here, there is no question that the prosecutor suppressed evidence that was favorable to

appellant. The prosecutor acknowledged at trial that he did not timely inform appellant that the

Commonwealth had received information that Jones, a “multiple convicted felon and a thief” who

worked at BAS since before September 2004, had been “caught in the act of trying to steal the

money from the cash drawer” in January 2005. The prosecutor further acknowledged that the

withheld information showed that Jones “was in fact working [at BAS] at the same time” appellant

cashed the checks at BAS and that “[Jones] could have stolen the money and forged the checks

himself.” Thus, the suppressed information clearly lent support to the defense’s theory that

someone at BAS forged the checks after they had been cashed by appellant and before they were

deposited in the company’s bank account.

       The question remains, however, whether the information about Jones was material to

appellant’s guilt or punishment. “‘[I]mplicit in the requirement of materiality is a concern that

the suppressed evidence might have affected the outcome of the trial.’” United States v. Bagley,

                                                -9-
473 U.S. 667, 674-75 (1985) (quoting United States v. Agurs, 427 U.S. 97, 104 (1976)).

“[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. A ‘reasonable

probability’ is a probability sufficient to undermine confidence in the outcome.” Id. at 682. “At

the heart of this inquiry is a determination whether the evidence favorable to the defendant could

reasonably be considered as placing the entire case in such a different light that confidence in the

verdict is undermined.” Lovitt, 266 Va. at 244, 585 S.E.2d at 817 (citing Strickler v. Greene,

527 U.S. 263, 290 (1999)). Indeed, as the United States Supreme Court has stated:

                       The proper standard of materiality must reflect our
               overriding concern with the justice of the finding of guilt. Such a
               finding is permissible only if supported by evidence establishing
               guilt beyond a reasonable doubt. It necessarily follows that if the
               omitted evidence creates a reasonable doubt that did not otherwise
               exist, constitutional error has been committed. This means that the
               omission must be evaluated in the context of the entire record. If
               there is no reasonable doubt about guilt whether or not the
               additional evidence is considered, there is no justification for a
               new trial. On the other hand, if the verdict is already of
               questionable validity, additional evidence of relatively minor
               importance might be sufficient to create a reasonable doubt.

Agurs, 427 U.S. at 112-13 (footnotes omitted). “[T]he determination whether undisclosed

exculpatory evidence was material must be made by considering its cumulative effect.” Lovitt,

266 Va. at 244, 585 S.E.2d at 817 (citing Kyles v. Whitley, 514 U.S. 419, 436 n.10 (1995)).

       Here, the defense’s theory of the case does not contradict the Commonwealth’s evidence

that the two checks were at some point altered. Rather, appellant’s theory of the case challenges

only the Commonwealth’s claim that he was the one who altered them. Consistent with his

contention that the checks were not altered while in his possession, appellant testified on his own

behalf that he did not alter the checks and that he received only the proper amount in return for

each check when he cashed them at BAS.



                                               - 10 -
       The trial judge made a contrary factual determination based on the testimony of William

and Mike Baldwin that appellant cashed the checks for $444.00 and $880.00—the altered

amounts. However, the testimony offered by William and Mike Baldwin regarding the amount

appellant received from BAS in exchange for the two checks was equivocal at best. When asked

how much check 1 was cashed for, Mike Baldwin obliquely responded, “This was the four

hundred and forty-four dollar check.” He further testified that he did not know who at BAS

cashed the check for appellant and that the copy of the returned, altered check for $444.00 was

the only record they had of cashing the check. Additionally, while William Baldwin testified

initially that he cashed check 2 for $880.00, he admitted on cross-examination that he had no

independent recollection of the amount and recalled that it was $880.00 only because he had just

read it off the copy of the $880.00 check he was shown at trial. In finding appellant guilty as

charged, the trial judge himself acknowledged the Commonwealth’s evidence regarding the

cashing of the checks was not as clear and complete as he would have preferred.

       The strength of the Commonwealth’s case is further diminished by the fact that the check

alterations went undetected by BAS personnel until the checks were returned by the bank.

William Baldwin testified he could not tell check 2 had been altered when he cashed it for

appellant. Conversely, the prosecutor described the alterations as being immediately apparent to

anyone who looked at them. The trial judge characterized them as being “pretty obvious” to

him. Indeed, the trial judge commented that the checks were so carelessly altered and suspicious

looking he did not know why BAS personnel had cashed them. Having reviewed exhibit 1 and

exhibit 2 in the record, we do not disagree with the trial judge’s assessment of the alterations.

Plainly, William Baldwin’s testimony that he could not tell check 2 had been altered and the fact

that the checks were obviously altered supports appellant’s theory that the checks were altered

only after he cashed them.

                                               - 11 -
       Given the evident weakness of the Commonwealth’s case, we conclude that the

information withheld by the prosecutor about Jones is “sufficient to undermine confidence in the

outcome” of the case. Bagley, 473 U.S. at 682. As previously mentioned, Jones, a “multiple

convicted felon and a thief,” was working at BAS when appellant cashed the checks. Mike Baldwin

testified that, sometime after the checks were cashed, he caught Jones trying to steal money from

the cash drawer. Mike Baldwin further testified that they “tried not to ever leave [Jones] in [the

office with the cash drawer] by himself at all.” However, as evinced by the reported incident, Jones

was indeed sometimes left in the office by himself. Mike Baldwin also testified that the cashed

checks were kept in the cash drawer and that he was unsure whether Jones had “ever attempted to

cash any checks that were written to the business.” Clearly, the suppressed evidence reveals that

Jones had the motive and opportunity to commit the offenses attributed to appellant. Because of its

tenuous nature, the Commonwealth’s evidence does not exclude the reasonable hypothesis of

innocence that Jones altered the checks cashed by appellant and stole the corresponding money

from the cash drawer. Accordingly, the withheld information “could reasonably be considered as

placing the entire case in such a different light that confidence in the verdict is undermined.”

Lovitt, 266 Va. at 244, 585 S.E.2d at 817. We hold, therefore, that the suppressed evidence about

Jones was material to appellant’s guilt.

       The Commonwealth asserts that, even if the withheld information was exculpatory and

material, “any due process violation was cured by the prosecutor’s disclosure” of that

information at trial. Thus, the Commonwealth argues, the trial judge did not err in denying

appellant’s motion for a mistrial because appellant was not prejudiced by the belated disclosure

of the evidence regarding Jones. We disagree.

                       Late disclosure does not take on constitutional proportions
               unless an accused is prejudiced by the discovery violations
               depriving him of a fair trial. So long as exculpatory evidence is
               obtained in time that it can be used effectively by the defendant,
                                                - 12 -
               and there is no showing that an accused has been prejudiced, there
               is no due process violation. It is the defendant’s ability to utilize
               the evidence at trial, and not the timing of the disclosure, that is
               determinative of prejudice.

Moreno v. Commonwealth, 10 Va. App. 408, 417, 392 S.E.2d 836, 842 (1990) (citations

omitted). Thus, where the suppressed exculpatory evidence is provided to the defense during

trial, the 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.’” Read v. Va.

State Bar, 233 Va. 560, 564-65, 357 S.E.2d 544, 546-47 (1987) (emphasis omitted) (quoting

United States v. Darwin, 757 F.2d 1193, 1201 (11th Cir. 1985)).

       Here, the prosecutor provided the information regarding Jones to the defense only after

appellant had concluded his direct examination. As we noted in Moreno:

                       The constitutional right to receive exculpatory evidence is
               not fulfilled, and a prosecutor’s duty is not satisfied, simply by
               disclosure; timely disclosure is required. “This right guarantees an
               accused sufficient time to investigate and evaluate the evidence in
               preparation for trial.” Where a defendant is forced, to his
               prejudice, to proceed ill prepared or in undue haste because of the
               prosecutor’s untimely disclosure, his constitutional right is
               impaired, and his conviction must be reversed.

10 Va. App. at 417, 392 S.E.2d at 842 (citations omitted) (quoting Lomax v. Commonwealth,

228 Va. 168, 172, 319 S.E.2d 763, 765 (1984)). In this case, the prosecutor’s belated disclosure

denied appellant the opportunity to utilize the exculpatory evidence in his preparation for trial.

Indeed, by the time the exculpatory evidence was disclosed, defense counsel had cross-examined

several witnesses and appellant had already testified in his own defense, thus potentially

compromising whatever alternative trial strategy the evidence might have suggested. We hold,

therefore, that the prosecutor’s belated disclosure of evidence that was probative of a theory that

someone other than appellant had altered the checks in question prejudiced appellant and, thus,

constituted a Brady violation.

                                               - 13 -
       Accordingly, the trial judge abused his discretion in denying appellant’s motion for a

mistrial. Consequently, we reverse appellant’s convictions and remand for a new trial, if the

Commonwealth be so advised.3

                                                                             Reversed and remanded.




       3
          “Because the case will be remanded and the evidence well may be presented differently
upon a new trial, we will not give an advisory opinion regarding” appellant’s remaining claims
of error. Commonwealth v. Cary, 271 Va. 87, 102, 623 S.E.2d 906, 914 (2006).

               While we do not discount [appellant’s] assertions on these issues
               and recognize that they may likely recur in the event of a new trial,
               it is also likely that the presentation of evidence will be sufficiently
               different that any expression by this Court as to the correctness of
               the rulings of the trial court in the former trial . . . would not be
               relevant and advisory only.

Id.
                                                - 14 -
