Opinion
Record No. 3027-04-2.
April 11, 2006. May 30, 2006.
Upon a Petition for Rehearing En Banc.
Appeal from the Circuit Court of Madison County, Nos. CR4032 through CR4035, Daniel R. Bouton, Judge.
W. Todd Watson (Hargett Watson, PLC, on brief), for appellant.
Alice T. Armstrong, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.
Before Chief Judge Felton, Judges Benton, Elder, Frank, Humphreys, Clements, Kelsey, McClanahan, Haley, Petty and Beales.
On April 25, 2006 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on April 11, 2006, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc is granted, the mandate entered herein on April 11, 2006 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the date of entry of this order; appellee shall file an appellee's brief upon rehearing en banc within 14 days of the date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc within 14 days of the date on which the appellee's brief is filed. 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.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On appeal from his convictions in a jury trial of rape, abduction with intent to defile, assault and battery on a household or family member, and animate object penetration, Howard Z. Garnett contends that the trial court erroneously denied his motion for a new trial based on the Commonwealth's failure to disclose statements given by the victim to the police, which he claims were exculpatory and could have been used to impeach the victim's credibility at trial. We agree, reverse the convictions and remand for a new trial.
Background
Garnett and the victim had been involved in a romantic relationship which, according to varying accounts, had ended some time prior to July 24, 2003. However, they had continued doing business. On the morning of July 24, 2003, the victim went to Garnett's farm to collect her belongings. She testified that he forcibly took her car keys from her. She followed him into his barn office to retrieve them. She testified that he prevented her leaving the office by physically blocking her exit. She testified that he pushed her up the stairs to a more secluded area of the barn where he verbally and physically attacked her, ultimately raping her.
The victim went to police the day of the attack. She gave the police two statements, the first in handwriting, the second was recorded and transcribed. On July 31, 2003, she gave the police a third statement, which was also recorded and transcribed.
Prior to trial, the Commonwealth responded to Garnett's request for exculpatory information by paraphrasing information from the victim's statements. Garnett requested the statements, recordings, and transcripts themselves. The trial court denied this request. Although the Commonwealth provided further summaries of information from the statements that it deemed exculpatory, Garnett was not allowed access to the statements themselves.
Following trial, Garnett moved to set aside the verdicts on the ground that the Commonwealth had failed to provide the victim's statements which were exculpatory and would have enabled him to impeach her testimony. The trial court conducted an in camera review of the statements. It found that the statements revealed "material inconsistencies" in the victim's testimony, but held that the Commonwealth had sufficiently disclosed the exculpatory material through its summaries. It further held that, even if the statements contained exculpatory evidence not encompassed by the Commonwealth's summaries, the withheld information was not "material" and, therefore, the Commonwealth's failure to disclose it did not warrant a new trial.
Appellant argued the statements would reveal inconsistencies in the victim's accounts as they related to the timing and nature of her "relationship" with appellant and the duration of her alleged detention in appellant's barn.
The Commonwealth's summaries were an insufficient disclosure. The trial court's refusal to require production of the statements themselves denied Garnett his rights under Brady v. Maryland, 373 U.S. 83 (1963).
Analysis
"We review [Garnett's claim] under settled constitutional principles concerning the disclosure of exculpatory evidence."Lovitt v. Commonwealth, 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.
Exculpatory evidence is material if there is a reasonable probability that the proceeding would have resulted in a different outcome had the evidence been disclosed to the defense. A "reasonable probability" is one that is sufficient to undermine confidence in the outcome of the proceeding. 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.
The Brady disclosure requirements extend to information that can be used to impeach a witness' credibility. 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.
Id. at 244-45, 585 S.E.2d at 817-18 (citations omitted).
"We agree that disclosure of the statement[s] before trial would have aided [Garnett's] attorney in his preparation. Furthermore, the absence of such aid lessens our confidence in the outcome of the case." Lemons v. Commonwealth, 18 Va. App. 617, 620, 446 S.E.2d 158, 160 (1994). As we stated in Lemons,
[w]e can find no reason for the prosecution's refusal to disclose the statement to the defense. The statement does not contain any information regarding any other criminal prosecution, any private information concerning any person, or any reason to protect the identity of any person mentioned in it. . . .
The Commonwealth has suggested no need for redaction of any part of the statements.
We have previously emphasized the importance of the prosecutor's ethical duty to "make [a] timely disclosure" of exculpatory material. The failure to carry out this duty reduces "the fact finding process . . . to an exercise in brinkmanship." The duty springs from a public prosecutor's broader obligation to "seek justice, not merely to convict." Virginia Code of Professional Responsibility EC 8-10 (1983).
A prosecutor does not meet his or her ethical and constitutional duty simply by making a pretrial determination that the information, if disclosed, would not likely change the outcome of the trial. A prosecutor is unable to determine the ultimate "materiality" of evidence in a trial which has not yet occurred. If in doubt about the exculpatory nature of the material, a prosecutor should submit it to the trial court for an in camera review to determine if it is exculpatory and should be disclosed.
Id. at 620-21, 446 S.E.2d at 160-61 (some citations omitted) (footnote added).
The Commonwealth and the trial court agreed that the victim's statements contained exculpatory information. Indeed, the Commonwealth disclosed some information from the statements in discovery, but refused to disclose the statements themselves. While it is proper for the trial court to review questioned material to determine whether it is exculpatory, a finding that the material is, in fact, exculpatory, requires the disclosure of the actual evidence to defense counsel. The accused is entitled to have his counsel review and utilize exculpatory material itself. Should the material contain information to which a defendant is not entitled, that information may be redacted, an issue not raised in this case.
To support a claim under Brady, Garnett must demonstrate not merely that the suppressed evidence was exculpatory; but that it was "material" to his conviction. He must show a "reasonable probability that the proceeding would have resulted in a different outcome had the evidence been disclosed to the defense." Lovitt, 266 Va. at 244, 585 S.E.2d at 817. He has met this burden.
The disparities between the victim's statements and her trial testimony significantly challenged her credibility. Because her testimony was essential to prove the charges against Garnett, any information that significantly cast doubt on her credibility provided a reasonable probability that the proceeding would have resulted in a different outcome and, therefore, was material.
The victim's credibility was material to all charges, including the rape conviction. While there was evidence of bruises and scratches, no evidence of semen was recovered, and prosecution and defense expert witnesses disagreed as to whether photographs of the victim's vaginal area showed any injury.
We reverse appellant's convictions and remand this matter for a new trial if the Commonwealth be so advised.
Reversed and remanded.
Pursuant to the defendant's post-trial motion, the trial court conducted an in camera review of the victim's statements. It held that the Commonwealth's disclosures were sufficient underBrady v. Maryland, 373 U.S. 83 (1963), but if aBrady violation did occur, such violation failed to meet the standard for justifying a new trial. While I agree with the majority's opinion that the statements in question were exculpatory, that fact alone does not end our inquiry on appeal and I, therefore, dissent.
In addressing the Commonwealth's disclosures, the trial court stated:
The first disclosure was — was very specific and it revealed material inconsistencies. The second disclosure was even more detailed. It described in a comprehensive way exactly what the victim said in her statements to [the] Investigator , and the Court has compared the disclosures that took place and the statements that were actually provided to the in-camera materials that the Commonwealth has delivered to the Court, and here, in the Court's view, all of the exculpatory evidence and the impeachment materials was actually provided to the defense. The Commonwealth even points out in one of its disclosures, very clearly, what the inconsistencies actually consist of. There's something of a road map to impeachment, so, in the Court's view, the disclosure was sufficient when one compares what was disclosed to the in-camera material.
The dispositive issue is whether the trial court erred in determining that disclosure of the exculpatory evidence would not have affected the verdict. Deville v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (March 28, 2006). A defendant "must show that a reasonable probability exists that the statement's disclosure would have resulted in a different outcome." Lemons v. Commonwealth, 18 Va. App. 617, 620, 446 S.E.2d 158, 160 (1994); see also Waters v. Commonwealth, 43 Va. App. 636, 648, 600 S.E.2d 918, 924 (2004). "'The mere possibility that an item of undisclosed information might have helped the defense . . . does not establish "materiality" in the constitutional sense.'" Frontanilla v. Commonwealth, 38 Va. App. 220, 227, 562 S.E.2d 706, 709 (2002) (quoting United States v. Agurs, 427 U.S. 97, 109-10 (1976)); see also Hughes v. Commonwealth, 18 Va. App. 510, 526, 446 S.E.2d 451, 461 (1994).
In White v. Commonwealth, 12 Va. App. 99, 402 S.E.2d 692,aff'd en banc, 13 Va. App. 284, 410 S.E.2d 412 (1991), the Commonwealth's disclosure was sufficient to determine that a confederate's confession was at least partially exculpatory, but this Court could not say "without qualification whether it was material or not. The materiality of the confederate's confession can only be determined from an evaluation of the entire document in light of all the circumstances." Id. at 105, 402 S.E.2d at 696. This Court vacated the defendant's conviction and remanded the case to the trial court for a determination of the confession's materiality. In that case, there was no materiality determination for us to review and the confession was not a part of the record.
In this case, the defendant attempted to obtain copies of the victim's verbatim statements before, during, and after trial. She was a material prosecution witness. While the Commonwealth provided a summary of the exculpatory evidence, it never provided the verbatim statements. Post-trial, the court reviewed the statements in camera and determined that there was no reversible Brady violation. Bowman v. Commonwealth, 248 Va. 130, 135, 445 S.E.2d 110, 113 (1994) (whether a trial court "should undertake the review of the disputed material is a discretionary matter"); Cherricks v. Commonwealth, 11 Va. App. 96, 102, 396 S.E.2d 397, 400 (1990).
In Wilson v. Commonwealth, 25 Va. App. 263, 487 S.E.2d 857 (1997), this Court reviewed the trial court's determination that the undisclosed pretrial statements of several witnesses were not material. The trial court held that the "the record did not support a finding that a reasonable probability existed that a different outcome would have resulted" had the statements been disclosed. Id. at 273-74, 487 S.E.2d at 862. Finding no error, we affirmed.
The defendant cites seven examples of inconsistent, omitted or contradicted testimony relevant to the trial court's alleged error in finding that disclosure would not have affected the verdict — all relating to the issue of impeachment. This alleged error is akin to the error argued in Fitzgerald v. Bass, 6 Va. App. 38, 366 S.E.2d 615 (1988) ( en banc). In Fitzgerald, the defendant's cellmate, who testified the defendant confessed to the crime, testified falsely about his own criminal record but admitted he was a felon. The trial court reviewed his background and determined that while the jury was not aware of the cellmate's complete record, it knew, and the defense highlighted, that he had an extensive criminal background. As such, it held that "given the extent to which [the witness'] credibility was impeached, it is doubtful that additional evidence in this regard would have made a difference in the jury's opinion of his credibility." Id. at 55, 366 S.E.2d at 624-25. Finding no error, we affirmed.
In the instant case, the trial court noted the summary disclosures were "very specific and . . . revealed material inconsistencies." The trial court concluded, and the Commonwealth conceded, that the statements were exculpatory; however, the trial court held that disclosure would not have affected the verdict. Deville, ___ Va. App. at ___, ___ S.E.2d at ___ (defendant's Brady claim fails absent a showing of prejudice). The sealed exculpatory statements, the disclosed summaries, and the victim's testimony at trial, including the defendant's extensive cross-examination, dictate that "[u]nder the totality of the circumstances, there is not a 'reasonable probability of a different result' had the materials been disclosed." Currie v. Commonwealth, 30 Va. App. 58, 68, 515 S.E.2d 335, 340 (1999). Accordingly, I would affirm.