Opinion
Record No. 0919-10-2
11-08-2011
WILLIAM EDWARD TUMA v. COMMONWEALTH OF VIRGINIA
Linwood T. Wells, III, for appellant. Craig W. Stallard, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: Judges Humphreys, Beales and Senior Judge Clements
Argued at Richmond, Virginia
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
JUDGE
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Thomas V. Warren, Judge Designate
Linwood T. Wells, III, for appellant.
Craig W. Stallard, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
William Edward Tuma was convicted following a jury trial of taking indecent liberties with a child, aggravated sexual battery, and animate object penetration. On appeal, Tuma contends the trial court erred by 1) ruling "that the evidence discovered by the defense during the jury trial, an audiotape, was not exculpatory in nature and therefore need not have been disclosed by the Commonwealth prior to trial pursuant to Brady v. Maryland," 373 U.S. 83 (1963), and 2) "refusing to allow the jury to hear the tape and admit it into evidence." We agree the trial court erroneously denied his motion for a new trial based on the Commonwealth's failure to disclose the statement. Therefore, we reverse the convictions and remand for a new trial.
As the parties are fully conversant with the record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.
BACKGROUND
"On appeal, 'we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).
Tuma was accused of sexually molesting his stepdaughter, L.S., beginning in January 2006 when the child was five years old. She eventually reported the incidents, and on February 6, 2008, Jon Webster Scheid, a Department of Social Services supervisor, and Investigator Dwayne Gilliam interviewed the victim. During the trial, Tuma's counsel learned that Scheid and Gilliam had recorded the interview with the child.
Although the Commonwealth provided defense counsel with a written summary of the initial interview, prior to trial, the Commonwealth did not provide counsel with the actual recording. In fact, Tuma's counsel was unable to acquire the tape until after trial, at which time he moved for a new trial based on the alleged Brady violation.
Both Scheid and Gilliam testified at trial and, after having reviewed their notes, indicated that the contents of the recording comported with the summary provided to the defense. They also testified about their interview with the victim and were subject to cross-examination by defense counsel. The victim, as well, testified at trial and recounted the interview.
The Commonwealth also introduced the testimony of the victim's counselor, Amy Holloman. She explained that children often do not recall specific dates or instances of abuse because they attempt to repress such events. She indicated it was typical for a child victim to recall more details about sexual abuse over time as the victim establishes a "trusting relationship."
Tuma sought to have the tape played at trial, but the trial court overruled the motion. Tuma also asserted the Commonwealth failed to properly disclose the existence of the tape prior to trial pursuant to Brady.
ANAYLSIS
I.
Tuma contends that had the tape been provided to him pre-trial, "he could have used it to impeach the credibility of four witnesses, [the victim], Jon Webster Scheid, Investigator Gilliam and the counselor, Amy Hollman, and the investigation against the defendant as a whole at trial." He maintains that the evidence "was exculpatory in nature and should have been disclosed by the Commonwealth prior to trial."
Because we conclude the contested evidence was exculpatory and material as to the complaining witness, we need not decide whether the evidence was also exculpatory and material as to the other witnesses. "An appellate court decides cases 'on the best and narrowest ground available.'" Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (en banc) (quoting Air Courier Conf. v. Am. Postal Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring)).
When we review an exculpatory evidence claim, "'[o]n appeal, the burden is on appellant to show that the trial court erred.'" Gagelonia v. Commonwealth, 52 Va. App. 99, 112, 661 S.E.2d 502, 509 (2008) (quoting Galbraith v. Commonwealth, 18 Va. App. 734, 739, 446 S.E.2d 633, 637 (1994)).
Due process requires the Commonwealth to disclose to the defendant all favorable evidence material to his guilt or punishment. Brady, 373 U.S. at 86-87; see also Youngblood v. West Virginia, 547 U.S. 867, 869 (2006); Garnett v. Commonwealth, 275 Va. 397, 406, 657 S.E.2d 100, 106 (2008). "'There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.'" Coley v. Commonwealth, 55 Va. App. 624, 631, 688 S.E.2d 288, 292 (2010) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). "Stated differently, 'the question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.'" Workman v. Commonwealth, 272 Va. 633, 645, 636 S.E.2d 368, 374 (2006) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
Exculpatory evidence is evidence that is favorable to the accused and includes impeachment evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). Exculpatory "information known to the police is information within the Commonwealth's knowledge and the prosecutor is obliged to disclose [it] regardless of the state of his actual knowledge." Moreno v. Commonwealth, 10 Va. App. 408, 418, 392 S.E.2d 836, 842-43 (1990).
In its ruling, the trial court concluded "the tape . . . is material but inadequate that it should produce opposite results on the merits at another trial. It is not exculpatory." However, the statements on the recording contradict to varying degrees the child's trial testimony, and, thus, had impeachment value. Accordingly, the trial court erred by holding the statements were not exculpatory.
Even though the statements were exculpatory, Tuma is not entitled to a new trial unless the statements were also material. See Lockhart v. Commonwealth, 34 Va. App. 329, 345, 542 S.E.2d 1, 8 (2001). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682.
Because the victim's testimony was the only evidence supporting the charges, L.S.'s credibility was a crucial factor for the jury in reaching its verdict. Accordingly, any evidence tending to cast doubt on her credibility was highly relevant to Tuma's claim that L.S. was fabricating the charges and that he did not commit the offenses. The Commonwealth's failure to provide defense counsel with the recording prevented Tuma from being able to effectively cross-examine the child. "A factor in determining the materiality of undisclosed information is '[a]ny adverse effect that the prosecutor's failure to respond might have had on the preparation and presentation of the defendant's case.'" White v. Commonwealth, 12 Va. App. 99, 103, 402 S.E.2d 692, 695 (quoting Bagley, 473 U.S. at 683), aff'd on reh'g en banc, 13 Va. App. 284, 410 S.E.2d 412 (1991).
Regarding the victim's testimony, Tuma asserts her original statement contradicted her trial testimony in six separate areas: 1) how many times the abuse occurred, 2) the location where the abuse occurred, 3) her statement in the interview that no abuse occurred at the Green Acres trailer park, 4) whether her mother was present when the abuse occurred, 5) where in the house the abuse occurred, and 6) whether the victim inappropriately touched her brother at Tuma's request.
In the recorded statement, L.S. said she was abused more than five times but less than ten times when she was at the "white house." At trial, she initially stated she was abused "a lot" at the house and on cross-examination stated it was more than ten times. L.S. also recounted at trial other places where the abuse occurred, including her grandmother's house and a recreational vehicle park. She made no mention of abuse occurring at the other locations in the recorded statement.
In the initial interview, L.S. indicated her mother would go "out grocery shopping sometimes" when the abused occurred. At trial, she testified her mother was in the room while Tuma watched pornographic movies with her, but that her mother was not in the room when the abuse actually occurred. On the tape, L.S. stated the abuse occurred only in Tuma's bedroom. At trial, she testified the abuse occurred both in Tuma's bedroom as well as in her own bedroom, but indicated she was "usually" in Tuma's room when it happened. At trial, L.S. testified Tuma forced her to touch her younger brother in the bath. On the tape, she made no mention of the incident.
In determining the question of materiality, we consider the suppressed evidence as a whole, not item by item and if a Brady violation is established, we do not engage in a harmless error review. Instead, a "constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial."Teleguz v. Commonwealth, 273 Va. 458, 488, 643 S.E.2d 708, 727 (2007) (quoting Bagley, 473 U.S. at 678) (citations omitted).
Although the Commonwealth asserts the prior statement was not contradictory, but "merely different," it still could have been used for impeachment purposes. "'[W]itnesses [can] be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.'" Jones v. Commonwealth, 50 Va. App. 437, 447, 650 S.E.2d 859, 864 (2007) (quoting Jenkins v. Anderson, 447 U.S. 231, 239 (1980)). Additionally, even if, as the Commonwealth contends, the differences between the statements can be explained by the expert testimony that child victims commonly provide greater details of abuse as they become more comfortable with a counselor or advisor, whether to accept the explanation and believe L.S.'s trial testimony "was wholly within the province of the jury." Keener v. Commonwealth, 8 Va. App. 208, 214, 380 S.E.2d 21, 25 (1989). Credibility was the singular decisive issue in the case. The Commonwealth's failure to disclose the recorded statement precluded Tuma from presenting the prior inconsistent statement to the jury, and "prevented [him] from effectively using the [statements] for purposes of challenging [L.S.'s] credibility." Bowman v. Commonwealth, 248 Va. 130, 134, 445 S.E.2d 110, 112 (1994). "When the 'reliability of a given witness may well be determinative of guilt or innocence,' evidence affecting the credibility of that witness should not be concealed by the prosecution." Burrows v. Commonwealth, 17 Va. App. 469, 472, 438 S.E.2d 300, 303 (1993) (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)).
In Lockhart, this Court concluded the suppressed impeachment evidence was not material because "the victim was subjected at trial to substantial impeachment on the details of his story." Lockhart, 34 Va. App. at 346, 542 S.E.2d at 9. In that case, "the victim's credibility would not have been damaged by the additional impeachment evidence any more than it already had been damaged at trial, particularly because the suppressed evidence was of no more significant nature than the impeachment evidence already presented at trial." Id. In this case, on the other hand, L.S. was not impeached at trial at all and was not confronted with any prior statements. Accordingly, we cannot conclude, as we did in Lockhart, that the suppressed impeachment evidence was merely cumulative and therefore immaterial. Instead, the recording represents the only evidence defense counsel could have used to impeach the victim's testimony. The jury's findings depended entirely upon L.S.'s credibility as there was no physical or other corroborating evidence presented at trial. Accordingly, L.S.'s pretrial statements would have been critical to evaluating her credibility and the Commonwealth's failure to provide defense counsel with the recorded statement prevented counsel from impeaching the witness. The recording of the victim's initial interview was relevant and material to determining the victim's credibility and was, therefore, useful to Tuma's ability to impeach the victim's credibility. In a case such as this where credibility is the most important issue, the withholding of the prior statement deprived
Tuma of his due process right to a fair trial and warrants a reversal of his convictions as the suppression of this evidence "'undermines confidence in the outcome of the trial.'" Teleguz, 273 Va. at 488, 643 S.E.2d at 727 (quoting Bagley, 473 U.S. at 678).
II.
Tuma also argues the trial court erred by refusing to allow the jury to hear the tape recording of the interview with the victim. Specifically, he asserts "[t]he audio tape recording was clearly relevant and the court abused its discretion and committed error by not introducing it."
Because we reverse the convictions on the grounds that the evidence should have been disclosed to the defense prior to trial, and the issue of whether the tape, which had not been heard by either the defense or the Commonwealth at the time of the trial, should have been admitted into evidence will not arise at a new trial, we do not address this issue in this opinion. See, for example, 1924 Leonard Road, L.L.C. v. Van Roekel, 272 Va. 543, 559, 636 S.E.2d 378, 387 (2006); Bellfield v. Commonwealth, 11 Va. App. 310, 316, 398 S.E.2d 90, 93 (1990).
For the reasons stated, the judgment appealed from will be reversed, and the case remanded to the trial court for such further proceedings as the Commonwealth may be advised, not inconsistent with this opinion.
Reversed and remanded. Beales, J., dissenting.
I respectfully dissent. The United States Supreme Court has explained that a defendant "'is entitled to a fair trial but not a perfect one,' for there are no perfect trials." Brown v. United States, 411 U.S. 223, 231-32 (1973) (quoting Bruton v. United States, 391 U.S. 123, 135 (1968)); see Blevins v. Commonwealth, 267 Va. 291, 297, 590 S.E.2d 365, 369 (2004). Thus, the Supreme Court's decision in Brady v. Maryland, 373 U.S. 83 (1963), reflects that a defendant in a criminal prosecution is entitled to "a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).
Here, the tape recording of L.S.'s February 6, 2008 interview should have been provided to the defense prior to trial. After reviewing the entire record in this case, however, I simply do not believe that "there is a reasonable probability that, had th[is] evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985); Bly v. Commonwealth, 280 Va. 656, 662, 702 S.E.2d 120, 123 (2010). Therefore, in my view, appellant received a fair trial under the standard that has been set forth by the United States Supreme Court and the Supreme Court of Virginia, and, thus, appellant's convictions should be affirmed.
The Supreme Court of Virginia has explained that the prosecution has a duty to disclose evidence favorable to the accused even though there has been no request by the accused - and that this duty encompasses impeachment evidence as well as exculpatory evidence. Workman v. Commonwealth, 272 Va. 633, 644, 636 S.E.2d 368, 374 (2006) (citations omitted). Here, appellant's counsel zealously attempted to obtain, and eventually did obtain, the tape recording of the February 6, 2008 interview after he learned of its existence at trial. However, as the tape recording of the February 6, 2008 interview with L.S. contains potential impeachment evidence, it really should have been disclosed to appellant's counsel prior to trial.
I. THE BRADY TEST
As the United States Supreme Court has stated, "[T]he Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense." Kyles, 514 U.S. at 436-37. In Workman v. Commonwealth, 272 Va. 633, 644-45, 636 S.E.2d 368, 374 (2006), the Supreme Court of Virginia recognized
three components of a violation of the rule of disclosure first enunciated in Brady: a) The evidence not disclosed to the accused "must be favorable to the accused, either because it is exculpatory," or because it may be used for impeachment; b) the evidence not disclosed must have been withheld by the Commonwealth either willfully or inadvertently; and c) the accused must have been prejudiced.Id. (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). "'[A] constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.'" Id. at 645, 636 S.E.2d at 374-75 (quoting Bagley, 473 U.S. at 678); see Strickler, 527 U.S. at 280 ("'[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'" (quoting Brady, 373 U.S. at 87)).
II. BACKGROUND
Here, appellant was charged with one count of taking indecent liberties with a child (L.S.), one count of aggravated sexual battery, and one count of animate object sexual penetration. The indictments alleged that these offenses occurred between January 1, 2006 and December 31, 2007. The Commonwealth's response to appellant's motion for a bill of particulars alleged that appellant committed criminal acts at two locations - a residence at 9617 Boydton Plank Road and at a home in the Green Acres Trailer Park.
In addition, prior to trial, the Commonwealth provided the defense with a written summary of L.S.'s interview with a child protective services officer and a police officer on February 6, 2008. According to this written summary, L.S. alleged, inter alia, that appellant had been inappropriately touching L.S. and putting his finger in her vagina since she was four years old; that appellant had touched L.S. in this way "at a white house with horses inside of a fence"; that appellant had touched her in this way five to ten times at the "white house"; and that the last time appellant touched her was in December 2007, at a home of a family friend. The written summary indicated that the "white house" was the residence at 9617 Boydton Plank Road and that the friend's home was inside Green Acres Trailer Park - which were both mentioned in the Commonwealth's response to the motion for a bill of particulars.
At trial, L.S. testified that the sexual abuse occurred at four different locations - at the "white house," at the Green Acres trailer, at her grandmother's house, and at an R.V. park.
III. NO PREJUDICE UNDER BRADY IN THIS CASE
On appeal, appellant contends that he was prejudiced under Brady by the Commonwealth's failure to provide the defense, prior to trial, with the tape recording of the February 6, 2008 interview with L.S. Appellant claims that the tape recording of the February 6, 2008 interview contains significantly different allegations from what was provided in the written summary of the interview and also differed significantly from L.S.'s testimony at trial. Appellant argues that the Commonwealth's failure to provide the tape recording impeded his ability to conduct an effective cross-examination and now undermines such confidence in the verdict that he is entitled to relief under Brady. Although appellant raises several different assertions in support of this Brady claim, his argument essentially boils down to L.S.'s statement during the middle of the interview that the sexual abuse occurred only at the "white house" - 9617 Boydton Plank Road - and not anywhere else. The written summary of the interview did not include this statement, but instead noted L.S.'s statement that the last incident of sexual abuse occurred at the Green Acres Trailer Park - while, at trial, L.S. testified that the sexual abuse occurred at four different locations.
Although Brady evidence must be "considered collectively, not item by item," Kyles, 514 U.S. at 436, all of the other alleged inconsistencies are either very minor or do not directly relate to the credibility of L.S.'s allegation that appellant actually committed the criminal acts charged in the indictments. Therefore, I would hold that these other alleged inconsistencies certainly are not "material" under Brady.
"[T]he burden is on appellant to show that the trial court erred.'" Gagelonia v. Commonwealth, 52 Va. App. 99, 112, 661 S.E.2d 502, 509 (2008) (quoting Galbraith v. Commonwealth, 18 Va. App. 734, 739, 446 S.E.2d 633, 637 (1994)). On appeal, appellant must demonstrate that the tape recording of the February 6, 2008 interview was "material" in the Brady sense by establishing that the contents of the tape recording "'could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Strickler, 527 U.S. at 290 (quoting Kyles, 514 U.S. at 435). "The materiality inquiry is a context-specific determination; evidence that is material in one setting could be immaterial in another." Lockhart v. Commonwealth, 34 Va. App. 329, 346, 542 S.E.2d 1, 9 (2001). In my view, under the particular circumstances of this case, I believe that appellant has not met the materiality requirement under Brady.
A. L.S.'S CONSISTENT ALLEGATION OF SEXUAL ABUSE AT THE "WHITE HOUSE"
In this case, it is especially important to emphasize that L.S. has always been consistent in her allegation - both in the interview before trial and during her testimony at trial - that appellant sexually abused her at the "white house." Some of the details of L.S.'s allegation of sexual abuse have differed, but L.S. has always alleged that appellant sexually abused her at the "white house."
Thus, while the defense could perhaps have attempted to impeach L.S. to some extent if it had known that she stated during a portion of the tape-recorded interview that the sexual abuse occurred only at the "white house," the jury was always entitled to disbelieve parts of L.S.'s testimony while at the same time accepting her consistent allegation that appellant indeed sexually abused her (and committed the charged offenses) at the "white house." See Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991). The jury's acceptance of L.S.'s testimony, standing alone, that the charged offenses occurred at the "white house" would support the guilty verdicts in this case. See Fisher v. Commonwealth, 228 Va. 296, 299, 321 S.E.2d 202, 204 (1984) (noting that "the victim's testimony, if credible and accepted by the finder of fact, is sufficient evidence, standing alone, to support the conviction" in a rape or sexual abuse case).
B. L.S. DID ALLEGE SEXUAL ABUSE AT THE GREEN ACRES TRAILER PARK
Furthermore, the written summary of the February 6, 2008 interview correctly states that L.S. indicated the last incident of sexual abuse occurred at the Green Acres Trailer Park. While L.S. said during the middle of the tape-recorded interview that the sexual abuse only occurred at the "white house" (and not anywhere else), she apparently added a correction to this statement later in the interview. Near the very end of the tape-recorded interview, L.S. was asked when was the last time that appellant touched her sexually. The transcript of the interview indicates that the "tape ran out" while L.S. was answering this question. At the point that the tape cut off, L.S. was in the middle of stating that the last time appellant touched her sexually "was when I was like living with . . . ."
The written summary of the interview (which was provided to the defense prior to trial) indicates that L.S. then alleged that appellant touched her sexually at the home of the family friend - in the Green Acres Trailer Park. The allegation that appellant committed criminal acts at the Green Acres Trailer Park, of course, had already been provided to the defense in the Commonwealth's response to the motion for a bill of particulars - further corroborating the Commonwealth's explanation that L.S. mentioned a second location of sexual abuse immediately after the tape recording of the February 6, 2008 interview "ran out."
C. THE DEFENSE COULD HAVE ALREADY IMPEACHED L.S. BASED ON DIFFERENCES
BETWEEN THE WRITTEN SUMMARY OF HER INTERVIEW AND HER TRIAL TESTIMONY
Even if the defense had been aware that L.S. said during the middle of the February 6, 2008 tape-recorded interview that the sexual abuse occurred only at the "white house" (and not anywhere else), there is not "a reasonable probability that, had th[is] evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682 (emphasis added). This is because, prior to trial, the defense was already aware that L.S. alleged during this interview that the sexual abuse occurred at two locations - at the "white house" and at the Green Acres Trailer Park. At trial, however, L.S. alleged that appellant sexually abused her at four locations - at the "white house," at the Green Acres trailer, at her grandmother's house, and at an R.V. park.
Thus, the defense was already aware of an inconsistency in L.S.'s statements concerning the locations of the sexual abuse - and certainly could have attempted to impeach L.S.'s credibility on that basis. Whether L.S. alleged earlier that the sexual abuse occurred at one or two locations simply is not material in the Brady sense, given that L.S. mentioned two entirely new locations of abuse for the first time at trial. Since the defense was aware prior to trial that L.S. had alleged during the February 6, 2008 interview that the sexual abuse occurred at two locations and L.S. then testified at trial that the sexual abuse occurred at four locations, L.S.'s statement earlier in the February 6, 2008 interview that the abuse occurred only at one location is essentially the "same type" of impeachment evidence that was already at the defense's disposal. Lockhart, 34 Va. App. at 346, 542 S.E.2d at 9. Disclosure of this statement by L.S. would not, therefore, "have put the whole case in such a different light as to undermine confidence in the verdict." Id.
In addition, L.S.'s child counselor - who was admitted as an expert in adolescent trauma - testified at trial that it is uncommon for children "to remember specific dates and instances of sexual abuse" because "they try to repress that as much as possible." The expert also testified that it is common "for more information to come out" after a young victim of sexual abuse begins therapy.
Unlike in Bly, 280 Va. at 663, 702 S.E.2d at 124, no previously undisclosed impeachment evidence could have led to significantly more "devastating impeachment" of L.S.'s credibility in this case. For example, L.S. made no statements during the tape-recorded February 6, 2008 interview that pointed to a motive to fabricate her allegation of sexual abuse by appellant or that could have rendered her allegation improbable. Instead, the entirety of this interview reveals comparatively minor differences from the information that was already disclosed to the defense prior to trial. There is only a "'mere possibility,'" at most, that disclosure of the tape recording of the February 6, 2008 interview might have helped the defense any more than the written summary of the interview. Soering v. Deeds, 255 Va. 457, 465, 499 S.E.2d 514, 519 (1998) (quoting United States v. Agurs, 427 U.S. 97, 109 (1976)). And, of course, as the United States Supreme Court has instructed us, "'[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish "materiality" in the constitutional sense.'" Id. (quoting Agurs, 427 U.S. at 109-10).
In Bly, the Commonwealth relied on a confidential informant's testimony about two alleged drug transactions with Bly to prove Bly's guilt at trial - but the Commonwealth did not disclose to the defense that the police were aware that the confidential informant had been providing false accounts of controlled transactions, was only paid by the authorities if he reported a drug transaction, and had reported a total of eighty-three controlled buys during a seven-month period. Bly, 280 Va. at 658-60, 702 S.E.2d at 121-22. On appeal, the Supreme Court held that the failure to disclose this impeachment evidence that "could have led to a devastating impeachment" of the confidential informant's credibility "undermines confidence in the outcome of the trial." Id. at 663, 702 S.E.2d at 124 (emphasis added).
Accordingly, I would hold that appellant simply was not prejudiced under Brady.
I would also hold that the trial court did not abuse its discretion when it denied appellant's request to play the tape recording for the jury. "The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Brown v. Commonwealth, 21 Va. App. 552, 555, 466 S.E.2d 116, 117 (1996). At the time of appellant's request, neither appellant's counsel nor the trial court had even heard the audio tape, which turned out to be of poor quality.
IV. CONCLUSION
Although the tape recording of L.S.'s interview should have been provided to the defense prior to trial, the failure to do so, under these particular circumstances, does not establish the required materiality in the constitutional sense. There was not much more or truly different impeachment evidence that could be brought forward to impeach this seven-year-old child on cross-examination that was not already available to the defense to provide to the factfinder, and the victim here was always consistent that appellant sexually abused her at the "white house." Appellant was not prejudiced in any material way under the standard set forth by the United States Supreme Court in Brady and in Kyles and by the Supreme Court of Virginia in Workman. Accordingly, since I believe appellant's "trial result[ed] in a verdict worthy of confidence," Kyles, 514 U.S. at 434, I respectfully dissent from the decision of the majority to reverse the convictions in this case.