Garnett v. Com.

• Decision Date: 10 April 2007
• Docket Number: Record No. 3027-04-2.
• Citation: 642 S.E.2d 782,49 Va. App. 524
• Parties: Howard Z. GARNETT, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

642 S.E.2d 782

49 Va. App. 524

Howard Z. GARNETT, Jr. v. COMMONWEALTH of Virginia.

Record No. 3027-04-2.

Court of Appeals of Virginia, Richmond.

April 10, 2007.

W. Todd Watson (Hargett & Watson, on brief), Glen Allen, for appellant.

Alice T. Armstrong, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and BENTON, ELDER, HUMPHREYS, CLEMENTS, KELSEY, McCLANAHAN, HALEY, PETTY and BEALES, JJ.

UPON REHEARING EN BANC

ELIZABETH A. McCLANAHAN, Judge.

A jury convicted Howard Z. Garnett, Jr. of rape, abduction with intent to defile, assault and battery on a family or household member (third or subsequent offense), and animate object penetration. Garnett contends the trial court erred in denying his motion for a new trial on the grounds that the Commonwealth failed to disclose exculpatory evidence, in the form of tape recordings and transcripts of the victim's statements, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). A panel of this Court held the Commonwealth's failure to disclose the victim's verbatim statements constituted a Brady violation and reversed his convictions in an unpublished opinion. We granted a petition for rehearing en banc and stayed the mandate of the panel decision. Upon rehearing en banc, we affirm the trial court.

I. BACKGROUND

On the morning of July 24, 2003, the victim went to Garnett's barn to retrieve some belongings.¹ When Garnett appeared, she attempted to leave but he grabbed her truck keys out of her hand. Garnett told her he wanted to return some things to her. The victim followed him into the house and then the barn, but he refused to return her keys. Once in the barn office, Garnett physically blocked the exit and prevented the victim from leaving. He pushed her up the stairs into a secluded area where he verbally and physically attacked her, ultimately raping her. Garnett then drove the victim home in her truck and left.

The victim reported the rape later that afternoon to the Madison County Sheriff's Office and submitted a handwritten statement. Deputy Hill observed scratches and bruises on her body, redness around her neck, her clothing was dirty and in disarray, her face was red and puffy, her voice was "very broken and soft," and the frame of her glasses was bent. Hill took her to the hospital for a sexual assault examination, and interviewed her that night with Investigator Michael. The victim gave another statement on July 31 in which she described Garnett's sexual assaults of January 19 and April 29, 2003.² Both interviews were recorded and transcribed. The victim also submitted a handwritten statement, and disclosed additional details regarding the alleged assaults to the Commonwealth while preparing for trial. Some of these statements conflicted with her preliminary hearing testimony.

Before trial, Garnett requested the tape recordings and transcripts of the victim's statements to police, arguing the evidence was exculpatory and could be used to impeach her credibility. The Commonwealth provided Garnett with summaries of her statements, which also specifically described the inconsistencies with her preliminary hearing testimony, but it did not release the recordings and transcripts. At the pretrial hearing, the Commonwealth represented that it had disclosed all exculpatory statements and that there were no inconsistencies between the victim's two recorded statements. Garnett accepted the Commonwealth's representations and withdrew his request for the court to conduct an in camera review of the statements. Garnett nevertheless persisted in his request for the recordings, contending that the "manner" in which the victim "articulate[d]" her statements was "potentially exculpatory." The trial court denied the request but directed the Commonwealth's attorney to review the recorded statements prior to trial and disclose further exculpatory evidence, if any.³

After he was convicted, Garnett filed a motion to set aside the verdict. He maintained that the Commonwealth violated the mandates of Brady by responding to his discovery request for the victim's verbatim statements by providing only typed summaries of the statements. Before ruling on Garnett's motion, the trial court reviewed in camera the recordings and transcripts of the statements and compared them to the typewritten summaries. The court found that the victim's statements revealed material inconsistencies in her testimony, but that the Commonwealth sufficiently disclosed the exculpatory material. The court further held that, by virtue of the Commonwealth's disclosure of the summaries in lieu of "the exact words that [she] uttered" in their entirety, Garnett was not prejudiced under Brady and not entitled to a new trial.

II. ANALYSIS

"A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused." Youngblood v. West Virginia, ___ U.S. ___, ___, 126 S.Ct. 2188, 2190, 165 L.Ed.2d 269 (2006). "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). The Commonwealth's duty to disclose exculpatory information includes evidence that can be used to impeach prosecution witnesses. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Youngblood, ___ U.S. at ___, 126 S.Ct. at 2190; Robinson v. Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986) ("The impeachment value alone makes the information exculpatory.").

Garnett contends the victim's verbatim statements constituted impeachment evidence the Commonwealth was required to disclose under Brady. The Commonwealth argues Garnett failed to establish it withheld exculpatory evidence and failed to establish that he suffered prejudice sufficient to require a reversal of his convictions.

A. The Commonwealth made the required disclosure of the Brady material in the specific summaries of the victim's statements.

Once a Brady claim is asserted, and a dispute arises as to whether information is indeed exculpatory, the trial court has the discretion to review the evidence in camera and assess whether the Commonwealth has favorable evidence which, if not disclosed, would prejudice the defendant. Bowman v. Commonwealth, 248 Va. 130, 135, 445 S.E.2d 110, 113 (1994); Lemons v. Commonwealth, 18 Va.App. 617, 621, 446 S.E.2d 158, 161 (1994) ("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.").

Prior to trial, Garnett requested all exculpatory materials, including the tape recordings and transcripts, but then withdrew his request for an in camera review at the pretrial hearing. In response to Garnett's motion to set aside the verdict after his conviction, the trial judge conducted the in camera review and found:

The Commonwealth made two separate disclosures regarding statements of the victim. 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 Investigator Michael, 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.

(Emphasis added). Accordingly, the trial court ruled that the statements were indeed exculpatory but that there was no Brady violation because the Commonwealth sufficiently disclosed the exculpatory evidence — providing the defendant "a road map to impeachment" through its summary disclosures.

Contrary to Garnett's argument, Brady does not require disclosure of the recordings or transcripts. See United States v. Grunewald, 987 F.2d 531, 535 (8th Cir.1993) (government complied with Brady by providing defendant typed summaries of interview notes instead of the available handwritten notes containing material favorable to defendant); United States v. Phillips, 854 F.2d 273, 278 (7th Cir.1988) (government complied with Brady by providing defendant with exculpatory evidence in the form of detailed summaries); United States v. Van Brandy, 726 F.2d 548, 551-52 (9th Cir.1984) (same). Garnett was provided the substance of the victim's statements, and he attacked her credibility as to each inconsistency. He thoroughly cross-examined the victim, challenging her recollection of the facts regarding the rape including how long she was in the barn, whether he sexually assaulted her orally, and why she was willing to follow him into the secluded barn after he had previously assaulted her. Garnett also pointed out the lack of corroborating evidence. He questioned the victim about when she terminated her intimate relationship with him, the extent of their business relationship, and her possible motive for testifying falsely.

We recognize that "the more prudent and expeditious route would have been for the government to provide" the recordings or transcripts. Grunewald, 987 F.2d at 535; see Lemons, 18 Va.App. at 621-22, 446 S.E.2d at 161. However, given the specificity of the disclosures, Garnett was able to carefully attack the...