Tuma v. Commonwealth
| Decision Date | 08 November 2011 |
| Docket Number | Record No. 0919-10-2 |
| Court | Court of Appeals of Virginia |
| Parties | WILLIAM EDWARD TUMA v. COMMONWEALTH OF VIRGINIA |
Present: Judges Humphreys, Beales and Senior Judge Clements
Argued at Richmond, Virginia
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 andincidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.
"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 torecall 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.
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."1 He maintains that the evidence "was exculpatory in nature and should have been disclosed by the Commonwealth prior to trial."
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 atissue 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 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). 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,...
To continue reading
Request your trial