Tuma v. Commonwealth, Record No. 0919–10–2.

Docket NºRecord No. 0919–10–2.
Citation726 S.E.2d 365, 60 Va.App. 273
Case DateJune 12, 2012
CourtCourt of Appeals of Virginia

60 Va.App. 273
726 S.E.2d 365

William Edward TUMA
v.
COMMONWEALTH of Virginia.

Record No. 0919–10–2.

Court of Appeals of Virginia,
Richmond.

June 12, 2012.


[726 S.E.2d 367]


Linwood T. Wells, III, for appellant.

Craig W. Stallard, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.


Present: FELTON, C.J., ELDER, FRANK, HUMPHREYS, KELSEY, PETTY, BEALES, ALSTON, and HUFF, JJ.

UPON A REHEARING EN BANC

HUMPHREYS, Judge.

[60 Va.App. 277]A jury convicted William Edward Tuma (“Tuma”) in the Circuit Court of Dinwiddie County (“trial court”) of taking indecent liberties with a child, aggravated sexual battery, and animate object sexual penetration. On appeal, Tuma contends that the trial court erred by 1) ruling “on several occasions, during the jury trial and prior to sentencing, that the evidence discovered by [Tuma] during the jury trial, an audio tape, was [60 Va.App. 278]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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and 2) “refusing to allow the jury to hear the audio tape and admit it into evidence.” A panel majority of this Court reversed Tuma's convictions. We granted the Commonwealth's petition for rehearing en banc and stayed the mandate of the panel decision.

I. 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)). So viewed, the facts establish the following.

In early February 2008, L.S., a five-year-old girl, told her stepmother and biological father that Tuma, her stepfather, had touched her inappropriately. A joint investigation by police investigators and the Dinwiddie County Department of Social Services (Dinwiddie DSS) ensued which led to Tuma's indictment on the three charges for which he was later convicted by a jury. Prior to trial, Tuma's counsel filed a motion for discovery which included a request for “[a]ny other information or evidence known to the Commonwealth which is or may be exculpatory.”

At trial on January 12, 2009, L.S. testified that Tuma assaulted her when she lived in the “house next to horses.” She specifically stated that Tuma touched her in her “bottom privates” and that it usually happened in Tuma's room after they watched movies that they should not have been watching because they included “[p]eople touching each other on their privates.” L.S. testified that Debra Tuma, her mother, was also in the room when the movies were on, but that she would leave the room once the movies were finished. L.S. then stated that once Debra Tuma left the room, Tuma would tell her to take her clothes off and lie on the bed. L.S. stated that he would touch her only in her “down” private parts, that he [60 Va.App. 279]would put his fingers on and inside of her more than once, and that she could feel his fingers inside of her. L.S. could not recall how many times Tuma touched her when she lived in the house near the horses, but testified that it was “a lot.” L.S. also testified that the sexual assaults sometimes took place in her bedroom. L.S. further testified that Tuma told her to touch her brother, who was three or four years old, when he was in the bathtub in “his down privates” while Tuma watched. At some point while the abuse was ongoing, Tuma, Debra, and L.S. moved from the house with the horses into an RV park. Prior to Christmas of 2007, L.S. went to live with her biological father and stepmother,

[726 S.E.2d 368]

but Debra Tuma still had visitation with L.S. The last time Tuma touched L.S. was around Christmas of 2007 in Tuma's bedroom when she was visiting her mother at the trailer.

On cross-examination, L.S. testified that she lived with her grandmother at one point and that Tuma also touched her there, but she could not remember the number of times it occurred. L.S. also replied on cross-examination that Tuma touched her more than ten times in the house with horses. L.S. further stated that Tuma touched her about three times a week at the “RV park.”

When she lived with her biological father, L.S. inappropriately touched her male nephew. It was after the incident with her nephew that L.S. told her stepmother and biological father what Tuma had been doing to her and what he made her do to her brother.

Ms. Jon Scheid of Dinwiddie DSS and Sheriff's Department Investigator Dwayne Gilliam interviewed L.S. regarding L.S.'s allegations against Tuma. Investigator Gilliam testified at trial that L.S. reported during the interview that Tuma had “been touching her inappropriately for a period of time” and that the abuse occurred at two locations, one of which was Green Acres Trailer Park. An investigation was initiated based on this report, and the alleged assaults were determined to have occurred in Dinwiddie at 9617 Boydton Plank Road (L.S. refers to this location in her statement and testimony as “the [60 Va.App. 280]house with the horses”), and 7901 Lot 36 Boydton Plank Road at Green Acres Trailer Park. Tuma was then arrested and charged with animate object penetration, aggravated sexual battery, and indecent liberties with a minor. On cross-examination, Investigator Gilliam testified that he believed the interview with L.S., Ms. Scheid, and himself may have been recorded on an audio tape, but he did not know if a transcript was ever made from the tape.

Ms. Scheid testified at trial that she had recorded the interview with L.S. and Investigator Gilliam and she had the audio tape in her possession; she stated that the recording was about thirty to forty minutes in length. 1 Ms. Scheid further testified that L.S. stated in the interview that the sexual abuse occurred at two locations, with the majority of incidents occurring at the house with the horses and one incident occurring at a residence in Green Acres Trailer Park. Ms. Scheid also stated that the tape included L.S.'s reference to the one incident at the trailer park. Upon discovering that Ms. Scheid had the tape in her possession, Tuma's counsel asked the trial court to play the audio tape. The Commonwealth objected, and the following colloquy took place:

THE COURT: Have you heard it?

[TUMA'S COUNSEL]: No, sir.

THE COURT: I am not going to play it. You can go listen to it if you want on your own time. We are not going to just—I don't know what is there. We don't know what is in there. We will not just play a tape. You have already asked her about what was said.

[TUMA'S COUNSEL]: Well, the argument is that it is the best evidence in the case in terms of what the child said on that audio tape.

[60 Va.App. 281]THE COURT: I don't think it is the best evidence in the case. It might be some evidence. You can take it off and listen to it. Has this been denied to [Tuma's counsel], this tape?

[COMMONWEALTH'S ATTORNEY]: No, sir.

THE COURT: He had access to it?

[COMMONWEALTH'S ATTORNEY]: He can listen to it if he wants to.

THE COURT: We'll not play it now because you want to play it. It is not admissible unless it contradicts something that she has said. You haven't heard it. So we'll not just play a tape and run this thing sort of offbeat, off horse back without any sort of thought or notion as to what is there. It is not going to be played....

[726 S.E.2d 369]

After reporting the sexual assaults, L.S. began seeing Amy Holloman, a counselor. Ms. Holloman testified at trial, and was qualified as an expert on adolescent trauma. She testified that it is uncommon for a child victim of this type of trauma to report the abuse right after it occurs. She also opined that it was uncommon for children to be able to remember specific dates and instances because “[t]hey try to repress as much as possible.” However, she stated that it is very common in therapeutic situations for more information to come out once the child has established a trusting relationship with the counselor, which is what occurred with her and L.S. Ms. Holloman then testified that she personally observed the following behavior in L.S.: “pacing in my office, avoiding eye contact, avoiding the subject matter, leaving my office.” According to Ms. Holloman, these specific behaviors coupled with the actual reporting of the incident are consistent with claims of sex abuse.

At the conclusion of the Commonwealth's case, Tuma's counsel moved to strike the evidence on the basis that the audio tape is the best evidence and that it is exculpatory. The following exchange then took place:

THE COURT: Have you listened to the tape?

[COMMONWEALTH'S ATTORNEY]: No, sir.

[60 Va.App. 282]THE COURT: So you don't know whether it is exculpatory or not?

[COMMONWEALTH'S ATTORNEY]: No, sir.

THE COURT: So therefore you didn't give it to him as being exculpatory because you never listened to it? You don't think it is—he is entitled to it because it is not exculpatory? You just don't know?

[COMMONWEALTH'S ATTORNEY]: I relied on my investigator who had given me his notes and transformed that into a typewritten statement that codified what went on at that particular interview.

THE COURT: So you are satisfied there is nothing significant or exculpatory? Are you willing to stand on that? If it is you will not have complied with Brady.

[COMMONWEALTH'S ATTORNEY]: Yes, sir.

THE COURT: You are willing to let that go?

[COMMONWEALTH'S ATTORNEY]: Yes, sir.

THE COURT: You don't know what is on there either?

[COMMONWEALTH'S ATTORNEY]: Yes, sir.

THE COURT: We have heard from two witnesses as to what was done, Mrs. Scheid and Mr. Gilliam both of them were cross examined. This is just a tape of what they heard, correct?

You are saying that you think it is exculpatory?

[TUMA'S COUNSEL]: Yes, sir.

THE COURT: In some way?

[TUMA'S COUNSEL]: Yes, I mean I can't get the material. I have asked...

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1 practice notes
  • Commonwealth v. Tuma, Record No. 121177.
    • United States
    • Virginia Supreme Court of Virginia
    • April 18, 2013
    ...*12–13. Granting the Commonwealth's petition for rehearing en banc, the Court of Appeals reached the same decision. Tuma v. Commonwealth, 60 Va.App. 273, 303–04, 726 S.E.2d 365, 380 (2012). We granted the Commonwealth this appeal on two assignments of error in which it asserts the Court of ......
1 cases
  • Commonwealth v. Tuma, Record No. 121177.
    • United States
    • Virginia Supreme Court of Virginia
    • April 18, 2013
    ...*12–13. Granting the Commonwealth's petition for rehearing en banc, the Court of Appeals reached the same decision. Tuma v. Commonwealth, 60 Va.App. 273, 303–04, 726 S.E.2d 365, 380 (2012). We granted the Commonwealth this appeal on two assignments of error in which it asserts the Court of ......

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