PRESENT: All the Justices 

COMMONWEALTH OF VIRGINIA 

 OPINION BY 

 v. Record No. 121177 JUSTICE ELIZABETH A. McCLANAHAN 

 APRIL 18, 2013 

WILLIAM EDWARD TUMA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 

A jury convicted William Edward Tuma (Tuma) of taking 

indecent liberties with a child, aggravated sexual battery, 

and animate object penetration. On appeal, we consider 

whether the Commonwealth violated Brady v. Maryland, 373 U.S. 

83 (1963) by suppressing evidence in the form of an audio tape 

recording of an investigative interview with the victim. 

Concluding the Commonwealth committed no Brady violation, as 

the recording was made available to Tuma in sufficient time 

for its use at trial, we will reverse the judgment of the 

Court of Appeals of Virginia.

I. RELEVANT FACTS AND PROCEEDINGS 

Under familiar principles, we review the facts in the 

light most favorable to the Commonwealth, the prevailing party 

at trial. Bly v. Commonwealth, 280 Va. 656, 658, 702 S.E.2d 

120, 121 (2010) (applying the Brady rule). 

The victim, L.S., a seven-year-old girl, indicated to her 

father and stepmother that she had been sexually assaulted by 

Tuma, her stepfather. L.S. stated that Tuma had been placing 
2 

his fingers "inside" of her "private parts," referring to her 

vagina. When provided with this information, the Dinwiddie 

County Sheriff's Office (DCSO), along with the Dinwiddie 

County Department of Social Services (DSS), conducted a joint 

investigation. Among other things, DCSO Investigator Dwayne 

Gilliam and Jon Scheid, a child protective services worker 

with DSS, interviewed L.S. Scheid audio tape recorded the 

interview as required by DSS regulations. See 22 VAC § 40-

705-80(B)(1)). 

As a result of the investigation, Tuma was indicted on 

charges of committing three sex crimes against L.S. for which 

he was ultimately convicted in a jury trial - taking indecent 

liberties with a child (Code § 18.2-370.1), aggravated sexual 

battery (Code § 18.2-67.3(A)(1)), and animate object 

penetration (Code § 18.2-67.2). 

Prior to trial, the Commonwealth's Attorney for Dinwiddie 

County provided Tuma's counsel with a written summary of the 

investigative interview with L.S., which Gilliam prepared as 

part of his case report. Tuma's counsel was not provided pretrial access to the tape recording of the interview. However, 

he learned of the tape's probable existence at least a week 

before trial when, according to him, he specifically "asked 

[Gilliam] whether or not there was a tape" and Gilliam said 

"he thought there may have been but he was not sure." 
3 

At trial, Gilliam, the Commonwealth's second of six 

witnesses (L.S. was the first), reiterated on crossexamination that he believed DSS had tape recorded the 

interview. Scheid, the Commonwealth's third witness, then 

confirmed during cross-examination that she recorded the 

interview and had the audio tape with her in the court room. 

Tuma's counsel immediately moved to admit the tape recording, 

in its entirety, into evidence. At that time, neither he, the 

prosecutor, nor the trial judge had listened to it. Under 

those circumstances, the trial judge refused to admit the tape 

into evidence. As the judge explained, "we'll not just play a 

tape . . . without any sort of thought or notion as to what is 

there." 

In making this evidentiary ruling, the trial judge 

nevertheless made clear to defense counsel that he could 

listen to the tape: "You can go listen to it if you want to 

on your own time," the judge stated. "You can take it off and 

listen to it," the judge further clarified. The judge then 

asked the prosecutor if defense counsel "had access to [the 

tape]," to which the prosecutor replied, "He can listen to it 

if he wants to." Defense counsel did not ask to listen to the 

tape outside of the jury's presence, either then or at any 

other time during the trial. Rather, he simply asked the 
4 

judge to "[j]ust note [his] exception" to the ruling on his 

request to play the entire tape to the jury. 

Tuma's counsel moved a second time to admit the tape into 

evidence before arguing a motion to strike at the conclusion 

of the Commonwealth's case. He asserted that the tape was 

"the best evidence of what was said" during the interview, and 

that he "would think that it would be exculpatory in terms of 

where things occurred and [the] number of times they 

occurred," referring to the allegations of sexual assault. 

However, Tuma's counsel admittedly had "not heard [the tape] 

yet." The trial judge denied the request, explaining to him, 

"I don't think you are entitled just to play something because 

you think it may be exculpatory." 

Tuma's counsel first listened to the tape after the trial 

ended with guilty verdicts on all charges. Tuma subsequently 

filed motions to strike the evidence as insufficient for 

conviction and, alternatively, to set aside the verdicts and 

grant him a new trial, based on the contention that the 

prosecutor violated Brady by failing to provide pre-trial 

access to the tape. Had he been given such access, Tuma 

argued, it could have been used to impeach the credibility of 

the Commonwealth's first four witnesses, namely, L.S., 

Gilliam, Scheid, and L.S.'s counselor, Amy Holloman. 

According to Tuma, the tape revealed eight certain "areas of 
5 

interest and factual discrepancies" that the defense could 

have used to effectively cross-examine those four witnesses. 

Tuma's counsel conceded at an earlier post-trial hearing, 

however, that he had access to the tape during the trial. 

Counsel specifically admitted that "at the trial [the 

prosecutor] said I could have access to it and things of that 

nature." He similarly acknowledged that the trial judge "was 

clear at the trial that I would be able to get it and listen 

to it." Finding no Brady violation, the trial court denied 

Tuma's motions, entered a judgment of conviction and imposed 

the sentences fixed by the jury. 

Tuma appealed his convictions to the Court of Appeals, 

contending the trial court erred by (i) rejecting his Brady

challenge to the prosecutor's failure to disclose the audio 

tape prior to trial, and (ii) refusing to admit the tape into 

evidence and allow the jury to hear it. In a memorandum 

opinion, a three judge panel, with one judge dissenting, 

reversed the convictions on the Brady issue and remanded the 

case for a new trial. Tuma v. Commonwealth, Record No. 0919-

10-2, 2011 Va. App. LEXIS 337 (November 8, 2011). Given that 

ruling, the panel did not rule on Tuma's second assignment of 

error. Id. at *12-13. Granting the Commonwealth's petition 

for rehearing en banc, the Court of Appeals reached the same 
6 

decision. Tuma v. Commonwealth, 60 Va. App. 273, 303-04, 726 

S.E.2d 365, 380 (Va. App. 2012). 

We granted the Commonwealth this appeal on two 

assignments of error in which it asserts the Court of Appeals 

erred by (i) finding a Brady violation when the evidence was 

available to Tuma at trial; and (ii) holding that the audio 

tape contained evidence that was material under Brady. 

II. ANALYSIS 

A. 

Under the Brady rule, the prosecution's suppression of 

evidence favorable to the accused and material to either guilt 

or punishment violates due process. Brady, 373 U.S. at 87. 

First, the prosecution's suppression of evidence may be 

established "irrespective of the good faith or bad faith of 

the prosecution." Id. Second, the evidence must be 

"'favorable to the accused, either because it is exculpatory, 

or because it is impeaching.'" Skinner v. Switzer, 562 U.S. 

___, 131 S. Ct. 1289, 1300 (2011) (quoting Strickler v. 

Greene, 527 U.S. 263, 281-82 (1999)). Third, the "'evidence 

is "material" within the meaning of Brady when there is a 

reasonable probability that, had the evidence been disclosed, 

the result of the proceeding would have been different.'" 

Smith v. Cain, 565 U.S. ___, 132 S. Ct. 627, 630 (2012) 

(quoting Cone v. Bell, 556 U.S. 449, 469-70 (2009)). The 
7 

accused has the burden of establishing each of these three 

components to prevail on a Brady claim. Skinner, 131 S. Ct. 

at 1300.

In this appeal, the Commonwealth does not challenge 

whether the tape recording presented favorable impeachment 

evidence for the defense, as Tuma contends. The Commonwealth 

instead limits its challenge to Tuma's showing on the 

suppression and materiality prongs of the Brady rule. Because 

we agree with the Commonwealth that the prosecution did not 

suppress the tape in violation of Brady, we need not address 

the issue of materiality. See Porter v. Warden of the Sussex 

I State Prison, 283 Va. 326, 332, 722 S.E.2d 534, 542 (2012) 

(explaining that "we do not reach the issue of materiality" 

under Brady "unless we first determine that the evidence was 

not available" to the defense). 

B. 

Brady is "a disclosure rule, not a discovery rule." 

United States v. Higgins, 75 F.3d 332, 335 (7th Cir. 1996). 

Indeed, "[t]here is no general constitutional right to 

discovery in a criminal case, and Brady did not create one." 

Weatherford v. Bursey, 429 U.S. 545, 559 (1977). The more 

limited purpose of the Brady rule is "'to assure that [the 

defendant] will not be denied access to exculpatory [or 

impeachment] evidence known to the government but unknown to 
8 

him.'" Lugo v. Munoz, 682 F.2d 7, 10 (1st Cir. 1982) (quoting 

United States v. Ruggiero, 472 F.2d 599, 604 (2d Cir. 1973)) 

(first emphasis added). Accordingly, Brady is not violated, 

as a matter of law, when impeachment evidence is made 

"'available to [a] defendant[] during trial'" if the defendant 

has "sufficient time to make use of [it] at trial." Read v. 

Virginia State Bar, 233 Va. 560, 564-65, 357 S.E.2d 544, 546-

47 (1987) (quoting U.S. v. Behrens, 689 F.2d 154, 158 (10th 

Cir. 1982)); see Higgins, 75 F.3d at 335 (Under Brady, 

"[d]isclosure even in mid-trial suffices if time remains for 

the defendant to make effective use of the exculpatory 

material."); United States v. Knight, 867 F.2d 1285, 1289 

(1989) (holding Brady satisfied where "[a]ppellants received 

the information during the trial and have failed to 

demonstrate that the disclosure came so late that it could not 

be effectively used"); see generally 6 Wayne R. LaFave, 

Criminal Procedure § 24.3(b) at 365 (3d ed. 2007) (Under 

Brady, "the prosecution should be able to satisfy its 

constitutional obligation by disclosure at trial."). 

This principle applies without regard to when the 

prosecution was or should have been "aware of the 

information." Read, 233 at 564, 357 S.E.2d at 546, citing 

with approval United States v. Darwin, 757 F.2d 1193 (11th 

Cir. 1985). In Darwin, the defendant contended that the 
9 

prosecution violated Brady because the government failed to 

disclose certain impeachment evidence about a witness until 

after he had testified even though the government had been 

aware of the information several days prior to his testimony. 

Id. at 1201. Rejecting defendant's Brady claim, the Court of 

Appeals for the Eleventh Circuit explained: 

The point in the trial when a disclosure is 

made . . . is not in itself determinative of 

timeliness. We agree with those circuits 

holding that a defendant must show that the 

failure to earlier disclose prejudiced him 

because it came so late that the information 

disclosed could not be effectively used at 

trial. Appellant here made no such showing. 

In fact, although Dunn had completed his 

testimony, the trial itself was far from over. 

Appellant could have recalled Dunn for further 

questioning but chose not to. 

Id. (internal citations omitted), quoted in part by Read, 233 

Va. at 564-65, 357 S.E.2d at 546-47; see also United States v. 

Davis, 306 F.3d 398, 421 (6th Cir. 2002) (holding disclosure 

of impeachment material during trial, when witnesses were 

subject to recall, satisfied Brady); United States v. MangualGarcia, 505 F.3d 1, 5-6 (1st Cir. 2007) (same); United States 

v. Kime, 99 F.3d 870, 882 (8th Cir. 1996) (same). 

 In Read, this Court further relied upon United States v. 

Elmore, 423 F.2d 775 (4th Cir. 1970), which held that no Brady

violation occurred when the impeachment information was 

disclosed "well before the end of the trial," particularly 
10 

given that defense counsel requested no continuance "for 

whatever further time might have been necessary" to make use 

of the information at trial. Id. at 779-80. Similarly 

rejecting a claim for late disclosure of Brady material, the 

Court of Appeals for the Seventh Circuit in Higgins reasoned 

that "[i]f counsel needed more time, she had only to ask; yet 

she did not seek a continuance. Nothing more need be said." 

75 F.3d at 335; see United States v. Crayton, 357 F.3d 560, 

569 (6th Cir. 2004) ("Any disadvantage that a defendant might 

suffer because of the tardiness [in the disclosure] of 

impeachment material can be cured by asking for a recess." 

(citing United States v. Presser, 844 F.2d 1275, 1283-84 (6th 

Cir. 1988)).1 In the analogous context of Rule 3A:11, 

governing discovery in criminal cases, this Court has held 

that a defendant who "failed to move for a continuance or even 

for a recess in order to consider the material" untimely 

disclosed by the prosecution would not "be heard to complain 

that he had insufficient time to prepare for trial." Frye v. 

Commonwealth, 231 Va. 370, 384, 345 S.E.2d 267, 277 (1986); 

 1

 See also United States v. Collins, 415 F.3d 304, 311 

(4th Cir. 2005) (holding that the proper response to a late 

Brady disclosure was a motion for continuance, not a motion to 

dismiss); United States v. Sepulveda, 15 F.3d 1161, 1178 (1st 

Cir. 1993) (generally "a defendant who does not request a 

continuance will not be heard to complain on appeal that he 

suffered prejudice as a result of late arriving" Brady 

material). 
11 

see Davis v. Commonwealth, 230 Va. 201, 204, 335 S.E.2d 375, 

377 (1985) (holding no prejudice shown under Rule 3A:11 when 

defendant "did not request either a postponement or a 

continuance"). 

Here, Tuma did not have pre-trial access to the audio 

tape recording of the investigative interview with L.S., which 

purportedly contained impeaching material favorable to him. 

His counsel, however, had reason to believe before trial that 

the tape existed based on his conversation with Gilliam. Then 

early in the trial, the two prosecution witnesses who 

conducted the interview, Gilliam and Scheid, testified that it 

was recorded; and Scheid revealed that the tape was in her 

possession in the courtroom. Without first seeking to listen 

to the tape outside the jury's presence, Tuma's counsel simply 

moved to admit the tape into evidence and play it for the 

jury, which the trial judge denied as procedurally improper. 

Nevertheless, the judge twice advised defense counsel that he 

could "go listen to it," and the prosecutor concurred, 

stating, "[h]e can listen to it if he wants to." 

On these facts, we conclude Tuma failed, as a matter of 

law, to show he was denied access to the tape recording in 

sufficient time to effectively use it at trial. Upon learning 

during Scheid's testimony that she had the tape, Tuma's 

counsel could have asked for a recess and listened to it, 
12 

proceeded to cross-examine Scheid using any favorable 

impeaching information contained on it, and recalled L.S. and 

Gilliam for the same purpose; but defense counsel chose not to 

do so. 

Despite such access to the tape at trial, Tuma attempts 

to save his Brady claim by pointing to the subsequent exchange 

between the trial judge, his counsel, and the prosecutor 

following the close of the Commonwealth's case. At that time, 

Tuma's counsel moved for the second time to admit the tape 

into evidence without having listened to it, and without 

having made any request during the trial to do so. He instead 

asserted that the tape was "the best evidence of what was 

said" during the recorded interview, and that he "would think 

. . . it would be exculpatory in terms of where [the alleged 

sexual assaults] occurred and [the] number of times they 

occurred." The trial judge again denied the request, 

explaining that Tuma's counsel was not "entitled just to play 

something" because he thought "it may be exculpatory." When 

Tuma's counsel pursued the issue further, the trial judge 

reiterated his ruling that "[t]he tape will not be played." 

The trial judge committed no error under Brady with this 

ruling. The trial judge was not denying Tuma access to the 

tape, as Tuma contends, but rather rejecting the method by 

which his counsel sought repeatedly to introduce the tape into 
13 

evidence (an issue to be addressed by the Court of Appeals on 

remand, as explained in Part II.C. of this opinion). We thus 

reject Tuma's argument that the ruling was in error under 

Brady because it was not a Brady ruling. 

Tuma also asserts that the prosecutor violated Brady

during the same exchange because she represented there was no 

exculpatory information on the tape. What she actually 

represented was that she had "relied" on information from 

Investigator Gilliam to form her opinion that nothing on the 

tape was exculpatory. Most significantly, when the trial 

judge asked her at that time whether she had listened to the 

tape and whether she knew if it was exculpatory, she answered 

unequivocally, "[n]o, sir." Tuma thus cannot credibly contend 

that the prosecutor's representations about the tape somehow 

amounted to its suppression. Indeed, Tuma's counsel made 

clear each time he moved to introduce the tape into evidence 

that he had formed his own opinion that it contained favorable 

impeachment material based on the testimony of L.S., Gilliam 

and Scheid – yet he did not pursue the opportunity to listen 

to it when it was made available to him early in the trial. 

In short, the tape was not suppressed. Thus, having had such 

access to the tape, Tuma "cannot miraculously resuscitate 

[his] defense after conviction by invoking Brady." United 

States v. White, 970 F.2d 328, 337 (7th Cir. 1992). 
14 

Finally, we disagree that "the futility of any request 

Tuma might have made at trial for a recess to listen to the 

audio tape is obvious." Tuma, 60 Va. App. at 303, 726 S.E.2d 

at 380. As Judge Kelsey states in his dissenting opinion: 

This ipse dixit implies a bold accusation. The 

majority apparently believes it "obvious" the 

trial judge would have arbitrarily denied a 

brief recess (if one had been requested) for 

Tuma's counsel to listen to the tape - after 

twice suggesting that he do so. Nothing in the 

record suggests this censorious supposition is 

true, much less obvious. We will never truly 

know, of course, because Tuma's counsel never 

asked for a brief recess to listen to the tape. 

I do not see how the trial judge can be blamed 

for that. 

Id. at 313-14, 726 S.E.2d at 385.2

 2 We also note the Court of Appeals devotes much of its 

opinion to criticizing the prosecutor's handling of the tape 

on the basis of essentially ethical considerations. In Brady, 

however, the United States Supreme Court made clear that the 

"good faith or bad faith of the prosecution" is not 

dispositive in deciding a Brady claim. Brady, 373 U.S. at 87. 

As the Court explained more recently in Strickler, "under 

Brady an inadvertent nondisclosure has the same impact on the 

fairness of the proceedings as deliberate concealment. 'If 

the suppression of evidence results in constitutional error, 

it is because of the character of the evidence, not the 

character of the prosecutor.'" 527 U.S. at 288 (quoting 

United States v. Agurs, 427 U.S. 97, 110 (1976)). In short, 

"Brady is not a canon of prosecutorial ethics . . . . In 

Brady cases, therefore, an appellate court sits not as a 

disciplinary committee of the state bar – but rather as a 

court of review, ensuring only that the criminal conviction 

satisfies the threshold requirements of due process." Tuma, 

60 Va. App. at 308-09, 726 S.E.2d at 382-83 (Kelsey, J., 

dissenting). Because of the availability of the audio tape 

for Tuma's use at trial, those threshold requirements were met 

under Brady in this case. 
15 

C. 

 This appeal is limited to the Commonwealth's challenge to 

the Court of Appeals' decision on the Brady issue, which that 

court decided in Tuma's favor pursuant to his first assignment 

of error. In light of that decision, the Court of Appeals was 

not required to address Tuma's second assignment of error in 

which he challenged the trial court's denial of his request to 

admit the tape into evidence (a separate issue from whether 

the prosecution violated Brady). That evidentiary ruling is 

thus not before this Court to decide. Therefore, having now 

decided in the Commonwealth's favor on the Brady issue, we 

will remand this case to the Court of Appeals to decide Tuma's 

second assignment of error. 

III. CONCLUSION

 For these reasons, we will reverse the judgment appealed 

from and remand the case to the Court of Appeals for a 

decision on Tuma's second assignment of error challenging the 

trial court's ruling on the admissibility of the audio tape of 

the investigative interview with the victim. 

 Reversed and remanded. 

JUSTICE LEMONS, concurring. 

 I agree with the majority's holding that the 

recording was made available to Tuma in sufficient time 
16 

for its use at trial, but I write separately to address 

the issue of materiality raised by the dissent. 

 The United States Supreme Court held in Brady v. 

Maryland, 373 U.S. 83 (1963), that "the 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." Id. at 

87. That Court later explained that evidence is only 

material under Brady "if there is a reasonable probability 

that, had the 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). 

"Reasonable probability" is defined as "a probability 

sufficient to undermine confidence in the outcome." Id. 

We have held that in order to meet the materiality 

prong, "the accused must have been prejudiced." Workman 

v. Commonwealth, 272 Va. 633, 644-45, 636 S.E.2d 368, 374 

(2006). Essentially, "[t]he 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." Kyles v. 

Whitley, 514 U.S. 419, 434 (1995). "The mere possibility 
17 

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." United States v. Agurs, 427 U.S. 

97, 109-10 (1976). 

 The dissent fairly points out the prosecutor's 

failures in this case, and I agree that the prosecutor's 

understanding of her duties under Brady was deficient. 

However, the ultimate issue under Brady is whether the 

defendant has actually been prejudiced, not what a 

prosecutor should or should not have done in a particular 

case. Under the facts of this case, I do not believe that 

Tuma was prejudiced. 

 The inconsistencies between L.S.'s statements on the 

tape and her statements at trial involve where the abuse 

occurred and how many times it occurred. On the tape, 

L.S. stated that the abuse only occurred at the "white 

house," and that it happened more than five times and less 

than ten times. At trial, L.S. testified that the abuse 

occurred in other locations in addition to the "white 

house,"* and more than ten times. But the statements on 

the tape never indicate that L.S. was not abused, or that 

 *

 The "white house" is also referred to as the "house 

with horses" and is located in Dinwiddie County. 
18 

Tuma was not the person who abused her. In Smith v. Cain, 

565 U.S. __, 132 S.Ct. 627 (2012), the United States 

Supreme Court held that previously undisclosed impeachment 

evidence was material. However, the evidence in Smith was 

material because it directly contradicted the only 

eyewitness' identification of the defendant. Id. at 630. 

Because the statements on the tape in no way indicate that 

L.S. was not abused, or that someone else was the abuser, 

the United States Supreme Court's holding in Smith v. Cain

is not implicated. 

L.S. was consistent in her statements on the tape and 

in her trial testimony that Tuma abused her at least 5-10 

times at the "white house." Tuma was only charged with 

and convicted of three counts: taking indecent liberties 

with a child, aggravated sexual battery, and animate 

object sexual penetration. Perhaps if Tuma had been 

charged with more than five counts, then the exact number 

of times the abuse occurred would become material. 

 The jury in this case was also already aware that 

L.S. had made inconsistent statements as to the number of 

times the abuse occurred and the locations where the abuse 

occurred. The trial testimony of Jon Webster Scheid, the 

social services worker, and Investigator Gilliam, the 

police officer who conducted the taped interview, and 
19 

Investigator Gilliam's written summary of that interview, 

already demonstrated that L.S.'s trial testimony differed 

from her initial interview with them regarding the 

frequency and location of the abuse, and her mother's 

presence during the abuse. The audio tape was merely 

cumulative of other evidence that had already been used to 

impeach L.S. at trial. Where undisclosed evidence merely 

furnishes an additional basis on which to challenge a 

witness whose credibility has been attacked, the 

undisclosed evidence may be cumulative, and hence not 

material. See Byrd v. Collins, 209 F.3d 486, 518 (6th 

Cir. 2000); United States v. Avellino, 136 F.3d 249, 257 

(2d Cir. 1998); United States v. Cuffie, 80 F.3d 514, 518 

(D.C. Cir. 1996). 

 The impeachment value of the statements on the tape 

would have been minimal, especially in light of the expert 

witness' testimony that it is not uncommon for young 

children to not recall specific dates or instances of 

abuse because they attempt to repress such events. Any 

impeachment of these issues, taken as a whole, does not 

undermine the confidence in this verdict. 

 The dissent asserts that the impeachment evidence was 

also material to the punishment Tuma received, noting that 

Tuma received a sentence of 35 years' imprisonment, nearly 
20 

three times the upper end of the guidelines. The mere 

fact that the jury sentenced Tuma above the guidelines 

does not prove materiality. As discussed above, the jury 

was already aware of L.S.'s inconsistent statements. 

Despite that, the jury believed her testimony and the 

evidence was more than sufficient to prove that Tuma 

sexually molested his seven-year-old stepdaughter. The 

jury's sentence was within the statutory range and 

arguably supported by the egregious facts of this case, 

including the victim's very young age. 

 Any Brady claim must be "evaluated in the context of 

the entire record" of the case. Agurs, 427 U.S. at 112. 

Favorable evidence 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. After considering the 

entire record of the case and the statements on the audio 

tape, I believe that the statements on the tape do not 

"put the whole case in such a different light as to 

undermine confidence in the verdict." Kyles, 514 U.S. at 

435. I also believe that Tuma has failed to establish a 

reasonable probability that his punishment would have been 
21 

different if L.S.'s statements on the audio tape had been 

utilized by the defense at trial. Tuma has failed to 

prove that the statements on the audio tape were material 

to his guilt or punishment. 

 Accordingly, I join the majority opinion and would 

further hold that the statements at issue were not 

material. 

JUSTICE MILLETTE, with whom JUSTICE GOODWYN joins, 

dissenting. 

 The fundamental principle set forth in Brady v. 

Maryland, 373 U.S. 83, 87 (1963), is that "the suppression 

by the prosecution of evidence favorable to an accused 

. . . violates due process where the evidence is material 

either to guilt or punishment, irrespective of the good 

faith or bad faith of the prosecution." To be awarded a 

retrial based on a Brady violation, the defendant must 

make three showings as set forth in Skinner v. Switzer, 

562 U.S. ___, 131 S. Ct. 1289 (2011): "(1) the evidence 

at issue is favorable to the accused, either because it 

was exculpatory, or because it is impeaching (2) the State 

suppressed the evidence, either willfully or inadvertently 

and (3) prejudice . . . ensued." Id. at 1300 (alteration 

in original) (internal quotation marks omitted). Because 
22 

I find that the defendant in this instance made all of the 

above showings, I respectfully dissent. 

1. Undisclosed evidence is favorable to the accused 

because it is impeaching. 

As to the first prong, the Commonwealth does not 

contest on appeal that we are considering impeachment 

evidence, and it is clear that we are. The victim was the 

primary witness against the accused, and the content of 

the tape when compared to the in-court statements of the 

victim raised inconsistencies primarily as to the number 

of times the alleged abuse occurred and the locations 

where she was allegedly abused. The content of the tape 

would thus have allowed for impeachment through a more 

thorough cross-examination of the witnesses, arguably 

raising doubts in the jurors' minds as to either the 

truthfulness of the victim's statements or the frequency 

or severity of the events that occurred. 

2. Impeachment evidence was suppressed. 

 The second prong is where the majority finds a 

deficiency in this case. The majority focuses on the 

availability of the tape at trial, holding that there was 

no suppression because the evidence was made available 

during trial but that the defense attorney declined to 

take advantage of it. The majority concludes that the 
23 

burden fell on the defense attorney to ask for a 

continuance to review the tape, and, finding that the tape 

was made available to him at trial but that he did not 

make such a request, holds that there was no Brady

violation. 

 I disagree with the majority's conclusion that the 

tape was made available at trial in the form of disclosed 

exculpatory evidence. A close reading of the trial 

transcript seems to reveal the opposite. 

During trial, L.S., the first witness, testified that 

she was abused in both her stepfather's and her own 

bedroom within the original house where they lived (the 

"house with the horses"), as well as in the trailer park 

and her grandmother's house after they moved out of the 

original house. She also testified that her stepfather 

touched her "a lot" – more than ten times – and that when 

they moved into the trailer he touched her three times a 

week, every week. She additionally stated that her 

stepfather made her touch her younger brother while he was 

in the bathtub. 

 After the detective and the Department of Social 

Services (DSS) worker testified, it first became clear 

that the DSS worker had a tape of the original interview 

with the girl. Defense counsel moved to play the tape 
24 

arguing that it was admissible under the "best evidence" 

rule. Over defense counsel's objection, the circuit court 

denied the motion as to admissibility as best evidence, 

stating: "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. . . . It is not 

going to be played." When asked by the circuit court 

whether defense counsel had had access to the tape, the 

prosecutor, who previously had not provided the tape to 

defense counsel, had not listened to the tape, and had 

instead produced for the defense a report of the interview 

prepared by the detective, responded that defense counsel 

"can listen to it if he wants to." There was no

discussion by the circuit court or admission by the 

prosecutor at that time regarding whether the tape was 

potentially exculpatory. 

It was not until the motion to strike at the close of 

the Commonwealth's evidence that the issue of the 

potential exculpatory nature of the tape was raised, when 

counsel for the defense argued that the tape "would be 

exculpatory in terms of where things occurred and a [sic] 

number of times they occurred." The following exchange 

continued: 
25 

The Court [to the 

Commonwealth]: Have you listened to the 

tape? 

[The Commonwealth]: No, sir. 

The Court: So you don't know whether it 

is exculpatory or not? 

[The Commonwealth]: 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? 

[The Commonwealth]: 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. 

[The Commonwealth]: Yes, sir. 

The Court: You are willing to stand on 

 that? 

[The Commonwealth]: Yes, sir. 

. . . . 

The Court: You are saying that you 

 think it is exculpatory? 

[Defense counsel]: Yes, sir. 
26 

The Court: In some way? 

[Defense counsel]: Yes, I mean I can't get to 

 the material. I have asked 

 the representatives. 

The Court: Well, I don't think you are 

 entitled just to play 

 something because you think 

 it may be exculpatory. . . . 

 The Court is not going to 

 admit it. If at some point 

 if your client is convicted 

 that tape shows something 

 that is significant, 

 exculpatory, he gets a new 

 trial. So that is the way 

 we are going with it. 

. . . . 

We will not hear any more 

about that over your 

objection. The tape will 

not be played. Now you have 

a motion to strike, and I 

will be glad to hear you on 

that. 

The above exchange reflects the clear suppression of 

the evidence at trial. The tape was not made available to 

the defendant when he requested it, and the prosecutor 

conceded her duty to disclose potentially exculpatory 

evidence on the tape and acknowledged that she was not 

doing so at her own peril. The circuit court stated that 

it would hear no additional argument on the issue. The 

information was therefore not made available to the 

defendant at a time when it could be used. 
27 

According to the majority, this case rises or falls 

on the apparent availability of the tape at trial and the 

failure of defense counsel to immediately request a 

continuance to listen to the tape once it was established 

that the tape was in the courtroom. The majority, in 

concluding that this failure of defense counsel is 

paramount, ignores the fact that the burden of production 

of exculpatory evidence falls on the prosecution. The 

duty to disclose exculpatory evidence requires not merely 

a duty to acknowledge the existence of a tape of an 

interview, but rather to disclose the exculpatory or 

impeachment evidence at least during the course of a 

trial, if not earlier. The Supreme Court of the United 

States has stated that 

[a] rule thus declaring "prosecutor may hide, 

defendant must seek" is not tenable in a system 

constitutionally bound to accord defendants due 

process. Ordinarily, we presume that public 

officials have properly discharged their 

official duties. We have several times 

underscored the special role played by the 

American prosecutor in the search for truth in 

criminal trials. Courts, litigants, and juries 

properly anticipate that obligations [to refrain 

from improper methods to secure a conviction] 

. . . plainly rest[ing] upon the prosecuting 

attorney, will be faithfully observed. 

Banks v. Dretke, 540 U.S. 668, 696 (2004) (internal 

quotation marks and citations omitted) (second, third, and 

fourth alterations in original). Our courts have long 
28 

stated that we hold our prosecutors to a higher standard 

even than other attorneys: 

The [prosecutor] is the representative not of 

an ordinary party to a controversy, but a 

sovereignty whose obligation to govern 

impartially is as compelling as its obligation 

to govern at all; and whose interest, 

therefore, in a criminal prosecution is not 

that it shall win a case, but that justice 

shall be done. As such, he is in a peculiar 

and very definite sense the servant of the law, 

the twofold aim of which is that guilt shall 

not escape or innocence suffer. 

Berger v. United States, 295 U.S. 78, 88 (1935). Thus, 

relying on the declarations by the prosecutor that the 

content of the tape was not exculpatory, the circuit court 

did not order the production of the evidence. In fact, 

again in reliance on the prosecutor's position, the 

circuit court foreclosed any further inquiry. 

The prosecutor's overly narrow view of exculpatory 

evidence was only revealed during argument on a post-trial 

motion brought by defense counsel more than three months 

after the trial was concluded, when defense counsel was 

still seeking an opportunity to inspect the tape. Defense 

counsel argued to the circuit court that "in light of what 

has gone on[,] there needs to be some sort of inspection 

of the tape to see if it has Brady material. . . . I 

don't think it's sufficient for a prosecutor to say, well, 

the police officer told me there was nothing exculpatory 
29 

on it." The prosecutor responded that "[t]he only thing 

that would be exculpatory on that tape is if there was [a] 

child saying he didn't do it, somebody else did it or it 

happened in China or somewhere else." 

Assuming without deciding that the evidence contained 

in the tape only became exculpatory once the victim 

testified, the prosecutor felt no obligation to turn over 

evidence that the Commonwealth does not now contest should 

have been disclosed under Brady. The prosecutor 

apparently ignored the mandate of Brady to disclose 

evidence favorable to the accused either because it is 

exculpatory or because it is impeaching. Skinner, 131 S. 

Ct. at 1300. 

Defense counsel, meanwhile, clearly signaled that he 

was seeking impeachment evidence when he claimed during 

trial that he was seeking evidence regarding each witness' 

credibility based upon discrepancies in the number and 

location of occurrences. In a post-trial motion to set 

aside the verdict, defense counsel was even more specific 

in addressing what he considered to be eight separate 

areas of discrepancies that he believed could have been 

utilized in impeaching witnesses' credibility if he could 

only have had access to the tape. 

3. Defendant suffered material prejudice. 
30 

Because of its finding as to the second prong, 

today's majority does not reach the third prong of 

materiality or prejudice. Under Brady, the prosecution's 

suppression of evidence favorable to an accused "violates 

due process where the evidence is material either to guilt 

or to punishment." Brady, 373 U.S. at 87 (emphasis 

added). This has been more recently phrased as the 

defendant's obligation to prove prejudice by showing a 

"reasonable probability that, had the evidence been 

disclosed, the result of the proceeding would have been 

different." Cone v. Bell, 556 U.S. 449, 469-70 (2009). 

"A reasonable probability does not mean that the defense 

'would more likely than not have received a different 

verdict with the evidence,' only that the likelihood of a 

different result is great enough 'to undermine[] 

confidence in the outcome of the trial.'" Smith v. Cain, 

565 U.S. ___, 132 S. Ct. 627, 630 (2012) (quoting Kyles v. 

Whitley, 514 U.S. 419, 434 (1995)). 

 Considering the materiality of the impeachment 

evidence, I concur with the majority opinion offered by 

the Court of Appeals of Virginia that, given that the 

Commonwealth's case rested primarily on the victim's 

testimony, impeachment testimony concerning the number of 

instances of abuse and the places where the abuse occurred 
31 

could have sufficiently undermined the jury's confidence 

in the victim as a witness to create a reasonable 

probability that the outcome of the proceeding, 

potentially as to guilt but at least as to sentencing, 

would have been different. Witness credibility is of the 

utmost importance in a case like this one in the absence 

of any physical evidence produced by the Commonwealth. 

The accusations in the case at bar were such that they 

relied primarily on the credibility of a single witness, 

one who is young and thus suggestible, on the detective 

and DSS worker's accounts of her prior statements, and on 

her counselor's observations. See, e.g., Workman v. 

Commonwealth, 272 Va. 633, 650, 636 S.E.2d 368, 378 (2006) 

(noting that the credibility of a key witness testifying 

against a defendant is "a significant issue at trial," and 

that – for Brady purposes – material usable for 

impeachment is "critical . . . evidence" in that context). 

The case at bar required the jury to weigh these 

statements against the testimony of the defendant and the 

victim's mother, who denied the abuse. Under such 

circumstances, impeachment evidence goes directly to the 

jury's evaluation of which witnesses are being truthful, 

and so bears strongly not only on the issue of guilt, but, 

since a jury in Virginia also imposes the punishment for 
32 

felony convictions, likewise bears on the issue of 

punishment. 

At sentencing before the circuit court judge, defense 

counsel argued that the sentencing guidelines for the 

crimes for which the defendant was convicted ranged from a 

total of five years, two months to thirteen years, one 

month. At trial, the jury had reached a determination 

that the combined sentence for the three convictions 

should be 35 years, nearly three times the upper end of 

the guidelines. The circuit court refused any reduction 

in the sentence, specifically deferring to that jury 

verdict. See Code § 19.2-298.01(A) ("In cases tried by a 

jury, the jury shall not be presented any information 

regarding sentencing guidelines.") 

Given the severity of the punishment and the 

potential for impeachment of the witnesses, the likelihood 

of a different result, at least as to sentencing, is 

sufficient to undermine confidence in the outcome of the 

proceeding. As explained by Judge Humphreys, writing for 

the majority of the Court of Appeals: 

Had the jury known of L.S.'s recorded interview 

statements, that the abuse occurred only at the 

white house between five and ten times and not 

at the trailer or her grandmother's house, the 

jury very well could have doubted the number of 

times Tuma sexually abused L.S., considering 

that her interview statements contradicted her 
33 

trial testimony. It is reasonable to conclude 

that the evidence of repeated occurrences of 

sexual abuse at three separate locations 

impacted the jury's assessment of a proper 

punishment for Tuma. . . . Therefore, the 

evidence was also material to Tuma's degree of 

punishment, and suppression of the recorded 

interview constituted a separate Brady violation 

on that basis. 

A jury could reasonably have awarded a lengthier sentence 

based on the more frequent abuse testified to at trial. 

In addition, the tape only referred to abuse in Tuma's 

bedroom at one house in which they lived, unlike L.S.'s 

testimony at trial which made references to him coming 

into her bedroom on multiple occasions and continuing to 

abuse her as they moved their residence to multiple 

locations, which a jury could have found more 

reprehensible. There was also a discrepancy between the 

victim's testimony at trial and on the tape as to her 

mother's involvement in the alleged abuse, which may have 

had a dual impact on the credibility of the mother and the 

jury's determination of the appropriate punishment. 

Finally, the tape contained no references involving Tuma 

demanding she touch her younger brother in the bathtub, as 

testified to at trial, and which could reasonably be 

viewed as more significantly offensive behavior on the 

part of her stepfather. Thus, even if Tuma would 

ultimately have been found to be guilty of the abuse, due 
34 

process entitled him to use these contradictions to 

attempt to mitigate the sentence levied upon him by the 

jury. 

For the aforementioned reasons, I would affirm the en

banc judgment of the Court of Appeals of Virginia 

reversing the conviction and remanding for retrial as to 

both guilt and sentencing.