PRESENT: All the Justices 

HOWARD Z. GARNETT, JR. 

 OPINION BY 

v. Record No. 070980 JUSTICE G. STEVEN AGEE 

 February 29, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

A jury in the Circuit Court of Madison County convicted 

Howard Z. Garnett, Jr., of four felonies related to the 

abduction and rape of Victoria Duff. On appeal to the Court of 

Appeals, Garnett contended the circuit court erred in failing to 

set aside the verdict because the Commonwealth withheld 

exculpatory evidence. Garnett also claimed that he was entitled 

to a new trial on the basis of newly discovered evidence. The 

Court of Appeals sitting en banc affirmed the judgment of the 

circuit court. For the reasons set forth below, we will affirm 

the judgment of the Court of Appeals. 

I. RELEVANT FACTS AND PROCEEDINGS BELOW 

Victoria Duff met Garnett in 2001 when he sold her a parcel 

of land in Madison County adjacent to the farm where he lived 

with his mother. Duff soon began a consensual sexual 

relationship with Garnett and lived with the Garnetts in their 

farmhouse while Duff built a house on the parcel she had 

purchased. When her house was completed in August 2002, Duff 

moved out of the Garnett home. According to Duff, she ended the 

sexual relationship with Garnett around November 2002, but the 
two maintained contact because of the proximity of their homes. 

Duff alleged that Garnett was verbally and physically abusive 

throughout the relationship. 

Duff testified at trial that on July 24, 2003, she drove to 

the barn on Garnett’s farm to retrieve some property she had 

stored there. As Duff loaded the items into her truck, Garnett 

approached her and told her not to remove the items. Duff 

complied and attempted to leave, but Garnett told her that he 

wanted her to stay and took her truck keys by force, painfully 

bending her hand back when she attempted to stop him. Garnett 

then walked to his nearby house and Duff followed asking for her 

keys. After collecting some items from the kitchen of the 

house, Garnett returned to the barn with Duff still following 

and asking for her keys. Duff did not seek any assistance from 

Garnett’s mother, whom she had seen in the kitchen, or a 

Department of Transportation road crew paving the road a few 

hundred feet from the barn. At that point, Garnett told Duff 

“there was something in the barn that was mine that he wanted to 

give to me, so I followed him into the barn.” 

Garnett sat in a chair in the barn and pulled Duff onto his 

lap. Duff said that she repeatedly objected to Garnett’s 

advances and demanded Garnett return her keys. When Duff 

attempted to leave the barn, Garnett physically blocked her 

escape. Garnett then pushed Duff to the back of the barn where 

2
he threatened her, swung his fist and a hoe at her, and pulled 

her hair and ears. When Duff tried to scream, Garnett held his 

hand over her face. Garnett bent Duff over a waist-high wall in 

the back of the barn, pulled down her shorts, and penetrated her 

vagina with his fingers and penis. Garnett then drove Duff in 

her truck to her house, left the keys, and walked home. Duff 

then drove herself to the Madison County Sheriff’s Office. 

When Duff arrived at the sheriff’s office, her clothes were 

dirty and in disarray. Her face was red and puffy and she bore 

scratches and bruises on her body. She made a short written 

statement of the foregoing events on a one-page police form. A 

deputy drove her to the emergency room at the University of 

Virginia hospital for a sexual assault examination by a forensic 

nurse. During the examination, the forensic nurse detected 

bruising and abrasions on Duff’s hands, legs, buttocks, and 

face, as well as genital injuries consistent with recent sexual 

penetration. However, no trace of ejaculate was detected. DNA 

recovered from Duff’s ears, cheeks, and neck was subsequently 

analyzed by the Division of Forensic Science, which determined 

that it was between 55 trillion to 440 trillion times more 

likely that the DNA originated from Duff and Garnett than from 

Duff and any unidentified third person. 

Following the forensic examination, Duff returned to the 

sheriff’s office where she was interviewed by Investigator 

3
Michael. Duff participated in another interview with 

Investigator Michael on July 31, 2003. Both of the interviews 

were audio recorded and subsequently transcribed. In the July 

24 interview, Duff indicated that Garnett had raped her on prior 

occasions. In the July 31 interview, Duff provided additional 

information alleging Garnett had previously raped her on January 

19 and April 29, 2003. Garnett was arrested and later indicted 

upon charges of felony abduction with intent to defile, felony 

assault and battery of a former household member, animate object 

penetration, and three counts of rape. 

The controversy in this case centers, in large part, on the 

verbatim content of the three statements noted above 

(collectively, the “Duff Statements”). The Duff Statements 

comprise: (1) the one-page written statement Duff gave at the 

Madison County Sheriff’s Office on July 24, 2003, when she first 

reported the events of that day to police and consisting of 12 

handwritten lines on a police form; (2) the transcript of Duff’s 

July 24, 2003, recorded interview with Investigator Michael, 

which consists of 12 typewritten pages; (3) the transcript of 

Duff’s July 31, 2003, recorded interview with Investigator 

Michael, which consists of 5 typewritten pages. 

The Commonwealth disclosed to Garnett statements that he 

made to police, his criminal record, photographs and diagrams 

relating to the July 24 incident, as well as Duff’s medical 

4
records and certificates of DNA analysis. The Commonwealth also 

provided to Garnett two, four-page documents summarizing the 

Duff Statements (the “Commonwealth’s Summary”), describing 

certain inconsistencies within those statements and between the 

statements and her testimony at a preliminary hearing in the 

case. The Commonwealth did not disclose the Duff Statements 

verbatim--that is, Garnett was not given either the audiotapes 

or transcripts of the July 24 or July 31 interviews, nor was he 

given a copy of the July 24th written statement. 

Garnett filed a motion for discovery seeking access to the 

audiotapes of the Duff Statements “on the grounds that their 

content is potentially exculpatory.” Garnett stated in his 

motion “these conversations are potentially exculpatory, but 

cannot be known simply having the Commonwealth identify 

inconsistencies . . . . For example, [Duff’s] demeanor is 

potentially exculpatory.” 

In a hearing on the motion, Garnett argued that 

by listening to the tape you can tell that [Duff’s] 

demeanor was calm, that she is not crying, that she is 

not upset, that those are things that are also 

potentially exculpatory. . . . [I]nflections in her 

voice and things of that sort have value for us in 

cross-examining her, perhaps. . . . There are 

subtleties and the inflection of a voice, the length 

of time it takes to answer a question, somebody’s 

demeanor, and all of those things that I think are 

potentially exculpatory. 

5
The Commonwealth proffered that it had reviewed the Duff 

Statements and “turned over to the defense what it finds to be 

exculpatory as that term has been defined under case law and 

under the rules of ethics that govern prosecutorial duties.” 

Ruling from the bench on Garnett’s motion, the circuit 

court stated that it understood Garnett’s argument “about things 

such as whether the alleged victim is crying or whether the 

alleged victim appears upset or whether voice inflections and 

hesitation in answering questions are factors that should be 

taken into account in terms of the demeanor of the person giving 

the statement. However, absent some authority that defines 

those matters either to be exculpatory or potentially 

exculpatory, we would deny the motion to have access to the 

tapes for that limited purpose.” The circuit court then offered 

to conduct an in camera review of the Duff Statements to 

determine whether any exculpatory evidence had been withheld, 

but Garnett accepted the Commonwealth’s proffer that disclosure 

had been made: “if he’s representing that to the [c]ourt as an 

officer of this [c]ourt, I certainly accept that.” 

 Garnett was tried by a jury and convicted of felony 

abduction with intent to defile, felony assault and battery of a 

former household member, animate object penetration, and the 

charge of raping Duff on July 24, 2003. The jury acquitted 

6
Garnett of the charges of raping Duff on January 19 and April 

29, 2003. 

Following his conviction, Garnett filed a motion to set 

aside the verdict contending that the Commonwealth had violated 

Garnett’s rights under Brady v. Maryland, 373 U.S. 83 (1963), 

because it had failed to disclose the verbatim content of the 

Duff Statements. Garnett pled that “[e]xculpatory evidence 

revealed for the purposes of impeachment must therefore include 

the best evidence available for impeachment.” Pointing to the 

Commonwealth’s introduction of a transcript of Garnett’s 

statements, Garnett contended that the exact words of the Duff 

Statements were necessary in order to impeach Duff’s testimony 

at trial and that he had been prejudiced by the non-disclosure 

when Duff testified at trial that she could not recall specific 

statements she had made. 

 Garnett also filed a motion for a new trial based on an 

allegation of newly discovered evidence. After trial, Duff sent 

Garnett a list of items that she claimed to own but that 

remained on his farm, and which Duff wanted returned. To 

substantiate her claim of ownership, Duff included a number of 

purchase receipts. Garnett’s motion described the list and 

collection of receipts as new evidence that so undermined Duff’s 

credibility as would lead a jury to an opposite result had those 

items been in evidence at trial. 

7
 At a subsequent hearing on both motions, the circuit court 

reviewed the Duff Statements in camera and determined that the 

Commonwealth had disclosed all exculpatory evidence and 

impeachment material:1

[T]he [c]ourt 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 [c]ourt, and here, in the [c]ourt’s 

view, all of the exculpatory evidence and the 

impeachment material was actually provided to the 

defense. The Commonwealth 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 [c]ourt’s view, the 

disclosure was sufficient when one compares what was 

disclosed to the in-camera materials. 

The circuit court also held, in the alternative, “that if, 

in fact, any Brady violation did occur . . . it does not meet 

the standard that would be required to justify setting aside the 

verdict and granting a new trial.” 

The circuit court further held that Duff’s list of items 

and purchase receipts could have been obtained by Garnett had he 

exercised due diligence. In addition, the “new” evidence was 

corroborative or collateral of existing evidence and would not 

have produced an opposite result if introduced at trial. 

Accordingly, the circuit court denied both motions, and 

sentenced Garnett to an active term of incarceration of 65 

years. 

 1

 The circuit court ordered the Duff Statements admitted 

8
 By a per curiam order, the Court of Appeals refused 

Garnett’s appeal as to the issue of the circuit court’s denial 

of his motion for a new trial based on his claim of afterdiscovered evidence. Garnett v. Commonwealth, Record No. 3027-

04-2, slip op. at 5 (Aug. 17, 2005). However, Garnett’s 

petition for appeal was granted as to his Brady claim. Id., 

slip op. at 1. 

 A divided three-judge panel of the Court of Appeals 

reversed the judgment of the circuit court because it determined 

that Garnett had met his burden to show a reasonable probability 

of a different outcome had the Duff Statements been disclosed. 

Garnett v. Commonwealth, Record No. 3027-04-2, slip op. at 5 

(Apr. 11, 2006). Thus, the panel determined the Duff Statements 

were material under Brady and “a finding that the material is, 

in fact, exculpatory requires the disclosure of the actual 

evidence to defense counsel. The accused is entitled to have 

his counsel review and utilize exculpatory material itself.” 

The panel cited no authority for its conclusion. Id., slip op. 

at 4. 

 Upon rehearing en banc, the Court of Appeals reviewed the 

Duff Statements and determined that the Commonwealth had 

disclosed all exculpatory evidence. The court cited cases from 

various federal courts of appeal holding that detailed summaries 

 

into the record under seal. 

9
satisfy the prosecution’s obligation to disclose exculpatory 

evidence under Brady even where verbatim statements are 

available. The court also determined that the disclosure in the 

Commonwealth’s Summary of the exculpatory information from the 

Duff Statements gave Garnett the exculpatory information for 

impeachment required by Brady. The majority of the Court of 

Appeals affirmed the judgment of the circuit court. Garnett v. 

Commonwealth, 49 Va. App. 524, 642 S.E.2d 782 (2007). 

Three members of the Court of Appeals dissented, apparently 

concluding the verbatim Duff statements were material under 

Brady. In the dissent’s view, Duff’s cross-examination without 

the actual transcripts in hand raised “a probability sufficient 

to undermine confidence in the outcome of the trial.” This 

conclusion was preceded by an extensive discussion of 

“prejudice” to Garnett caused by the Commonwealth’s failure to 

disclose other interviews with Duff, which the dissent 

hypothesized to have occurred. Id. at 554, 642 S.E.2d at 797 

(Haley, J., dissenting). We awarded Garnett this appeal. 

II. ANALYSIS 

 Garnett essentially raises two assignments of error to the 

judgment of the Court of Appeals.2 First, Garnett argues his 

rights under Brady were violated because the Commonwealth failed 

 2

 Garnett makes four actual assignments of error, but these 

can be condensed to the two issues discussed herein. 

10
to “fully and fairly reveal the complete exculpatory evidence 

. . . in the form of the best evidence available for 

impeachment.”3 Separately, Garnett assigns error to the denial 

of his motion for a new trial based on his claim of newly 

discovered evidence. 

A. THE BRADY CLAIM 

In Brady, the Supreme Court of the United States held that 

due process requires the prosecution to disclose to the 

defendant all favorable evidence material to his guilt or 

punishment. 373 U.S. at 86-87. We recently discussed the 

elements of a Brady claim in Workman v. Commonwealth, 272 Va. 

633, 636 S.E.2d 368 (2006): 

There are 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. Stated differently, the question is not 

 3

 The Commonwealth argues that, in accepting the 

Commonwealth’s proffer of full disclosure and waiving in camera 

comparison of the summaries to the Duff Statements, Garnett 

procedurally defaulted his Brady claim under Rule 5:25. This 

argument ignores the distinction between a request for in camera 

review and the Commonwealth’s constitutional obligation to 

disclose exculpatory material. A request for in camera review 

and the Brady right to exculpatory evidence are two distinct 

concepts. Brady disclosure is mandatory, and the duty to 

disclose exists whether the defendant requests disclosure or 

not. Waiving an in camera comparison of the Commonwealth’s 

Summary to the Duff Statements was not a waiver of Garnett’s 

constitutional right to all exculpatory evidence. 

11
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. 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 644-45, 636 S.E.2d at 374 (internal quotation marks, 

alterations, and citations omitted). 

 Garnett argues that the verbatim Duff Statements, not just 

the disclosed impeachment information contained within them, is 

the material evidence required under Brady. Citing to the 

majority opinion of the Court of Appeals panel decision that any 

exculpatory material “require[s] the disclosure of the actual 

evidence to defense counsel,” Garnett says “[i]t is precisely 

this rule that Garnett asks this Court to accept . . . .” 

“Exculpatory evidence revealed for purposes of impeachment must 

therefore include the best evidence available for impeachment.” 

Thus, Garnett contends, his Brady rights were violated because 

that particular form of impeachment evidence was not disclosed 

by the Commonwealth’s Summary and, as a consequence, he was 

prejudiced by an incomplete ability to cross-examine Duff. 

 The Commonwealth responds that Garnett is mixing diverse 

claims which are not a constitutional claim under Brady. The 

Commonwealth posits that Garnett actually makes a discovery 

claim for a particular form of evidence as opposed to 

12
exculpatory information. That argument should fail, the 

Commonwealth contends, because Garnett’s discovery rights were 

governed by Rule 3A:11, which prohibits disclosure of 

“statements made by Commonwealth witnesses” and provides no 

“best evidence” rule. In effect, the Commonwealth argues that 

Garnett did receive disclosure of the exculpatory information 

about Duff required by Brady, through the Commonwealth’s 

Summary, and is now conflating rights to discovery he does not 

have under Rule 3A:11 with his preferred method of crossexamination, neither of which make a Brady claim. 

 We have reviewed the Duff Statements and begin by 

acknowledging that Garnett is at a disadvantage in presenting 

his case as he has never seen the Duff Statements. Had the 

Commonwealth simply disclosed the Duff Statements in full, it 

seems likely Garnett’s case would have taken a shorter appellate 

route. As did the majority of the Court of Appeals sitting en 

banc, we recognize that, ordinarily, “the more prudent and 

expeditious route would have been for the government to provide 

the recordings and transcripts.” 49 Va. App. at 532, 642 S.E.2d 

at 786. That being said, however, does not add weight to 

Garnett’s claim of a constitutional deficiency under Brady. 

 Garnett contends Brady requires “the complete exculpatory 

evidence in the possession of the Commonwealth in the form of 

the best evidence available for impeachment of the complaining 

13
witness.” He argues this rule is necessary because Duff’s 

cross-examination was hindered without the exact language in the 

Duff Statements to use to impeach Duff with her prior 

inconsistent statements. To support this argument, Garnett 

cites our decision in Keatts v. Shelton, 191 Va. 758, 63 S.E.2d 

10 (1951), which sets out the methodology for impeachment of a 

witness with a prior inconsistent statement. However, Keatts

has nothing to do with a failure to disclose exculpatory 

evidence. See, e.g., 191 Va. at 765, 63 S.E.2d at 13. 

Garnett’s argument has more to do with what he perceives, posttrial, as the most efficacious method to have cross-examined 

Duff than denial of exculpatory evidence under Brady. Moreover, 

Garnett could have proceeded on cross-examination of Duff by 

other means.4

 4

 While Garnett correctly perceives that impeachment of a 

witness with prior inconsistent statements requires proof that 

the witness actually made the inconsistent statement, Patterson 

v. Commonwealth, 222 Va. 612, 616-17, 283 S.E.2d 190, 193 

(1981), Garnett ignores the fact that introduction of the Duff 

Statements was not the only method of proof available. As we 

noted in Patterson, when the witness fails to recall at trial 

having made an inconsistent statement during a preliminary 

hearing, “the proper procedure . . . is to use another witness” 

to prove that the inconsistent statement has been made. Id. at 

617, 283 S.E.2d at 193. In Patterson, the witness was the court 

reporter who transcribed the preliminary hearing testimony, id.

at 615, 283 S.E.2d at 192. In the case at bar, the witness 

could have been the investigator who interviewed Duff, who was 

identified in the Commonwealth’s Summary. The Duff Statements 

were therefore not the only evidence of Duff’s prior 

inconsistencies, and Garnett’s reliance on the Keatts

14
 Garnett cites no precedent that embraces his argument of a 

Brady “best evidence” claim. The reason is that there is none, 

as many appellate courts have examined the issue and rejected a 

similar argument. 

In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court 

confirmed that Brady does not require prosecutors to disclose 

all evidence to the defendant. “[T]he Constitution is not 

violated every time the government fails or chooses not to 

disclose evidence that might prove helpful to the defense. We 

have never held that the Constitution demands an open file 

policy (however such a policy might work out in practice) 

. . . .” Id. at 436-37 (internal citations omitted). Numerous 

federal and state appellate courts have shared that observation 

and none has embraced a mandatory Brady “best evidence” rule for 

disclosure of exculpatory evidence. For example, in United 

States v. Phillips, 854 F.2d 273 (7th Cir. 1988), the United 

States Court of Appeals for the Seventh Circuit determined that 

the form in which Brady material is produced is within the sound 

discretion of the trial judge and “Brady does not grant criminal 

defendants unfettered access to government files.” Id. at 277. 

In Phillips, the United States Attorney provided a summary of an 

FBI informant’s file pursuant to the defendant’s Brady request. 

 

impeachment procedure has no nexus to the issue of whether Brady

mandates their disclosure as exculpatory evidence. 

15
When the defendant objected and demanded the verbatim 

statements, the trial court conducted an in camera review and 

determined “that the file contains no Brady material other than 

that reflected in the summary.” Id. at 278. 

Upon appeal, the Seventh Circuit rejected the defendant’s 

claim of error for failing to disclose the verbatim statements, 

noting that “[f]ederal appellate courts have approved the use of 

complete and accurate summaries of confidential files as an 

appropriate means of balancing the due process rights of the 

defendant and the privacy interests of the government and its 

witnesses.” Id. The court concluded by stating that: 

We reiterate that a Brady request does not entitle a 

criminal defendant to embark upon an unwarranted 

fishing expedition through government files, nor does 

it mandate that a trial judge conduct an in camera 

inspection of the government’s files in every case. 

Such matters are committed to the sound discretion of 

the trial judge. We will reverse the judge’s actions 

only upon a showing of abuse of discretion. 

Id.

In United States v. Grunewald, 987 F.2d 531 (8th Cir. 1993) 

the United States Court of Appeals for the Eighth Circuit 

similarly found no violation of Brady when the government 

produced only summaries of an IRS agent’s investigation notes 

rather than the notes themselves. Id. at 535. 

[E]ven here where the notes may have been available, 

absent a showing that the typewritten summaries 

departed in substance from the handwritten notes, or 

that the government acted in bad faith, the 

16
typewritten equivalent should be sufficient. We are 

unable to conclude that Grunewald has been prejudiced 

by the government’s failure to produce the handwritten 

notes. 

Id.; accord United States v. Van Brandy, 726 F.2d 548, 551 (9th 

Cir. 1984); Banks v. People, 696 P.2d 293, 297-98 (Colo. 1985). 

While Brady does not embrace a “best evidence” rule 

prohibiting the use of summaries, such summaries of exculpatory 

evidence must be complete and accurate. Compare United States 

v. Service Deli, 151 F.3d 938, 942-44 (9th Cir. 1998) (reversing 

conviction when the prosecution’s summary of undisclosed 

evidence was inaccurate) with Phillips, 854 F.2d at 278 

(affirming conviction when appellate court’s comparison of 

summaries to the undisclosed evidence confirmed trial court’s 

assessment that summaries “fairly and accurately reflect[ed] the 

contents” of the undisclosed evidence). An incomplete or 

inaccurate summary could be constitutionally insufficient under 

Brady when the omissions or inaccuracies resulted in the 

prejudicial suppression of material evidence favorable to the 

defendant. Therefore, we cannot conclude our review without 

assessing the adequacy of the disclosures in the Commonwealth’s 

Summary. 

As we noted earlier, to establish a Brady right to the 

disclosure of evidence, the defendant must show that the items 

in question are (1) exculpatory, (2) not disclosed, and (3) 

17
prejudicial as a result of the failure to disclose. Workman, 

272 Va. at 644-45, 636 S.E.2d at 374. It is not contested that 

there was exculpatory information in the Duff Statements. What 

Garnett places at issue is that the Duff Statements, the 

verbatim text, is in and of itself exculpatory. Thus, under 

Brady, Garnett contends there was a failure to disclose and he 

was subsequently prejudiced. 

Based on our in camera review of the Duff Statements, we 

agree with the circuit court and the majority of the en banc 

Court of Appeals that the Commonwealth’s Summary was a 

sufficient disclosure under Brady. A review of several portions 

of the sealed Duff Statements are instructive in that regard. 

The Commonwealth’s Summary stated that the disclosures made to 

Garnett from the Duff Statements contained information that “is 

inconsistent with her testimony at the preliminary hearing." 

Garnett had and used a transcript of Duff’s preliminary hearing 

testimony to cross-examine Duff. 

The following portion of the July 24, 2003, interview 

appears to contain much of the dialogue relevant to Garnett’s 

nondisclosure argument. 

INVESTIGATOR MICHAEL: How many times do you think you 

told him no you didn’t want to do that? 

VICTORIA DUFF: Well I was telling him no when we 

first went in and he told me I had to sit on his 

lap. 

INVESTIGATOR MICHAEL: Right. 

18
VICTORIA DUFF: I was just telling him then, I don’t 

want you to kiss me, I don’t want to sit on your 

lap I don’t want this is not a relationship. 

INVESTIGATOR MICHAEL: Right. 

VICTORIA DUFF: I I’m not interested in this from that 

moment until we left the farm I was telling him 

to stop doing it because he wouldn’t stop he was 

fondling me he was uhm trying to make me kept on 

saying hug me hug me hug me, I don’t want to hug 

you. 

INVESTIGATOR MICHAEL: Right. 

VICTORIA DUFF: I don’t want to do this. This is not 

appropriate. I I you know I’m just a neighbor. 

Just leave me alone. 

INVESTIGATOR MICHAEL: How long had it been since yall 

had a relationship? 

VICTORIA DUFF: Uhm I think its been about 2 months 

now. 

INVESTIGATOR MICHAEL: O.k and you haven’t seen him 

[unintelligible] 

VICTORIA DUFF: Well I see him he comes just as a 

neighbor yeah. And I been tempted to go over and 

get my belongings which I’ve done a couple times 

there uhm because there a lot my things there. 

Building materials and things. 

INVESTIGATOR MICHAEL: Has he ever done this to you 

before? 

VICTORIA DUFF: Yes. 

INVESTIGATOR MICHAEL: He’s raped you before? 

VICTORIA DUFF: Yes. 

INVESTIGATOR MICHAEL: Have you reported it? 

VICTORIA DUFF: No. 

INVESTIGATOR MICHAEL: How many times has he raped 

you? 

VICTORIA DUFF: Uhm he’s probably forced himself on me 

two or three times now. 

INVESTIGATOR MICHAEL: And do you know when that 

occurred? 

VICTORIA DUFF: Aah well the last time it happened I 

think it was in the month of end of May. 

INVESTIGATOR MICHAEL: Of this year? 

VICTORIA DUFF: Yeah. 

Specifically, Garnett contends he could not effectively 

cross-examine Duff on the meaning of her “relationship” 

19
with Garnett when she testified the relationship terminated 

prior to the July 24, 2003, rape. Further, he argues a 

similar limitation in cross-examining Duff on her reference 

to a May rape, the number of rapes, her failure to mention 

seeing Garnett’s mother on July 24, 2003, the contents of 

the July 31, 2003, statement, and the duration of the July 

24, 2003, abduction. 

1. “RELATIONSHIP” 

The Commonwealth’s Summary informed Garnett that Duff told 

Investigator Michael “that it had been two (2) months since she 

had a relationship with the defendant.” Garnett contends this 

was inadequate disclosure under Brady because it is too 

ambiguous to be meaningful as impeachment: “it is impossible to 

determine what type of relationship she is referring to: 

business, social or sexual?” Garnett observes that Duff twice 

denied at trial that she meant a sexual relationship; rather, 

Duff testified that she meant “that was the last time he did 

anything, you know, like till the garden or did anything for me 

at that time.” 

The Commonwealth’s Summary accurately reflected what Duff 

said, complete with any latent ambiguity it may have contained. 

Having the verbatim transcript would have been no more an 

impeachment disclosure than what Garnett received. Moreover, 

Garnett could have called Investigator Michael to testify as to 

20
his exchange with Duff and establish any prior inconsistent 

statement by which to further impeach Duff. Patterson, 222 Va. 

at 617, 283 S.E.2d at 193. Garnett chose not to do so and he 

cannot now try to bootstrap a Brady claim from his failure to 

pursue his cross-examination options. 

2. DURATION OF ABDUCTION 

The Commonwealth’s Summary reveals Duff “told Investigator 

Michael that defendant kept her at the barn from approximately 

8:45 a.m. to approximately 1:00 p.m.” This disclosure is 

substantially correct as the written statement Duff gave on July 

24, 2003, included the statement, “[Garnett] let me go at about 

1:30 p.m.” In all other respects, the Duff Statements say 

nothing different from the Commonwealth’s Summary. 

Garnett argues “[t]his disclosed time period does not match 

the time period given at the preliminary hearing (which was 

transcribed and available for use at trial), nor does it match 

the extended time period that she apparently stated for the very 

first time at trial (until 2:00 p.m.).” While that is true, it 

has nothing to do with any failure to disclose, as the 

Commonwealth’s Summary alerted Garnett to the timeframe. Having 

the verbatim Duff Statements would have made no difference in 

Garnett’s intensive cross-examination of Duff on this point as 

he knew from the Commonwealth’s Summary all of the exculpatory 

information for impeachment. 

21
Q: Now, you testified or told Donnie Michael, I 

believe, that you were held hostage in the barn 

for five hours. 

A: That’s corrQ: Do you remember telling that? 

A: Yes. 

Q: And your testimony today is that you got there 

around 8:30 and what time do you claim this rape 

occurred? 

A: I would guess around noon. 

* * * * 

Q: Then how come you didn’t get to the police 

department until 2:45? 

A: I believe I got there before 2:45. 

Q: Okay. 

A: And I also believe that Mr. Garnett held me until 

two o’clock in the afternoon. 

Q: He held you until two o’clock in the afternoon? 

A: Yes. 

Q: Wow. Ms. Duff, you have never said that before 

today, isn’t that true? 

* * * * 

Q: Ma’am you’ve never said that before today, isn’t 

that true? 

A: You mean to you I’ve never said that? 

THE COURT: To anyone. 

Q: To anyone. 

A: I believe that I discussed it with Mr. Webb and– 

Q: When you testified in court under oath back in 

October– 

A: Uh-huh. 

Q: What time did you say all of this had ended? 

A: I don’t know what time I said it had ended. You 

can read that back to me and I’ll know. 

* * * * 

Q: Could you turn to page 19 of your testimony, 

please– 

A: Uh-huh. 

Q: –and then do you see when I asked you, what time 

of the day or night was it when you allege that 

this thing happened at the barn? What’s your 

answer? 

A: What line are you looking at? 

Q: I’m looking at line five through eight. 

A: Okay. 

22
Q: See where I say, what time of day or night was it 

when you allege this thing happened at the barn? 

What do you say? 

A: Between 8:30 in the morning until about one 

o’clock in the afternoon. 

Q: And you testified before that you thought you were 

raped at about 12:30–about 12:30, correct? 

A: About Noon-ish, I guess, yes. 

Q: About Noon-ish? 

A: Uh-huh. I really didn’t have a clock, you know, a 

watch. I wasn’t watching my watch the whole time 

this was going on. 

3. PRIOR RAPES 

The Commonwealth’s Summary disclosed to Garnett that Duff 

told Investigator Michael “that she had been raped by the 

defendant around the end of May; that the defendant had forced 

himself on her probably two or three times now.” Garnett 

contends the foregoing disclosure was defective under Brady

because he needed the verbatim Duff Statements to make a proper 

impeachment of Duff when the following exchange occurred at 

trial: 

Q: But when you first talked to Donnie Michael, you 

said that you had been raped at the end of May. 

Do you remember telling him that? 

A: No, I don’t remember. 

Q: Do you deny telling him that? 

A: No, I said I don’t remember. 

Q: And today you’re telling us that you were raped in 

January and raped in April. When you talked to 

Donnie Michael, you told him that it had been 

probably two or three times, correct? 

A: Right. It was three times altogether that I 

recall. 

Q: So just let me make clear, how many times today 

are you saying that Mr. Garnett raped you? 

A: Three times. 

23
 The Commonwealth’s Summary was accurate and complete on 

this point as the total verbatim exchange from the Duff 

Statements confirms: 

INVESTIGATOR MICHAEL: He’s raped you before? 

VICTORIA DUFF: Yes. 

INVESTIGATOR MICHAEL: Have you reported it? 

VICTORIA DUFF: No. 

INVESTIGATOR MICHAEL: How many times has he raped 

you? 

VICTORIA DUFF: Uhm he’s probably forced himself on me 

two or three times now. 

INVESTIGATOR MICHAEL: And do you know when that 

occurred? 

VICTORIA DUFF: Aah well the last time it happened I 

think it was in the month of end of May. 

INVESTIGATOR MICHAEL: Of this year? 

VICTORIA DUFF: Yeah. 

The Commonwealth’s Summary disclosed all the exculpatory 

information that was relevant to Garnett’s crossexamination of Duff on this point. 

4. INTERVIEW OF JULY 31, 2003 

The Commonwealth’s Summary disclosed to Garnett that in 

Duff’s July 31, 2003, interview with Investigator Michael, “the 

victim was only asked about the alleged rape of January 19, 

2003, and of April 29, 2003.” Garnett contends “[t]his 

disclosure leaves open too many questions when those dates were 

first reported and to whom.” However, the remainder of the 

Commonwealth’s Summary specifically describes the remaining 

information in the July 31st interview. Our in camera review 

confirms there is nothing exculpatory for impeachment purposes 

24
on this topic contained in the Duff Statements that was not 

fully disclosed by the Commonwealth’s Summary.5

5. STATEMENTS TO THE COMMONWEALTH’S ATTORNEY 

The Commonwealth’s Summary informed Garnett that: 

[Duff] told the [C]ommonwealth[’s ] [A]ttorney when 

preparing for trial that she remembered following the 

defendant to his mother’s (Hilda Garnett’s) home 

during the beginning sequence of the events that took 

place on July 24, 2003 and that she had seen his 

mother at the sink. She stated that she followed him 

into the house because he had her car keys and 

wouldn’t give them back. This is inconsistent with 

her testimony at the preliminary hearing on October 

10, 2003 and with what she had previously told 

Investigator Michael. 

There is nothing in the Duff Statements on this matter. Garnett 

was aware of Duff’s failure to include the walk to Garnett’s 

house before the events in the barn occurred in some of her 

early statements and he cross-examined her on that point. There 

was simply no other disclosure to be made other than those in 

the Commonwealth’s Summary. 

In sum, there is no precedent to support Garnett’s claim 

that Brady encompasses a “best evidence” rule for impeachment 

material that required the disclosure of the Duff Statements 

verbatim. The Commonwealth’s Summary is an accurate summary of 

 5

 The en banc Court of Appeals dissent took a much different 

approach than the panel majority. The dissent seemed to premise 

its holding of prejudice and non-disclosure on its conclusion 

there were other interviews of Duff that the Commonwealth failed 

to disclose. Garnett, 49 Va. App. at 545, 642 S.E.2d at 792-93 

25
the exculpatory information contained in the Duff Statements. 

There was not a failure to disclose on the part of the 

Commonwealth and thus Garnett fails to show a necessary element 

of a Brady claim. A fortiori, there was no prejudice to 

Garnett.6 That is to say, the verbatim Duff Statements were not 

material in a Brady sense because there is not a reasonable 

probability that the trial would have resulted in a different 

outcome had Garnett had the verbatim statements. Lovitt v. 

Warden, 266 Va. 216, 244, 585 S.E.2d 801, 817 (2003). 

Accordingly, there is no error in the denial of Garnett’s motion 

to set aside the verdict for a violation of Brady. 

B. NEWLY DISCOVERED EVIDENCE 

We have repeatedly and consistently stated that 

motions for new trials based on after-discovered 

evidence are addressed to the sound discretion of the 

trial judge, are not looked upon with favor, are 

considered with special care and caution, and are 

awarded with great reluctance. A party who seeks a 

new trial based upon after-discovered evidence bears 

the burden to establish that the evidence (1) appears 

to have been discovered subsequent to the trial; (2) 

could not have been secured for use at the trial in 

the exercise of reasonable diligence by the movant; 

(3) is not merely cumulative, corroborative or 

 

(Haley, J., dissenting). That conclusion has no basis in the 

record, including the Duff Statements. 

6

 In the circuit court, Garnett specifically asked for the 

audiotapes of the Duff Statements based on his claim that 

“demeanor [is] potentially exculpatory.” While we agree with 

the circuit court’s judgment denying the disclosure of the 

audiotapes because there is no “authority that defines those 

matters . . . to be exculpatory,” we also note that Garnett did 

not make this argument on brief and it is therefore defaulted 

under Rule 5:17(c). 

26
collateral; and (4) is material, and such as should 

produce opposite results on the merits at another 

trial. The moving party must establish each of these 

mandatory criteria. 

Commonwealth v. Tweed, 264 Va. 524, 528-29, 570 S.E.2d 797, 800 

(2002) (internal quotation marks, alterations, and citations 

omitted). 

 Even if we assume, as did the circuit court, that Garnett 

discovered Duff’s records after the trial, he has plainly failed 

to prove any of the remaining criteria required for the grant of 

a new trial. As the circuit court noted, the records were not 

created after trial but existed at the time of trial. 

In the [c]ourt’s view, a subpoena duces tecum to the 

victim or to other entities could have produced these 

records. . . . Had it been issued to her, it could 

have covered any purchases, transactions, business 

dealings with the defendant . . . . She never denied 

that she had these records. . . . [S]uch evidence and 

any documents that might relate to it would certainly 

be something that the defense would know about and, if 

deemed appropriate, would want to explore before 

trial. In short, in the [c]ourt’s view, there was 

nothing secret about it. These documents do not 

involve a subject that was what could be called a new 

development or a surprise of any type that was 

revealed for the first time on the eve of trial, so 

the [c]ourt is not persuaded that the due diligence 

requirement is met here. 

 We agree with the circuit court’s conclusion. The records 

could have been obtained by Garnett prior to trial by an 

exercise of due diligence, which he simply failed to perform. 

The circuit court continued by observing that “[t]here was 

extensive evidence in cross-examination about” the business 

27
28

relationship between Duff and Garnett and found that the records 

were merely “corroborative or collateral” to that evidence. The 

circuit court concluded by citing our decision in Tweed: 

The standard is not whether there’s a reasonable 

probability of a different result. That argument was 

made and rejected by the Tweed [C]ourt; rather, the 

standard, as set forth by the Tweed [C]ourt, was 

whether the defense establishes that the evidence was 

. . . such as should have produced opposite results on 

the merits at another trial . . . . Here the [c]ourt 

is not persuaded that, had these records been 

available, that under the standard in Tweed, they 

would have or should have produced an opposite result 

on the merits of the trial. 

 We agree with the determination of the circuit court and 

therefore conclude that the Court of Appeals did not err in 

holding that the circuit court did not abuse its discretion in 

denying Garnett’s motion to set aside the verdict and for a new 

trial. 

CONCLUSION 

For the foregoing reasons, we will affirm the judgment of 

the Court of Appeals. 

Affirmed.