COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and Clements 

Argued at Richmond, Virginia 

WEINTHAL LOCKHART 

 OPINION BY 

v. Record No. 2575-99-3 JUDGE JEAN HARRISON CLEMENTS 

 FEBRUARY 20, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY 

Keary R. Williams, Judge 

 Robert M. Galumbeck (Dudley, Galumbeck, 

Necessary & Dennis, on brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Weinthal Lockhart was tried by jury and convicted of 

forcible sodomy for having anally and orally sodomized a boy 

less than thirteen years of age, in violation of Code 

§ 18.2-67.1. On appeal, he contends the trial court erred (1) 

in denying his motion to suppress evidence obtained from a 

search of his home that was invalid because the magistrate 

failed to file the affidavit supporting the search warrant 

within thirty days as required by Code § 19.2-54, (2) in not 

allowing the admission of evidence of the victim's misconduct at 

school and of his tendency to always make excuses for that 

misconduct, (3) in denying his motion to set aside the verdict 

based upon his contention that the verdict was not supported by 
sufficient evidence because the victim's testimony was 

inherently incredible, and (4) in denying his post-trial motion 

to set aside the verdict and dismiss the indictment because the 

Commonwealth failed to timely disclose exculpatory evidence. 

Finding no error, we affirm the conviction. 

I. BACKGROUND 

 In July 1995, eleven-year-old M.B. joined his older 

brother, A.B., in working for Lockhart a few days a week on his 

Buchanan County farm, cutting weeds, feeding livestock, and 

doing other chores. Lockhart always paid them in cash or by 

check for their work. Over time Lockhart also bought M.B. a 

stereo, a bicycle, and a motorcycle. Occasionally, M.B. would 

go to Lockhart's farm not to work but to ride motorcycles with 

Lockhart's son, D., who was a year older than M.B. 

 Approximately one month after M.B. began working for him, 

Lockhart started putting his hands down the child's pants and 

masturbating him. Two weeks later, Lockhart began anally 

sodomizing M.B. Lockhart made M.B. lie naked on Lockhart's bed 

on his stomach and Lockhart, with his pants pulled down to his 

ankles, put his penis in M.B.'s anus. He used a lubricant from 

a blue and white tube he kept on his nightstand. 

 Lockhart anally sodomized M.B. in his bedroom approximately 

once a week on ten to fifteen different occasions. Each 

incident lasted approximately ten minutes. On two occasions, 

Lockhart also orally sodomized M.B., placing M.B.'s penis in his 

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mouth. In discussing these activities with M.B., Lockhart 

referred to oral sodomy as a "blow job" and anal sodomy as being 

"butt-fucked." Lockhart never asked M.B. to perform anal or 

oral sodomy on him. 

 M.B., having observed Lockhart totally naked three to five 

times, described Lockhart as having a lot of body hair all over 

him, including in the area of his genitals and buttocks; as 

having scars and a lot of moles on his back; and as being 

uncircumcised. The Commonwealth's photographs of Lockhart's 

nude body, viewed in their entirety, corroborated M.B.'s 

description. 

 M.B. also identified several items recovered by the 

Commonwealth during a search of Lockhart's home, including an 

artificial vagina, a magazine showing pictures of naked men with 

erections, and a magazine depicting a man using a device 

purported to be a penis enlarger. M.B. first saw the artificial 

vagina on a shelf in Lockhart's closet when he was getting a 

shirt and then later when Lockhart removed it from the closet 

and showed it to him. He first saw the magazines under 

Lockhart's bed when Lockhart asked him to retrieve his safe from 

there. Later, he observed Lockhart looking at the magazine 

showing naked men with erections. Additionally, he and Lockhart 

discussed the magazine depicting the penis enlarger and Lockhart 

indicated he had such a device. 

 - 3 - 
 M.B. first reported the sexual abuse to his parents on 

November 16, 1996, at a time when, according to M.B.'s mother, 

M.B.'s father was upset because M.B. acted as if he loved 

Lockhart more than he loved his father. M.B. admitted he 

finally told his parents about the abuse because his father was 

distressed at the thought that M.B. and his brothers did not 

love him anymore and cared more about Lockhart than they did 

about him. 

 Approximately two weeks before telling his parents about 

the molestation, M.B. told his fifteen-year-old uncle and his 

brother A.B. about it. M.B. then discussed the situation at 

least one other time with A.B. before informing his parents. 

A.B. testified that he observed Lockhart masturbating M.B. on 

the bed in Lockhart's bedroom shortly after M.B. first told him 

about the sexual abuse. 

 Dr. Roy Thomson, a pediatrician, physically examined M.B. 

on November 21, 1996. He found that M.B.'s anal opening was 

enlarged and that the muscles of his perineal sphincter had lost 

their normal tone due to repeated penetration of the anus by an 

object larger than the anal opening and firm enough to cause the 

resultant trauma. The doctor concluded that the use of a penis 

to repeatedly penetrate M.B.'s anus would be consistent with his 

physical findings. M.B. never had anal intercourse with anyone 

else and never had anything else placed inside his rectum prior 

to being examined by the physician. 

 - 4 - 
 Taking the stand in his own defense, Lockhart, who was in 

his fifties, testified that he had been separated from his wife 

for eight years. He lived with his son, D., on the farm. M.B., 

with his parents' permission, would come to his farm two or 

three times a week to do various chores. Occasionally, M.B.'s 

parents would call and ask Lockhart to look after M.B. at 

Lockhart's home. A "good worker," M.B. had the run of the house 

and Lockhart trusted him like a son. 

 Lockhart further testified that, approximately a month 

before M.B. accused Lockhart of molesting him, M.B. got into a 

"major fight" with D. and cut his eye. After the fight, 

Lockhart told M.B. that he could not come to the farm anymore. 

 Denying that he ever showed them to M.B., Lockhart stated 

that he had the artificial vagina for approximately nine years 

and the two sexually oriented magazines referred to by M.B. for 

five or six years. He further stated that he used the lubricant 

found in his bedroom as a conductor gel on the electrodes of a 

medical device he used to decrease the pain in his injured back. 

 Lockhart denied ever threatening M.B., touching him on his 

genitals, or sodomizing him, anally or orally. He suggested 

that M.B. concocted the story about being sexually abused 

because he was mad at Lockhart for banishing him from the farm 

after the fight with D. He could not, though, suggest a reason 

why A.B. would testify that he had observed such abuse. 

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II. MOTION TO SUPPRESS 

 The sexually oriented items obtained by the Commonwealth 

from Lockhart's residence and admitted at trial were seized 

pursuant to a search warrant issued by a magistrate. Lockhart 

contends those items, and the photographs thereof, should have 

been suppressed because the search was invalidated by the 

magistrate's failure to file the supporting affidavit with the 

clerk of the circuit court within thirty days of issuance of the 

search warrant, as required by Code § 19.2-54. 

 Code § 19.2-54 requires the filing of a supporting 

affidavit with the officer authorized to issue search warrants 

(a magistrate, in this case) prior to the issuance of a search 

warrant. The statute sets forth what must be included in the 

affidavit and further provides that 

[s]uch affidavit shall be certified by the 

officer who issues such warrant and 

delivered by such officer or other officer 

authorized to certify such warrants to the 

clerk of the circuit court of the county or 

city wherein the search is made within seven 

days after the issuance of such 

warrant . . . . 

 Failure of the officer issuing such 

warrant to file the required affidavit shall 

not invalidate any search made under the 

warrant unless such failure shall continue 

for a period of thirty days. 

Code § 19.2-54 (emphasis added). 

 Here, the affidavit filed in support of the search warrant 

was subscribed and sworn to before the magistrate on November 

20, 1996, by Larry Crouse, a special police officer and 

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paralegal assistant for the office of the Commonwealth's 

Attorney. The magistrate issued the search warrant on the same 

date. Crouse executed the warrant later that same day and filed 

it the following day, November 21, 1996, with the clerk of the 

circuit court in Buchanan County, where the search was made. 

Along with the original search warrant, Crouse filed an 

inventory of the items seized during the search and the original 

supporting affidavit.1 More than ten months later, on August 25, 

1997, the magistrate who issued the search warrant filed a copy 

of the affidavit with the clerk of the circuit court. 

 Lockhart contends that Code § 19.2-54, being penal in 

nature, must be construed strictly against the Commonwealth and 

in favor of the accused. Therefore, he argues, the magistrate's 

failure to file the required affidavit within the prescribed 

thirty days invalidated the search. Hence, his argument 

continues, the evidence seized pursuant to the search was not 

admissible and should have been suppressed. 

 The Commonwealth maintains that the Supreme Court's 

rationale in Quintana v. Commonwealth, 224 Va. 127, 295 S.E.2d 

643 (1982), requires a less technical and less constrained 

reading of Code § 19.2-54 when, as here, the notice-based 

 1

 Crouse, rather than the magistrate who issued the search 

warrant, also certified the original affidavit when he delivered 

it to the clerk's office on November 21, 1996. Lockhart, 

however, does not challenge the certification of the affidavit 

on appeal. 

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purpose of the statute is satisfied. Based on the record before 

us, we agree with the Commonwealth that the rationale in 

Quintana is controlling. 

 In Quintana, the defendant moved for suppression of 

evidence seized in a search because, as in the instant case, the 

magistrate failed to strictly comply with the procedural 

requirements of Code § 19.2-54. Specifically, the magistrate 

who issued the search warrant in Quintana failed to certify the 

supporting affidavit before he filed it with the clerk of the 

circuit court and did not do so within thirty days after 

issuance of the search warrant. According to the defendant, the 

uncertified affidavit was not "the required affidavit" under the 

terms of the statute. Hence, the search was invalid, he 

concluded, because the magistrate failed to file the required 

affidavit within thirty days and because the statute necessarily 

implies that, when the failure to file the required affidavit 

continues beyond thirty days, the search is invalid even if 

conducted the day the affidavit is filed. 

 Rejecting both the defendant's premise and conclusion, the 

Court in Quintana reasoned as follows: 

Having in mind the Fourth Amendment purposes 

the statute was designed to foster, we 

believe "the required affidavit" means the 

affidavit required to support issuance of a 

search warrant. Under the Fourth Amendment 

warrant requirement, the content of that 

affidavit must be sufficient to support a 

finding of probable cause by a neutral and 

detached magistrate. The [C]onstitution 

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does not require the magistrate to certify 

an affidavit. The purpose of that 

requirement in our statute is to insure that 

the affidavit filed with the clerk for the 

information of the accused is the same 

affidavit upon which the finding of probable 

cause was based. . . . 

 Finding that the statutory purpose was 

fully served and that the omission of the 

magistrate's signature in the jurat caused 

defendant no prejudice, we hold that the 

trial court properly overruled defendant's 

motion to suppress. 

Id. at 136, 295 S.E.2d at 646-47. 

 Plainly, the Supreme Court in Quintana, in addressing the 

certification requirement of Code § 19.2-54, gave greater weight 

to the achievement of the notice-based purpose of the statute 

than to a strict, technical reading of the statute. We believe 

the same reasoning applies to the filing requirement of Code 

§ 19.2-54. 

 The United States Constitution does not require that the 

supporting affidavit be filed by the magistrate (or other 

officer authorized to certify search warrants). The purpose of 

the filing requirement, like the certification requirement, "'is 

to give the defendant reasonable opportunity to determine that 

the affidavit on file is the same one upon which the 

determination of probable cause was based.'" Robertson v. 

Rogers, 2 Va. App. 503, 507, 346 S.E.2d 41, 44 (1986) (quoting 

Garza v. Commonwealth, 228 Va. 559, 566, 323 S.E.2d 127, 131 

(1984)), aff'd, 360 S.E.2d 715 (1987). 

 - 9 - 
 Here, the supporting affidavit filed by Crouse was the same 

one he subscribed before the magistrate. The affidavit was on 

file in the clerk's office available for inspection by Lockhart 

the day after the search warrant was issued. We find, 

therefore, that, even though the affidavit was delivered to the 

clerk's office by the officer who executed the search warrant 

rather than by the magistrate who issued the warrant, the 

notice-based purpose of Code § 19.2-54 was achieved and Lockhart 

suffered no prejudice as a result of the affidavit not having 

been filed by the magistrate. 

 Accordingly, we hold that the trial court did not err in 

denying Lockhart's motion to suppress. 

III. EVIDENCE OF VICTIM'S MISCONDUCT AT SCHOOL 

 During cross-examination at trial, Lockhart's counsel asked 

M.B.'s mother if M.B. had any disciplinary problems at school 

during the time period he claimed Lockhart had sexually abused 

him. The Commonwealth objected, asserting that such evidence 

was not relevant to the issue of whether Lockhart sodomized the 

child. When asked by the court how such evidence was relevant, 

Lockhart's counsel stated only that he intended to ask M.B.'s 

mother whether, when M.B. had disciplinary problems at school, 

he would make excuses for those problems. The trial court 

sustained the Commonwealth's objection, and Lockhart's counsel 

proceeded to a different subject. 

 - 10 - 
 Lockhart now contends the trial court erred in not allowing 

him to introduce evidence of the victim's misconduct at school 

and of the excuses he made for that misconduct. He asserts in 

his brief on appeal that such testimony was intended to 

illustrate M.B.'s propensity to fabricate excuses and make up 

stories as explanations when accused of wrongdoing at school and 

to draw a connection between those incidents of fabrication and 

the claim by M.B. that Lockhart sodomized him. That claim of 

molestation, Lockhart asserts, was made up by M.B. as an 

explanation or excuse for his banishment from Lockhart's farm 

for fighting with D. and in response to his father's accusation 

that M.B. cared more about Lockhart than he did about him. 

 "Evidence of specific acts of misconduct is generally not 

admissible in Virginia to impeach a witness' credibility. 

However, where the evidence . . . is relevant to show that a 

witness is biased or has a motive to fabricate, it is not 

collateral and should be admitted." Banks v. Commonwealth, 16 

Va. App. 959, 963, 434 S.E.2d 681, 683 (1993) (citations 

omitted). 

 When, however, an objection is sustained and a party's 

evidence is ruled inadmissible, as in this case, "the party must 

proffer or avouch the evidence for the record in order to 

preserve the ruling for appeal; otherwise, the appellate court 

has no basis to decide whether the evidence was admissible." 

Smith v. Hylton, 14 Va. App. 354, 357-58, 416 S.E.2d 712, 715 

 - 11 - 
(1992). Thus, we will not consider testimony which the trial 

court has excluded before it was presented without a proper 

showing of what that testimony would have been. Holles v. 

Sunrise Terrace, Inc., 257 Va. 131, 135, 509 S.E.2d 494, 497 

(1999). 

 Here, we find nothing in the record that constitutes a 

proper proffer of the rejected evidence. No proffer was made of 

the mother's expected response to the question she was asked or 

of any other questions that she would have been asked and 

answers that she would have given. Likewise, Lockhart did not 

proffer any other evidence from other sources that, if believed, 

would allow the fact finder to reasonably infer that M.B. had a 

motive to falsely implicate Lockhart in order to explain or 

excuse his own misconduct. Despite Lockhart's suggestion to the 

contrary, the response by defense counsel to the trial court's 

query regarding the relevance of such evidence provides no basis 

for determining the admissibility of the rejected testimony of 

the mother. 

 Hence, without a proper proffer, we cannot ascertain on 

appeal whether the evidence Lockhart sought to introduce was 

relevant to show that M.B. had a motive to fabricate his 

testimony. Lockhart's failure to make such a proffer therefore 

precludes appellate review of this claim. 

 - 12 - 
IV. SUFFICIENCY OF THE EVIDENCE 

 Lockhart also challenges the sufficiency of the evidence to 

sustain his conviction. He contends the trial court should have 

set aside the jury's verdict as contrary to the law and evidence 

because he was convicted almost wholly on the victim's 

testimony, which, he contends, was inherently incredible. 

 Specifically, Lockhart argues that M.B.'s testimony was so 

replete with inconsistencies and contradictions and so contrary 

to human experience that it was unbelievable. He identifies 

several evidentiary details in the case about which he believes 

M.B.'s testimony was inconsistent, including Lockhart's state of 

undress before the first act of anal intercourse; the timing of 

the last act of anal intercourse relative to when M.B. informed 

his parents about his sexual encounters with Lockhart; the total 

number of incidents of sodomy; whether M.B. kept returning to 

Lockhart's farm because he thought Lockhart would stop having 

sex with him or because Lockhart threatened him; the hairiness 

of Lockhart's pubic area and buttocks; and whether M.B. watched 

pornographic videos at Lockhart's house and, if so, the number 

of videos watched. The evidence identified by Lockhart as being 

contrary to human experience includes M.B.'s testimony that he 

did not immediately go home or call his parents the first time 

he was sodomized by Lockhart; that he waited so long to tell his 

brother, uncle, and parents about the abuse; that his brother, 

who was often at Lockhart's farm with him, did not see him 

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having sex with Lockhart until shortly before he reported it to 

his parents; and that Lockhart, despite watching pornographic 

videos and engaging in sex with him and reading a pornographic 

magazine in front of him, never discussed such sexual activities 

with him and attempted to hide the magazine from him. 

 When the sufficiency of the evidence is challenged on 

appeal, we must consider the evidence "in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Bright v. Commonwealth, 

4 Va. App. 248, 250, 356 S.E.2d 443, 444 (1987). Furthermore, a 

conviction will not be reversed unless "it appears from the 

evidence that it is plainly wrong or without evidence to support 

it." Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337 S.E.2d 

897, 898 (1985). 

 This case turns on the credibility of a young victim of 

sexual abuse whose testimony clearly was not consistent in all 

respects. Faced with the same issue in Swanson v. Commonwealth, 

8 Va. App. 376, 382 S.E.2d 258 (1989), we affirmed the 

defendant's conviction, noting, in reaching our decision, as 

follows: 

 The fact that a witness makes 

inconsistent statements in regard to the 

subject matter under investigation does not 

render his testimony nugatory or unworthy of 

belief. It is the province of the trier of 

the facts—jury or judge—"to pass upon such 

inconsistent statements and give or withhold 

their assent to the truthfulness of the 

particular statement." It is firmly 

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imbedded in the law of Virginia that the 

credibility of a witness who makes 

inconsistent statements on the stand is a 

question for the jury, or for the trial 

court as a trier of the facts sitting 

without a jury. 

Id. at 378-79, 382 S.E.2d at 259 (quoting Shelton v. Mullins, 

207 Va. 17, 22, 147 S.E.2d 754, 758 (1966)). 

 As we further noted in Swanson: 

 "In testing the credibility and weight 

to be ascribed to the evidence, we must give 

trial courts and juries the wide discretion 

to which a living record, as distinguished 

from a printed record, logically entitles 

them. The living record contains many 

guideposts to the truth which are not in the 

printed record; not having seen them 

ourselves, we should give great weight to 

the conclusions of those who have seen and 

heard them." 

 When the law says that it is for triers 

of the facts to judge the credibility of a 

witness, the issue is not a matter of 

degree. So long as a witness deposes as to 

facts which, if true, are sufficient to 

maintain their verdict, then the fact that 

the witness' credit is impeached by 

contradictory statements affects only the 

witness' credibility; contradictory 

statements by a witness go not to competency 

but to the weight and sufficiency of the 

testimony. If the trier of the facts sees 

fit to base the verdict upon that testimony 

there can be no relief in the appellate 

court. 

Id. at 379, 382 S.E.2d at 259 (quoting Bradley v. Commonwealth, 

196 Va. 1126, 1136, 86 S.E.2d 828, 834 (1955)). 

 The issue to be resolved in this case was one of fact. As 

such, it was properly before the jury. The members of the jury 

saw and heard M.B. testify at trial. Unlike us, they were able 

 - 15 - 
to observe and evaluate him and to weigh his testimony 

accordingly, as well as the testimony of the other witnesses, 

including Dr. Thomson, who confirmed that M.B.'s anus had been 

repeatedly penetrated; M.B.'s brother A.B., who testified that 

he had observed Lockhart masturbating M.B.; and Lockhart 

himself. 

 During closing argument, Lockhart's counsel highlighted for 

the jury the purported discrepancies and inconsistencies in 

M.B.'s testimony. Lockhart's counsel also identified for the 

jury those portions of M.B.'s testimony that, according to the 

defense, were contrary to human experience. Nevertheless, the 

jury found the victim credible, resolving the conflicts and 

inconsistencies in his testimony against Lockhart and finding 

ultimately that the evidence constituted proof of guilt beyond a 

reasonable doubt. 

 Based on our review of the record, we cannot say the jury's 

determination was plainly wrong or without credible evidence to 

support it. The evidence was neither inherently incredible nor 

so contrary to human experience as to render it unworthy of 

belief as a matter of law. See Simpson v. Commonwealth, 199 Va. 

549, 558, 100 S.E.2d 701, 707 (1957). The trial court, 

therefore, did not err in refusing to set aside the jury's 

verdict on the basis of insufficient evidence. 

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V. FAILURE TO DISCLOSE EXCULPATORY EVIDENCE 

 Lockhart further contends the trial court erred in denying 

his motion to set aside the verdict and dismiss the indictment 

because of the Commonwealth's failure to disclose exculpatory 

evidence. The Commonwealth's failure to provide such evidence, 

he claims, violated his due process rights under Brady v. 

Maryland, 373 U.S. 83 (1963). 

 After the trial but prior to sentencing, Lockhart learned 

that the victim and his family had given pretrial statements in 

interviews with agents of the Commonwealth investigating the 

case. Despite Lockhart's specific and proper request for 

exculpatory evidence, the Commonwealth failed to disclose to him 

before trial the existence of those statements and the notes 

taken by the interviewers in connection with those statements. 

 The victim's undisclosed statements and the notes 

associated therewith, Lockhart claims, contained information 

that was inconsistent with M.B.'s testimony at the preliminary 

hearing and at trial. Thus, according to Lockhart, such 

evidence could have been used to more effectively cross-examine 

M.B. and further impeach his credibility. The withheld 

evidence, he argues, was, therefore, exculpatory and its 

suppression by the Commonwealth a constitutional violation 

warranting reversal of his conviction.2 

 

 - 17 - 

2

 Lockhart also claims in his brief on appeal that the 

suppressed statement of the victim's father was exculpatory 
 Lockhart specifically relies on the following allegations 

in M.B.'s statements and the associated notes that, according to 

him, contradict M.B.'s testimony at trial: (1) Lockhart gave 

M.B. and the other kids beer and pills; (2) Lockhart required 

M.B. and A.B. to sleep with him in his bed, one on either side 

of him, but would not let them sleep in D.'s bed; (3) Lockhart 

and M.B. slept either naked or in underwear; (4) Lockhart 

threatened to shoot himself and the boys; (5) pictures were 

taken of the children in their underwear; (6) Lockhart would not 

let M.B. use the telephone; (7) Lockhart would not let M.B. in 

any other room and would not let him use D.'s room; and (8) M.B. 

never told A.B. about his sexual acts with Lockhart. 

 The trial court rejected Lockhart's argument related to the 

suppressed pretrial statements and notes, finding that the 

credibility of the victim had been the "whole issue at trial" 

and that having additional evidence available to further impeach 

the victim would not have "done any more to lessen [his] 

credibility than [his] credibility was lessened in the eyes of 

the jury . . . on cross examination." The court concluded that 

 

because it revealed that, just before M.B. told his parents that 

he had been sexually abused by Lockhart, M.B.'s father had been 

crying and had suggested that his sons liked Lockhart better 

than they liked him. While such evidence may be exculpatory, we 

do not include the father's statement in our analysis because 

essentially the same evidence was elicited early in the trial 

from M.B.'s mother and also admitted by M.B. 

 - 18 - 
the Commonwealth's failure to disclose the subject statements 

and notes did not violate Brady. 

 In order for the Commonwealth's withholding of the pretrial 

interview statements and notes to have constituted a Brady

violation, the statements and notes must have been 

(1) either directly exculpatory or have had impeachment value, 

(2) suppressed by the government, and (3) material. Strickler 

v. Greene, 527 U.S. 263, 280-81 (1999). The first two 

components are unquestionably met. The allegations cited above 

from M.B.'s statements and the related notes contradict to 

varying degrees M.B.'s testimony at trial and, thus, had 

impeachment value. Moreover, there is no dispute that the 

Commonwealth failed to disclose the subject documents to 

Lockhart. The determination, however, of whether the third 

component--materiality--is established by the record is more 

problematic. 

 There is no question that, had Lockhart been able to fully 

discredit M.B.'s testimony, the outcome of the trial would have 

been different. The evidence suppressed by the Commonwealth 

could have been used to that end. It, therefore, appears at 

first blush to be "material." 

 However, as the United States Supreme Court explained in 

Strickler: 

 That . . . is not the standard the 

petitioner must satisfy in order to obtain 

relief. He must convince us that "there is 

 - 19 - 
a reasonable probability" that the result of 

the trial would have been different if the 

suppressed documents had been disclosed to 

the defense. . . . "The question is not 

whether the defendant would more likely than 

not have received a different verdict with 

the evidence, but whether in its absence he 

received a fair trial, understood as a trial 

resulting in a verdict worthy of 

confidence." 

 . . . [T]he materiality inquiry is not 

just a matter of determining whether, after 

discounting the inculpatory evidence in 

light of the undisclosed evidence, the 

remaining evidence is sufficient to support 

the jury's conclusions. Rather, the 

question is whether "the favorable evidence 

could reasonably be taken to put the whole 

case in such a different light as to 

undermine confidence in the verdict." 

 

Id. at 289-90 (quoting Kyles v. Whitley, 514 U.S. 419, 434-35 

(1995)). 

 The materiality inquiry is a context-specific 

determination; evidence that is material in one setting could be 

immaterial in another. Spicer v. Roxbury Correctional Inst., 

194 F.3d 547, 560 (4th Cir. 1999). In this case, the victim was 

subjected at trial to substantial impeachment on the details of 

his story. The defense repeatedly contrasted his trial 

testimony and preliminary hearing testimony. Lockhart's counsel 

individually highlighted the discrepancies and inconsistencies 

in his testimony during closing argument. Still, the jury 

believed M.B. and found the core facts of his testimony 

credible. 

 - 20 - 
 We agree with the trial court's assessment that the 

victim's credibility would not have been damaged by the 

additional impeachment evidence any more than it already had 

been damaged at trial, particularly because the suppressed 

evidence was of a no more significant nature than the 

impeachment evidence already presented at trial. It was simply 

more of the same type of evidence and would not, we conclude, 

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

undermine confidence in the verdict. 

 We find, therefore, that when the suppressed impeachment 

evidence in M.B.'s pretrial statements and the accompanying 

notes is considered together with all the other impeachment 

evidence adduced at trial, the additional evidence becomes 

nothing more than cumulative impeachment evidence and, hence, 

immaterial in this setting. Thus, we conclude that, on the 

facts of this case, there is no reasonable probability that the 

result of the trial would have been different if the suppressed 

documents had been disclosed to the defense. 

 As the record does not establish a Brady violation, we hold 

that the trial court did not err in denying Lockhart's motion to 

set aside the verdict on this ground. 

 Accordingly, Lockhart's conviction is affirmed. 

 Affirmed. 

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