COURT OF APPEALS OF VIRGINIA Present: Judges Elde r, Humphreys and Kelsey Argued at Richmond, Virginia

CHARLES DEANDRE DEVILLE OPINION BY v. Record No. 2801-04-2 JUDGE D. ARTHUR KELSEY MARCH 28, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF SPOTSYLVANIA COUNTY William H. Ledbetter, Jr., Judge Clifford Y. Rose (Clifford Y. Rose, P.C., on brief), for appellant. Leah A. Darron, Assistant Atto rney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.
Charles Deandre Deville appeal s his conviction of conspiri ng to commit grand larceny by false pretenses. He was denied a fair trial, Deville argues, because the Commonwealth failed to disclose exculpatory information required by Brady v. Maryland , 373 U.S. 83 (1963). The trial judge who presided over Deville’s bench trial fou nd that, even if the disclosure had been made earlier, no prejudice could be shown because ther e was no possibility the outcome of the trial would have been any different. Finding this determination reasonable, we affirm. I. In a Brady motion filed after the gui lt phase of his bench trial, but before his sentencing hearing, Deville asserted that th e Commonwealth’s main witness gave inconsistent statements prior to trial that could have been used for impeachment. 1 One statement was summarized in the

1 At trial, Deville also claimed the Commonw ealth failed to produce the videotape of an interview he had previously give n to an FBI agent. Deville ad mitted to the trial judge, however, that the interview “by itself” did not warrant a new trial. At oral argument on appeal, Deville repeated this concession and expressly withdrew any Brady challenge on this ground.- 2 - witness’s plea agreement, the othe r in a presentence report prepar ed upon Deville’s conviction in another jurisdiction. The trial judge, who had ear lier presided over the guilt phase of Deville’s bench trial, examined both summaries in detail. “I can’t see for the life of me,” the judge ruled, “how these statements that [the witness] had earlier made are so inconsistent with her trial testimony as to create a prejudi ce that would require this Cour t to overturn the conviction.” After denying the Brady motion, the trial judge sentenced De ville and entered the final order. Settled principles recognize “t hree components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must ha ve ensued.” Strickler v. Greene , 527 U.S. 263, 281-82 (1999); see also Vinson v. True , 432 F.3d 310, 318 (4th Cir. 2005), aff’g on habeas review , Vinson v. Commonwealth , 258 Va. 459, 522 S.E.2d 170 (1999). For purposes of this appeal, we

assume arguendo that Deville satisfies the first two components. He still must establish prejudice, defined as a “reasonable probability that the outcome of the proceeding would have been different had the evidence been disclose d to the defense.” Muhammad v. Commonwealth , 269 Va. 451, 511, 611 S.E.2d 537, 571 (2005); see also Vinson , 432 F.3d at 318. Prejudice cannot be shown where, as here, “the trial judge was the trier of fact and, upon learning of the undisclosed information,” rules unequivocally that the impeachment evidence “would have had no impact” on the factfinding underlying the defenda nt’s conviction. Correll v. Commonwealth , 232 Va. 454, 466, 352 S.E.2d 352, 359 (1987). Wh en a trial judge, sitting as “both trier of fact and arb iter of law,” finds the Brady evidence inconsequential, there can be “no logical possibility” that its earlier disclosure “would have altered the outcome of the case.” Stroik v. State , 671 A.2d 1335, 1340 (Del. 1996). Under such circumstances, we need not hypothesize how a reasonable jury would likely have reacted to the new information. We know- 3 - with certitude, from the factfinder himself, that the outcome of the proceeding would not have been different had the eviden ce been disclosed earlier. In this respect, a trial judge’s denial of a Brady motion to vacate a conviction

⎯ if predicated on an unequivocal finding of no prejudice in a bench trial

⎯ produces a result conceptually no different from that which w ould follow the granting of the motion, a reopening of the evidentiary record for the new evidence to be admitted, and a reinstatement of the earlier conviction order. See generally John L. Costello, Virginia Criminal Law & Procedure § 50.3-2, at 666 (3d ed. 2002) (noting the practical difficu lty of showing prejudi ce when a trial judge following a bench trial finds that the Brady evidence “would not have affected his trial decision in the slightest”). That said, a trial judge cannot fo reclose appellate review by an ipse dixit denial of prejudice. Just as the original finding of guilt must fail if no “rational trier of fact” could have made such a finding, Stevens v. Commonwealth , 46 Va. App. 234, 248-49, 616 S.E.2d 754, 761 (2005) ( en banc ); Kelly v. Commonwealth , 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc ), so too the factual finding of no prejudice shou ld be set aside if pa tently unreasonable. Because Deville does not make that asserti on here, we need not scrutinize the underlying statements to discern whether a rational factfi nder could find them incapable of having an “impact on his finding” of guilt. See Correll , 232 Va. at 466, 352 S.E.2d at 359. The Commonwealth also contends Deville fail ed to exercise due diligence, mistakenly assumed the prosecutor’s Brady duty extended beyond the principa l investigatory files, and presented evidence which would not be admissible at trial in any event

⎯ all defects fatal to Deville’s Brady claim, the Commonwealth argues. Given our desire to decide cases “on the best and narrowest ground availa ble,” Logan v. Commonwealth , 47 Va. App. 168, 171 n.3, 622 S.E.2d 771, 773 n.3 (2005) ( en banc ) (citations omitted), we offer no opinion on these matters.- 4 - The absence of prejudice, by its elf, defeats Deville’s Brady claim and renders all other issues analytically superfluous. 2
II. Deville’s Brady claim fails on appeal for the same r eason it failed in the trial court. He cannot show a reasonable probabili ty that the outcome of his tria l would have been different had the evidence been disc losed earlier. We thus affirm his conviction. Affirmed.

2 At oral argument on appeal, Deville asked in the alternativ e that we remand this matter for the trial court to order the production of the original stat ements summarized in the plea agreement and presentence report. Devill e made no similar request at the Brady hearing in the trial court, however. See Rule 5A:18. Nor did he proffer any impeachment information he believed would be present in the statements, but omitted from the summaries. See Jones v. Commonwealth , 32 Va. App. 30, 46, 526 S.E.2d 281, 288 (2000) (“Because defense counsel did not proffer specifically any evidence that might have impeachment value, he did not show a Brady violation.”). We thus reject Deville’s re quest that we remand this case for additional discovery.