COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Clements and Beales 

Argued at Richmond, Virginia 

JOHN EDWARD STEWART 

 MEMORANDUM OPINION*

 BY 

v. Record No. 2355-05-2 JUDGE JEAN HARRISON CLEMENTS 

 JANUARY 16, 2007 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY 

 Thomas V. Warren, Judge 

 Keith N. Hurley (Keith N. Hurley, P.C., on brief), for appellant. 

 Karen Misbach, Assistant Attorney General (Robert F. McDonnell, 

Attorney General, on brief), for appellee. 

 John Edward Stewart (appellant) was convicted in a bench trial of two counts of uttering 

checks knowing them to have been forged and two counts of forgery, in violation of Code 

§ 18.2-172. On appeal, he contends the trial court erred in (1) refusing to grant a mistrial when the 

Commonwealth failed to disclose exculpatory information until after the presentation of appellant’s 

evidence and (2) admitting photocopies of the subject checks into evidence.1

 We agree with 

appellant that the trial court erred in not granting a mistrial, and therefore reverse his convictions. 

 As the parties are fully conversant with the record in this case, and because this 

memorandum opinion carries no precedential value, this opinion recites only those facts and 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

1

 Appellant was also granted appellate review on the issue of whether the evidence was 

sufficient to prove he altered the checks. However, because he did not address this issue on 

brief, we will not consider it here. See Rule 5A:20(e); Buchanan v Buchanan, 14 Va. App. 53, 56, 

415 S.E.2d 237, 239 (1992) (holding that claims of error “unsupported by argument, authority, or 

citations to the record do not merit appellate consideration”). 
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incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this 

appeal. 

I. BACKGROUND 

Appellant was charged with forging and uttering two checks, one dated September 24, 2004, 

which had been altered from $144.00 to $444.00 (check 1), and another dated September 17, 2004, 

which had been altered from $280.00 to $880.00 (check 2). Appellant had received check 1 and 

check 2, along with three other payroll checks, in payment for wages earned while an employee of 

Donald Lewis of Lewis Construction. Lewis had employed appellant for approximately one and a 

half months during the late summer and early fall of 2004. 

Appellant cashed the checks at Baldwin Auto Sales (BAS), where he had bought several 

cars in the years leading up to the events in question. Over the same period of time, various BAS 

employees had cashed more than twenty-five payroll checks a year for appellant, although no 

records of those transactions were kept. After BAS deposited check 1 and check 2 into its account 

at the bank, the bank returned the checks to BAS because they had been altered. 

 Deputy Robert Jones of the Nottoway Sheriff’s Department questioned appellant in two 

separate interviews, during each of which appellant denied having altered the checks. Appellant 

told Deputy Jones that “no one else had handled the checks” between the time he received them 

from Lewis and the time he cashed them at BAS. He also told the deputy that he had received 

only the proper, original amounts in exchange for the checks when he cashed them at BAS. At 

appellant’s request, Deputy Jones sent check 2 to the “state lab” for handwriting analysis. 

A pretrial discovery order was entered, directing the Commonwealth to “provide the 

defendant with all information of whatever form, source or nature that tends to exculpate the 

defendant either through indication of his innocence or through the potential impeachment of any 

government witness.” The Commonwealth was to provide such information “in writing not less 
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than fifteen (15) days prior to [trial].” The prosecutor informed defense counsel that “there 

wasn’t any” such exculpatory evidence. 

 At trial on June 1, 2005, the Commonwealth sought to introduce into evidence copies of 

each check. The first document was a photocopy of check 1, which was attached to the notice from 

the bank indicating that the amount of the check had been altered. Together with the notice from 

the bank, the photocopy of the check was marked for identification as “Commonwealth’s Exhibit 

#1” (exhibit 1). Lewis identified exhibit 1 as a paycheck from his company made payable to 

appellant for work appellant had done while in Lewis’s employ. Lewis testified, without objection, 

that the check had been written for $144.00, not the $444.00 amount reflected in exhibit 1. During 

Lewis’s testimony, appellant’s counsel objected on hearsay grounds to the admission of any 

evidence regarding notices received from the bank stating that the check had been altered. The 

prosecutor asserted that such evidence was “not offered to prove that [the check] was altered 

because [Lewis had] already testified it was altered.” The trial judge overruled the objection on that 

basis. 

 Mike Baldwin, treasurer of BAS, testified on direct examination as follows regarding 

exhibit 1: 

 [THE PROSECUTOR]: I’m going to show you [a] check 

marked for identification as number one and ask you as treasurer if 

you had any business with that particular -- 

 A: Yes, sir. I . . . know about that check and how it was 

cashed and that it came back and we had to pay for this check also. 

 THE COURT: Cashed it for how much? 

 THE WITNESS: This was the four hundred and forty-four 

dollar check. 

 THE COURT: Did you cash that one or did your father 

cash it, or do you know? 

 THE WITNESS: I do not know. 
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 THE COURT: But, your records show that it was cashed 

by your company. 

 THE WITNESS: Our company cashed it, but we don’t 

know which one of us cashed it. 

Asked on cross-examination if there was any written record of the transaction, Mike Baldwin 

responded: “No, sir. No more than the check itself that we did cash it.” 

 William Baldwin, Mike Baldwin’s father and a salesman at the business, testified that he 

received a photocopy of check 1 when it was returned from the bank, but not the original. Deputy 

Jones testified that, despite his attempt to retrieve it, the bank was not able to provide him with 

check 1 in its original form. 

 The second document was a facsimile from the state lab of check 2. It was marked for 

identification as “Commonwealth’s Exhibit #2” (exhibit 2). Lewis identified exhibit 2 as a 

paycheck from his company made payable to appellant. Lewis testified the check had been written 

for $280.00, not the $880.00 that appeared on exhibit 2. Exhibit 2 showed that check 2 had been 

stamped by the bank “returned not paid . . . altered.” Mike Baldwin testified that he saw his father 

cash check 2 for appellant but did not see how much it was cashed for. Although he could not recall 

the date the check was cashed, he remembered the transaction because appellant expressed interest 

that day in purchasing a car, despite still owing BAS a balance on another vehicle. Mike Baldwin 

stated that, as treasurer of the company, he was aware that check 2 had been deposited into BAS’s 

bank account for $880.00 because, when check 2 was returned from the bank unpaid, BAS had to 

pay the bank $880.00 to cover the check. He also testified that he was unaware the check had been 

altered until it was returned by the bank. After being shown exhibit 2, William Baldwin testified 

that he personally cashed check 2 for appellant for $880.00. He admitted on cross-examination, 

however, that he had no record of that transaction and recalled the amount only because he read it 
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off the copy of the check he was just shown.2

 William Baldwin also testified that he could not tell 

the check had been altered when he cashed it for appellant. Deputy Jones testified that he received 

the original check from William Baldwin before sending it to the state lab. The original was still at 

the lab at the time of the trial. 

 During the direct examination of William Baldwin, appellant’s counsel objected to the 

admission of exhibit 2, explaining: “[M]y objection is not to the photocopy of the check, [but to the 

stamp] on it. . . . I don’t want the check [itself] to serve as proof that it was altered.” The trial judge 

responded, “I don’t consider this stamp that says altered, as somebody at the bank testifying to the 

truth of it [having] been altered.” The prosecutor agreed, stating, “[W]e’re relying not on [the 

stamp] at all, but on the maker of the check indicating that he wrote it for a different amount and, 

ipso facto, somebody altered the check.” Defense counsel replied, “That’s fine.” After the trial 

judge reiterated that the stamp on exhibit 2 would not serve as proof that check 2 had been altered, 

the direct testimony of William Baldwin continued. Exhibit 2 was not introduced into evidence at 

that time. 

 Later, after Deputy Jones was recalled as a witness, the Commonwealth offered exhibit 1 

and exhibit 2 into evidence. Appellant objected to the admission of exhibit 1, arguing that, in the 

absence of testimony by bank personnel, the best evidence rule precluded the admission of the 

photocopy of check 1 and the hearsay rule precluded the admission of the attached notice from the 

bank. The court overruled the objection, admitting exhibit 1 into evidence as a “business record . . . 

[and] despite the best evidence rule.” Appellant made no objection to the admission of exhibit 2 at 

the time. 

 2

 The Commonwealth expressly concedes in its appellate brief that this is the correct 

recitation of William Baldwin’s testimony. 
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 At the close of the Commonwealth’s evidence, appellant moved to strike the evidence on 

the ground that the Commonwealth failed to prove the checks had been altered when he cashed 

them. The evidence did not prove, appellant’s counsel argued, “what happened—how [the 

checks] got altered . . . [,] at what stage [they] got altered,” or who altered them. The trial judge 

denied the motion, stating: “The checks that were handed to [appellant were] one hundred 

forty-four and two hundred eighty. As to whether or not he altered them or somebody else 

altered them or what, it’s obvious to me they were altered at the time [appellant] cashed the 

checks.” 

 Appellant testified in his own defense. He did not dispute that he had received the checks or 

that he had cashed them, but maintained he had neither altered nor fraudulently negotiated either 

check. He testified that the checks had not been altered at the time he negotiated them to BAS and 

that he had received from William Baldwin the original, proper value in exchange for each. 

 After listening to appellant’s direct testimony, the prosecutor became aware that he was in 

possession of information potentially relevant to appellant’s testimony and to appellant’s guilt or 

innocence. The prosecutor immediately informed appellant and the trial judge that, in January 

2005, the Commonwealth received a complaint from BAS personnel that an employee named 

Jones, who was not authorized to access the cash drawer, had been “caught in the act of trying to 

steal the money from the cash drawer.” Jones, according to the prosecutor, was a “multiple 

convicted felon and a thief,” who had worked at BAS since before September 2004. There had 

been no money missing from the cash drawer, and a grand jury had refused to indict on the 

complaint. The prosecutor explained that the information may nevertheless have been exculpatory 

because Jones “was in fact working [at BAS] at the same time” appellant cashed the checks at BAS 

and “[Jones] could have stolen the money and forged the checks himself.” 
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 Upon receiving the information, appellant’s attorney moved for a mistrial on the ground that 

he “should have had that information before, [as] that would have put things in a different light, 

certainly, as far as the trial goes.” The prosecutor opposed the motion. 

 When asked by the trial judge how such information was relevant, the prosecutor explained 

that, without the disclosure of the new information, the trial judge would have had only two theories 

to choose from: “Either [appellant] . . . forged [the checks] and got the money or the Baldwins gave 

him the original [amounts] and changed [the checks] themselves.” With the disclosure of the new 

information, however, the prosecutor continued, defense counsel could now “conceivably argue it 

was another employee who could have stolen the money and altered the checks.” 

 The trial judge denied the motion for a mistrial, stating: “I don’t think it’s exculpatory. I 

think it’s one of those things that’s a stretch . . . . [The crime charged against appellant occurred 

in September 2004, so] I don’t think that would be exculpatory evidence that there’s somebody 

in [BAS] that was charged with stealing money in January [2005].” 

 Appellant recalled Mike Baldwin. He testified that Jones was working at BAS in September 

2004. Baldwin explained that Jones cleaned “floors and things like that” for the company, “but 

[they] tried not to ever leave him in [the office with the cash drawer] by himself at all.” However, 

Baldwin further testified, Jones was in the office helping him stuff envelopes one day when 

Baldwin left the room. “And,” Baldwin continued, “something just told me to go back and check, 

and I did. . . . I went back and looked, and . . . Jones was in my money drawer just going at it. And, 

when I walked in, he dropped the money that was in the drawer.” Baldwin testified that the checks 

they cashed “would be kept in the same drawer” as the money. Baldwin fired Jones after the 

incident, although Baldwin was unable to say with certainty when the incident occurred. Baldwin 

did not know whether Jones “ever attempted to cash any checks that were written to the business.” 
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 Appellant than renewed his motion to strike, and the trial judge denied the motion. After 

closing arguments, the judge addressed appellant, stating in part: 

 Again, I acknowledge it hasn’t been as pretty as they 

usually are in so far as connecting up everything, every i being 

dotted and every t being crossed and checked and so forth. 

 What also sort of doesn’t tie in the way I wish it had -- I 

wish the way it would, so it would be a better or clearer picture, is 

who cashed the check exactly, a log and so forth. I’m reluctant to 

say that either Mr. Baldwin is not a good business man . . . but how 

they cash checks is somewhat problematic. And, I’m frankly 

surprised that they don’t have more trouble. . . . 

* * * * * * * 

 As to [your] suggestion that maybe this other person that 

was a dishonest person somehow had something to do with this is 

just a grand stretch in so far as I’m concerned. The notion that 

maybe after Mr. Baldwin cashed the check that [this dishonest 

employee] would have altered it for some reason . . . , that 

suggestion doesn’t make any sense at all to me. You said 

steadfastly you took the checks there, you cashed them for one 

hundred forty-four and you cashed them for two hundred eighty, 

but just because you insist that’s what you did and just because you 

steadfastly said that, doesn’t mean that it’s so. 

 Mr. Baldwin said to the contrary. Why would they lie 

about one of their customers? Why would they say that we gave 

Stewart eight hundred eighty dollars . . . ? We gave Stewart four 

hundred forty-four dollars . . . ? Why would they do that? Why 

would they say that if they didn’t do it? Why would they give you 

the two hundred eighty and one hundred forty-four and then they -- 

maybe Mr. Baldwin altered the check. Why would he do it? Why 

would anybody do it but you? It doesn’t make any sense 

whatsoever why anybody would do this but you, Mr. Stewart. 

 The trial judge found appellant guilty as charged, and this appeal followed. 

II. MOTION FOR MISTRIAL 

 Appellant claims the trial court erred in denying his motion for a mistrial. He argues that 

the Commonwealth’s failure to timely disclose the information about Jones denied him his 

constitutional rights under Brady v. Maryland, 373 U.S. 83 (1963). We agree. 
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 “[W]hether a trial court should grant a mistrial is a matter resting within its discretion, 

and absent a showing of abuse of discretion, the court’s ruling will not be disturbed on appeal.” 

Cheng v. Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599, 607 (1990). However, “by definition, 

when the trial court makes an error of law, an abuse of discretion occurs.” Bass v. 

Commonwealth, 31 Va. App. 373, 382, 523 S.E.2d 534, 539 (2000). 

 “We review [appellant’s claim] under settled constitutional principles concerning the 

disclosure of exculpatory evidence.” Lovitt v. Warden, 266 Va. 216, 244, 585 S.E.2d 801, 817 

(2003). “In Brady . . . , the Supreme Court held that a due process violation occurs when the 

prosecution suppresses evidence favorable to an accused that is material either to guilt or to 

punishment, irrespective whether the prosecution acted in good faith or bad faith.” Id. (citing 

Brady, 373 U.S. at 87). 

 Here, there is no question that the prosecutor suppressed evidence that was favorable to 

appellant. The prosecutor acknowledged at trial that he did not timely inform appellant that the 

Commonwealth had received information that Jones, a “multiple convicted felon and a thief” who 

worked at BAS since before September 2004, had been “caught in the act of trying to steal the 

money from the cash drawer” in January 2005. The prosecutor further acknowledged that the 

withheld information showed that Jones “was in fact working [at BAS] at the same time” appellant 

cashed the checks at BAS and that “[Jones] could have stolen the money and forged the checks 

himself.” Thus, the suppressed information clearly lent support to the defense’s theory that 

someone at BAS forged the checks after they had been cashed by appellant and before they were 

deposited in the company’s bank account. 

The question remains, however, whether the information about Jones was material to 

appellant’s guilt or punishment. “‘[I]mplicit in the requirement of materiality is a concern that 

the suppressed evidence might have affected the outcome of the trial.’” United States v. Bagley, 
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473 U.S. 667, 674-75 (1985) (quoting United States v. Agurs, 427 U.S. 97, 104 (1976)). 

“[E]vidence 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.” Id. at 682. “At 

the heart of this inquiry is a determination whether the evidence favorable to the defendant could 

reasonably be considered as placing the entire case in such a different light that confidence in the 

verdict is undermined.” Lovitt, 266 Va. at 244, 585 S.E.2d at 817 (citing Strickler v. Greene, 

527 U.S. 263, 290 (1999)). Indeed, as the United States Supreme Court has stated: 

 The proper standard of materiality must reflect our 

overriding concern with the justice of the finding of guilt. Such a 

finding is permissible only if supported by evidence establishing 

guilt beyond a reasonable doubt. It necessarily follows that if the 

omitted evidence creates a reasonable doubt that did not otherwise 

exist, constitutional error has been committed. This means that the 

omission must be evaluated in the context of the entire record. If 

there is no reasonable doubt about guilt whether or not the 

additional evidence is considered, there is no justification for a 

new trial. On the other hand, if the verdict is already of 

questionable validity, additional evidence of relatively minor 

importance might be sufficient to create a reasonable doubt. 

Agurs, 427 U.S. at 112-13 (footnotes omitted). “[T]he determination whether undisclosed 

exculpatory evidence was material must be made by considering its cumulative effect.” Lovitt, 

266 Va. at 244, 585 S.E.2d at 817 (citing Kyles v. Whitley, 514 U.S. 419, 436 n.10 (1995)). 

 Here, the defense’s theory of the case does not contradict the Commonwealth’s evidence 

that the two checks were at some point altered. Rather, appellant’s theory of the case challenges 

only the Commonwealth’s claim that he was the one who altered them. Consistent with his 

contention that the checks were not altered while in his possession, appellant testified on his own 

behalf that he did not alter the checks and that he received only the proper amount in return for 

each check when he cashed them at BAS. 
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 The trial judge made a contrary factual determination based on the testimony of William 

and Mike Baldwin that appellant cashed the checks for $444.00 and $880.00—the altered 

amounts. However, the testimony offered by William and Mike Baldwin regarding the amount 

appellant received from BAS in exchange for the two checks was equivocal at best. When asked 

how much check 1 was cashed for, Mike Baldwin obliquely responded, “This was the four 

hundred and forty-four dollar check.” He further testified that he did not know who at BAS 

cashed the check for appellant and that the copy of the returned, altered check for $444.00 was 

the only record they had of cashing the check. Additionally, while William Baldwin testified 

initially that he cashed check 2 for $880.00, he admitted on cross-examination that he had no 

independent recollection of the amount and recalled that it was $880.00 only because he had just 

read it off the copy of the $880.00 check he was shown at trial. In finding appellant guilty as 

charged, the trial judge himself acknowledged the Commonwealth’s evidence regarding the 

cashing of the checks was not as clear and complete as he would have preferred. 

 The strength of the Commonwealth’s case is further diminished by the fact that the check 

alterations went undetected by BAS personnel until the checks were returned by the bank. 

William Baldwin testified he could not tell check 2 had been altered when he cashed it for 

appellant. Conversely, the prosecutor described the alterations as being immediately apparent to 

anyone who looked at them. The trial judge characterized them as being “pretty obvious” to 

him. Indeed, the trial judge commented that the checks were so carelessly altered and suspicious 

looking he did not know why BAS personnel had cashed them. Having reviewed exhibit 1 and 

exhibit 2 in the record, we do not disagree with the trial judge’s assessment of the alterations. 

Plainly, William Baldwin’s testimony that he could not tell check 2 had been altered and the fact 

that the checks were obviously altered supports appellant’s theory that the checks were altered 

only after he cashed them. 
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 Given the evident weakness of the Commonwealth’s case, we conclude that the 

information withheld by the prosecutor about Jones is “sufficient to undermine confidence in the 

outcome” of the case. Bagley, 473 U.S. at 682. As previously mentioned, Jones, a “multiple 

convicted felon and a thief,” was working at BAS when appellant cashed the checks. Mike Baldwin 

testified that, sometime after the checks were cashed, he caught Jones trying to steal money from 

the cash drawer. Mike Baldwin further testified that they “tried not to ever leave [Jones] in [the 

office with the cash drawer] by himself at all.” However, as evinced by the reported incident, Jones 

was indeed sometimes left in the office by himself. Mike Baldwin also testified that the cashed 

checks were kept in the cash drawer and that he was unsure whether Jones had “ever attempted to 

cash any checks that were written to the business.” Clearly, the suppressed evidence reveals that 

Jones had the motive and opportunity to commit the offenses attributed to appellant. Because of its 

tenuous nature, the Commonwealth’s evidence does not exclude the reasonable hypothesis of 

innocence that Jones altered the checks cashed by appellant and stole the corresponding money 

from the cash drawer. Accordingly, the withheld information “could reasonably be considered as 

placing the entire case in such a different light that confidence in the verdict is undermined.” 

Lovitt, 266 Va. at 244, 585 S.E.2d at 817. We hold, therefore, that the suppressed evidence about 

Jones was material to appellant’s guilt. 

 The Commonwealth asserts that, even if the withheld information was exculpatory and 

material, “any due process violation was cured by the prosecutor’s disclosure” of that 

information at trial. Thus, the Commonwealth argues, the trial judge did not err in denying 

appellant’s motion for a mistrial because appellant was not prejudiced by the belated disclosure 

of the evidence regarding Jones. We disagree. 

 Late disclosure does not take on constitutional proportions 

unless an accused is prejudiced by the discovery violations 

depriving him of a fair trial. So long as exculpatory evidence is 

obtained in time that it can be used effectively by the defendant, 
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and there is no showing that an accused has been prejudiced, there 

is no due process violation. It is the defendant’s ability to utilize 

the evidence at trial, and not the timing of the disclosure, that is 

determinative of prejudice. 

Moreno v. Commonwealth, 10 Va. App. 408, 417, 392 S.E.2d 836, 842 (1990) (citations 

omitted). Thus, where the suppressed exculpatory evidence is provided to the defense during 

trial, the 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.’” Read v. Va. 

State Bar, 233 Va. 560, 564-65, 357 S.E.2d 544, 546-47 (1987) (emphasis omitted) (quoting 

United States v. Darwin, 757 F.2d 1193, 1201 (11th Cir. 1985)). 

 Here, the prosecutor provided the information regarding Jones to the defense only after 

appellant had concluded his direct examination. As we noted in Moreno: 

 The constitutional right to receive exculpatory evidence is 

not fulfilled, and a prosecutor’s duty is not satisfied, simply by 

disclosure; timely disclosure is required. “This right guarantees an 

accused sufficient time to investigate and evaluate the evidence in 

preparation for trial.” Where a defendant is forced, to his 

prejudice, to proceed ill prepared or in undue haste because of the 

prosecutor’s untimely disclosure, his constitutional right is 

impaired, and his conviction must be reversed. 

10 Va. App. at 417, 392 S.E.2d at 842 (citations omitted) (quoting Lomax v. Commonwealth, 

228 Va. 168, 172, 319 S.E.2d 763, 765 (1984)). In this case, the prosecutor’s belated disclosure 

denied appellant the opportunity to utilize the exculpatory evidence in his preparation for trial. 

Indeed, by the time the exculpatory evidence was disclosed, defense counsel had cross-examined 

several witnesses and appellant had already testified in his own defense, thus potentially 

compromising whatever alternative trial strategy the evidence might have suggested. We hold, 

therefore, that the prosecutor’s belated disclosure of evidence that was probative of a theory that 

someone other than appellant had altered the checks in question prejudiced appellant and, thus, 

constituted a Brady violation. 
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 Accordingly, the trial judge abused his discretion in denying appellant’s motion for a 

mistrial. Consequently, we reverse appellant’s convictions and remand for a new trial, if the 

Commonwealth be so advised.3

Reversed and remanded.

 3

 “Because the case will be remanded and the evidence well may be presented differently 

upon a new trial, we will not give an advisory opinion regarding” appellant’s remaining claims 

of error. Commonwealth v. Cary, 271 Va. 87, 102, 623 S.E.2d 906, 914 (2006). 

While we do not discount [appellant’s] assertions on these issues 

and recognize that they may likely recur in the event of a new trial, 

it is also likely that the presentation of evidence will be sufficiently 

different that any expression by this Court as to the correctness of 

the rulings of the trial court in the former trial . . . would not be 

relevant and advisory only. 

Id.