COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Overton and Senior Judge Hodges 

HENRY COON DAVIS, A/K/A 

 H. C. DAVIS 

 MEMORANDUM OPINION*

v. Record No. 0517-95-3 BY JUDGE WILLIAM H. HODGES 

 SEPTEMBER 24, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY 

Charles H. Smith, Jr., Judge 

 James T. Ward (Reelia R. Watson, on brief), 

for appellant. 

 (James S. Gilmore, III, Attorney General; 

Leah A. Darron, Assistant Attorney General, 

on brief), for appellee. Appellee submitting 

on brief. 

 The appellant, Henry Davis, was convicted of arson and the 

murders of Sherry and Savannah Stamper, which resulted from the 

arson. On appeal, Davis contends that the trial court erred in 

refusing to grant his motion for a new trial based on one of two 

alternative grounds: (1) the Commonwealth's failure to provide 

exculpatory evidence; or (2) newly discovered evidence. For the 

reasons that follow, we affirm the trial court's denial of 

appellant's new trial motion. 

 BACKGROUND 

The Preliminary Hearing

 On May 25, 1994, a joint preliminary hearing was held for 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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appellant and two codefendants, Ralph Allen Phillips, Jr. 

(Phillips) and William Ray Davis (Billy). During that hearing, 

the prosecution's key witness, Lonnie Buryl Pierce, testified. 

Pierce was charged with two counts of conspiracy to commit 

murder. Pierce testified that around 11:00 p.m. on the night of 

the crimes, he left his girlfriend's house in Chilhowie and 

arrived "at the intersection at [Routes] 58 and 603" in Konnarock 

around 11:20 p.m. He was sitting in his parked car when a car 

containing appellant, Phillips, and Billy "pulled in beside" 

Pierce's car. Billy invited Pierce to ride with them, and Pierce 

accepted the invitation. The foursome visited the home of Tammy 

Perrin, where appellant obtained a can. They left Perrin's home 

and travelled to the Stamper home, where Pierce saw appellant 

pour something around the house and on the porch. Pierce then 

saw a "flame like a matchlight" originate from appellant. After 

Pierce turned to run, he heard "something go 'whew' real loud 

behind [him]." 

 Counsel for appellant and the codefendants cross-examined 

Pierce and discovered that Pierce made numerous statements to the 

police and to the Commonwealth's Attorney. Pierce admitted 

giving two written statements to the Commonwealth's Attorney. 

One statement was consistent with his testimony and described the 

conduct of the four men culminating in appellant's actions at the 

Stamper home. The other statement differed only in that it did 

not include Phillips' name as the fourth person in the car. 
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 Pierce also admitted talking with Officer Don Hash three or 

four times before he was charged with any crimes. Pierce 

admitted that, "[i]n addition to a written statement [he] gave to 

Don Hash, [he] gave them [sic] some verbal statements." Pierce 

related a written statement that he gave to Hash in which he 

falsely told Hash that he "went straight from Chilhowie to [his 

home in] White Top [and] didn't see anybody; didn't talk to 

anybody." 

Appellant's Trial

 On September 27, 1994, appellant was tried separately from 

his codefendants. Danny Stamper, the husband and father of the 

murder victims, testified that he and Billy, appellant's brother, 

fought twice during the afternoon preceding the fire, and that 

Stamper "got the better of" Billy. 

 Pierce gave substantially the same incriminating testimony 

that he provided at the preliminary hearing, after which defense 

counsel cross-examined him. Pierce said that his first statement 

to the police was made to Grayson County Sheriff D. B. Taylor. 

In the statement, Pierce "denied knowing anything about it." 

Pierce agreed with defense counsel that, on March 12, 1994, a few 

days after the statement to Taylor, he told the police that he 

saw appellant start the fire. During cross-examination, defense 

counsel asked Pierce to explain the inconsistency between his 

statement made on March 12, 1994 that he was intoxicated on the 

night of the fire, and his testimony at the preliminary hearing 
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that he was not drunk that night. Pierce admitted that he lied 

in the March 12, 1994 statement. 

 On redirect, Pierce described his prior convictions, 

including the fact that he pleaded guilty to conspiracy to commit 

both murders. He also admitted giving various prior statements 

that differed from his trial testimony. 

Codefendants' Trial

 On October 20, 1994, Billy and Phillips were tried jointly. 

 During that trial, an additional statement written by Pierce was 

disclosed. 

Motion for New Trial

 On February 7, 1995, at sentencing, appellant argued his 

motion for a new trial. Appellant represented that "a statement 

signed by Lonnie B. Pierce, Jr." "was placed in evidence" at the 

"trial of the co-defendants [Billy and Phillips]." 

 Appellant contended that the statement was never disclosed. 

 In it, Pierce stated that when he arrived at Konnarock, he saw a 

man with long hair and a beard walking along the road. After he 

passed the man, Pierce "saw a light in the direction of the 

Stamper house which [Pierce] thought was a porch light." On his 

way to his house, Pierce saw "a loud old truck." He arrived home 

around 11:40 p.m. and went to bed. When he awoke the next 

morning, his "mother told [him] what had happen[ed]." 

 Appellant asserted that the statement was exculpatory, and 

that it was the only statement by Pierce corroborated by "other 
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witnesses that said 'they saw a man walking along that road at 

the time this happened.'" Specifically, appellant alleged that, 

by having access to the statement, the codefendants were able to 

cross-examine witnesses Cathy Lowe, Barbara Trivette, and 

Jennifer Graham about seeing "a man walking along that road at 

the time they would have seen the fire." Appellant contended 

that he was prejudiced by not having the statement and that he 

could not have discovered it before trial because he was unaware 

of its existence. 

 The Commonwealth's Attorney told the trial court that he 

gave appellant "every single piece of paper we had that had 

anything that contained anything." The prosecutor argued that, 

at most, the statement was evidence to impeach Pierce. He 

asserted that the recently discovered statement was substantially 

similar to the statement Pierce gave to Sheriff Taylor on March 

8, 1994, in which Pierce said that he "passed a[n] old, red, loud 

pick-up truck" that belonged to appellant. In the March 8, 1994 

statement, Pierce said he was unable to see the driver of the 

truck and he denied any involvement in or knowledge of the fire. 

 At the hearing, appellant offered two exhibits for 

admission: a copy of Pierce's statement and a portion of the 

transcript of the codefendant's trial containing the testimony of 

Cathy Lowe, Barbara Trivette and Jennifer Graham. No witnesses 

testified, and no further evidence was presented. 

 On appeal, appellant contends that because he was unaware of 
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Pierce's statement, in which Pierce identified an unknown person 

in the area at the time of the fire, he was unable to call 

witnesses Lowe, Trivette, and Graham. Alternatively, appellant 

contends that "it would have been senseless" to call these 

witnesses to testify about the pickup truck and strange man 

without having corroborative evidence from Pierce. 

DISCOVERY VIOLATION: EXCULPATORY EVIDENCE 

 For a new trial to be granted based on the failure to 

disclose exculpatory evidence, the nondisclosed evidence must be 

material so as to create "a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the 

proceeding would have been different." United States v. Bagley, 

473 U.S. 667, 682 (1985). It is well established that "no 

constitutional right to discovery exists in a criminal case in 

this Commonwealth," but due process requires the prosecution to 

produce, upon request, evidence material to guilt or punishment 

which is favorable to the accused. Keener v. Commonwealth, 8 Va. 

App. 208, 212, 380 S.E.2d 21, 23 (1989) (citation omitted). 

 "The remedial relief to be granted by the trial court 

following a discovery violation or upon the late disclosure of 

evidence is within the trial court's discretion and will not be 

disturbed on appeal unless plainly wrong." Moreno v. 

Commonwealth, 10 Va. App. 408, 420, 392 S.E.2d 836, 844 (1990). 

See also Frye v. Commonwealth, 231 Va. 370, 383, 345 S.E.2d 267, 

277 (1986). 
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 Evidence is exculpatory under Brady and, therefore 

discoverable, if the defendant could have used it for impeachment 

purposes. Bagley, 473 U.S. at 676; Robinson v. Commonwealth, 231 

Va. 142, 150, 341 S.E.2d 159, 164 (1986); MacKenzie v. 

Commonwealth, 8 Va. App. 236, 243, 380 S.E.2d 173, 177 (1989). 

Because the statement could have been used to impeach Pierce's 

testimony, it was exculpatory. However, even if evidence is 

deemed exculpatory, a defendant is not entitled to new a trial 

unless the evidence is material. See Humes v. Commonwealth, 12 

Va. App. 1140, 1143, 408 S.E.2d 553, 555 (1991). 

 In determining whether undisclosed evidence is material, the 

court must "assess the reasonable probability of a different 

result in light of the totality of circumstances and with an 

awareness of the difficulty of reconstructing in a post-trial 

proceeding the course that the defense and the trial would have 

taken had the defense not been misled by the [nondisclosure]." 

Taitano v. Commonwealth, 4 Va. App. 342, 349, 358 S.E.2d 590, 

593-94 (1987). 

 The suppression of evidence sought by 

discovery amounts to a due process violation 

only if it deprives the defendant of a fair 

trial, and the conviction will be reversed 

only if the evidence is material in the sense 

that its suppression undermines confidence in 

the outcome of the trial. Thus, failure to 
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disclose exculpatory or impeachment evidence 

requires reversal only if the evidence was 

"material," and evidence is "material" only 

if there is a reasonable probability that had 

the evidence been disclosed to the defense, 

the result of the proceeding would have been 

different. A reasonable probability is a 

probability sufficient to undermine the 

confidence in the outcome. 

MacKenzie, 8 Va. App. at 244, 380 S.E.2d at 177 (citations 

omitted). 

 Pierce did not come forward with any information until four 

years after the fire. The undisclosed statement was merely one 

of many denials by Pierce of any involvement in the fire. It was 

substantially similar to the statement given to Sheriff Taylor in 

that Pierce denied any knowledge of or involvement in the fire. 

In both statements, he stated that he saw a loud, old truck. The 

statements differed only in the fact that Pierce did not say that 

the truck belonged to appellant in the undisclosed statement, and 

he failed to mention a tall, long-haired, bearded man walking on 

the road in the statement to Taylor. 

 Defense counsel possessed numerous statements made by Pierce 

which contained falsehoods. In fact, Pierce readily admitted 

lying to the authorities in prior statements. At trial, defense 

counsel reviewed Pierce's preliminary hearing testimony and 
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pointed out inconsistencies. Moreover, the fact finder was made 

aware that he had a number of relevant criminal convictions which 

further affected his credibility. Because appellant possessed 

Pierce's statement to Taylor, he was able to sufficiently impeach 

Pierce. 

 After examining the record and viewing the totality of 

circumstances, we do not find that the undisclosed statement was 

material so as to create "a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the 

proceeding would have been different." Bagley, 473 U.S. at 682. 

 Accordingly, the trial court did not abuse its discretion in 

refusing to grant a new trial based on a Brady violation. 

 Appellant also contends that the failure to disclose the 

statement affected his ability to effectively use testimony from 

other witnesses. A claim that the prosecution has caused the 

defense to lose an opportunity to investigate and uncover 

potentially exculpatory evidence must be supported by a showing 

of bad faith. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988); 

Tickel v. Commonwealth, 11 Va. App. 558, 563, 400 S.E.2d 534, 537 

(1991). Appellant conceded at the hearing for a new trial that 

the statement "was not intentionally withheld." Accordingly, he 

cannot now allege the requisite bad faith to warrant review of 

his claim of potentially exculpatory evidence. 

NEWLY DISCOVERED EVIDENCE 

 "Motions for new trials based on 

after-discovered evidence are addressed to 

the sound discretion of the trial judge, are 
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not looked upon with favor, are considered 

with special care and caution, and are 

awarded with great reluctance. . . . The 

applicant bears the burden to establish that 

the evidence (1) appears to have been 

discovered subsequent to 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 collateral; and (4) is 

material, and such as should produce opposite 

results on the merits at another trial." 

Hopkins v. Commonwealth, 20 Va. App. 242, 249, 456 S.E.2d 147, 

150 (1995) (en banc) (quoting Stockton v. Commonwealth, 227 Va. 

124, 149, 314 S.E.2d 371, 387, cert. denied, 469 U.S. 873 

(1984)). See also Odum v. Commonwealth, 225 Va. 123, 301 S.E.2d 

145 (1983). 

 "'The applicant for a new trial must set forth in affidavits 

facts showing what his efforts were to obtain the evidence and 

explaining why he was prevented from securing it.'" Yeager v. 

Commonwealth, 16 Va. App. 761, 768, 433 S.E.2d 248, 252 (1993) 

(quoting Fulcher v. Whitlow, 208 Va. 34, 38, 155 S.E.2d 362, 365 

(1967)); see also Yarborough v. Commonwealth, 15 Va. App. 638, 

647, 426 S.E.2d 131, 136 (1993) (finding that appellant failed to 

file the required affidavits and that he failed to show that he 

made any effort to discover the evidence he relied upon to obtain 

a new trial), rev'd in part on other grounds, 247 Va. 215, 441 

S.E.2d 342 (1994). 

 Appellant bore the burden of establishing that he could not 

have discovered the statement through the exercise of due 

diligence; however, he failed to file an affidavit or otherwise 
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present evidence at the hearing to show that he exercised any 

diligence in procuring the statement. The record does not show 

that appellant interviewed Pierce or Hash or was prevented from 

doing so. The record also indicates that the codefendants were 

able to procure the statement three weeks after appellant's 

trial. Thus, appellant failed to show that he could not have 

acquired the statement through due diligence. 

 Moreover, as discussed above, the statement was not material 

such that its disclosure would have produced a different outcome. 

 Accordingly, the trial court did not abuse its discretion in 

denying a new trial based on after discovered evidence. 

 For the foregoing reasons, we affirm appellant's 

convictions. 

 Affirmed.