Opinion
Record No. 0112-93-3
Decided: November 22, 1994
FROM THE CIRCUIT COURT OF BEDFORD COUNTY, William W. Sweeney, Judge
Affirmed.
Charles B. Phillips (Phillips, Doherty Swanson, on briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (James S. Gilmore, Attorney General, on brief), for appellee.
Present: Judges Koontz, Elder and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Michael Edward Fulcher (defendant) was convicted on each of three indictments charging grand larceny. He complains on appeal that the court erroneously overruled his motion for new trials on all offenses because (1) the Commonwealth wrongfully withheld exculpatory evidence, and (2) a Commonwealth witness recanted her testimony. We find no error and affirm the judgments.
The parties are fully conversant with the record, and this memorandum opinion references only those facts necessary to a disposition of the issues on appeal.
Discovery
It is well established that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment." Brady v. Maryland, 373 U.S. 83, 87 (1963); see Taitano v. Commonwealth, 4 Va. App. 342, 349, 358 S.E.2d 590, 593-94 (1987). "[N]ondisclosed 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 confidence in the outcome [of the trial]." Taitano, 4 Va. App. at 349, 358 S.E.2d at 594 (quoting United States v. Brady, 373 U.S. 667, 682 (1985)).
The court must assess the "possibility that any adverse effect on preparation and presentation of the defendant's case might have occurred . . . 'in light of the totality of the 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 mislead by the prosecutor's incomplete response.' " White v. Commonwealth, 12 Va. App. 99, 104, 402 S.E.2d 692, 696 (quoting Bagley, 473 U.S. at 683), aff'd on reh'g en banc, 13 Va. App. 284, 410 S.E.2d 412 (1991). "To accomplish this, the evidence adduced at trial must be compared with what the defendant contends could have been adduced." Taitano, 4 Va. App. at 349, 358 S.E.2d at 594.
Here, defendant alleged that the prosecution failed to disclose "taped" pretrial conversations between Commonwealth witnesses and detectives investigating the offenses. Defendant acknowledges that two of these tapes contained no exculpatory material but asserts that such evidence was present on the remaining tapes. However, the only exculpatory evidence from these tapes which is a part of the record before us is the post-trial hearing testimony of Commonwealth witness Rosanna Sue Nichols. Nichols claimed that, during taped pretrial interviews, she advised the detectives that another man had confessed the crimes to her. This evidence was contrary to Nichols's trial testimony, which implicated defendant.
However, the trial judge found that Nichols's hearing testimony "lacked credibility" and, therefore, ruled that defendant had failed to establish that any exculpatory evidence related to the tapes had been improperly withheld by the Commonwealth. See Code Sec. 19.2-265.4. "The issue of the [witness's] credibility and the weight to be given her testimony was one for the trial court to resolve, and . . . [its] findings will not be reversed on appeal unless plainly wrong or without evidence to support them." Wyatt v. Virginia Dep't of Social Servs., 11 Va. App. 225, 230, 397 S.E.2d 412, 415 (1990). See also Schneider v. Commonwealth, 230 Va. 379, 383, 337 S.E.2d 735, 736-37 (1985). Because this record provides considerable support for the court's conclusion, the decision will not be disturbed.
The Recantation
It is well settled that [w]hile discovery after trial, brought to the attention of the court in due time, that false testimony with respect to material facts has been given by a witness for the prosecution may constitute ground for a new trial, recantation by a State's witness does not necessarily entitle the accused to a new trial. . . .
Deducible from the authorities are these principles: There must be clear and convincing proof that the witness testified falsely at the trial, and not merely proof that by reason of conflicting statements his testimony is unworthy of belief. Application for a new trial is addressed to the sound discretion of the trial court which has the opportunity of seeing and hearing the witness whose testimony is brought under attack, and the prime duty of determining whether he swore falsely at the trial.
Lewis v. Commonwealth, 193 Va. 612, 625, 70 S.E.2d 293, 301, cert. denied, 344 U.S. 880 (1952); see also Fout v. Commonwealth, 199 Va. 184, 192, 98 S.E.2d 817, 823 (1957); Hall v. Commonwealth, 198 Va. 676, 680-81, 96 S.E.2d 100, 103 (1957); Mundy v. Commonwealth, 11 Va. App. 461, 480-81, 390 S.E.2d 525, 535-36, 399 S.E.2d 29 (1991) (en banc).
Guided by these authorities, our review of the trial and the subsequent recantation testimony of the Commonwealth's witness, Nichols, discloses no abuse of discretion in the court's denial of defendant's motion for a new trial. Nichols's testimony at trial was corroborated by other uncontradicted evidence, and the court simply disbelieved her subsequent recantation.
Accordingly, we affirm the convictions.
Affirmed.