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No “Brady’ violation in habeas case

Where petitioner seeks habeas corpus relief on the basis that the commonwealth violated the Brady rule by withholding impeachment evidence, petitioner has not conclusively established that counsel never received the evidence. The circuit court correctly determined there was no Brady violation.


Three witnesses, Scott, Reid and Parker, gave statements to the police in 2001 implicating appellant Lynch in a home invasion, murder and robbery. Two trials ended in a hung jury. A third trial in May 2003 resulted in convictions for murder, burglary, robbery and three counts of using a firearm while committing a felony.

Anderson, an attorney, represented Lynch at his trials and appeals. The appeals were unsuccessful and Lynch’s first habeas appeal was denied. In 2016, Lynch moved to preserve evidence and received a 2001 evidence voucher listing recorded statement from Scott, Reid and Parker. He was also informed that the recordings were destroyed in 2015.

In 2017, he filed a habeas petition, alleging the three recorded statements has been suppressed before trial. In support, Lynch provided an affidavit from Anderson. Anderson averred that he reviewed his file, read all available transcripts and stated “unequivocally” that the commonwealth never told him about the recorded statements.

The commonwealth then provided Lynch with transcripts of all three recordings. Anderson reviewed them and provided a second affidavit, asserting he never received the information from the recordings during Lynch’s trials.

At a hearing, Anderson testified that if he had such information, he would have used inconsistencies in statements to undermine their identifications of Lynch. The circuit court denied habeas relief and Lynch has appealed.

No violation

Under the Brady rule, the Commonwealth’s suppression of evidence favorable to the accused and material to either guilt or punishment, violates due process. … ‘There are three components of a violation of the rule of disclosure first enunciated in Brady: a) The evidence not disclosed to the accused ‘must be favorable to the accused, either because it is exculpatory,’ or because it may be used for impeachment; b) the evidence not disclosed must have been withheld by the Commonwealth either willfully or inadvertently; and c) the accused must have been prejudiced.’ …

“Lynch had the burden of proof to establish ‘each of these three components to prevail on [his] Brady claim.’ …

“The evidence Lynch provided during the evidentiary hearing only showed that the recordings and/or statements were not included in a discovery letter from the Commonwealth and were not referenced specifically during trial. The evidence did not support Lynch’s argument that the Commonwealth suppressed the statements from Anderson and Lynch.

“Anderson could not recall any specific information from Lynch’s criminal trial, yet testified that he must not have received the statements from Reid, Scott, and Parker because he did not use them in cross-examination. He stated in an affidavit that he reviewed his ‘entire file’ from Lynch’s trial, yet later testified during the evidentiary hearing that he was unable to locate the file.

“As the circuit court found, ‘Anderson, under oath, testified that he did receive transcripts of recorded statements of some witnesses at trial but he could not locate his file prior to preparing the affidavit to determine whether he had copies of the transcribed police statements of the witnesses in question.’ The court further stated that Anderson ‘did not recall receiving the police statements from the Commonwealth, but he could not be sure the [sic] he did NOT receive them.’

“Finally, the court found that ‘Anderson[] repeatedly stated that he could not recall whether or not he received the statements of Tamika Reid, Ronald Scott, and Kenneth Parker.’

“Based on the record before the Court, the circuit court’s judgment was not plainly wrong or without evidence to support it. The evidence was inconclusive to show that Anderson did not receive the statements or did not know the information contained in them. The circuit court was not plainly wrong in finding that Lynch failed to prove a Brady violation because he did not show ‘that the Commonwealth suppressed the statements at issue or that [Anderson] did not even receive the statements.’”


Lynch v. Cabell, Record No. 190048 (Order) Feb. 13, 2020, (Norfolk Cir. Ct.). Edward Anthony Fiorella Jr. for Appellant, Rosemary Virginia Bourne for Appellee. VLW 020-6-009, 5 pp.

VLW 020-6-009

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