No prejudice from withheld evidence

Even though the prosecution did not disclose exculpatory evidence to appellant before trial and did not take action to identify exculpatory evidence, appellant was not prejudiced by the failure to disclose.

As a result, his conviction of aggravated malicious wounding cannot be reversed on the basis of a Brady violation.

Prior records

Rives, Coleman and appellant Tucker, were tried separately for shooting Fisher multiple times. A jury convicted Tucker of aggravated malicious wounding of Fisher.

After Fisher was shot, he called Manson, his girlfriend, and identified Tucker, Coleman and Rives as the shooters.

After Tucker’s conviction but before his sentencing, the prosecution contacted Tucker’s counsel and said  that both Fisher and Manson had prior convictions that were not previously disclosed. Tucker’s counsel filed a Brady motion “to set aside the verdict and dismiss or grant a new trial.”

At a post-trial hearing on the matter, Fisher said Rives and Coleman were the shooters and that he could not recall whether Tucker was a shooter.

“Fisher also testified that he had received threats related to his testimony and coming to court. At the conclusion of the hearing, the trial court denied Tucker’s motion to set aside the verdict or for a retrial.”

‘Brady’ elements

“A defendant seeking to prove a Brady violation must establish that: ‘a) [t]he evidence not disclosed to the accused must be favorable to the accused … ; b) the evidence not disclosed must have been withheld by the Commonwealth either willfully or inadvertently; and c) the accused must have been prejudiced.’

No prejudice

“First, the prior convictions of Fisher and Manson were exculpatory evidence that was not disclosed to Tucker before trial. Evidence of the prior convictions of a witness is impeachment evidence under Brady. …

“Second, the withholding of evidence satisfies the second prong of Brady. Even though the Commonwealth was unaware of the prior convictions of Fisher and Manson at the time of Tucker’s trial, it certainly had the means to obtain such information.

“This information was not like evidence in other cases that could be deemed to have been unavailable. Although we do not impose a blanket mandate to investigate the criminal history of every possible witness, we do echo our prior sentiments that ‘[w]e do not believe that an unreasonable burden is imposed on the Commonwealth if required to discover the criminal record of its witnesses, especially when such information is readily available.’…

“But, as to the third prong, Tucker was not prejudiced. It is clear from this record that Tucker failed to meet his burden that the ‘suppression of evidence undermines confidence in the outcome of the trial.’ …

“[T]he record supports confidence in the outcome of the trial. Because of her limited role at trial – namely confirming receipt of the voicemail message from Fisher, which was played at trial – Tucker agrees that the prior conviction of Manson was not material to his underlying conviction.

“Tucker insists, however, that Fisher’s prior convictions were material because he was the sole eyewitness who testified at trial. Tucker argues that Fisher’s criminal history could have been used to challenge the credibility of Fisher’s eyewitness account and thereby challenge the underlying charges.

“We disagree that such evidence was material to this case.

“Fisher’s testimony at trial was consistent with his contemporaneous statements made to police at the scene and in his voicemail to Manson immediately after the shooting, both of which we view as offering sufficient indicium of reliability because they were made by Fisher in the immediate aftermath of his multiple gunshot wounds.

“Fisher’s prior criminal history does not tarnish his dying declarations nor does it establish any basis or motive for Fisher to lie.

“Based on this evidence, confidence in the jury’s verdict remains intact. Thus, Tucker has failed to meet the third prong of the Brady analysis that he was prejudiced by the suppression of evidence by the Commonwealth.

New testimony

“To preserve finality in court adjudications, a new trial will only be granted based upon newly-discovered evidence if ‘(1) the evidence was discovered after trial; (2) it could not have been obtained prior to trial through the exercise of reasonable diligence; (3) it is not merely cumulative, corroborative or collateral; and (4) is material, and as such, should produce an opposite result on the merits at another trial.’ …

“‘The burden is on the moving party to show that all four of these requirements have been met in order to justify a new trial.’ …

“Fisher’s new testimony does not rise to this standard. Although the new testimony was offered after trial, Fisher did testify at trial. In addition, Fisher’s trial testimony was corroborated by his statements to police and voicemail to his girlfriend immediately after the shooting. …

“[T]here was evidence that Fisher had received threats and indeed was shot at after the trial, which the trial court determined impacted the credibility of his new testimony and ultimately the trial court found that the recantation was not a complete recantation.

“In his new testimony, Fisher never stated that Tucker did not shoot him or that Tucker was not present. Instead, Fisher merely claimed that he did not remember who shot him.

“We agree with the trial court that Fisher’s new testimony was not material to the trial outcome.”

Affirmed.

Tucker v. Commonwealth, Record No. 0553-21-2, April 26, 2022. CAV (Fulton) from the Circuit Court of the City of Petersburg (Teefey) Todd M. Ritter for appellant. Leanna C. Minix for appellee. VLW 022-7-106, 8 pp. Unpublished opinion.