Opinion
Record No. 1145-91-3
November 17, 1992
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY GEORGE E. HONTS, III, JUDGE.
G. David Nixon (King, Fulghum, Snead, Nixon Grimes, on briefs), for appellant.
Robert B. Condon, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Chief Judge Koontz, Judges Moon and Bray.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Gregory Dewayne Muncey's bench trial conviction of forcible sodomy is affirmed because the trial judge did not abuse his discretion in refusing to grant Muncey a new trial based upon the failure of the Commonwealth to divulge exculpatory evidence and because the record supports the trial judge's finding that the Commonwealth's attorney did not knowingly use perjured testimony at the trial.
The relief to be granted by the trial court following a discovery violation or upon late disclosure of discovery material is within the trial court's discretion, and this Court will not disturb the trial court's decision unless it is plainly wrong. Moreno v. Commonwealth, 10 Va. App. 408, 420; 392 S.E.2d 836, 844 (1990).
The suppression of exculpatory evidence by the prosecution violates due process only if it is material, that is "if there is a reasonable probability that, had the evidence been disclosed to the defense the result of the proceeding would have been different." Humes v. Commonwealth, 12 Va. App. 1140, 1143, 408 S.E.2d 553, 555 (1991) (citing United States v. Bagley, 473 U.S. 667, 682) (1985)).
In her post-trial letter to the judge, the victim stated that appellant had sexually and physically abused her prior to the January 17, 1991 incident. Her trial testimony pertaining to the prior abuse by the appellant was ambiguous. When asked on the stand whether the appellant had ever hurt her before, she answered, "No." However, she also stated, "I was basically scared of him [the appellant]. Because of what had happened before."
Appellant filed a pre-trial motion seeking to avoid the rape-shield statute based upon his claim that the victim had consented to sexual acts with Muncey and others on occasions prior to the January 17, 1991 incident. Thus, the trial judge could have found that the appellant was aware of the alleged exculpatory information, which was contained in the post-trial letter, detailing the prior abuse against the victim by the appellant. The Commonwealth reasonably could have believed that the victim's ambiguous testimony was not perjured since it was given in the context of information of which appellant and others were already aware. See Smith v. United States, 375 F. Supp. 1244, 1247 (E.D. Va. 1974); Rosenberg v. United States, 360 U.S. 367, 371 (1959) (holding that a defendant may not complain about not being given exculpatory information already known to him).
Here, the trial judge considered the alleged exculpatory evidence after the trial and found that the outcome would not have been different had the alleged exculpatory evidence of the prior abuse, described in the post-trial letter, been disclosed during the victim's testimony. The trial judge was uniquely situated to determine this issue because he was the finder of fact in the bench trial. Thus, the alleged exculpatory evidence was not "material" under the Bagley test. Accordingly, the record does not show that the trial judge was plainly wrong.
The appellant also asserts that the Commonwealth knowingly used perjured testimony, thus violating the appellant's due process rights and requiring the trial judge to award appellant a new trial. The Commonwealth should not remain silent when a witness testifies falsely particularly if the reliability of the witness "may well be determinative of guilt or innocence." Walker v. Commonwealth, 4 Va. App. 286, 301, 356 S.E.2d 853, 861 (1987).
Perjury is committed when a person "willfully swears falsely . . . touching any material matter or thing." Code § 18.2-434 (emphasis added).
Although the victim's testimony may have been ambiguous in light of the undisclosed letter, the record does not show that, as a matter of law, Ms. Keith committed perjury. The trial judge determined that the alleged exculpatory information contained in the letter was not material. Thus, we hold that the judge was not plainly wrong in finding that the Commonwealth had not used perjured testimony.
Concerning the question of whether the trial judge should have allowed defense counsel to examine the Commonwealth's attorney concerning his knowledge of the alleged prior abuse of the victim by appellant, we find no error. The trial judge stated, "It's already in the record, you've made reference to it a number of times, [and the Commonwealth is] not denying it."
Thus, it was unnecessary to question the Commonwealth's attorney on record as admitting knowledge of the prior abuse, described in the post-trial letter, once the judge charged the Commonwealth with knowledge of this information based on the record as cited above. Thus, the trial judge did not abuse its discretion in refusing to put the Commonwealth's attorney on the witness stand.
Accordingly, the judgment appealed from is affirmed.
Affirmed.