*1
the intent to distrib-
possession
of
of cocaine with
convictions
of cocaine.
possession
a firearm while
possession
ute and
Court
Richmond. 2,
Sept. 2003. *2 (Morchower, brief), John W. Luxton Whaley, Luxton & on for appellant.
Stephen McCullough, R. Assistant Attorney (Jerry General General; Wells, Jr., Kilgore, Attorney W. Linwood T. Assis- brief), General, tant Attorney for appellee. BENTON, ANNUNZIATA, COLEMAN, JJ.,
Present: Senior Judge. III,
COLEMAN Judge. Keith M. of attempted convicted bench trial wounding, malicious at an shooting occupied dwelling, using felony. Taylor a firearm the commission of a con- Brady tends the committed a violation that Commonwealth that the undisclosed argues him of fair trial. He deprived who interviewed the two detectives notes of investigatory that were scene contained accounts at the crime witnesses testimo- with the witnesses’ trial and inconsistent claims the witnesses’ that several ny. Specifically, was “out there did not mention accounts crime” the failure to mention at the scene of the their shooters was inconsistent with Taylor as ac- testimony. investigatory trial court ruled were not inconsistent in the detectives’ notes counts contained arid, therefore, trial witnesses’ error, Finding we for a trial. no court denied the motion new the convictions. affirm
I. attempted wounding, malicious Code Taylor was indicted for *3 18.2-51, shooting occupied building, § an Code maliciously at 18.2-279, felony, using committing § and a firearm while trial, Taylor’s attorney § Prior to filed Code 18.2-53.1. motion, information and evi- discovery requesting exculpatory wit- affecting credibility any prosecution of of the dence any The she was unaware of prosecutor responded nesses. affecting exculpate Taylor to the credibili- tending evidence ty of the Commonwealth’s witnesses. witnesses, trial, Hill, one of
At James the Commonwealth’s and between himself following testified confrontation Nash, Hill a hand- during displayed and which James residence in separate Nash drove to his gun, and Hill, their and they exited vehicles According vehicles. front at him on his began handguns while stood firing both wife, Hill, Vicky Hill resided the house with and his porch. children, Felicia Vicky and Hill. and their adult Felicia Sentel the two involved “guys” Hill testified that was one of appellant repeatedly home. Hill shooting in the at their Felicia added.) them Hill shooting.” “saw Sentel (Emphasis that she shooters; did nor testify one did was a Banks to that At there testify Florissa effect. James, and Felicia between the discrepancy Sentel Hill as to which of two cars appellant and Nash exited.
Detective McTernan’s that pre- notes recorded the events shooting ceded the and that “Nash ... starts firing.” notes She also records the that a “burgundy statement Cadillac pulled up guy got walking out started [and the] [and] toward However, starts firing.” specific [the] [and] house statements to particular not attributed witnesses. Thompson’s Detective notes his interview with James disclose that Hill identified both Keith and James Nash guns as shooting. recounting armed and His notes his interview with Sentel Hill descriptions appellant included they fighting.” and Nash and statements that “started notes, any did not however reflect comment from Sentel Hill shooting Thompson’s ensued. of Felicia *4 upon request process vorable to an accused violates due where the is guilt punishment, evidence material either to or to irrespective good of the or prosecution.” faith bad faith of the 83, 87, 1194, Brady Maryland, 1197, v. 373 83 U.S. S.Ct. 10 (1963). 215 L.Ed.2d Supreme The Court reasoned that: which, prosecution [a] that withholds ... if evidence made available, exculpate would tend to or [the reduce accused] penalty the trial that helps shape heavily bears on the That prosecutor defendant. casts the in the role of an
433 with stan- comport of a that does proceeding architect not “the result ... his action is justice, though of even dards guile.” of omitted). (citation 87-88, at 1197-1198
Id. at 83 S.Ct. evidence “[i]mpeachment has held that The Court Supreme Brady evidence, within the ..., falls as as well 667, 676, 105 S.Ct. Bagley, v. rule.” United States 473 U.S. (1985) (citing Giglio United 3380, 3375, L.Ed.2d 481 766, States, 763, 150, 154, 31 L.Ed.2d 405 U.S. (1972)). Bagley Court stated: The any direct restric- not involve
The case does present The defense was of scope tion on the cross-examination. subject, relevant any witnesses on free to cross-examine the interest____ constitutional or The including possible bias failure to error, in the any, if this case was Government’s have might by disclosing assist the defense information [S]uch the cross-examination.... helpful conducting been violation of amounts to a constitutional suppression evidence if of a fair trial. Consistent deprives it the defendant justice finding with the overriding with “our concern occurs, conviction and the of a constitutional error guilt” reversed, is material the only if the evidence must be confidence sense that its undermines suppression trial. outcome omitted). (citation 678, 105
Id. at 3381 S.Ct. Supreme Explaining Bagley’s materiality analysis, said: Court has triggered by poten- is
Although duty the constitutional evidence, showing but undisclosed impact tial favorable prepon- materiality require does not demonstration evidence would suppressed that disclosure of the derance acquittal unlimitedly have resulted the defendant’s (whether of reasonable doubt presence based on the for crime that does explanation of an acceptance defendant). materiality Bagley’s touchstone of inculpate result, and the of a different probability” is a “reasonable not whether question is adjective important. is *5 434
defendant likely would more than not have received a evidence, different verdict with the but whether in its trial, absence he received a fair as a understood resulting [worthy] a verdict A confidence. “reasonable probability” of a different result is accordingly shown when government’s evidentiary con- suppression “undermines fidence the outcome of the trial.” 419, 434, 1555, 1565, Kyles Whitley, 514 U.S. (1995) (citations omitted). L.Ed.2d 490
III. Thompson Detectives McTernan and concerning the witnesses’ statements did not identify inconsistent or contradictory statements that could have been used to impeach particular witness. The investigatory notes, “they” to the effect that or that shooting, “they” got out of shooting, specifically their cars and started or which Nash, specifically Taylor by identified but did not mention name, are not inconsistent with the witnesses’ trial testimony. Moreover, to the extent the detectives’ notes would support a claim that the witnesses identified Nash and Taylor, did not mention we do believe that this record materially disclosure would have affected the outcome of Therefore, the case. the trial court did not err in concluding that the Commonwealth did not exculpatory withhold evidence from the accused.
First, investigative neither the notes nor the evidentia ry hearing testimony of Detective McTernan contains specific best, statements attributable to a particular witness. At her notes contained general sketchy accounts and conclusions without attribution of what various about witnesses said how the events unfolded. particular Absent attribution to a wit ness, general McTernaris account of inconsistent or contradic tory statements would not have prior been admissible as a inconsistent statement to Fur impeach particular witness. thermore, appellant has not shown how the disclosure of McTernaris notes discovery would have led to the of exculpa- trial. been admissible tory evidence which would have which not lead that is not at trial or does Evidence admissible Brady be- evidence cannot violate to admissible *6 disclosure that its probability” cause there is no “reasonable Bartholomew, 516 U.S. affected the trial. Wood would have (1995) (no 7, 10, Brady 1, 5-6, 133 L.Ed.2d which are tests polygraph for failure to disclose violation law). under state inadmissible
Second, Thompson Detective of the accounts which none materially contradictory to witnesses were specific attributed testimony. those witnesses’ trial of or inconsistent with Hill, Sentel that he interviewed James Thompson indicated Hill, *7 no testimony, witness’ another witness’ material and specific by particular prior statement a witness constituted a impeach inconsistent statement which could have been used to either the declarant or another witness. The information in accounts of reflected the the witnesses’ statements produced probability” would not have a “reasonable of a reasons, For ruling different result. these the of the court is affirmed.
Affirmed.
BENTON, J., dissenting. M. judge’s deny At the heart of the trial decision to Keith Taylor’s motion for a new trial is the absence of what he perceived judge explained as evidence. The that to, know, remember, testify you what people they “[m]ost and from what is say, absolutely nothing *8 mailbox, the standing that Nash was closer to standing Hill, and Taylor that and Nash fired a total of 12 shots. Hill said he shot six Taylor times and believed he hit because Taylor appeared to fall onto car.
Hill’s wife testified that Taylor separate Nash and arrived cars and “came out also that shooting.” She testified she saw in Taylor’s hand he “walking and noticed was as he was shots, pointing shooting.” and After she heard two of three direction, which Taylor’s came from into pushed her testified, however, Nash that she could still see house. She near Taylor and saw through the window and meaning guy,” that saw “the other testified she mailbox. She shooting. Nash, car as her husband was fall back into his the second exited Although initially she testified car,” car, she later testified “large she described as which car.” bigger ... was the [Taylor] that “the car behind baby when doorway holding in the her daughter Hill’s out” she had “blacked and Nash arrived. She testified before period a brief recover fight after the and had the two also testified that “[w]hen incident. She raving, ... and girl got ranting out up, cars drove jumped out.” She said people then a bunch other whole mailbox, guy the other [was] “at Taylor was shots and then driveway.” She heard two coming down the house,” but testified that repeatedly “ran further into the she shooting.” them she “saw in his car sitting son that he was up, when “Nash walk[ed] the house
driveway facing Nash shooting.” from the house and started even ten feet near the mailbox. After shot twice. He then saw car, rear of his he ducked. He three bullets struck the car, testified, however, and] “didn’t see who shot [his he car.” He also indicated just [Taylor] saw behind [his] fired], He that’s when the bullet holes came.” “when [Nash fire in Nash’s returning testified that his father was further “running back toward the street” and direction as Nash was car. that one of Hill’s bullets hit Hill’s own case-in-chief, Tay- At the conclusion of the Commonwealth’s to whom the attorney lor’s called as a witness the detective testi- Thompson case had been Detective William assigned. took at the residence but did photographs fied also testified that other photograph any of the vehicles. He him their the events delivered to investigated officers who cartridge prosecutor several cases. When the reports and analysis concern- objected to the admission of the certificate cases, a con- attorney requested ing cartridge those *9 argued tinuance and that “this evidence we’ve been furnished has turned out to be exculpatory judge evidence.” The admit- ted the certificate as evidence denied the for a request and analysis continuance. The certificate of that “a total indicated of six ... 22 Long/Long cartridge caliber Rifle cases” were submitted for examination that all in had “been fired firearm.” gave witnesses a different account of the shooting. Nash testified that fistfight he and Hill’s son had a while Taylor watched. After Hill stopped fight, arrived and Taylor Hill, Nash and but by left were later confronted who pointed a at Nash gun why and demanded to know he was left, fighting Hill’s son. After Hill Nash twenty- retrieved a pistol two caliber and returned Hill’s house Hicks’s burgundy Cadillac. Taylor green Toyota. He said a Nash testified that he saw Hill run into the house and he noticed four other people porch. on the When he exited the car, Hill had returned with a gun. Nash testified that Hill shot first Hill and he and then “started at each times, other.” He shot his gun “five or six” and Hill six shot times. Nash testified that Taylor and the people porch ran away during the shooting. He also testified that did not have a gun. Nash said his own hair was in braids the time of the incident.
Vanielle Miller testified that she had been involved fight daughter. Later, with Hill’s she and arrived at green Hill’s house a Toyota, being which was driven car, another teenager. She said exited the remained car, go behind the and did not the yard. toward She also said Taylor was not near the gun. mailbox and did not have a She that, shoot, although she saw Hill she did not see Nash shoot.
Taylor testified that he had been involved in the fight Hill’s son. having gun He denied when he arrived at Hill’s residence also standing denied next to the mailbox. He testified that he had no reason to be armed because Hill did not threaten him with gun when earlier exited his car Nash pointed knowing at Nash. He also denied had fired, testified that when the first shot was gun. Toyota’s immediately was close to the door and reentered the *10 not fall back on the car. Toyota. He said he did initially he lied when he told a detective that he was admitted present shooting. Banks, neighbor, Tay- Florissa Hill’s she saw street, son. From house across she fighting lor Hill’s her later two cars front of Hill’s house. She saw stop observed man, Taylor, a who was not exit a Cadillac. That burgundy hair, man, out a “pulled gun who had braids his and was Hill walking driveway across the and across the lawn.” was coming trying get family out his and to his inside. Banks door car, in his anything then saw exit his but did not see standing,” From Banks could way [Taylor] hands. “the was in his She testified see whether had hands. shooting [wearing] was was braids.” Once “[t]he commenced, to into shooting get Banks turned the children saw the man with the braided hair and Hill the house. She five or six” times. Banks “approximately shoot at each other of it. Taylor get observed out his car and stand next to Hill rebuttal, hit On testified that two bullets his house and that he believed “at least three” hit his car. He also testified cases from his .357 caliber gave cartridge that he a detective “eight that he and the detective found to twelve” weapon and yard. his cartridge porch .22 caliber cases on testimony, judge the trial noted that he Recalling apparent- revolvers. He “said it looked like both of them had if has one himself.” ly knows the difference a revolver Hill to went to the residence Finding group people it,” [Taylor] right “continue this and that the middle malicious wound- judge attempted the trial convicted 18.2-51, § Code occupied dwelling, Code at an ing, 18.2-279, felony, § a firearm in the commission of using § Code 18.2-53.1.
II. conviction, post-trial filed a Taylor’s attorney After the evidentiary hearing, At the to vacate the verdict. motion several that she interviewed McTernan testified Detective Jan recalled shooting. Hill after the She at the residence people to ... Hill’s also talked and “believed talking [she] car “green indicate that she was told son.” Her notes trunk, too.” Her notes stops popped [Cadillac] stopped, firing” starts “Nash with braids walks out and then indicate addition, In Detective Nash confronts him.” “today following: wrote the McTernan Canary, people ... several gets green out of dark
“Lady house, pulled up, guy got burgundy out side of the Cadillac out, firing. starts Fa- walking toward house [and] started Road, Canary ther fire left Goodwood returned *11 straight went out of Deter.” and [Cadillac] in Hill’s seeing not recall bullet holes Detective McTernan did son’s car. also testified about notes he made Thompson
Detective with various witnesses. during telephone conversations Cadillac, that, out of the walked [Taylor] got told him “Keith hand, got Nash out of house with James towards the shooting.” daughter, started on Toyota, they both hand, said, out of car pulled up.... Guy got “two cars other house, toward started random- up and walked also identified ly____Hill guy gun.” shot back at with She having Nash as “com rows.” anything has said inconsis-
Reasoning person “[n]ot [Taylor shooting,” fact that out there was] tent with the motion for a new trial. judge denied III. was not majority concludes that the Commonwealth
The Signifi- the officers’ notes. required provide Taylor to however, not contend on the Commonwealth does cantly, to not favorable the undisclosed material was appeal contends, instead, Tay- The Commonwealth Taylor. lor is not to a entitled new trial because he was not “preju- receiving diced complete discovery.” Taylor contends that the notes significant would have allowed impeachment of the Commonwealth’s witnesses and would have strengthened his defense.
The Commonwealth’s
duty
beyond
disclose extends
evi-
clearly exculpates.
dence that
Supreme
Court has unam-
biguously “rejected
any
distinction
impeachment
between
evidence and exculpatory evidence.” United States v. Bagley,
667, 676,
3375, 3380,
(1985).
473 U.S.
An statement be may vitally important preparation and conduct of a criminal trial. may It identify witnesses and other resources for further It investigation. may be used to refresh a witness’ recollection. It may be used under certain circumstances as past evidence of a *12 recollection recorded. may
Such a statement also be used as a basis for cross- examining witnesses. Commonwealth, 99, 103-04,
White v. 12 Va.App. 402 S.E.2d 695, 692, banc, 284, on en reh’g Va.App. 13 410 S.E.2d aff'd (1991) (citations omitted). 412 if Obviously, the Common notes, wealth had properly disclosed the attorney could have asked officers at trial to identify witnesses who made the statements. Taylor’s attorney also have could
443 the state- they made whether the witnesses directly asked 568, 571, Commonwealth, 454 Va.App. 19 v. ments. Edwards in (1995). Virginia held 1, “It is generally 2 S.E.2d laid, the has been that, foundation proper after a elsewhere of state- by proof impeached bemay a witness credibility of are inconsis- him occasion that prior on some by ments made has on given contradictory of the evidence tent with 104, 1093, 1099, Martin, 266 S.E.2d v. 220 Va. Cassady trial.” have case, notes would (1980). Therefore, this 107 to have allowed certainly would at trial and utility trial. for preparing issues when pursue these circumstances similar to the of this case is posture The in Bagley. addressed restric- any direct ... not involve
The
case
does
present
The defense was
of cross-examination.
scope
tion on
subject,
any
relevant
the witnesses
free to cross-examine
The constitutional
bias or interest....
including possible
to
failure
error, if
in this case was the Government’s
any,
have
might
information that
disclosing
assist the defense
[S]ueh
cross-examination....
conducting the
helpful
been
violation
amounts to a constitutional
of evidence
suppression
a fair trial. Consistent
if
deprives
...
it
the defendant
finding
justice
overriding concern with
with “our
occurs,
the conviction
error
a constitutional
guilt”
in the
reversed,
if
is material
the evidence
must be
in the
undermines confidence
suppression
its
sense
of the trial.
outcome
omitted).
(citation
The
678,
473 U.S. at “duty [and to disclose further had prosecutor Ange timely manner.” Monroe material impeachment] “ (4th Cir.2003). duty That ‘illus lone, 286, F.3d prosecutor by the American special played role trate^] ” omitted). (citation in criminal trials.’ Id. for truth the search noted: long ago Court Supreme As the ordinary not of an representative is the [prosecutor] obli- sovereignty of a whose controversy, but party to obli- as its compelling is as govern impartially to gation interest, therefore, in a all; whose govern gation *13 444
criminal prosecution case, is not that it shall awin but that justice shall be done. United, States,
Berger 78, 88, 629, 633, 295 U.S. (1935). L.Ed. 1314 trial,
At Hill’s daughter testified that Taylor and Nash were both involved the shooting. She indicated that Taylor stood next to a mailbox and walked to the “halfway point” of the yard. though Even she did not position see the of Taylor’s hands and body, she just testified saw “[she] them shooting.” however, Her testimony, severely could have been if Taylor’s undermined attorney had known of her statements. According notes, Officer Thompson’s Hill’s daughter “Guy got said: out of car and walked up toward house, started shooting randomly, Mr. Hill shot back at guy added.) with gun.” (Emphases This entirely statement is consistent with Taylor’s contention that Nash alone did the shooting, and it is inconsistent with daughter’s Hill’s testimony and the Commonwealth’s theory both men guns. fired
Furthermore, Hill’s daughter’s pretrial statements had the effect of confirming testimony. Banks’s Hill’s daughter de- scribed Nash to the having detectives as “corn rows” his hair. Although Banks not shooter, did know the name she testified that one that “[t]he was was braids.” [in] The evidence established that only Nash had the “braids” “corn addition, rows” In hairstyle. neither Hill’s daughter’s statement nor testimony Banks’s established that a second shooter actually existed. daughter implicated one “[g]uy,” and Banks testified that one that was shooting “[t]he added.) braids.” (Emphasis [in]
Banks, who did not Taylor prior incident, know to this he was standing by the mailbox and that she did see a in his hand. The undisputed evidence at trial Nash, was that Taylor, wore his hair in the style “corn rows.” Although the majority observes Banks told De- Thompson tective pre-trial that “Keith [Taylor] started shoot- ing house,” [as he] walked toward [the Hill] the detective’s rows.” “Keith” “corn Banks said had indicate that notes also not seek to prosecutor did likely explains why fact This when testified that at trial she impeach Banks’s *14 walking up braids” and was “the that was [had] one the to house. driveway spe- the interviews McTernan’s notes of
Detective out, up, started pulled guy got indicate: cifically “Cadillac firing.” house started Her notes also walking toward sentence, up braids and starts contain the “Nash walks w/ that notes are consistent with defense firing.” The with and also are consistent the only Nash was the shooter submit- analysis, police of indicates the certificate which which cartridge ted six cases—all of for examination police from No having gun. identified as been fired .22 to twelve” supports “eight witness cases cartridge caliber were recovered. judge could
Perhaps impeachment, even this the Taylor. still convict rely on testimonies of the witnesses to had “But, the is not the State would have a question whether evidence, if it but whether case had disclosed the favorable we can be confident that the ... verdict would have been the 419, 1555, 453, Kyles Whitley, same.” 514 U.S. (1995). 1575, 490 has ex- Supreme 131 L.Ed.2d The Court plained the test as follows:
Although
duty
triggered by
poten-
is
the constitutional
evidence,
showing
of
undisclosed
impact
tial
favorable but
materiality
prepon-
of
does
demonstration
require
not
suppressed
evidence would
derance
disclosure
acquittal
in the
unlimitedly
have resulted
defendant’s
(whether
doubt or
presence
based
reasonable
of an
for the
that does not
acceptance
explanation
crime
defendant).
Bagley’s
materiality
touchstone
inculpate
result, and
is
of a different
probability”
a “reasonable
important.
question
is
The
is not whether
adjective
than
have received a
likely
defendant would more
evidence,
in
different verdict with the
but whether
its
trial,
as a trial
he received a fair
understood
absence
A
in a verdict
of confidence.
“reasonable
resulting
worthy
probability” of a
accordingly
different result is
shown when
government’s evidentiary
suppression “undermines con-
fidence
the outcome of the trial.”
(citations
434, 115
omitted).
Id. at
S.Ct. at 1565
Supreme
Court also
placed “emphasis”
has
on the
principle
materiality
“is
analysis
not a
sufficiency
434,
test.”
Thus,
evidence
Id. at
Likewise, although “they” Hill’s daughter she ran further into house shooting, hearing the after two testified, however, shots. Hill’s son that Nash the fired first two Taylor by shots. son also testified that observed mailbox, the but in the ducking he was vehicle and did
447 In of gun. light in the act actually see interviews, pretrial accounts and disclosures these defense, mistook that witnesses the Commonwealth’s Taylor’s unfolded, certainly quickly for as the events Nash short, Court noted Supreme In as the be strengthened. would “[djisclosure have resulted statements would their Kyles, markedly and a prosecution in a weaker case for markedly 441, 115 at 514 at S.Ct. stronger for the defense.” U.S. 1569. 473 effectively,” “if used Bagley,
This disclosed and evidence 3380, 676, brought sharp at have into at would U.S. focus defense that the witnesses’ and, instances, contradictory to their simply mistaken some that the verdict recollection the events. Confidence pretrial suppressed cannot when would been unaffected survive have have the fact finder conclude evidence would allowed as a key previously implicate Taylor failed to some witnesses shooter, certif statements are consistent with the all recov finding single gun icate of that a fired analysis’ Banks, witness, bullets, ered disinterested hold, I a shot. would did observe fire therefore, notes “guy got interview state out of car walked toward shooting randomly.” house started notes of Thompson’s Banks, Hills, state, interview with Florissa a neighbor of the [Taylor] “Keith started walked house.” toward convictions, attorney After the motion to Taylor’s filed a set aside vacate the Following evidentiary verdicts. an hear- ing, judge the trial found that has said person “[n]ot anything inconsistent with the fact that your client out [was] shooting.” judge there The trial denied motion for a trial, new this appeal followed. II. suppression prosecution of evidence fa “[T]he
Notes
notes Hill, Thompson’s Florissa Banks.1 Felicia Taylor that Hill both Keith indicated James identified That account being firing as armed and shots. James Nash to testimony. According with James Hill’s trial was consistent notes, none of the witnesses he testimony and his Thompson’s investigative interviews during interviewed stated shots, shooter,” not fire that he was not “a that he did Taylor Furthermore, gun, not or that he was not there. possess did to identi- Thompson appears Felicia Hill’s account to although a car and Nash as the who first exited fy person James firing handgun, she did advanced toward James Thus, although from “a Felicia Taylor being exclude shooter.” shots, say cannot Taylor Hill testified at trial fired we inconsistent Thompson that her statements to pretrial contradictory testimony. Although or to her trial Sentel with shooters, as testimony implicated Taylor Hill’s trial statement this was not inconsistent with Finally, at all. to merely shooting failed to address the different may given that various witnesses have the extent interviews, they as did during investigative accounts trial, Taylor person to Nash or or the as whether [Taylor] Thompson pre-trial that "Keith 1. Florissa Banks told Detective However, at Hill] walked toward house. [as he] [the started shooting. he was she denied that she saw with a or that trial cannot be deemed a violation The failure to disclose this material Brady. Taylor's rights under or Toyota, “braids” “corn rows” exited the Cadillac of which car Nash or exited description designation shooting. Any was not critical to the identification of who was or at inconsistency investigative reports confusion or Taylor occupied trial as to which car Nash or was not material it “inconsistency” because had that been disclosed would changed have trial result. summary, reported during investigation In no witness that Nash not shoot. was the sole shooter or did investigative any No statement of witness who testified at trial testimony. or inconsistent with their Accordingly, was not required provide Commonwealth investigative Thomp- with the notes of McTernan and 1) they son because contained no statements a particular contradictory witness that were inconsistent with or to that 2)
notes there [officers’] anything here that is has said exculpatory. person Not [Taylor inconsistent with the fact that out there shoot- was] think if ing.” question: you He further “Don’t that posed that he have anybody shooting, had said that wasn’t didn’t it, they reported to that would have it and nothing do I they judge would have testified?” Because believe the used I wrong ruling, standard and erred his would reverse the convictions and remand for a new trial. I. context, put judge’s ruling comprehensive To a review trial, of the evidence is warranted. At the Commonwealth’s Nash, proved evidence that Keith Taylor and James who were teenagers, fought driveway with James Hill’s son at commotion, Hill’s house. When Hill went to investigate the Taylor later, and Nash A away. group walked short time girls argued daughter with Hill’s about a chain and gold began fight to her. Hill During fight, intervened threw one girls to the ground. girls away, After the ran Hill drove his car to Taylor find and Nash. When he saw them a house, short distance from his he exited his car and asked going “what was on?” Hill speak. holding did was and left after he had a discussion with Nash. Hill and his wife they sitting testified on their porch front when and Nash returned half an hour later. Nash arrived first a burgundy Cadillac that was driven Hicks, Kelly girl that Hill earlier threw ground. to the in a green Toyota Camry. arrived testified vehicle, Hicks was first by Taylor to exit the followed Nash, who were both holding long .22 caliber barrel pistols. they shoot, When began to Hill went to his kitchen and retrieved “357” revolver. He three or “[a]bout four” shots had been fired before he returned to porch his began shoot them. He also testified that
notes have that the Commonwealth should impeachment Taylor’s attorney disclosed to contained sup Because the evidence and were material. case confidence of the evidence in this “undermines pression trial,” 678, at Bagley, U.S. S.Ct. outcome 3381, I dissent.