¶1dissenting.
¶2In this direct appeal of convictions for capital murder and robbery, the central issue is whether the trial court erred in refusing to grant a continuance when clearly exculpatory information was withheld from the defendant by the prosecutor until the fourth day of trial. The Court recently has decided three direct appeals of criminal convictions which, in my view, are controlling on the issue presented, none of which the majority in this case relies *157upon. Instead, the Court adopts the rule of what it says is “the leading case in the area,” United States v. Bagley, 473 U.S. _, 105 S.Ct. 3375 (1985), a 5-3 decision in a collateral, not direct, attack of a criminal conviction in which refusal of a continuance was not even an issue. I believe the “leading” cases on the subject of continuances as related to disclosure of exculpatory information are the following decisions of the Supreme Court of Virginia: Lomax v. Commonwealth, 228 Va. 168, 319 S.E.2d 763 (1984); Gilchrist v. Commonwealth, 227 Va. 540, 317 S.E.2d 784 (1984); and Cox v. Commonwealth, 227 Va. 324, 315 S.E.2d 228 (1984).
¶3The effort to convict Robinson of the capital murders depended upon whether the accused was the sole perpetrator of those crimes. In other words, the prosecutor wanted to establish that defendant was the sole other individual at the scene, in addition to the victims, in order to show that defendant was the “trigger-man.” Only the actual perpetrator can be convicted of capital murder in the commission of robbery while armed with a deadly weapon. Johnson v. Commonwealth, 220 Va. 146, 149, 255 S.E.2d 525, 526-27 (1979). Thus, the Commonwealth knew from the outset that if anyone else was placed at the scene at the time of the murders, the chance of convicting defendant of the capital murders would be subverted substantially. Likewise, the defendant’s main line of defense was to show that others were there when the victims were killed. The defendant himself implicated two others during a statement given to the police.
¶4In April before the June trial commenced, the court below ordered the prosecutor to disclose all information “which might be favorable to the Defendant by reason of its exculpatory nature, including without limitation . . . [f]acts tending to show that someone other than the Defendant committed any or all of the elements of the alleged offense,” and to disclose “information . . . which might be favorable to the Defendant by reason of its propensity to impeach, diminish, and/or discredit the credibility and/ or reliability of any witness intended to be called to testify on behalf of the Commonwealth.” Because of the prosecutor’s failure to disclose exculpatory evidence relating to Ball, defense counsel went into trial justifiably believing that Ball was not the source of any information of an exculpatory nature.
¶5On the morning of the fourth day of trial, a Friday, the Commonwealth’s Attorney advised defense counsel for the first time of the existence of Ball’s written statement, the tape recording of his *158interrogation, and the polygraph examination by police investigators. Upon review of the materials over the weekend between days of the trial, defense counsel learned for the first time that the police were of opinion that Ball had lied about his connection with the fruits of the crimes, that he was familiar with the interior of the premises where the killings occurred, that he had an extended history of being a violent person requiring therapy for temper control, that he currently was under psychiatric treatment, that he had been admitted in the past to psychiatric wards, that he had intimate knowledge of the victims’ backgrounds, and that he had knowledge of the appearance of the homicide scene even though information about the scene had not been made public. On Monday, before the trial resumed, the court denied defendant’s motion for a continuance as well as a mistrial. The basis for the motion was that the written statement, tape recordings, and polygraph results had been withheld improperly, and that defense counsel had no opportunity over the weekend to investigate further the information just revealed by the prosecutor. During closing argument, the prosecutor depicted Ball as a public-spirited citizen, argued his credibility, and criticized defense counsel’s failure to have sufficiently impeached him.
¶6In Cox v. Commonwealth, supra, we reversed the trial court’s action in refusing a continuance where defendant was denied access to evidence material to her defense. There, we said: “In our adversary system of criminal justice, all relevant facts must be available to both the prosecution and the defense in order to preserve the system’s integrity.” 227 Va. at 328, 315 S.E.2d at 230.
¶7In Gilchrist v. Commonwealth, supra, we reversed the trial court for failure to grant a continuance when defendant was denied reasonable time to prepare for trial following discovery of evidence. There, we stated that “an accused has a constitutional right ‘to call for evidence in his favor,’ Va. Const, art. I, § 8, which includes the right to prepare for trial by procuring both testimonial and documentary evidence .... In order to prepare for trial, an accused and his counsel must have sufficient time to investigate the case and to evaluate the evidence that is procured.” 227 Va. at 545-46, 317 S.E.2d at 787.
¶8In Gilchrist, we also pointed out that, although the decision whether to grant a continuance is discretionary, the court must exercise its discretion cognizant of the provisions of the Bill of Rights, which secure to a person accused of a crime a fair and *159impartial trial; thus, in ruling on such a motion, the court must safeguard the defendant’s right to call for evidence in his favor. 227 Va. at 546, 317 S.E.2d at 787. Quoting from Smith v. Commonwealth, 155 Va. 1111, 1117, 156 S.E. 577, 579 (1931), we said: “ ‘An ideal system of laws would be one in which speedy justice is administered, but justice and not speed should be its paramount purpose.’ ” 227 Va. at 546, 317 S.E.2d at 787.
¶9In Lomax v. Commonwealth, supra, this Court held that the trial court erred in refusing to grant defendant’s motion for a continuance when he was denied the right to explore and develop evidence critical to his defense. There, the Court stated that when a trial court orders discovery, the prosecutor has the duty to disclose the materials in sufficient time to afford the accused an opportunity to make use of such materials and that a refusal of a continuance under those circumstances “denied the defendant a basic right to call for evidence in his favor, which prejudiced his trial.” 228 Va. at 168, 173, 319 S.E.2d at 766.
¶10I am of opinion that in the present case, where admittedly exculpatory information was withheld, the trial court erred, according to Virginia law, in failing to grant a continuance to enable defense counsel to assess and develop the evidence for trial, and that such failure prejudiced the substantial rights of the defendant. See Davis v. Commonwealth, 230 Va. 201, 204-05, 335 S.E.2d 375, 377-78 (1985). Even accepting the majority’s federal test, I would hold, using their language, that suppression of the information undermined confidence in the outcome of the trial and that a reasonable probability exists that the result of the proceeding would have been different. As defendant points out, the multiple assailant theory was supported by his own statement to the police. The information revealed for the first time during the trial inexorably points to Ball’s involvement: e.g., his criminal record, his psychiatric history of violent behavior, his detailed knowledge about the victims and crime scene, and his lying during police interrogation. Because of the trial court’s action, the defense was denied the opportunity to evaluate this information, utilize it, and explore the likelihood that it would lead to other information beneficial to the defense. In sum, defendant was precluded from raising a reasonable doubt about the degree of his culpability. This is prejudice to the substantial rights of the defendant.
¶11*160Therefore, I would reverse the convictions and remand the case for a new trial.
¶12POFF and STEPHENSON, JJ., join in dissent.