Opinion
Record No. 2121-91-1
May 18, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK ROBERT W. STEWART, JUDGE.
Henry L. Sadler, III (Sadler Swan, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In a jury trial, Billy Leon Foreman (Foreman) was convicted of felony murder, armed robbery, and two counts of using a firearm in the commission of a felony. Foreman contends that the trial court erred: (1) in permitting the prosecutor to treat Clarence Coles (Coles) as an adverse witness pursuant to Code § 8.01-403; and (2) in permitting Detective White to testify regarding a statement made by Coles. We find no error and affirm the convictions.
Code § 8.01-403 provides:
A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall in the opinion of the court prove adverse, by leave of the court, prove that he has made at other times a statement inconsistent with his present testimony; but before such last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. In every such case the court, if requested by either party, shall instruct the jury not to consider the evidence of such inconsistent statements, except for the purpose of contradicting the witness.
Code § 8.01-403 "codifies the ancient common law rule that, where a party's own witness has surprised the party by changing stories or becoming hostile on the stand, the party may show that the witness had made a prior statement inconsistent with the present testimony." Charles E. Friend, The Law of Evidence in Virginia § 33(b)(1) (3d ed. 1988). Moreover, where a witness proves to be adverse, "the examining party may obtain leave to question the witness by cross-examination methods." Id. at § 22. The determination whether a witness has proved to be "adverse" rests within the sound discretion of the trial court. See Virginia Electric Power Co. v. Hall, 184 Va. 102, 105, 34 S.E.2d 382, 383 (1945).
The provisions of Code § 8.01-403, permitting impeachment of a party's witness, apply "only when the testimony of the witness is injurious or damaging to the case of the party introducing him." Id. at 106, 34 S.E.2d at 383. See also Brown v. Commonwealth, 6 Va. App. 82, 85, 366 S.E.2d 716, 718 (1988). However, impeachment is not permitted under this statute where the testimony simply is of a negative character, has no probative value, or fails to meet the party's expectations.Brown, 6 Va. App. at 85-86, 366 S.E.2d at 718; Underwood v. Brown, 1 Va. App. 318, 326, 338 S.E.2d 854, 858-59 (1986). Likewise, it is not "sufficient merely that the witness gave a contradictory statement on a prior occasion." Brown, 6 Va. App. at 85, 366 S.E.2d at 718.
Here, the trial court properly exercised its discretion in ruling that Coles had proved to be adverse and in permitting the prosecutor to impeach him and ask him leading questions. Coles' testimony, insofar as it contradicted the testimony of Adrian Wilson and cast doubt upon the veracity of Detective White and Investigator Wicker, was injurious or damaging to the Commonwealth's case. Coles' testimony, then, was subject to impeachment.
The record shows that the prosecutor complied with the statutory procedure for impeachment and the trial court issued a cautionary instruction limiting the jury's consideration of such evidence. Thus, the requirements of Code § 8.01-403 were satisfied. Furthermore, the trial court did not err in permitting the prosecutor to introduce the testimony of Detective White regarding Coles' prior inconsistent statement.See McCue v. Commonwealth, 103 Va. 870, 995-1002, 49 S.E. 623, 627-29 (1905) (party may provide details of prior inconsistent statements).
Finding no error in the trial court's decision permitting the prosecutor to treat Coles as an adverse witness pursuant to Code § 8.01-403, we affirm.
Affirmed.