JUNE 22, 1999
Record No. 0096-98-4
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF
John E. Kloch, Judge
Present: Chief Judge Fitzpatrick, Judge Lemons
and Senior Judge Duff
Argued at Alexandria, Virginia
MEMORANDUM OPINION* BY JUDGE DONALD
Steven L. Duckett, Jr. (MacDowell &
Associates, P.C., on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.
Maurice Johnson was convicted of malicious
wounding in violation of Code Sect. 18.2-51. On appeal,
Johnson contends that the trial court erred by refusing to allow
him to impeach the victim using statements he allegedly made at
Johnson’s preliminary hearing. We hold that the trial court
committed no error, and we affirm the conviction.
In the evening of June 25, 1997, Antonio
Carroll, the victim ("Antonio"), his brother Anthony
Carroll ("Anthony"), and two other men were standing in
a parking lot in the City of Alexandria. Antonio testified at
trial that three vehicles drove into the parking lot and
"cut us off so there wasn’t no [sic] way we could run
away" and "about six" people exited the cars,
including Maurice Johnson, appellant. Antonio stated that these
individuals were looking for "this boy named Rashad," a
friend of Antonio’s, but that Rashad was not with Antonio
Antonio testified that a fight broke out
between Anthony and one of the men who had exited the car.
Antonio stated, "I went over there and helped my brother. We
started fighting. Then before I could move away, I got
stabbed." At trial, Antonio identified Johnson, known to the
victim as "Mookie," as the individual who stabbed him,
testifying that he observed Johnson "when he was pulling the
knife out" of Antonio’s side.
During his cross-examination of Antonio,
Johnson’s counsel asked Antonio whether he remembered
telling a detective that two vehicles, not three, had arrived at
the parking lot on the night of the attack. Antonio responded
that he remembered telling the detective that there were three
vehicles. Johnson’s counsel then inquired, "Do you
remember testifying at the preliminary hearing down in juvenile
court?" The Commonwealth objected on the grounds that
counsel was required to show Antonio prior testimony before
impeaching him. The court agreed, stating, "I think you can
ask him if he said something different at some other time. I
don’t think you can go to the preliminary hearing and say
‘Did you say something different than this?’"
Following further objection to the form of the question by the
Commonwealth, Johnson’s counsel asked Antonio if he
remembered "testifying differently at the preliminary
hearing?" Antonio responded "I might have did [sic]. I
forgot it." Johnson’s counsel then asked Antonio if he
remembered "saying there were two cars[.]"
The Commonwealth objected, stating that Antonio
had already answered the question and that Johnson’s counsel
was required to independently establish what Antonio had
allegedly said at the preliminary hearing. The court agreed with
the Commonwealth, stating that counsel had to show Antonio
"the transcripts, let him look at it, and say either,
‘I said that’ or ‘No, I didn’t.’"
Johnson’s counsel agreed, but before he introduced a
transcript, the Commonwealth objected again, arguing that there
was no official transcript from the preliminary hearing. The
Commonwealth argued that the court should prohibit Johnson from
"using an unofficial transcript that’s not been
certified by anyone." In response to the Commonwealth’s
objection, the court stated,
Well, I think if he wants to
impeach him, he has to make sure that’s
correct. He hasn’t gotten to that stage yet.
If he’s offering that to show that the
defendant said something else, then I would agree
with you. He needs to show that foundation. But
he hasn’t reached that stage yet.
Johnson’s counsel again asked whether
Antonio remembered what he said at the preliminary hearing, and
Antonio responded, "[i]t was a month ago[,] I can forget
things, you know." Johnson’s counsel made no further
attempt to introduce a transcript from the preliminary hearing.
Officer Valencia Burges of the City of
Alexandria Police Department testified that she spoke with
Antonio at the hospital the night of the stabbing. Burges stated,
"[Antonio] didn’t know [who stabbed him]. The person
came behind him. He didn’t see the person." Burges also
stated that she only spoke to Anthony for a few seconds and that
she couldn’t recall whether Anthony had given her any
information. Detective Derrill Scott of the Alexandria Police
Department, who investigated the incident, stated that he
interviewed both Antonio and Anthony and neither of them
mentioned a third vehicle. Scott testified that neither Anthony
nor Antonio told him that Johnson was the individual who had
stabbed Antonio, but that Anthony told him that Johnson was
involved in the fighting.
II. IMPEACHMENT OF ANTONIO
Johnson contends that the trial court erred
when it refused to permit him to "begin a line of
impeachment questions without a properly authenticated transcript
from the preliminary hearing." Johnson also argues that the
court erred in refusing to allow him to "refresh a
witness’ recollection of prior testimony with an
unauthenticated transcript, thus precluding any possibility of
impeaching that witness on the inconsistent testimony." A
witness may be impeached by prior statements made by the witness
that are inconsistent with his present testimony. See Hall
v. Commonwealth, 233 Va. 369, 374, 355 S.E.2d 591, 594
(1987); Code Sect. 8.01-403; Code Sect. 19.2-268.1.
During its direct examination of Antonio, the
Commonwealth asked him how many cars drove up into the parking
lot. Antonio stated, "I think it was about three." On
cross-examination, Johnson’s counsel asked Antonio whether
he recalled telling Detective Scott, the investigating detective,
that there were only two cars involved. When Antonio responded
that he had told the officer that there had been three, the
following colloquy took place:
Q: Do you also remember
testifying at the preliminary hearing down in
Q: And do you remember telling
the Court –
[COMMONWEALTH]: Your Honor,
I’m going to object at this point. If
counsel is trying to impeach him with prior
testimony, he needs to show him the prior
testimony and find out why it’s different.
[DEFENSE COUNSEL]: I have to
ask him the question, Your Honor.
THE COURT: I think you can ask
him if he said something different at some other
time. I don’t think you can go to the
preliminary hearing and say, "Did you say
something different than this?" If he says
something different than he said at the
preliminary hearing, then I think you can ask
him. If he says something different than that and
he denies it, then I think you can go into the
transcript and show it to him.
[DEFENSE COUNSEL]: That’s
what I was about to ask him, Your Honor.
THE COURT: All right:
Q: Do you remember saying at
the preliminary hearing –
[COMMONWEALTH]: It’s the
same objection, Judge.
THE COURT: What did he just say
that you’re challenging?
[DEFENSE COUNSEL]: About the
incident in toto [sic]. Everything he’s
saying now is totally different from every other
statement he’s given to the police, the
preliminary hearing, everything. I have a right
to ask. I have to ask him if he remembers making
the statement. That’s the way to impeach
him. You’ve got to remind him of the
statement. You’ve got to say, "Did you
make that statement?" He either says,
"Yes" or "No."
THE COURT: You’re
impeaching him on everything that he’s
[DEFENSE COUNSEL]: For the most
part. There’s a lot of inconsistencies in
what he just said in court today.
THE COURT: Well, let’s go
through them one at a time.
[DEFENSE COUNSEL]: Okay.
Q: Do you remember –
THE COURT: On which of his
present testimony are you impeaching him? What
did he just say that you’re impeaching?
[DEFENSE COUNSEL]: Well, that
there were two cars.
THE COURT: And he said that?
[DEFENSE COUNSEL]: He said that
there were two cars at the preliminary hearing.
THE COURT: All right.
[DEFENSE COUNSEL]: He said that
THE COURT: He said there were
three cars here. You can ask him whether he
remembers saying something differently at the
Q: Do you remember testifying
differently at the preliminary hearing?
A: I might have did [sic]. I
Q: You forgot?
Q: You don’t remember
saying there were two cars?
[COMMONWEALTH]: Your Honor,
once again I’m going to object to the form
in which counsel is doing this. He can ask the
witness what he’s testifying to today. He
can ask him if he remembers testifying
differently on another occasion
He clearly said no. Counsel
then has to go the next step. And the next step
is not to put in the record what he thinks the
witness said on another occasion.
THE COURT: You have to show him
the transcripts, let him look at it, and say
either, "I said that" or "No, I
[DEFENSE COUNSEL]: Okay.
[COMMONWEALTH]: Your Honor, I
think even preliminary to that, to the best of my
knowledge, there was no court reporter. So I
don’t know what kind of transcript counsel
is even using. So I would object to his using an
unofficial transcript that’s not been
certified by anyone.
I don’t know where the
transcript came from. I don’t know who typed
it up. And if counsel wants to use that,
he’s got to preliminarily make sure
that’s correct. He’s not done that.
THE COURT: Well, I think if he
wants to impeach him, he has to make sure
that’s correct. He hasn’t gotten to
that stage yet. If he’s offering that to
show that the defendant said something else, then
I would agree with you. He needs to show that
foundation. But he hasn’t reached that stage
[DEFENSE COUNSEL]: Okay.
Once counsel elicits responses he or she
believes are inconsistent with a witness’ prior statements,
counsel may impeach the witness in three steps. First, counsel
must call the witness’ attention to the circumstances of the
particular occasion on which the alleged prior statement was
made. Second, counsel must ask the witness whether he recalls
making the inconsistent statement. See Waller v.
Commonwealth, 22 Va. App. 53, 60, 467 S.E.2d 844, 848 (1996).
Third, "[i]f the witness denies or is unable to recall
having made the statement, counsel must then prove the statement
actually was made." Patterson v. Commonwealth, 222
Va. 612, 616-17, 283 S.E.2d. 190, 193 (1981). Proof of the prior
statement "includes the testimony of another witness who
heard the prior inconsistent statement, or the transcript of a
prior hearing." Edwards v. Commonwealth, 19 Va. App.
568, 571, 454 S.E.2d 1, 2 (1995) (citations omitted). 
Johnson claims that he should have been
permitted to impeach Antonio’s testimony based upon
statements that he allegedly made about the number of cars that
entered the parking lot. However, Johnson’s counsel did in
fact impeach Antonio on this issue. Johnson’s counsel asked
Antonio whether he recalled telling Detective Scott that he only
saw two cars. Antonio stated that he told Scott that there were
three cars present. Later, over the Commonwealth’s
objection, the court permitted defense counsel to ask Scott
whether Antonio or his brother ever mentioned a third vehicle,
stating, "[defense counsel] laid the foundation . . . for
impeachment of the witness [Antonio], who said he didn’t
tell the officer that." Scott testified that in the course
of his investigation, Antonio had never mentioned a third car.
Scott’s testimony completed the impeachment.
III. Refreshing Witness’
Johnson also argues that the trial court erred
in refusing to allow him to refresh Antonio’s recollection
of his prior testimony through the use of an unauthenticated
A reviewing court need not consider whether the
trial court erred in refusing to allow a defendant to
cross-examine a witness for purposes of refreshing that
witness’ recollection when the defendant failed to make this
same request at trial, and where "[t]he sole avowed purpose
for showing such prior statements was to impeach or discredit the
witness. . . ." Virginia E & P. Co. v. Hall,
184 Va. 102, 109, 34 S.E.2d 382, 385 (1945). Johnson never
asserted at trial that he was attempting to refresh
Antonio’s recollection. Rather, it is apparent from the
record that Johnson was attempting to lay a foundation to impeach
Antonio. We will not consider this issue for the first time on
appeal. See Rule 5A:18; Ingram v. Commonwealth, 1
Va. App. 335, 341, 338 S.E.2d 657, 660 (1986).
Based upon the foregoing, we hold that the
court committed no error, and we affirm the conviction.
*Pursuant to Code Sect. 17.1-413,
recodifying Code Sect. 17-116.010, this opinion is not
designated for publication.
laying a foundation prior to the introduction of impeachment
evidence is a separate and necessary step in the impeachment
process, it is not contingent on the existence of a transcript.
While using a transcript, if available, is the preferable means
of laying an impeachment foundation, it is not the only
means." Edwards, 19 Va. App. at 571-72, 454 S.E.2d at