Edwards v. Com., 1724-93-4

• Decision Date: 07 February 1995
• Docket Number: No. 1724-93-4,1724-93-4
• Court: Virginia Court of Appeals
• Parties: Anthony Keith EDWARDS v. COMMONWEALTH of Virginia. Record

Page 1

454 S.E.2d 1

19 Va.App. 568

Anthony Keith EDWARDS v. COMMONWEALTH of Virginia.

Record No. 1724-93-4.

Court of Appeals of Virginia,

Alexandria.

Feb. 7, 1995.

D. Scott Bailey, Manassas (Stephens, Boatwright & Howard, on brief), for appellant.

H. Elizabeth Shaffer, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Present: BARROW, KOONTZ and FITZPATRICK, JJ.

FITZPATRICK, Judge.

Anthony Keith Edwards (appellant) was convicted in a jury trial of malicious wounding in violation of Code § 18.2-51. The only issue raised on appeal is whether the trial court erred in requiring a transcript of two witnesses' preliminary hearing testimony before appellant could attempt to impeach them. For the reasons that follow, we reverse the conviction.

On August 7, 1992, Lynwood Williams (Williams) was aiding his cousin, Michael Bowls, who had just been stabbed by appellant's brother. Williams saw appellant walk past him with a knife, and a moment later, Williams felt a knife against his throat. When he turned to grab the knife, he felt and then saw appellant cut his throat and shoulder. Tony Bowls (Bowls), Michael Bowls's nephew, also testified that appellant cut Williams.

At trial, appellant attempted to impeach both Williams and Bowls by questioning them about statements made at a preliminary hearing. Appellant asked Williams: "Do you remember testifying at that hearing that you never saw who cut you?" The Commonwealth objected to the lack of a transcript, and appellant's counsel stated: "I don't have a transcript." Williams answered the question: "I can't recall." The court sustained the Commonwealth's objection and prevented any further cross-examination unless based on a transcript from the preliminary hearing.

The colloquy with Bowls followed a similar line when appellant attempted to lay a foundation to impeach him by asking: "[D]o you remember testifying that you did not see that before?" The Commonwealth again objected, arguing that the question mischaracterized Bowls's preliminary hearing testimony. The court refused to allow appellant to ask Bowls any foundation questions unless based upon a transcript of the prior hearing and in Suite 130, Seaboard Center (Old City Hall Building), 235 East Plume Street, Norfolk, Virginia sustained the Commonwealth's objection.

Appellant argues that the trial court erred in precluding his attorney from impeaching Williams and Bowls without the use of a transcript. The Commonwealth contends that Code § 19.2-268.1 ¹ applies and that therefore appellant was required to use a transcript when attempting to impeach the two witnesses.

We agree with appellant that the court erred in requiring a transcript before allowing him to attempt to impeach Williams and Bowls. "A witness may be impeached by showing that he has formerly made statements inconsistent with his present testimony." 1 Charles E. Friend, The Law of Evidence in Virginia § 4-3(a), at 119 (4th ed. 1993). An attorney may impeach a witness in this manner, "provided a foundation is first laid by calling his attention to the statement and then questioning him about it...." Hall v. Commonwealth, 233 Va. 369, 374, 355 S.E.2d 591, 594 (1987). See also Neblett v. Hunter, 207 Va. 335, 340, 150 S.E.2d 115, 119 (1966).

[T]he statement of a witness that he fails to recollect or does not recall his former testimony or statement constitutes an adequate foundation for his impeachment. The fact that his present testimony is inconsistent with his prior testimony or statement justifies the showing of the inconsistency, provided he is given an opportunity of correcting the present testimony by directing his attention to the time, place and circumstances of the prior utterance.

McGehee v. Perkins, 188 Va. 116, 125, 49 S.E.2d 304, 308-09 (1948). An impeached witness may explain his prior inconsistent statement. Smith v. Commonwealth, 15 Va.App. 507, 513, 425 S.E.2d 95, 99 (1992).

After the foundation is laid, "[t]he witness may then usually be impeached by the introduction of evidence to prove that the prior inconsistent statement was in fact made." Friend, supra, § 4-3(d), at 123. Such evidence includes the testimony of another witness who heard the prior inconsistent statement, Smith v. Commonwealth, 136 Va. 773, 775-76, 118 S.E. 107, 108 (1923), or the transcript of a prior hearing. Roberts v. Commonwealth, 230 Va. 264, 269, 337 S.E.2d 255, 258 (1985). If the prior inconsistent statement was "in writing or reduced to writing," such as in the form of a transcript, the court may require the party to produce the writing. Code § 19.2-268.1. However, this Code section presupposes the existence of a writing.

The court erred in requiring a transcript as the only means of impeaching a witness based on inconsistent statements made at an earlier hearing. Although 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. This rule also applies once the initial foundation has been laid. If a witness denies or is unable to recall a prior statement, a...