Gray v. Rhoads

• Decision Date: 10 June 2004
• Docket Number: No. 031852.,031852.
• Citation: 597 S.E.2d 93,268 Va. 81
• Parties: Abraham GRAY, Jr., Administrator for the Estate of Frederick Gray, Deceased v. Douglas RHOADS, Individually and as Captain of the Police Department of Albemarle County, et al.
• Court: Virginia Supreme Court

597 S.E.2d 93

268 Va. 81

Abraham GRAY, Jr., Administrator for the Estate of Frederick Gray, Deceased v. Douglas RHOADS, Individually and as Captain of the Police Department of Albemarle County, et al.

No. 031852.

Supreme Court of Virginia.

June 10, 2004.

Deborah C. Wyatt, Charlottesville (Richard Armstrong; Wyatt & Armstrong, on briefs), for appellant.

Mark D. Obenshain, Harrisonburg (Patrick C. Asplin, Charlottesville; Keeler Obenshain, on brief), for appellees.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and STEPHENSON, S.J.

KINSER, Justice.

The provisions of Code § 8.01-404 prohibit the use of certain types of prior written statements to contradict a witness in a personal injury or wrongful death action. In this appeal, we decide whether that statutory prohibition prevents a plaintiff from introducing prior written statements into evidence as party admissions during the plaintiff's case-in-chief. Concluding that this statute does not prohibit such use of prior written statements, we will reverse the judgment of the circuit court.

MATERIAL FACTS AND PROCEEDINGS

This appeal arises from the fatal shooting of Frederick Gray by an officer employed by the Albemarle County Police Department. In the early morning hours of May 15, 1997, several police officers responded to "911" calls concerning a disturbance at an apartment located at 827 Old Brook Road in Albemarle County where Gray and his female companion resided. Four officers, Amos Chiarappa, David Wallace, Sharn Perry, and Philip Giles, entered the apartment and observed Gray near or coming out of the bathroom.¹ They also saw a woman in the apartment. She appeared to have blood on her clothing. Wallace described his impression of the scene in the apartment:

[S]ome type of an assault had occurred. There [were] blood drops on the various clothing items, property items off to the left in the big living room and along the little short hallway going back towards the bathroom. And there — I think there was some blood on the — maybe even the walls. I know there was some on the bathroom floor. There were drops of blood where they were both standing, so I really couldn't tell where it was coming from, but somebody had been hurt.

One of the officers ordered Gray to "get down" on the floor. Although Gray seemed to comply with the direction, a struggle ensued when Wallace started to handcuff Gray. During that struggle, Chiarappa attempted unsuccessfully to restrain Gray by hitting him with an "asp baton" between Gray's shoulder blades and on his forehead. In Chiarappa's words, after seeing what he believed to be "Sha[r]n Perry's condition ... at that time, after seeing Phil Giles sliding down the wall ..., after [Gray] threw David Wallace out that door and after [Gray] turned to attack me," Chiarappa withdrew his weapon and fired three shots. Gray fell facedown in the doorway of the apartment. A subsequent autopsy of Gray's body revealed that the cause of death was "two gunshot wounds to the chest causing injury to both lungs and the heart." He also sustained "blunt force injuries including a bruise to the back[,] a bruise to the right leg[,] a deep bruise to the left top of the head[,] and a laceration of the left forehead."

Subsequently, Abraham Gray, Jr., administrator of the estate of the decedent, filed an amended motion for judgment against Chiarappa, Wallace, Hanover, Giles, and Perry (collectively the "Officers"); Douglas Rhoads, Captain of the Police Department of Albemarle County; and John Miller, Chief of the Police Department of Albemarle County. He asserted claims for assault and battery, false arrest and imprisonment, gross negligence resulting in the wrongful death of Gray, grossly negligent retention, and grossly negligent hiring. The circuit court entered a pre-trial order requiring the parties to exchange 15 days before trial a list of exhibits to be introduced at trial and a list of witnesses who would be testifying. The order also directed the parties to file any objections to the exhibits and witnesses, except those based on relevance, five days before trial; otherwise, the objections would be deemed waived absent a showing of good cause. The defendants did not file any objections to the exhibits at issue in this appeal.

However, during the plaintiff's opening statement at trial, the defendants objected for the first time to the use of certain prior statements made by the Officers.² Those prior statements were obtained during two sets of audio-recorded interviews of the Officers after the shooting incident had occurred. The audio-recordings of the interviews were subsequently transcribed. Two detectives employed by the Albemarle County Police Department conducted the first set of interviews in May 1997. A lieutenant employed by the Albemarle County Police Department conducted the second set of interviews in June 1997.

The defendants based their objection on the provision in Code § 8.01-404 prohibiting the use of certain types of prior written statements to contradict a witness in a case for personal injury or wrongful death. The circuit court agreed and ruled that the statements could not be used either to impeach the Officers who had made the statements or as substantive evidence of what the Officers had said in the interviews.³

A jury returned a verdict in favor of Chiarappa on the claims alleging assault and battery, and gross negligence.⁴ We awarded the plaintiff this appeal on the sole issue whether the circuit court erred in barring the plaintiff from using, for any purpose, the statements made by the Officers after the shooting death of Gray when the defendants had failed to make a timely objection to their admissibility in accordance with the circuit court's pretrial order.

ANALYSIS

A trial court's exercise of discretion to admit or exclude evidence will not be overturned on appeal unless the court abused its discretion. May v. Caruso, 264 Va. 358, 362, 568 S.E.2d 690, 692 (2002). However, a "trial court has no discretion to admit clearly inadmissible evidence because `admissibility of evidence depends not upon the discretion of the court but upon sound legal principles.'" Norfolk & Western Ry. Co. v. Puryear, 250 Va. 559, 563, 463 S.E.2d 442, 444 (1995) (quoting Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)). The converse is likewise true because admissibility of evidence is always governed by legal principles. See Crowson v. Swan, 164 Va. 82, 92-93, 178 S.E. 898, 903 (1935). Furthermore, a trial court's interpretation of a statute is a question of law subject to de novo review. Simon v. Forer, 265 Va. 483, 487, 578 S.E.2d 792, 794 (2003).

The terms of the statute at issue, Code § 8.01-404, are clear and unambiguous as written. Thus, in construing the statute, this Court looks no further than the plain meaning of the statute's words. Supinger v. Stakes, 255 Va. 198, 205-06, 495 S.E.2d 813, 817 (1998); City of Winchester v. American Woodmark Corp., 250 Va. 451, 457, 464 S.E.2d 148, 152 (1995). Under the plain meaning rule, "we must ... assume that the legislature chose, with care, the words it used when it enacted the relevant statute, and we are bound by those words as we interpret the statute." Barr v. Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990). We cannot depart from the words used by the legislature when its intent is clear. Anderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944).

In pertinent part, Code § 8.01-404 states:

A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, relative to the subject matter of the civil action, without such writing being shown to him.... This section is subject to the qualification, that in an action to recover for a personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing other than a deposition, after due notice, of a witness and no extrajudicial recording of the voice of such witness, or reproduction or transcript thereof, as to the facts or circumstances attending the wrongful act or neglect complained of, shall be used to contradict him as a witness in the case.

(Emphasis added.) The revisors of the Code of 1919 added language which, as amended, has become the emphasized portion of current Code § 8.01-404 prohibiting the use of certain prior written statements to contradict a witness in an action for personal injury or wrongful death. Robertson v. Commonwealth, 181 Va. 520, 534, 25 S.E.2d 352, 358 (1943). In Harris v. Harrington, 180 Va. 210, 220, 22 S.E.2d 13, 17 (1942), we explained the reason for the prohibition:

The purpose of the addition to the statute was to correct an unfair practice which had developed, by which claim adjusters would hasten to the scene of an accident and obtain written statements from all eye-witnesses. Frequently, these statements were neither full nor correct and were signed by persons who had not fully recovered from shock and hence were not in full possession of their faculties. Later, such persons, when testifying as witnesses, would be confronted with their signed statements and, after admitting their signatures, these statements would be introduced in evidence as impeachment of their testimony given on the witness stand.

Accord Alspaugh v. Diggs, 195 Va. 1, 10, 77 S.E.2d 362, 367 (1953)

; Liberty Mut. Ins. Co. v. Venable, 194 Va. 357, 364, 73 S.E.2d 366, 370-71 (1952).

In applying the provisions of this statute in different factual scenarios, we have held that the prohibition against using certain written statements to contradict a witness applies both to a witness who is a party to the action and a witness who is not. Alspaugh, 195 Va. at 11, 77 S.E.2d at 367. In Scott v. Greater Richmond Transit Co., 241 Va. 300, 303, 402 S.E.2d 214, 217 (1991), we concluded that the prohibition did not apply to a written narrative by a person to whom the witness had given...