Newton v. Com., Record No. 1695-97-3.

Decision Date06 April 1999
Docket NumberRecord No. 1695-97-3.
Citation512 S.E.2d 846,29 Va. App. 433
PartiesPaul Ed NEWTON v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

Timothy W. McAfee, Big Stone Gap, for appellant.

(Mark L. Earley, Attorney General; John H. McLees, Jr., Assistant Attorney General; Ruth Morken McKeaney, Assistant Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., COLEMAN and ELDER, JJ. FITZPATRICK, Chief Judge.

Paul Ed Newton (appellant) was convicted in a jury trial of two counts of distribution of cocaine in violation of Code § 18.2-248(C). On appeal, appellant argues that the trial court erred in: (1) requiring him to divulge privileged information to the Commonwealth; (2) allowing improper impeachment evidence regarding one of appellant's witnesses; (3) permitting two officers to give opinion testimony; (4) admitting into evidence tape-recorded conversations between appellant and the informant; (5) allowing the Commonwealth to introduce evidence of appellant's prior criminal conduct; (6) allowing improper lay opinion testimony about appellant's guilt; (7) incorrectly instructing the jury as to the informant's immunity from prosecution; and (8) making an improper comment to the jury foreperson during deliberations. For the reasons that follow, we affirm the convictions.

I. BACKGROUND

Appellant was charged with selling cocaine to Terry Harber (Harber) on July 9 and July 15, 1996. The Commonwealth's case was based primarily upon the testimony of Harber, who was acting as an informant for Brian Shoemaker, a Lee County Deputy Sheriff assigned to a multi-jurisdiction "Drug Task Force." Harber made "controlled buys" of cocaine from appellant while wearing a body wire, which transmitted Harber's conversations to nearby police officers. These radio transmissions were recorded and played for the jury. At trial, appellant contended that Harber was an unreliable informant and that the alleged sales of cocaine had never occurred.

II. PRIVILEGED INFORMATION

Prior to trial, appellant filed various motions for discovery and submitted proposed orders to the Commonwealth's Attorney for endorsement. Although the trial court did not enter a formal discovery order, it made several rulings during the discovery hearings. At no time prior to trial did the Commonwealth request reciprocal discovery pursuant to Rule 3A:11(c).

During a recess while voir dire of the jury panel was in progress, the Commonwealth's Attorney learned that appellant's counsel had interviewed Terry Harber. This pretrial interview (the Harber statement) was recorded, a transcript of the interview was prepared, and Harber signed an affidavit regarding his statements made in the interview.1 The Commonwealth requested the trial court to order disclosure of these materials. Appellant argued that: (1) the Harber statement was not discoverable under Rule 3A:11; (2) the Commonwealth had no right to information developed by the defendant in anticipation of trial; and (3) he intended to use the materials only if necessary to impeach Harber's direct testimony.

Over appellant's objection, the trial court ordered that copies of the tape, transcript, and affidavit be provided to the Commonwealth's Attorney. The trial judge ruled:

I don't think there's anything wrong with you talking with the witness, but if the witness has made a statement to you, independent of what has been given to you and different from what he has testified to, or different from what he has advised the Commonwealth Attorney, I think that yes, I think the Commonwealth Attorney would be entitled to see what that is.

Appellant complied with the court's ruling while maintaining his objection. After the jury selection process concluded, the trial court granted the Commonwealth's motion to adjourn until the next morning so the Commonwealth could review the disclosed material.

On appeal, we decide whether Code § 19.2-268.1—which addresses impeachment of witnesses and allows "the court at any time during the trial to require the production" of "previous statements made by [a witness] in writing or reduced into writing"— provides authority for a trial court to order the disclosure of otherwise non-discoverable material. The parties agree that the Harber statement was not discoverable by the Commonwealth under the discovery provisions of Rule 3A:11.2 However, the parties dispute the application of Code § 19.2-268.1.

The Commonwealth contends that while advance disclosure of the Harber statement was not mandated under Rule 3A:11, Code § 19.2-268.1 gave the trial court the discretion to require the production of the tape and affidavit for inspection. Under the circumstances of the instant case, we hold that the trial judge erred in requiring appellant to disclose the materials prior to their use or proposed use for impeachment purposes.

Code § 19.2-268.1 specifically addresses the contradiction of witnesses by use of prior inconsistent writings and provides:

A witness in a criminal case may be cross-examined as to previous statements made by him in writing or reduced into writing, relative to the subject matter of the proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to the particular occasion on which the writing is supposed to have been made, and he may be asked if he did not make a writing of the purport of the one to be offered to contradict him, and if he denies making it, or does not admit its execution, it shall then be shown to him, and if he admits its genuineness, he shall be allowed to make his own explanation of it; but it shall be competent for the court at any time during the trial to require the production of the writing for its inspection, and the court may thereupon make such use of it for the purpose of the trial as it may think best.

(Emphasis added). The last provision of the statute grants the trial court broad latitude in ordering the production of a witness' statement when the statement is used for impeachment purposes. However, in the context of this case, the provision does not allow for pretrial discovery or pre-impeachment use.

Code § 19.2-268.1 was not intended by the legislature to be used as an alternate method of discovery. To the contrary, it was specifically placed in Chapter 16 of Title 19.2 entitled, Evidence and Witnesses. "While not part of the code section, in the strictest sense, the caption may be considered in construing the statute, as it is `valuable and indicative of legislative intent.'" Bell v. Commonwealth, 21 Va.App. 693, 701, 467 S.E.2d 289, 293 (1996) (quoting Krummert v. Commonwealth, 186 Va. 581, 584, 43 S.E.2d 831, 832 (1947)). Furthermore, the code section is entitled, Contradiction by prior inconsistent writing, and in construing the statute, we shall look to its title. "A title may be read in an attempt to ascertain an act's purpose, though it is no part of the act itself." Hawkins v. Commonwealth, 255 Va. 261, 269, 497 S.E.2d 839, 842 (1998).

Considering the chapter caption and title of the statute, we conclude that the authority granted in Code § 19.2-268.1 was not intended to supplement the discovery provisions of Rule 3A:11. Rather, it was intended to be used as an evidentiary rule by the trial court to order the production, inspection and use of a written statement once a witness has been cross-examined about the existence or contents of a prior statement. Indeed, we have consistently applied Code § 19.2-268.1 only to cases involving the impeachment of a witness. For example, in Smith v. Commonwealth, 19 Va.App. 594, 453 S.E.2d 572 (1995), we held that the trial court did not abuse its discretion in admitting a written stipulation of facts to impeach the trial testimony of Williams, the defendant's primary witness. Addressing the proper use of prior inconsistent written statements, we wrote:

We see no reason why the signed stipulation of facts that accompanied Williams's plea should be viewed as anything other than Williams's admission to the events that transpired during the consummated drug sale.
Importantly, the trial court is permitted to "make such use of [the writing] for the purpose of the trial as it may think best." The record demonstrates that the stipulation of facts was submitted in compliance with Code § 19.2-268.1. After the stipulation's submission, appellant's counsel had the opportunity to elicit Williams's version of the facts. Thereafter, it was within the province of the jury to determine Williams's veracity.

Id. at 597, 453 S.E.2d at 574 (citations omitted) (emphasis added). Accordingly, we concluded in Smith that "the stipulation's introduction for impeachment purposes was not an abuse of discretion." Id. at 598, 453 S.E.2d at 575. See also Spruill v. Commonwealth, 221 Va. 475, 485, 271 S.E.2d 419, 425 (1980)

(finding that the trial court did not abuse its discretion in denying defendant's request under Code § 19.2-268.1 to introduce a medical report where there was "nothing contradictory or inconsistent" in the proffered report).

In Edwards v. Commonwealth, 19 Va.App. 568, 454 S.E.2d 1 (1995), we again considered the application of Code § 19.2-268.1 where the defendant attempted to impeach the Commonwealth's witnesses by questioning them about prior statements made at a preliminary hearing. The Commonwealth argued that the statute applied and the defendant was required to use a transcript when attempting to impeach the two witnesses. See id. at 570, 454 S.E.2d at 2. Although we held that Code § 19.2-268.1 did not apply in that case, our analysis was based upon evidentiary rules of impeachment.

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
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