Maurice Johnson v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Lemons and
Senior Judge Duff
Argued at Alexandria, Virginia
MAURICE JOHNSON
MEMORANDUM OPINION * BY
v. Record No. 0096-98-4 JUDGE DONALD W. LEMONS
JUNE 22, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
John E. Kloch, Judge
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 § 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.
I. BACKGROUND
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
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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 that
evening.
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
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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.
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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 CARROLL
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
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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 § 8.01-403; Code § 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 juvenile court?
A: Uh-huh.
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.
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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 testified?
[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 --
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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
preliminary hearing.
Q: Do you remember testifying differently
at the preliminary hearing?
A: I might have did [sic]. I forgot it.
Q: You forgot?
A: Yes.
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 didn’t.”
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[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 yet.
[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).
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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). 1
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.
1
“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.” Edwards, 19 Va. App. at 571-72, 454 S.E.2d at
2.
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III. Refreshing Witness’ Recollection
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 transcript.
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).
IV. CONCLUSION
Based upon the foregoing, we hold that the court committed
no error, and we affirm the conviction.
Affirmed.
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