Gordon Michael Donawa, etc. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Elder and Senior Judge Cole
Argued at Richmond, Virginia
GORDON MICHAEL DONAWA,
s/k/a GORDON MICHAEL DONOWA
MEMORANDUM OPINION * BY
v. Record No. 1890-95-2 JUDGE LARRY G. ELDER
SEPTEMBER 10, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Robert P. Geary for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Gordon Michael Donawa (appellant) appeals his convictions
for murder, in violation of Code § 18.2-32; attempted murder, in
violation of Code §§ 18.2-32 and 18.2-26; use of a firearm in the
commission of both crimes, in violation of Code § 18.2-53.1; and
possession of a firearm by a convicted felon, in violation of
Code § 18.2-308.2. Appellant contends that the trial court erred
in allowing a police officer to testify about prior consistent
statements made by a witness to the crimes. We disagree and
affirm appellant's convictions.
On November 11, 1994, Melvin Smith and Michael Atkins were
conversing on Lakeview Avenue in Richmond. Appellant and two
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
cohorts, driving in two separate cars, pulled up to Smith and
Atkins. One of appellant's cohorts placed a shotgun under
Smith's chin and pulled the trigger, although the weapon did not
fire. Smith testified that he then fled and heard several
gunshots. Smith saw appellant shooting at him with a chrome 9mm
pistol while appellant's cohorts shot Atkins to death with their
shotguns. Smith testified that after hiding for forty-five
minutes on the top of a nearby building, he spotted two police
officers, left the roof, and informed the officers of the events.
Smith admitted on cross-examination that he faced a murder
charge for a murder that occurred four months after the instant
offense and that the Commonwealth helped pay his rent after
November 11, 1994. The defense attempted to impeach Smith's
credibility on various points and attempted to show that Smith
hoped to receive favorable treatment from the Commonwealth on the
murder charge. Over appellant's objection, the trial court
allowed Officer Phillip Caudrey to relate Smith's prior
consistent statements regarding the events. A jury found
appellant guilty of murder, attempted murder, related firearm
charges, and possession of a firearm by a felon. Appellant
appeals to this Court.
Appellant bears the burden of showing that the trial court's
ruling to admit the evidence of Smith's prior consistent
statements constituted clear reversible error. See Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.
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denied, 449 U.S. 1017 (1980). Appellant did not meet this burden
in this case.
"As a general rule, a prior consistent statement of a
witness is inadmissible hearsay." Faison v. Hudson, 243 Va. 397,
404, 417 S.E.2d 305, 309 (1992). The Supreme Court of Virginia
has recognized, however, "a few narrowly circumscribed
exceptions" to this general rule. Id. These exceptions include
when a witness is impeached by: (1) a suggestion that the
witness is motivated by bias, interest, or corruption; (2) a
charge that the witness' testimony is a recent fabrication or he
has a motive to falsify his story; (3) an allegation that the
witness had a design to misrepresent; and (4) an attack on the
witness' credibility by the introduction of a prior inconsistent
statement. Id. at 404-05, 417 S.E.2d at 309-10.
Appellant attempted to show that Smith had a motive to
falsify his version of events in order to garner favorable
treatment from the Commonwealth, which charged Smith with a
murder allegedly committed on March 23, 1995, four months after
the instant offenses. Appellant's counsel specifically asked
Smith, "[d]o you have any hope, any expectation because of your
testimony that you might get a little bit of favorable treatment
[in your murder case]?" After Smith responded in the negative,
counsel again asked, "[y]ou don't have any hope of that at all?"
We hold that once appellant tried to show Smith's motive to
give testimony favorable to the Commonwealth, the Commonwealth
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properly introduced Smith's prior consistent statements, which he
made to the officer before the event giving rise to Smith's
supposed bias. See Gallion v. Winfree, 129 Va. 127, 105 S.E. 540(1921); Graham v. Danko, 204 Va. 135, 129 S.E.2d 825 (1963). The
trial court properly allowed the Commonwealth to bolster Smith's
credibility, after appellant called it into question, by showing
that Smith's version of events given at trial matched the version
of events given the day of the shootings.
Because the trial court did not err in ruling that the
evidence was admissible, we affirm appellant's convictions.
Affirmed.
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