Ronald Marshall v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
RONALD MARSHALL
v. Record No. 0859-94-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA OCTOBER 3, 1995
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dennis F. McMurran, Judge
Brenda Spry, Deputy Public Defender, for
appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Ronald Marshall (defendant) was convicted by a jury of second
degree murder and use of a firearm in the commission of that
offense. On appeal, defendant complains that the trial court
erroneously (1) allowed hearsay into evidence, and (2) declined to
admit, for impeachment purposes, signed writings which reflected
the prior inconsistent statements of certain Commonwealth
witnesses. Defendant also challenges the sufficiency of the
evidence to support the convictions. For the reasons which follow,
we affirm the convictions.
The parties are fully conversant with the record in this case,
and we recite only those facts necessary to a disposition of the
appeal.
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, granting
*
Pursuant to Code § 17-116.010 this opinion is not designated
for publication.
to it all reasonable inferences fairly deducible therefrom.
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721
(1988). The jury's verdict will not be disturbed unless plainly
wrong or without evidence to support it. Id. The credibility of a
witness, the weight accorded the testimony, and the inferences to
be drawn from proven facts are matters solely for the fact finder's
determination. Long v. Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989).
At trial, Calvin and Larry Darden, brothers and witnesses for
the Commonwealth, identified defendant, Ronald Marshall, as the
perpetrator. During cross-examination, both Dardens expressly
denied previously naming Leonard Marshall as the murderer.
However, Detective T. E. Dail testified that the brothers had
accused Leonard Marshall during an interview at police headquarters
on the evening of the offenses. Dail further noted that each of
these statements had been reduced to writing and signed by the
respective brother. In an effort to rehabilitate the witnesses,
the Commonwealth questioned Detective Dail, over defendant's
hearsay objection, with respect to out-of-court statements by the
brothers the following day which identified defendant as the
offender, consistent with their trial testimony.
It is well established that a witness may be impeached by
proof of previous statements inconsistent with his or her testimony
at trial, provided the attention of the witness is properly
directed to the prior utterance. Edwards v. Commonwealth, 19 Va.
App. 568, 571, 454 S.E.2d 1, 2 (1995) (citations omitted). In such
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instances, prior consistent statements of the witness are also
"relevant in considering the impeaching effect of the inconsistent
statement on the witness's testimony" and, therefore, likewise
admissible. Clere v. Commonwealth, 212 Va. 472, 473, 184 S.E.2d
820, 821 (1971). Both the inconsistent and consistent statements
are received "without violation of the hearsay rule, since these
statements are offered, not for the truth of the content of the
statement, but, upon the issue of credibility, to show that the
statements were made." Charles E. Friend, The Law of Evidence in
Virginia, § 18-3, at 95 (4th ed. 1993). Thus, the prior consistent
statements of the impeached witnesses in issue were properly
admitted into evidence by the trial court.
It is uncontroverted that defendant first learned during
trial, after the Darden brothers had testified, that the
inconsistent statements were evidenced by signed writings. Copies
were then examined by counsel and the court and, thereafter, both
the Commonwealth and defendant questioned Detective Dail, before
the jury, with respect to the written statements and the
circumstances which attended their preparation and execution.
Although the trial court declined to admit the writings into
evidence, defendant proffered copies for the record, and a review
reveals that the contents, including the signatures, were fully
disclosed to the jury through Detective Dail's testimony. "Once
the jury has heard the relevant portions of the prior inconsistent
statement[s] . . ., whether the written statement itself is
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admitted into evidence is 'a distinction without a difference.'" 1
Smith v. Commonwealth, 15 Va. App. 507, 513, 425 S.E.2d 95, 99
(1992) (citation omitted).
Here, the jury was fully aware of the witnesses' inconsistent
statements and the signed writings which memorialized such
inconsistency. From this evidence, it was clear that the Darden
brothers had, contrary to their trial testimony, previously named
another man as the offender. Thus, impeachment of the witnesses
was accomplished and the related credibility issue properly before
the jury. Under such circumstances, the trial court did not abuse
its discretion by excluding the actual writings from evidence.
For the first time on appeal, defendant complains that the
written statements constituted exculpatory evidence, necessarily
subject to disclosure to defendant by the Commonwealth prior to
trial. However, because this issue was not properly raised before
the trial court, we decline to address it on appeal. Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)
(citing Rule 5A:18).
Finally, defendant challenges the sufficiency of the evidence
to support the convictions. Our review of the record discloses
substantial evidence in support of the jury's verdicts.
For the foregoing reasons, the convictions are affirmed.
Affirmed.
1
Under the circumstances of this record, we expressly decline
to address the Commonwealth's argument related to Code
§ 19.2-268.1.
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