Ronald Marshall v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: October 3, 1995
• Docket: 0859941
• Status: Unpublished

Opinion

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

- 2 - 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

- 3 - 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.

- 4 -