Kelvin Lynn Whitehead v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
KELVIN LYNN WHITEHEAD
OPINION BY
v. 	Record No. 2151-98-3 	JUDGE JAMES W. BENTON, JR.
JANUARY 11, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
S. Jane Chittom (Elwood Earl Sanders, Jr.;
Public Defender Commission, on briefs), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
A jury convicted Kelvin Lynn Whitehead of aggravated
malicious wounding. 	On appeal, he contends the trial judge erred
by (1) allowing the prosecutor to cross-examine a defense witness
on issues which were beyond the scope of direct examination and
(2) admitting testimony from a Commonwealth's witness concerning
out-of-court statements made by the same defense witness. 	For
the reasons that follow, we affirm Whitehead's conviction.
I.
A grand jury indicted Whitehead for aggravated malicious
wounding of Ronnie Russell Cobbs occurring on September 7, 1997.
At trial in the Commonwealth's case-in-chief, Cobbs testified
that on the night of August 28, 1997, he was asleep on a sofa in
Karen Noble's house when Whitehead burst through the front door

and came toward him armed with a metal stake. 	Cobbs subdued
Whitehead, whom he had known twenty years, by striking him on the
head with a hammer. 	Explaining the presence of the hammer, Cobbs
testified that he had earlier used it to seal Noble's windows
"because [Whitehead] had been coming in and out." 	During the
struggle, Whitehead dropped the stake, retreated to Joe Duncan's
house nearby, and called the police. 	The evidence is silent
regarding any further events occurring that evening after the
police arrived.
Cobbs further testified that he was again inside Noble's
house on the night of September 7, when he heard Duncan calling
his name. 	Cobbs opened the door, saw Duncan and Whitehead
standing by the door, and told Noble that the two men were
outside her door. 	Noble came to the door. 	As Cobbs and
Whitehead argued, Whitehead threw liquid from a container in
Cobbs' face, blinding Cobbs' left eye and scarring his neck and
body. 	The evidence proved the liquid was chemically consistent
with sulfuric acid.
Cobbs ran to the kitchen sink and rinsed his body. 	When he
could not get relief from the pain or assistance from Noble, who
panicked after the attack, Cobbs ran to a neighbor's residence to
ask for help. 	As Cobbs was crossing the street, he saw Whitehead
approaching him and preparing to throw more liquid on him. 	Cobbs
testified that he screamed and that Noble yelled, "Whitehead, you
are going to pay for this." 	Cobbs testified that the police were
arriving as Whitehead and Duncan ran to Duncan's home.
Several witnesses testified in Whitehead's defense. 	Westley
Hayes, who lived two houses away from Noble, testified that on
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the night of September 7 Whitehead and Duncan were at his house.
Hayes testified that he and Whitehead walked to a store together
that evening and returned to Hayes' house. 	Hayes further
testified that Whitehead had been sitting continuously on Hayes'
porch and in his presence for forty-five minutes when they saw
the police arrive at Noble's house.
Duncan testified that he went to Noble's house during the
daylight on September 7. 	He denied that he was at Noble's house
the night Cobbs was injured. 	Duncan testified that he,
Whitehead, and Hayes walked to the store that night and returned
to Hayes' house after the police arrived to assist Cobbs. 	Duncan
said he was intoxicated and running to get inside his house when
the police arrested him.
As Whitehead's witness, Noble testified that she and
Whitehead are the lessees of the house where she resides. 	She
testified that Whitehead is her "boyfriend" and that her
relationship with him was now "excellent." 	In August, however,
she "put him out" after they had an argument. 	She testified that
on August 28, while Cobbs was awake in the house, Whitehead
opened the door with his key and entered the house. 	When he
entered, Cobbs hit him on the head with a hammer. 	She said
Whitehead did not break into the house and did not have a stake
in his hand.
Although Noble did not testify on direct examination about
the September 7 incident, the prosecutor asked on
cross-examination if she was home during the September 7
incident. 	Over Whitehead's objection, the trial judge allowed
the prosecutor to continue his examination of Noble. 	In response
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to the prosecutor's questioning, Noble said she was home when
Cobbs was splashed with acid. 	She could not recall, however,
telling a police officer that she saw Whitehead throw the liquid
and testified that she "didn't see it." 	She also testified that
the day after the incident she gave a signed statement to a
detective but disavowed disclosing details of the incident. 	She
said she only told the detective details of another incident that
occurred when Duncan came to her house during daylight.
Whitehead testified that he used a key to enter the house on
August 28. 	He denied that he was armed with a stake and denied
that he attacked Cobbs. 	He said Cobbs attacked him with a hammer
and without provocation. 	Whitehead also denied throwing liquid
on Cobbs on September 7. 	He testified that he went to the store
with Hayes and Duncan that night and that he sat on Hayes' porch
a long time after returning from the store. 	While sitting on the
porch with Hayes, they saw the police arrive at Noble's house.
He denied having heard Cobbs' screams.
As the Commonwealth's rebuttal witness, a detective
testified that Noble gave a written, signed statement on
September 8. 	Over Whitehead's objection, the detective read the
statement. 	It related that Whitehead and Duncan knocked at her
door the night of September 7 and that Cobbs then went outside.
Although she "didn't see anybody throw anything," she "heard
[Cobbs] holler and saw him holding his face and [heard him say]
call the ambulance." 	She stated that Whitehead ran when the
police arrived. 	Also in rebuttal, another police officer
testified that when he arrived to assist Cobbs on September 7,
Noble said she saw Whitehead throw the liquid on Cobbs.
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The jury convicted Whitehead of aggravated malicious
wounding. 	The trial judge sentenced him to thirty years in
prison, as recommended by the jury. 	This appeal followed.
II.
Whitehead contends the trial judge erred in allowing the
prosecutor to examine Noble about the September 7 attack on Cobbs
because it was beyond the scope of her direct testimony. 	At
trial, Whitehead's counsel "object[ed] to this line of
questioning unless [the prosecutor] is going to make her his own
witness because . . . [the] sole purpose of the testimony was to
deal with . . . Cobbs' version of this hammer incident." 	When
the prosecutor responded that Noble's testimony demonstrated that
"she . . . is not friendly to me as a witness," the trial judge
ruled that Noble was an adverse witness and permitted the
prosecutor to examine her further.
In pertinent part, Code § 8.01-401(A), which applies in both
civil and criminal cases, see McCue v. Commonwealth, 103 Va. 870,
996, 49 S.E. 623, 627-28 (1905), provides that "[a] party called
to testify for another, having an adverse interest, may be
examined by such other party according to the rules applicable to
cross-examination." 	In construing the predecessor statute, which
contained this identical language, the Supreme Court ruled as
follows:
It is clear that the intent of the
legislature was, first, to compel a
litigant, if called by another party to the
cause, to testify in behalf of such other
party; and, second, to permit any litigant
to call and cross-examine any person "having
an adverse interest" in the outcome of the
litigation, whether or not a party. 	The
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only conclusion to be drawn from the
language of the act and the context of the
words, "having an adverse interest," is that
the legislature intended to include, first,
a party to the litigation, and, second, a
person, though not a party, who had a
financial or other personal interest in the
outcome. 	The legislature did not mean to
include a party merely because his testimony
was or would be adverse to the party calling
him. 	"Adverse interest" was used in its
common and accepted meaning and was not used
synonymously with "adverse testimony."
Butler v. Parrocha, 186 Va. 426, 431-32, 43 S.E.2d 1, 4 (1947).
Relying on well-established practice, the Supreme Court has also
ruled that "'[this same statute] has expressly been held to apply
where the witness has no adverse interest, but is shown to be
adverse or hostile to the party introducing him.'" 	Nelson v.
Commonwealth, 153 Va. 909, 919, 150 S.E. 407, 410 (1929)
(citation omitted). 	See also Virginia Elec. and Power Co. v.
Hall, 184 Va. 102, 106, 34 S.E.2d 382, 383 (1945) (ruling that a
witness proves adverse when the testimony of the witness is
"injurious or damaging to the case of the party").
Noble's direct testimony proved she had an adverse interest
to that of the Commonwealth. 	She described her relationship with
Whitehead as "excellent," testified that he was her "boyfriend,"
and disclosed that she and Whitehead had a joint financial
obligation as lessee of the house. 	On cross-examination, she
testified that she regularly had visited him in jail. 	In
addition, Noble's relationship with Whitehead was such that one
of Whitehead's witnesses referred to her as Whitehead's "wife."
Indeed, Whitehead concedes on brief that "Noble was a witness
with an 'adverse interest' under "Code [§] 8.01-401." 	Thus, we
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hold that the trial judge did not err in ruling that Noble was an
"adverse witness."
In stating his objection at trial, Whitehead proposed to the
trial judge that the prosecutor's "line of questioning" might
continue if the prosecutor "is going to make [Noble] his own
witness." 	Because the prosecutor was then cross-examining Noble,
who was Whitehead's witness, we conclude that the trial judge, by
ruling that Noble was an adverse witness, in effect allowed the
prosecutor to proceed as if Noble was the Commonwealth's witness,
a course of conduct suggested by Whitehead when he made his
objection. 	See Miller v. Miller's Adm'r., 92 Va. 510, 515-16, 23
S.E. 891, 893 (1896) (ruling that a party who cross-examines a
witness beyond the scope of the witness' direct testimony in
effect makes the witness that party's witness).
The Commonwealth clearly could have called Noble as a
rebuttal witness in an attempt to counter the testimony of
Whitehead and his witnesses, Duncan and Hayes, that Whitehead was
not the assailant on September 7. 	As the Commonwealth's witness,
Cobbs had earlier testified that Noble was at the door when the
attack occurred. 	Cobbs also testified that Noble yelled at
Whitehead as he again approached Cobbs in the street. 	Moreover,
the prosecutor was aware that Noble had made statements to the
police that she had seen Whitehead attack Cobbs.
By allowing the prosecutor to continue the examination of
Noble while she was then testifying, the trial judge merely
re-ordered the manner of the examination. 	See Martin v.
Thierjung, 238 Va. 434, 439-40, 384 S.E.2d 86, 89 (1989) (ruling
that the trial judge has the discretion to allow impeachment of
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an adverse witness on cross-examination or rebuttal). 	The rule
is well established in Virginia that "great latitude [will be
given] to the discretion of the trial [judge] as to the order in
which witnesses may be called and the manner of their
examination." 	Butler, 186 Va. at 433, 43 S.E.2d at 5. 	Absent a
showing of abuse of that discretion or substantial harm to
Whitehead, we will not disturb the judge's ruling. 	See id.
In response to the Commonwealth's leading questions, see
Code § 8.01-401(A), Noble denied telling the police officer that
she saw Whitehead throw the liquid, denied seeing Whitehead throw
the liquid, and denied signing a statement that Whitehead was
present when the liquid was thrown on Cobbs. 	After the
prosecutor read to Noble several excerpts from her statement,
Whitehead objected by asking "what is he impeaching . . . she has
no testimony. . . ."
The trial judge did not err in overruling that objection
because Noble had already testified that she had not seen the
attack. 	When Noble denied seeing the attack, the Commonwealth
was entitled to impeach her by her prior inconsistent statement.
See Maxey v. Commonwealth, 26 Va. App. 514, 519, 495 S.E.2d 536,
539 (1998) (noting that "our common law clearly holds, albeit
with little discussion, that a party may impeach a witness having
an adverse interest with the witness' prior inconsistent
statements"). 	Furthermore, in proving the prior inconsistent
statement, the Commonwealth could prove the details of the
statement. 	See Hall v. Commonwealth, 233 Va. 369, 374, 355
S.E.2d 591, 594 (1987); McCue, 103 Va. at 996-99, 49 S.E. at 628.
Accordingly, we hold that this record contains no evidence to
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establish substantial harm to Whitehead or an abuse of discretion
by the trial judge.
III.
We also find no merit to Whitehead's contention that the
trial judge erred in admitting testimony by the police of Noble's
statements. 	Over Whitehead's objection, the police officer and
the detective testified that Noble gave statements that Whitehead
was present when the acid was thrown on Cobbs and that Whitehead
threw the liquid. 	Once Noble testified and denied that Whitehead
was present and threw the liquid and further denied that she made
the statements to the officer and the detective, the Commonwealth
could impeach her credibility by proving her prior inconsistent
statements. 	See Maxey, 26 Va. App. at 521, 495 S.E.2d at 540.
"So much of the statement as was inconsistent with her testimony
was clearly admissible for the purpose stated." 	Epps v.
Commonwealth, 190 Va. 93, 101-02, 56 S.E.2d 237, 241 (1949). 	See
also Hall, 233 Va. at 374, 355 S.E.2d at 594. 	Furthermore, the
record discloses that the trial judge instructed the jury that it
could consider the inconsistent statement only for the purpose of
impeaching the credibility of Noble's testimony. 	See id. at 375,
355 S.E.2d at 595. 	See also Hardy v. Commonwealth, 110 Va. 910,
927, 67 S.E. 522, 529 (1910).
The record discloses no abuse of discretion by the trial
judge or substantial harm to Whitehead resulting from the manner
in which the trial judge allowed the testimony to develop.
Accordingly, we affirm the conviction.
Affirmed.
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