Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons,
and Agee, JJ., and Stephenson, S.J.
ABRAHAM GRAY, JR., ADMINISTRATOR
FOR THE ESTATE OF FREDERICK GRAY,
DECEASED
v. Record No. 031852 OPINION BY JUSTICE CYNTHIA D. KINSER
June 10, 2004
DOUGLAS RHOADS, INDIVIDUALLY AND AS
CAPTAIN OF THE POLICE DEPARTMENT OF
ALBEMARLE COUNTY, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Lydia C. Taylor, Judge Designate
The provisions of Code § 8.01-404 prohibit the use of
certain types of prior written statements to contradict a
witness in a personal injury or wrongful death action. In
this appeal, we decide whether that statutory prohibition
prevents a plaintiff from introducing prior written
statements into evidence as party admissions during the
plaintiff’s case-in-chief. Concluding that this statute
does not prohibit such use of prior written statements, we
will reverse the judgment of the circuit court.
MATERIAL FACTS AND PROCEEDINGS
This appeal arises from the fatal shooting of
Frederick Gray by an officer employed by the Albemarle
County Police Department. In the early morning hours of
May 15, 1997, several police officers responded to “911”
calls concerning a disturbance at an apartment located at
827 Old Brook Road in Albemarle County where Gray and his
female companion resided. Four officers, Amos Chiarappa,
David Wallace, Sharn Perry, and Philip Giles, entered the
apartment and observed Gray near or coming out of the
bathroom.1 They also saw a woman in the apartment. She
appeared to have blood on her clothing. Wallace described
his impression of the scene in the apartment:
[S]ome type of an assault had occurred. There [were]
blood drops on the various clothing items, property
items off to the left in the big living room and along
the little short hallway going back towards the
bathroom. And there − I think there was some blood on
the − maybe even the walls. I know there was some on
the bathroom floor. There were drops of blood where
they were both standing, so I really couldn’t tell
where it was coming from, but somebody had been hurt.
One of the officers ordered Gray to “get down” on the
floor. Although Gray seemed to comply with the direction,
a struggle ensued when Wallace started to handcuff Gray.
During that struggle, Chiarappa attempted unsuccessfully to
restrain Gray by hitting him with an “asp baton” between
Gray’s shoulder blades and on his forehead. In Chiarappa’s
words, after seeing what he believed to be “Sha[r]n Perry’s
condition . . . at that time, after seeing Phil Giles
sliding down the wall . . . , after [Gray] threw David
Wallace out that door and after [Gray] turned to attack
1
Officer James Hanover arrived at the scene only
seconds before the shooting and did not enter the apartment
2
me,” Chiarappa withdrew his weapon and fired three shots.
Gray fell facedown in the doorway of the apartment. A
subsequent autopsy of Gray’s body revealed that the cause
of death was “two gunshot wounds to the chest causing
injury to both lungs and the heart.” He also sustained
“blunt force injuries including a bruise to the back[,] a
bruise to the right leg[,] a deep bruise to the left top of
the head[,] and a laceration of the left forehead.”
Subsequently, Abraham Gray, Jr., administrator of the
estate of the decedent, filed an amended motion for
judgment against Chiarappa, Wallace, Hanover, Giles, and
Perry (collectively the “Officers”); Douglas Rhoads,
Captain of the Police Department of Albemarle County; and
John Miller, Chief of the Police Department of Albemarle
County. He asserted claims for assault and battery, false
arrest and imprisonment, gross negligence resulting in the
wrongful death of Gray, grossly negligent retention, and
grossly negligent hiring.
The circuit court entered a pre-trial order requiring
the parties to exchange 15 days before trial a list of
exhibits to be introduced at trial and a list of witnesses
who would be testifying. The order also directed the
parties to file any objections to the exhibits and
prior to the incident.
3
witnesses, except those based on relevance, five days
before trial; otherwise, the objections would be deemed
waived absent a showing of good cause. The defendants did
not file any objections to the exhibits at issue in this
appeal.
However, during the plaintiff’s opening statement at
trial, the defendants objected for the first time to the
use of certain prior statements made by the Officers.2
Those prior statements were obtained during two sets of
audio-recorded interviews of the Officers after the
shooting incident had occurred. The audio-recordings of
the interviews were subsequently transcribed. Two
detectives employed by the Albemarle County Police
Department conducted the first set of interviews in May
1997. A lieutenant employed by the Albemarle County Police
Department conducted the second set of interviews in June
1997.
The defendants based their objection on the provision
in Code § 8.01-404 prohibiting the use of certain types of
prior written statements to contradict a witness in a case
for personal injury or wrongful death. The circuit court
2
We reject the defendants’ argument that the plaintiff
did not adequately identify the Officers’ prior statements
in his pre-trial exhibit list.
4
agreed and ruled that the statements could not be used
either to impeach the Officers who had made the statements
or as substantive evidence of what the Officers had said in
the interviews.3
A jury returned a verdict in favor of Chiarappa on the
claims alleging assault and battery, and gross negligence.4
We awarded the plaintiff this appeal on the sole issue
whether the circuit court erred in barring the plaintiff
from using, for any purpose, the statements made by the
Officers after the shooting death of Gray when the
defendants had failed to make a timely objection to their
admissibility in accordance with the circuit court’s pre-
trial order.
ANALYSIS
A trial court’s exercise of discretion to admit or
exclude evidence will not be overturned on appeal unless
the court abused its discretion. May v. Caruso, 264 Va.
3
The circuit court did allow the plaintiff to ask the
two detectives and the lieutenant who conducted the
interviews whether they remembered any oral statements made
by the Officers.
4
The circuit court, in ruling on various motions,
dismissed the other claims and defendants, except the
negligent retention claim against Rhoads and Miller. The
court severed that claim from the others and decided that
it would proceed to trial only if the plaintiff prevailed
against Chiarappa. None of those rulings are pertinent to
this appeal.
5
358, 362, 568 S.E.2d 690, 692 (2002). However, a “trial
court has no discretion to admit clearly inadmissible
evidence because ‘admissibility of evidence depends not
upon the discretion of the court but upon sound legal
principles.’ ” Norfolk & Western Ry. Co. v. Puryear, 250
Va. 559, 563, 463 S.E.2d 442, 444 (1995) (quoting Coe v.
Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)).
The converse is likewise true because admissibility of
evidence is always governed by legal principles. See
Crowson v. Swan, 164 Va. 82, 92-93, 178 S.E. 898, 903
(1935). Furthermore, a trial court’s interpretation of a
statute is a question of law subject to de novo review.
Simon v. Forer, 265 Va. 483, 487, 578 S.E.2d 792, 794
(2003).
The terms of the statute at issue, Code § 8.01-404,
are clear and unambiguous as written. Thus, in construing
the statute, this Court looks no further than the plain
meaning of the statute’s words. Supinger v. Stakes, 255
Va. 198, 205-06, 495 S.E.2d 813, 817 (1998); City of
Winchester v. American Woodmark Corp., 250 Va. 451, 457,
464 S.E.2d 148, 152 (1995). Under the plain meaning rule,
“we must . . . assume that the legislature chose, with
care, the words it used when it enacted the relevant
statute, and we are bound by those words as we interpret
6
the statute.” Barr v. Town & Country Properties, Inc., 240
Va. 292, 295, 396 S.E.2d 672, 674 (1990). We cannot depart
from the words used by the legislature when its intent is
clear. Anderson v. Commonwealth, 182 Va. 560, 566, 29
S.E.2d 838, 841 (1944).
In pertinent part, Code § 8.01-404 states:
A witness may be cross-examined as to
previous statements made by him in writing or
reduced into writing, relative to the subject
matter of the civil action, without such writing
being shown to him. . . . This section is
subject to the qualification, that in an action
to recover for a personal injury or death by
wrongful act or neglect, no ex parte affidavit or
statement in writing other than a deposition,
after due notice, of a witness and no
extrajudicial recording of the voice of such
witness, or reproduction or transcript thereof,
as to the facts or circumstances attending the
wrongful act or neglect complained of, shall be
used to contradict him as a witness in the case.
(Emphasis added.) The revisors of the Code of 1919 added
language which, as amended, has become the emphasized
portion of current Code § 8.01-404 prohibiting the use of
certain prior written statements to contradict a witness in
an action for personal injury or wrongful death. Robertson
v. Commonwealth, 181 Va. 520, 534, 25 S.E.2d 352, 358
(1943). In Harris v. Harrington, 180 Va. 210, 220, 22
S.E.2d 13, 17 (1942), we explained the reason for the
prohibition:
7
The purpose of the addition to the statute was to
correct an unfair practice which had developed,
by which claim adjusters would hasten to the
scene of an accident and obtain written
statements from all eye-witnesses. Frequently,
these statements were neither full nor correct
and were signed by persons who had not fully
recovered from shock and hence were not in full
possession of their faculties. Later, such
persons, when testifying as witnesses, would be
confronted with their signed statements and,
after admitting their signatures, these
statements would be introduced in evidence as
impeachment of their testimony given on the
witness stand.
Accord Alspaugh v. Diggs, 195 Va. 1, 10, 77 S.E.2d 362, 367
(1953); Liberty Mut. Ins. Co. v. Venable, 194 Va. 357, 364,
73 S.E.2d 366, 370-71 (1952).
In applying the provisions of this statute in
different factual scenarios, we have held that the
prohibition against using certain written statements to
contradict a witness applies both to a witness who is a
party to the action and a witness who is not. Alspaugh,
195 Va. at 11, 77 S.E.2d at 367. In Scott v. Greater
Richmond Transit Co., 241 Va. 300, 303, 402 S.E.2d 214, 217
(1991), we concluded that the prohibition did not apply to
a written narrative by a person to whom the witness had
given an oral statement because the written narrative was
not signed by the witness, nor was it in the handwriting of
the witness. And, in Liberty Mut. Ins., 194 Va. at 365, 73
S.E.2d at 371, we held that the prohibition “is
8
specifically made applicable only to actions to recover for
personal injury or death by wrongful act.” We have never
directly confronted the dispositive question presented in
this appeal, whether Code § 8.01-404 precludes the
introduction of a witness’ prior written statement as a
party admission in a plaintiff’s case-in-chief.5
The defendants argue that, if the Officers’ statements
were introduced into evidence as party admissions, the
provisions and intent of Code § 8.01-404 would be
emasculated because the plaintiff’s purpose in using the
statements would, nevertheless, be to contradict the
Officers’ trial testimony. The plaintiff, however, asserts
that the provisions of Code § 8.01-404 address only the use
5
The defendants assert that the plaintiff failed to
argue before the circuit court that the provisions of Code
§ 8.01-404 do not prohibit the use of the Officers’ prior
written statements as party admissions. We do not agree.
During the extensive argument before the circuit court on
the defendants’ objection, the plaintiff stated to the
court that he sought to use the Officers’ statements not
just to impeach the Officers but also as “substantive”
evidence. The circuit court understood the plaintiff’s
position because it ruled that the statements were not
admissible either for impeachment purposes or as
substantive evidence. The circuit court specifically
stated, “[E]ven if used as substantive evidence in the
case-in-chief, which it always is even if used for
impeachment if it’s a party[,] . . . you can use it on
credibility or substantive evidence and, therefore, putting
it into evidence to contradict the version that he gives in
court is in essence using it to contradict him as a witness
even if it isn’t used in impeachment.” The plaintiff also
9
of prior written statements to impeach a witness. Thus,
according to the plaintiff, the circuit court improperly
extended the reach of this statute and, by doing so,
prevented the plaintiff from admitting the Officers’
statements as party admissions in his case-in-chief to
prove the events surrounding the shooting death of Gray.
We agree with the plaintiff’s position.
The opening phrase of Code § 8.01-404 states that “[a]
witness may be cross-examined as to previous statements
made by him in writing or reduced into writing, relative to
the subject matter of the civil action, without such
writing being shown to him.” (Emphasis added.) We have
held that this opening portion of a prior version of the
statute “applies only to the cross-examination of a witness
. . . and not to an examination in chief of one’s own
witness.” Norfolk & Western Ry. Co. v. Wilkes, 137 Va.
302, 311-12, 119 S.E. 122, 125-26 (1923). The statute then
sets out the steps that must be followed “if it is intended
to contradict such witness by the writing.” Code § 8.01-
404 (emphasis added). The use of prior written statements
to contradict a witness is, however, made subject to the
prohibition at issue here, “in an action to recover for a
raised this argument in his post-trial motion to
reconsider.
10
personal injury or death by wrongful act . . . no
extrajudicial recording of the voice of such witness, or
reproduction or transcript thereof . . . shall be used to
contradict him as a witness in the case.” Code § 8.01-404
(emphasis added).
The plain terms of Code § 8.01-404 limit the
application of the prohibition at issue to those situations
where a prior written statement is used to “contradict” a
witness. In the specific context of the present case, that
was not the result. The plaintiff sought to introduce the
transcripts of the Officers’ prior audio-recorded
statements as party admissions in the plaintiff’s case-in-
chief. At that point in the trial, the Officers would not
have been testifying as witnesses nor would they have
previously testified. Thus, the statements would not have
been used to “contradict” the Officers because they would
not yet have been witnesses and might never have been. If
the Officers had already testified and, thereafter, the
prior audio-recorded statements had been offered as
evidence, they would have been properly refused.
Notwithstanding that the statements constituted party
admissions, their effect, in that circumstance, would have
been to contradict the witnesses and Code § 8.01-404 would
not have permitted their introduction. As we said in
11
Harris, the history of the statute, “as well as the
language used, clearly indicates that the provisions of the
statute are confined to the contradiction of a witness by
the introduction of a prior inconsistent statement in
writing.” 180 Va. at 220, 22 S.E.2d at 17.
There is an important distinction between a party
admission and a prior inconsistent statement used to
impeach a witness’ present testimony. The latter is never
admissible to prove the truth of the statement’s content.
Commercial Distrib., Inc. v. Blankenship, 240 Va. 382, 394,
397 S.E.2d 840, 847 (1990); Hall v. Commonwealth, 233 Va.
369, 375, 355 S.E.2d 591, 595 (1987). Accordingly, when
such a statement is offered for impeachment, the opposing
party is entitled, upon request, to have the trial court
give a cautionary instruction to the jury advising that the
statement is to be considered only insofar as it affects
the witness’ credibility and that it cannot be considered
as proof of the statement’s content. Id. at 374, 355
S.E.2d at 595. (citing Stoots v. Commonwealth, 192 Va. 857,
866, 66 S.E.2d 866, 871 (1951)).
In contrast, “[e]xtra-judicial admissions made by a
party to a civil action are admissible in evidence against”
that party. Prince v. Commonwealth, 228 Va. 610, 613, 324
S.E.2d 660, 662 (1985). “An admission deliberately made,
12
precisely identified and clearly proved affords evidence of
a most satisfactory nature and may furnish the strongest
and most convincing evidence of truth.” Tyree v. Lariew,
208 Va. 382, 385, 158 S.E.2d 140, 143 (1967). A party
admission does not have to be inculpatory or incriminating
when made. Alatishe v. Commonwealth, 12 Va. App. 376, 378,
404 S.E.2d 81, 82 (1991).
Thus, we hold that the circuit court erred by refusing
to allow the plaintiff to introduce into evidence the
transcripts of the Officers’ prior audio-recorded
statements as party admissions in the plaintiff’s case-in-
chief. We cannot say that the plaintiff was not prejudiced
by this error since party admissions “may furnish the
strongest and most convincing evidence of truth.” Tyree,
208 Va. at 385, 158 S.E.2d at 143.
CONCLUSION
For the reasons stated, we will reverse the judgment
of the circuit court and remand this case for a new trial
consistent with the views expressed in this opinion.6
Reversed and remanded.
6
In light of our decision, it is not necessary to
decide whether the circuit court abused its discretion by
failing to enforce the terms of its pre-trial order
regarding objections to the admissibility of exhibits.
13
SENIOR JUSTICE STEPHENSON, with whom JUSTICE KOONTZ joins,
dissenting.
I respectfully dissent. The majority concedes, as it
must, that the statements could not be used to contradict
witnesses in the trial. Nevertheless, the majority holds
that the trial court erred in refusing to allow the
plaintiff to introduce the statements into evidence "as
party admissions in the plaintiff's case-in-chief."
In Alspaugh v. Diggs, 195 Va. 1, 9, 77 S.E.2d 362, 366
(1953), the defendant contended that a writing signed by
the plaintiff was admissible as " 'a statement against
interest made by a party in litigation.' "1 We rejected
that contention, holding that "the introduction in evidence
of a prior ex parte written statement signed by an
interested party is within the purview of the Code [present
§ 8.01-404] and cannot be used for the purpose of
contradicting him." Id. at 11, 77 S.E.2d at 367.
In spite of the holding in Alspaugh, which the
majority does not address, the majority holds that the
statements in the present case are admissible as party
admissions based upon the following rationale:
1
Historically, the terms "admissions against interest"
and "party admissions" have been used interchangeably. The
latter term, however, seems to be preferred at present.
See Charles E. Friend, The Law of Evidence in Virginia
§ 251, at 465-66 (Michie 1977).
14
At that point in the trial [when the statements
were proffered as exhibits], the Officers would
not have been testifying as witnesses nor would
they have previously testified. Thus, the
statements would not have been used to
"contradict" the Officers because they would not
yet have been witnesses and might never have
been.2
To me, it is abundantly clear that plaintiff's sole
purpose in introducing the statements was to contradict the
Officers when they testified. Indeed, twenty pages of his
brief before us were used to endeavor to explain how these
statements would have contradicted the Officers' testimony.
Additionally, the majority acknowledges that "[i]f the
Officers had already testified and, thereafter, the . . .
statements had been offered as evidence, they would have been
properly refused." Continuing, the majority states that the
effect of the statements "would have been to contradict the
witnesses and Code § 8.01-404 would not have permitted their
introduction."
It appears to me that the majority's ruling will allow a
party to circumvent Code § 8.01-404 by doing indirectly what
the party could not do directly. I submit that the
majority's holding will effectively emasculate the clear
2
We do not find in the record that this argument
(i.e., the timing of the introduction of the statements)
was ever made by Gray either at trial or on brief in this
appeal.
15
provisions of Code § 8.01-404. I would hold that the trial
court properly prohibited the use of the statements by the
plaintiff in his case-in-chief.
16