COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia
OTIS LEE MAXEY
OPINION BY
v. Record No. 0836-97-3 JUDGE SAM W. COLEMAN III
FEBRUARY 10, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
William W. Sweeney, Judge
Bryan K. Selz (Overbey, Hawkins & Selz, on
brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Otis Lee Maxey was convicted by a jury for the abduction and
rape of his former wife. On appeal, Maxey contends the trial
court erred by allowing the Commonwealth to impeach his mother,
called as a Commonwealth witness, with inconsistent statements
she previously had given to a police investigator. Maxey argues
the Commonwealth could not impeach his mother because she was not
an adverse witness, and the Commonwealth knew prior to her
testimony that she would testify unfavorably. We hold that
appellant's mother was an adverse witness and, therefore, the
Commonwealth could impeach her with her prior inconsistent
statements. Accordingly, we affirm the convictions.
I. BACKGROUND
Appellant was tried before a jury for the rape and abduction
of his former wife, Christina Poore. Poore testified that on the
day of the rape, she and three of her children went to the
appellant's trailer to visit two of her other children who were
in Maxey's custody. The trailer was located adjacent to the
property of Rebecca Maxey (Mrs. Maxey), the appellant's mother.
When Poore arrived, appellant invited her inside his trailer
while the children were at his mother's home. According to
Poore, once she was inside, appellant locked the door, physically
forced her onto his bed, began taking her clothes off, and told
her he was going to have sexual intercourse with her. Poore
resisted and began to scream. Poore testified that shortly
thereafter, Mrs. Maxey entered the trailer with all five of
Poore's children. She stated that Mrs. Maxey began to hit
appellant and told him to get off Poore. When appellant reached
for a file cabinet where he kept a gun, Mrs. Maxey and Poore
struggled to restrain him. Appellant pushed his mother away and
punched Poore in the left eye. Eventually, according to Poore,
he grabbed the gun and demanded that Mrs. Maxey and the children
leave the trailer. Poore also testified that the appellant
warned Mrs. Maxey not to call anyone or he would "blow [Poore's]
head off." Poore claimed that after Mrs. Maxey and the children
left the trailer, the appellant forcibly raped her.
After Poore testified, the Commonwealth called Mrs. Maxey as
a witness. The Commonwealth's attorney requested that Mrs. Maxey
be declared an adverse witness because of her relationship to the
appellant and that he be permitted to cross-examine her.
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Appellant asserted that his mother could not be declared an
adverse witness based solely on her relationship to him.
Appellant further informed the court and the Commonwealth's
attorney that his mother's anticipated testimony would not
substantiate Poore's account of the incident, as the Commonwealth
may have anticipated. Thus, appellant argued, the Commonwealth
could not claim surprise when Mrs. Maxey testified or claim that
she was an adverse witness; therefore, it could not cross-examine
her or impeach her with conflicting statements she may have
previously made to the police investigator.
Out of the jury's presence, the judge conducted voir dire of
Mrs. Maxey to preview her testimony. Mrs. Maxey stated that when
she entered the appellant's trailer the door was not locked. She
stated that appellant and Poore were merely arguing and watching
television. She denied that she tried to keep appellant away
from his gun, that she saw appellant strike Poore in the face, or
that appellant threatened her. Mrs. Maxey did testify that Poore
had a "mark" under her left eye and that Poore told appellant
that she wanted to leave the trailer and go home.
After previewing Mrs. Maxey's proffered testimony, the court
declared that she was an adverse witness because of her
relationship to the appellant and because the Commonwealth was
surprised by her unfavorable testimony. As a result, the court
ruled that the Commonwealth could cross-examine her and could
impeach her with any prior inconsistent statements she may have
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made to the investigator. The Commonwealth called Mrs. Maxey as
an adverse witness, and she testified substantially as she did in
voir dire. When confronted with and asked about the
contradictory statements she allegedly had made to the
investigator, she denied having made them. The Commonwealth was
allowed to impeach Mrs. Maxey by calling the investigator, who
testified that Mrs. Maxey had made a number of statements to him
that were inconsistent with her testimony at trial.
The jury convicted Maxey for rape and abduction and
recommended that he be sentenced to eighteen years in the
penitentiary for rape and one year for abduction, which the trial
judge imposed.
II. ANALYSIS
As a general rule at common law, a party was not allowed to
impeach its own witness. See Washington & O.D. Ry. v. Jackson's
Adm'r, 117 Va. 636, 85 S.E. 496 (1915). A party calling a
witness was considered to have vouched for the witness'
credibility and was not allowed to prove that the witness was
unworthy of belief, even if the witness spoke against the party
in some respects. Spencer A. Gavel, Jones on Evidence § 26:10,
at 194 (6th ed. 1972). By statute, the English Parliament long
ago modified the common law rule to allow a party to impeach its
own witness with prior inconsistent statements, provided the
witness proved adverse. Id. Similarly, Virginia has enacted two
statutes that impact the common law rule. Code § 8.01-403 allows
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a party producing a witness to "prove that he has [previously]
made a statement inconsistent with his present testimony,"
provided that witness "proves adverse." Under Code § 8.01-401, a
party may call a witness "having an adverse interest" and "may
examine such person according to the rules applicable to
cross-examination." See also Mastin v. Theirjung, 238 Va. 434,
439-40, 384 S.E.2d 86, 89 (1989). Although one commentator takes
the view that the cases applying these two statutes do not
clearly define the scope and circumstances when each statute will
apply, see Charles E. Friend, Law of Evidence in Virginia § 4-9,
at 147 (4th ed. 1993) ("Much confusion has resulted from the
failure to distinguish between the witness who 'proves adverse'
and the 'adverse witness.'"), 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. See Stoots v. Commonwealth, 192 Va. 857, 866, 66
S.E.2d 866, 871 (1951) (upholding trial court's decision to allow
Commonwealth to call defendant's sister as adverse witness and
contradict her testimony with her prior inconsistent statements).
Thus, we consider whether either of the two statutes, in
addition to the Stoots decision, authorized the trial court to
allow the Commonwealth to impeach Mrs. Maxey's testimony with her
prior inconsistent statements. 1
1
Both statutes apply in criminal as well as civil
proceedings. See Trout v. Commonwealth, 167 Va. 511, 516, 188
S.E. 219, 221 (1936); Tate v. Commonwealth, 155 Va. 1016, 1024,
154 S.E. 508, 511 (1930).
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Code § 8.01-403 permits the impeachment of a witness who
"proves adverse." The term "adverse," under this section, refers
to a witness whose testimony is "injurious or damaging to the
case of the party who called the witness." Ragland v.
Commonwealth, 16 Va. App. 913, 920, 434 S.E.2d 675, 680 (1993).
A party's own witness "prove[s] adverse" if the witness
"surprise[s] the party by changing stories or becoming hostile on
the stand." Friend, supra, § 4-9, at 147 (emphasis added); see
Roberts v. Commonwealth, 230 Va. 264, 269-70, 337 S.E.2d 255, 259
(1985) (holding that witness proved adverse where prosecutor was
"surprised by what [his own witness] said when he began
testifying"). Thus, Code § 8.01-403 allows a party to impeach
his or her own witness by prior inconsistent statements only when
the witness whom the party expected to testify favorably has
suddenly given unexpected, adverse testimony on the stand. See
Friend, supra, § 4-9, at 149.
In this case, the Commonwealth was not surprised when Mrs.
Maxey testified unfavorably on the stand about some aspects of
what she had seen. The Commonwealth was aware before Mrs. Maxey
took the stand that parts of her testimony would conflict with
parts of her earlier statements to the investigator and in some
respects was injurious to its case. Accordingly, Mrs. Maxey did
not "prove adverse" within the meaning of Code § 8.01-403 and the
Commonwealth could not impeach her testimony pursuant to that
section.
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Code § 8.01-401(A), on the other hand, refers to calling a
witness "having an adverse interest," or commonly referred to as
an "adverse witness." 2 See Friend, supra, § 4-9, at 149-50. A
witness does not have an "adverse interest" simply because his or
her testimony is adverse or injurious to the calling party's
case. See Butler v. Parrocha, 186 Va. 426, 433, 43 S.E.2d 1, 4
(1947) (distinguishing witness "having an adverse interest" from
"adverse testimony" provided by witness who "proves adverse"
within the meaning of statutory predecessor to Code § 8.01-403).
Rather, an "adverse witness" is an opposing party or a nonparty
witness who has a financial or other personal interest in the
outcome of the case. See Daniels v. Morris, 199 Va. 205, 211, 98
S.E.2d 694, 698 (1957); Butler, 186 Va. at 431, 43 S.E.2d at 4.
A witness who has a personal interest in the outcome of the case
includes persons who are "closely connected by blood or otherwise
to at least one party"; thus, close relatives of a party are
witnesses who have an "adverse interest" within the meaning of
Code § 8.01-401(A). Butler, 186 Va. at 434, 43 S.E.2d at 5.
Mrs. Maxey is appellant's mother. Although parts of her
testimony were relevant and provided details of the facts
2
Although Code § 8.01-401(A) refers to a "party" having an
adverse interest, the Virginia Supreme Court has determined 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." Butler v.
Parrocha, 186 Va. 426, 432, 43 S.E.2d 1, 4 (1947) (emphasis
added).
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surrounding the incident that led to the charges, some aspects of
her testimony were not supportive of the Commonwealth's charges.
Because of her close blood relationship to the appellant, Mrs.
Maxey was an adverse witness. Although the Commonwealth could
not have called Mrs. Maxey solely for the purpose of impeaching
her with her prior statements, the Commonwealth was entitled to
prove the relevant facts about which she testified. Because she
was adverse to the Commonwealth, the Commonwealth could impeach
her with her contradictory statements. In Stoots, the Supreme
Court upheld the trial court's ruling that allowed the
Commonwealth to call the defendant's sister as an adverse witness
and impeach her with her prior inconsistent statements. 192 Va.
at 866, 66 S.E.2d at 871. Likewise, in this case, the
Commonwealth was permitted to impeach Mrs. Maxey with her prior
statements to the police investigator where her testimony was
adverse to the Commonwealth's position.
Furthermore, appellant's reliance on Williams v.
Commonwealth, 193 Va. 764, 71 S.E.2d 73 (1952), is misplaced.
Williams held that a party may not call an adverse witness for
the sole purpose of impeaching his or her testimony. 193 Va.
769, 71 S.E.2d at 76. Irrespective of whether the trial court
gives the jury a limiting instruction, such a practice is highly
prejudicial to the other party, allowing the calling party to use
statements "directly . . . which could not be [used] indirectly."
Id. In this case, Mrs. Maxey testified that Poore was crying
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and wanted to leave the trailer and that she left the trailer
with a bruise on her left eye which she did not have when she
first arrived on the property. Thus, some aspects of Mrs.
Maxey's testimony substantiated Poore's account of the incident
and, therefore, were favorable to the Commonwealth's case.
Accordingly, the Commonwealth did not call Mrs. Maxey for the
sole purpose of impeaching her testimony.
For these reasons, we hold that the trial court did not
abuse its discretion when it declared Mrs. Maxey to be an adverse
witness and allowed the Commonwealth to impeach her with her
prior inconsistent statements; accordingly, we affirm the
convictions.
Affirmed.
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