COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
LISA THOMASINE WALLER
v. Record No. 0077-95-2 OPINION BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA MARCH 12, 1996
FROM THE CIRCUIT COURT OF LANCASTER COUNTY
Dixon L. Foster, Judge Designate
William R. Curdts (Dunton, Simmons, & Dunton,
on briefs), for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On appeal from her conviction for distribution of cocaine,
Lisa Thomasine Waller contends that the trial court erred (1) in
refusing to allow her to cross-examine a prosecution witness
concerning a prior inconsistent statement, and (2) in refusing to
admit into evidence the transcript of a prosecution witness's
inconsistent statements at a previous trial. We agree and
reverse the judgment of the trial court.
On July 17, 1993, at 8:00 p.m., Michael Conway, a volunteer
working for the Lancaster County drug task force, met with Deputy
United States Marshal Larry Clarke to purchase drugs. The two
men stopped outside a house in a residential area off Wiggins
Road. They saw Hilton Laws sitting on the side of the road and
Waller's car in the driveway. Conway asked Laws where they could
buy some drugs. Laws went to Waller. Waller then walked over to
Conway and asked what she could do for them. Conway said he
wanted a fifty dollar rock of cocaine. Waller walked back to her
car and spoke with a man, known as "The Undertaker," who was
sitting in the passenger seat. When she returned, she handed
Conway a rock of cocaine and he gave her fifty dollars.
At trial, Waller admitted she was present at the time of the
sale, but she testified that someone else sold the cocaine to
Conway.
I.
Waller sought to cross-examine Conway concerning his
testimony in a prior trial "that the only people that he bought
from during the task force operation were black males." Defense
counsel noted that Waller was not a black male. The trial court
ruled that evidence of Conway's prior testimony was inadmissible
and denied the cross-examination. This was error.
If a witness gives testimony that is inconsistent with
a prior statement, . . . opposing counsel may cross-
examine the witness as to the inconsistency. In
addition, all inconsistent portions of that prior . . .
statement are admissible for impeachment purposes.
Smith v. Commonwealth, 15 Va. App. 507, 511, 425 S.E.2d 95, 98
(1992) (citations omitted). Conway's alleged testimony on the
earlier occasion that he had bought drugs only from black males
was inconsistent with his testimony at trial that he had bought
cocaine from Waller, who was not a black male. Waller was
entitled to cross-examine him on this subject.
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II.
On cross-examination, counsel for Waller asked Agent Clarke:
Q. You had to make people believe that you were a user of
cocaine in order to get them to sell it to you;
is that right?
A. Yes, sir.
Q. Did you ever find yourself in the company of other
people using cocaine during the course of your investigation?
A. Yes, sir.
Waller's counsel then sought to impeach Clarke's testimony by
proof that at Waller's previous trial Clarke had testified that
he had not been in the presence of people who were actually using
cocaine. Defense counsel read to Clarke the following excerpt
from the transcript of that previous testimony:
Q. In fact, you were playing the role of someone who is a
drug user, someone in search of drugs; is that right?
A. Yes, sir.
Q. And your safety depended on that.
A. Yes, sir.
Q. Did you ever find yourself in a position where,
in order to maintain your identity, or your persona,
you are in the company of people that were actually
using cocaine.
A. Were I in the presence of people actually using
cocaine?
Not primarily in my presence, but suspected
areas where such that they may have been
inside of a house while I am outside.
But I have never been right there while
cocaine was being used.
Asked whether he recalled that testimony, Clarke replied, "I
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don't recall, but I tried to answer the question to the best of
my recollection in a truthful manner on that day as well as
today, but I don't recall using those exact words." Defense
counsel then sought to introduce the transcript into evidence.
The trial court ruled that counsel might cross-examine Clarke on
his prior testimony, but refused to admit the transcript into
evidence.
The Commonwealth contends, as a threshold matter, that the
inconsistency between Clarke's testimony at Waller's trial and
his testimony on the prior occasion was collateral and immaterial
to any issue on trial in Waller's case, and thus could not be
used by Waller to impeach Clarke. A witness may be impeached on
cross-examination by proof that he has, on a prior occasion, made
a statement that is inconsistent with any testimony given by him
on direct examination. However, if the subject matter is raised
for the first time on cross-examination and is collateral to the
issues on trial, it cannot be the basis for impeachment by proof
of a prior inconsistent statement. See Baltimore, C. & A. Ry.
Co. v. Hudgins, 116 Va. 27, 31-32, 81 S.E. 48, 49 (1914); Simpson
v. Commonwealth, 13 Va. App. 604, 606-07, 414 S.E.2d 407, 409
(1992).
The subject matter of Clarke's inconsistent statements was
raised for the first time on cross-examination. However, that
subject matter was not collateral to the issues on trial. "The
test as to whether a matter is material or collateral, in the
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matter of impeachment of a witness, is whether or not the cross-
examining party would be entitled to prove it in support of his
case." Maynard v. Commonwealth, 11 Va. App. 437, 445, 399 S.E.2d
635, 640 (1990) (en banc) (citation omitted). The inconsistent
statements related to Clarke's conduct and the conduct of his
companions during the task force operation, specifically with
respect to drug dealings, and to Clarke's ability to recall that
conduct. This subject matter bore directly on the validity and
accuracy of Clarke's assertions against Waller and was an area
that she was entitled to explore in her defense. Therefore,
these statements were proper material for impeachment.
Waller contends that the trial court erred in refusing to
receive the relevant portion of the transcript into evidence as
proof of the prior inconsistent statement. Citing Smith v.
Commonwealth, 15 Va. App. 507, 425 S.E.2d 95 (1992), and Hall v.
Commonwealth, 233 Va. 369, 355 S.E.2d 591 (1987), the
Commonwealth argues that because the statement was read into
evidence, its proof was thereby accomplished, that admission of
the written transcript thereby became unnecessary, and that the
trial court did not abuse its discretion in rejecting the
transcript. We disagree.
It is fundamental to the right of cross-examination
that a witness who is not a party to the case on trial
may be impeached by prior statements made by the
witness which are inconsistent with his present
testimony, provided a foundation is first laid by
calling his attention to the statement and then
questioning him about it before it is introduced in
evidence.
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Hall, 233 Va. at 374, 355 S.E.2d at 594.
In Hall, a witness's prior inconsistent statement was read
to him. The accused then sought a cautionary instruction,
informing the jury that the prior inconsistent statement could be
considered only for impeachment purposes and not as proof of the
substance of the statement. The trial court refused to give the
instruction, because the statement itself had not been put into
evidence but merely had been recited on cross-examination.
Holding that the denial of the cautionary instruction was error,
the Supreme Court said, "[t]he effect of [the recitation] on the
jury was the same as if the statement had been formally
introduced and the court's refusal to admit the statement in
evidence is immaterial." Id. at 375, 355 S.E.2d at 595. This
ruling held merely that the recitation of the prior inconsistent
statement was proof sufficient to render erroneous the denial of
a requested cautionary instruction. Hall did not approve a
refusal to accept the statement, if tendered, into evidence.
In Smith, defense counsel handed a prosecution witness a
transcript of the witness's inconsistent statement given on a
prior occasion and had the witness read the statement aloud.
Sustaining the Commonwealth's objection to admission of the
transcript, the trial court summarized the inconsistency as
follows: "[Bradby] said he didn't implicate himself at all on
the date of the arrest. Now he is implicating himself. The jury
has that and the jury considers that and the jury makes the
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decision." Relying on Hall, we held:
[T]he quoted passage above shows that the statement was
read into evidence, even if not admitted in written
form. "The effect of that procedure on the jury was
the same as if the statement had been formally
introduced, and the court's refusal to admit the
statement in evidence is immaterial."
* * * * * * *
The record shows the trial court determined that the
jury had heard the relevant portions of the statement
as it related to impeachment. Once the jury has heard
the relevant portions of the prior inconsistent
statement during cross-examination, whether the written
statement itself is admitted into evidence is "a
distinction without a difference." Because the trial
court determined that admission of the written
statement would have added nothing not already in the
record, we cannot conclude that the trial court abused
its discretion in refusing to admit the transcript.
Smith, 15 Va. App. at 512-13, 425 S.E.2d at 98-99 (citations
omitted).
This case is distinguishable from Smith. Where a proper
foundation has been laid, challenging a witness's credibility on
the basis of his having made a prior inconsistent statement, the
prior inconsistent statement itself becomes admissible for
impeachment purposes. See Smith, 15 Va. App. at 511, 425 S.E.2d
at 98. In Smith, the impeached witness himself read the prior
inconsistent statement into evidence. The statement was thereby
incorporated into the body of proof laid before the jury. In
this case, the reading of the statement by counsel was a mere
assertion of counsel. It did not rise to the level of testimony
and, thus, was not proof of the statement. By rejecting the
relevant portion of the transcript, the trial court denied Waller
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the opportunity to prove the inconsistent statement upon which
her effort to impeach Clarke rested.
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In attempting to impeach Clarke, Waller proceeded properly
to frame the question by reading the statement from
a transcript of a prior proceeding. If the witness
denies or is unable to recall having made the
statement, counsel must then prove the statement
actually was made.
It is one thing, however, to say that counsel may
read a witness' prior statement from a transcript in
framing a question and quite a different matter to say
that the mere reading constitutes proof the statement
actually was made. Once the witness denies or is
unable to recall having made the prior inconsistent
statement, the proper procedure . . . is to use another
witness to prove the first witness had testified as
reported in the transcript. 1
Patterson v. Commonwealth, 222 Va. 612, 616-17, 283 S.E.2d 190,
193 (1981).
III.
The Commonwealth contends that any error in the trial
court's rulings was harmless. We do not agree. Although the
record contains abundant evidence of Waller's guilt, the
sufficiency of that proof is dependent upon Conway's and Clarke's
credibility. Had Waller succeeded in impeaching Conway or Clarke
and in raising a reservation as to the credibility of either, she
might well have won an acquittal.
The judgment of the trial court is reversed and this case is
remanded for further proceedings, if the Commonwealth be so
advised.
1
This appeal raises no question as to the authenticity of
the transcript. Furthermore, authentication by a witness is no
longer required. The transcript, if properly certified by the
court reporter, is self-authenticating. See Code § 8.01-420.3.
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Reversed and remanded.
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