COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia
WILLIAM LOYD FETTY
MEMORANDUM OPINION * BY
v. Record No. 0176-99-2 JUDGE NELSON T. OVERTON
FEBRUARY 1, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
David F. Berry, Judge Designate
Eugene M. Simmons (William A. Parks, Jr., on
brief), for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
William Loyd Fetty, appellant, appeals his convictions for
second degree murder and use of a firearm in the commission of
that murder. Appellant contends (1) that the trial court erred by
overruling his request to call the Commonwealth's Attorney as a
material witness, (2) that the trial court erred by overruling his
request to call Deputy Sheriff Chris Kothe as an adverse witness,
(3) that the trial court erred by refusing his request for a
mistrial, and (4) that the evidence was insufficient to support
appellant's convictions. For the following reasons, we find no
error and affirm the convictions.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Facts
On the evening of the shooting, appellant went to his son's
home to look for items missing from his home. Appellant suspected
that his son, Scott, had stolen these missing items. Thereafter,
Scott telephoned appellant because Scott thought appellant owed
him an apology. Appellant called Scott "a little bastard" and
denied owing him anything. A series of angry telephone calls
followed between appellant and Scott.
Scott drove to appellant's home to have a face-to-face talk
with appellant. Chris Crampton rode with Scott to appellant's
home. Appellant claimed that he thought Scott was coming to "kick
[his] ass" so he put his eleven gauge shotgun near the back door.
When Scott arrived, he approached appellant's deck and appellant
approached Scott with balled fists. Scott said, "I'm not here for
this, if you put your hands on me I will defend myself."
Appellant, who has a history of becoming "enraged," was mad.
Appellant said, "[T]wo of us can play this game."
Appellant went inside his house and then returned with his
shotgun. Appellant pointed the gun at Scott's face. Scott asked
appellant whether he was going to shoot him. Appellant said,
"[Y]ou see that truck?" Appellant fired two rounds into Scott's
truck. Scott put his hands in front of his father and yelled
three times that his "buddy's in the truck." Appellant looked
Scott in the eye, raised the gun up and continued firing at the
passenger door of Scott's truck. Scott ran to his truck and saw
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Crampton laying across the seat. Scott yelled that appellant had
killed his friend, and then drove to a neighbor's home to call the
sheriff's department.
Appellant told a man in jail that "he thought he had seen
something duck down in the truck" before he fired gunshots at
Scott's truck.
In a statement to the police, appellant claimed that Scott
had not told him anyone was in the truck until after he had fired
five shots into the truck. At trial, appellant's sister testified
that Scott said he had not told appellant anyone was in the truck
until the last gunshot. Appellant's sister's roommate testified
that Scott told her that appellant did not know anyone was in the
truck until after the last gunshot. Scott denied making these
statements.
Issues I through III
Appellant complains that the trial court erred by refusing to
allow him to call the Commonwealth's Attorney as a material
witness, by refusing to allow him to call Kothe as an "adverse
witness," and by refusing to declare a mistrial. In reality,
these complaints amount to the single claim that the trial court
erred by refusing to allow him to call the Commonwealth's Attorney
as a witness in order to impeach Kothe with a prior inconsistent
statement.
"Code § 8.01-403 allows a party to impeach his or her own
witness by prior inconsistent statements only when the witness
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whom the party expected to testify favorably has suddenly given
unexpected, adverse testimony on the stand." Maxey v.
Commonwealth, 26 Va. App. 514, 519-20, 495 S.E.2d 536, 539
(1998). One's own witness may be impeached if the testimony of
that witness "proves adverse," which means the testimony of the
witness is "injurious or damaging."
Defense counsel called Kothe to testify about appellant's
reaction when appellant was told that the person in the truck
had been killed. Kothe testified that appellant said, "Oh, no."
However, Kothe had no present recollection of telling the
Commonwealth's Attorney that the color drained from appellant's
face when told that Crampton was dead. On the day before this
issue was raised in trial, appellant learned that Kothe had no
present recollection of saying anything about the color on
appellant's face. Therefore, defense counsel was not surprised
when Kothe testified that he had no present recollection
regarding the color draining from appellant's face.
Additionally, testimony that Kothe could not recall saying the
color drained from appellant's face was not adverse to
appellant, but only failed to meet appellant's expectations.
See Brown v. Commonwealth, 6 Va. App. 82, 85-86, 366 S.E.2d 716,
718 (1988). Therefore, Kothe did not "prove adverse" within the
meaning of Code § 8.01-403, and defense counsel could not
impeach Kothe pursuant to that section.
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The trial court correctly noted that allowing the defense
to call the Commonwealth's Attorney as a witness would require
that someone else be brought in to prosecute the case. The
court noted that the Commonwealth's Attorney disclosed Kothe's
statement to the defense but has no control over how that
information is utilized. Moreover, there was no showing as to
why defense counsel could not be disqualified from the case, as
he too heard Kothe's previous statement. The court noted that
the matter should have been "sifted through" and denied the
motion for a mistrial "because it comes too late." The matter
could have been avoided. Therefore, the trial court properly
exercised its discretion when it denied appellant's motion for a
mistrial. See Beavers v. Commonwealth, 245 Va. 268, 280, 427
S.E.2d 411, 420 (1993).
Issue IV
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
So viewed, the evidence showed that Scott Fetty confronted
his father, the appellant, about what happened during an earlier
visit. They began to argue, and appellant asked his son, Scott,
to leave. Scott refused to leave. Enraged, appellant went
inside his house and came back outside with a shotgun. Scott
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asked if he was going to shoot him. Appellant replied, "Hell,
yeah. . . . You see that truck?" Appellant fired two rounds
into the back wheel of Scott's truck before dropping the gun
down to his side. Scott held up his hands and said, "my buddy's
in the truck, my buddy's in the truck, my buddy's in the truck."
Appellant looked Scott "dead in the eye," picked up the gun and
shot into the passenger door, killing Chris Crampton who was in
the truck.
In a statement to Investigator Stanley Kirks, appellant
claimed that Scott did not tell him anyone was in the truck
until after appellant fired at the passenger door.
The fact finder believed the Commonwealth's evidence, and
rejected appellant's claim that he did not know anyone was in
the truck when he fired his gun. "The credibility of the
witnesses and the weight accorded the evidence are matters
solely for the fact finder who has the opportunity to see and
hear that evidence as it is presented." Sandoval v.
Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).
The Commonwealth's evidence was competent, was not inherently
incredible, and was sufficient to prove beyond a reasonable
doubt that appellant committed second degree murder.
Affirmed.
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