COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Baker and Bray
Argued at Norfolk, Virginia
KEVIN STANLEY PAINTER
MEMORANDUM OPINION * BY
v. Record No. 1502-97-1 JUDGE RICHARD S. BRAY
APRIL 7, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
Theresa B. Berry (Samford & Berry, P.C., on
brief), for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
A jury convicted Kevin Stanley Painter (defendant) for the
rape and murder of Amber Zajac (victim). On appeal, defendant
complains that the trial court erroneously (1) declined to
declare a defense witness adverse, thereby precluding impeachment
by defendant through prior inconsistent statements, 1 and (2)
refused an instruction admonishing the jury on the proper
consideration of a "person['s] false statement to the police."
Finding no error, we affirm the convictions.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
On brief, defendant also argues that the trial court
erroneously refused to admit the witness' prior inconsistent
statements as declarations against penal interest. However, this
issue was not presented in defendant's petition for appeal and
will not now "be noticed" by this Court. Rule 5A:12(c).
I.
At approximately midnight on August 7, 1995, the victim
began to walk home following a visit with friends. When she
failed to arrive as expected, family members initiated a search
of the area and soon discovered the victim's partially clothed
body along a wooded path en route from the friends' home. She
had been beaten, raped and strangled by an assailant.
The ensuing investigation immediately focused on Kenneth
Pallett, a nearby resident who had approached police at the scene
and offered his assistance. Pallett agreed to a police interview
and volunteered hair and blood specimens for forensic
examination. During the interview, Pallett provided numerous
conflicting statements relative to the offenses. After initially
denying involvement and implicating others in the crimes, he
described himself as "lookout," while an individual known to
Pallett only as "Toothless" attacked the victim. As a result,
police arrested and charged Pallett with the offenses.
Nevertheless, police continued to investigate and, on August
17, 1995, Detective Alan Ball interviewed defendant. Defendant
admitted that he had seen the victim immediately prior to her
death, but denied any sexual contact. Police also obtained blood
and hair samples from defendant.
Comparisons of the blood and hair characteristics of Pallett
and defendant with "genetic material" recovered from the victim
eliminated Pallett as a source of the male donor DNA but
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identified defendant, with statistical certainty, as the
contributor. Pallett was thereafter released, and police
arrested defendant.
At trial, Pallett, called as a defense witness, testified
that he was at home with his family at the time of the offenses.
Defendant then moved the court to declare Pallett "an adverse
witness," testifying to divert suspicion from himself to
defendant. In overruling the motion, the court observed that
"there is very convincing and uncontradicted evidence
that . . . Pallett has been totally exonerated." However, the
court permitted defendant's counsel to "refresh [Pallett's]
recollection" with his earlier statements to police and to then
inquire into these diverse accounts. Pallett attributed the
inconsistencies to a decision to "say anything, whatever they
wanted to hear so they would let me go."
Defendant testified, claiming that he and the victim had
engaged in consensual sex and that the victim was dressing when
he left the wooded area.
II.
"As a general rule at common law, a party was not allowed to
impeach its own witness." Maxey v. Commonwealth, 26 Va. App.
514, 518, 495 S.E.2d 536, 538 (1998) (citation omitted).
However, "Virginia has enacted two statutes that impact [this]
rule," Code §§ 8.01-401, -403. Id. Code § 8.01-401 permits a
party to call a witness "having an adverse interest" and examine
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such witness "according to the rules applicable to
cross-examination." Code § 8.01-401. The statute contemplates
persons with a "financial or other personal interest in the
outcome of the case." Maxey, 26 Va. App. at 520, 495 S.E.2d at
539; Weller v. Commonwealth, 16 Va. App. 886, 892, 434 S.E.2d
330, 335-36 (1993). Thus, a party may impeach an adverse witness
with prior statements inconsistent with his or her trial
testimony. Id.
Code § 8.01-403 also allows a party producing a witness to
"prove that he has made at other times a statement inconsistent
with his present testimony," provided such witness "shall in the
opinion of the court prove adverse." Code § 8.01-403 (emphasis
added). A witness "prove[s] adverse" "when the witness whom the
party expected to testify favorably has suddenly given
unexpected, adverse testimony on the stand," Maxey, 26 Va. App.
at 519-20, 495 S.E.2d at 539, testimony "injurious or damaging to
the . . . party who called the witness." Ragland v.
Commonwealth, 16 Va. App. 913, 920, 434 S.E.2d 675, 680 (1993).
The trial court must exercise its sound discretion in determining
if a witness has proven adverse. See Code § 8.01-403; Maxey, 26
Va. App. at 522, 495 S.E.2d at 540.
Here, counsel first moved the court to declare Pallett an
adverse witness after Pallett testified that he was "in [his]
house" during the offenses. The court concluded, however, that
Pallett had "been totally exonerated" by "convincing and
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uncontradicted evidence" and was "not an adverse witness,"
leaving defendant with "no basis . . . to cross-examine" him
pursuant to Code § 8.01-401. Further, Pallett's trial testimony
was neither "damaging" nor "injurious" to defendant's case within
the purview of Code § 8.01-403. Thus, there was no statutory
authority for defendant to impeach Pallett, either as an adverse
witness or a witness whose testimony proved adverse, and the
court properly denied his motion.
Moreover, it is clear from the record that the court,
nevertheless, permitted defendant to thoroughly question Pallett
regarding his conflicting statements to police, including actual
use of the interview to "refresh the witness' recollection."
III.
"If the principles set forth in a proposed instruction are
fully and fairly covered in other instructions that have been
granted, a trial court does not abuse its discretion in refusing
to grant a repetitious instruction." Joseph v. Commonwealth, 249
Va. 78, 90, 452 S.E.2d 862, 870 (1995) (citations omitted). "In
fact, trial courts should avoid giving redundant or repetitive
jury instructions." League v. Commonwealth, 9 Va. App. 199, 210,
385 S.E.2d 232, 239 (1989) (citation omitted).
Defendant's proposed instruction admonished the jury that,
"if a person gives a false statement to the police, this creates
no presumption that the person is guilty of having committed the
crime." It was rejected by the trial court as an "improper
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comment on specific evidence." However, the jury was charged, in
pertinent part: "You are the judges of the facts, the
credibility of the witnesses, and the weight of the evidence.
You may consider . . . their prior inconsistent statements, or
whether they have testified untruthfully . . . [to] determine
which witnesses are more believable and weigh their testimony
accordingly." Virginia Model Jury Instructions, Criminal, No.
2.500 (1993 repl. ed. with 1997 Supp.). Thus, the jury was
properly instructed on the credibility issue, the subject of
defendant's proposed instruction.
Accordingly, we affirm the convictions.
Affirmed.
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Kevin Stanley Painter v. Commonwealth of Virginia
Combined Opinion