COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
BRIAN DUDLEY McNEIL
MEMORANDUM OPINION * BY
v. Record No. 1477-94-4 JUDGE LARRY G. ELDER
OCTOBER 31, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
David B. Albo for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General; Robert
B. Condon, Assistant Attorney General, on brief),
for appellee.
Brian Dudley McNeil (appellant) appeals his conviction for
driving under the influence of alcohol in violation of Code
§ 18.2-266(ii). Appellant contends the trial court erred in
receiving into evidence part of a police report containing a
statement made by appellant to a third party who was not called
to testify. We hold the Commonwealth's failure to call the third
party to testify about appellant's prior inconsistent statement
left appellant unimpeached, and therefore appellant was
unaffected by the Commonwealth's introduction of the statement
during appellant's cross-examination. Additionally, the trial
judge, sitting without a jury, presumably disregarded any
prejudicial or inadmissible evidence. For these reasons, we
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
affirm the conviction.
Viewed in the light most favorable to the Commonwealth, the
record reveals that on October 29, 1993 appellant was arrested
for driving under the influence of alcohol. At trial, appellant
testified that on the night in question, he drank one beer at the
Board Room, a club at the FBI Academy in Quantico, Virginia and
two beers at Fat Tuesday's, a nearby bar. Later that night, when
appellant approached a checkpoint at the Quantico military base,
Lance Corporal Mark Dickerson smelled alcohol on appellant's
person and administered sobriety tests on appellant. Appellant
mumbled incoherently, failed two different sobriety tests, and
then left the scene in his car at a high rate of speed, lightly
striking Dickerson in the process. Appellant drove onto
Interstate 95, where he proceeded at a "very high rate of speed
and out of control," while swerving between lanes. Appellant
then re-entered the military base through an unguarded gate.
Corporal Robert Dunn testified he followed a vehicle matching
appellant's car's description, which traveled at a rate of
seventy miles per hour and refused to pull over despite Dunn
activating his lights and siren. Military police took appellant
into custody at approximately 2 a.m.
During cross-examination, the prosecutor attempted to
impeach appellant with the use of a statement appellant made to
Major William Wade after the incident. The prosecutor, over
objection, asked appellant whether he told Major Wade he had
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consumed "a couple" of beers, as opposed to one beer, at the
Board Room club prior to the incident.
The trial court found appellant guilty of driving under the
influence of alcohol.
We hold the Commonwealth unsuccessfully attempted to impeach
appellant with the use of a prior inconsistent statement made to
Wade and that this unsuccessful attempt does not warrant a
reversal of appellant's conviction.
Code § 19.2-268.1; Edwards v. Commonwealth, 19 Va. App. 568,
454 S.E.2d 1 (1995); and Smith v. Commonwealth, 15 Va. App. 507,
425 S.E.2d 95 (1992), detail the procedure by which a witness may
be confronted with a prior inconsistent statement or writing. In
this case, the record reveals the Commonwealth laid the proper
foundation for impeachment and afforded appellant the chance to
deny making the disputed statement to Wade. However the
Commonwealth did not show the statement to appellant and failed
to call Wade to the stand to offer testimony that would have
proven appellant made a prior inconsistent statement. Therefore,
arguably the trial court never received into evidence any
improper impeachment evidence, as "the mere denial [by appellant
did] not in itself constitute impeachment." 1 Charles E. Friend,
The Law of Evidence in Virginia § 4-3(a), at 123-24 n.7 (4th ed.
1993)(citing Floyd v. Commonwealth, 191 Va. 674, 62 S.E.2d 6
(1950)).
Furthermore, because this was a non-jury trial, the trial
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court is presumed to have used its unique "training, experience,
and judicial discipline to disregard potentially prejudicial
comments and to separate, during the mental process of
adjudication, the admissible from the inadmissible, even though
[it] . . . heard both." Echkhart v. Commonwealth, 222 Va. 213,
216, 279 S.E.2d 155, 157 (1981). We will not reverse a decision
unless clear evidence exists that the trial court failed to
disregard inadmissible or prejudicial evidence. Hall v.
Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992)(en
banc). Additionally, the:
determination of the scope of cross-
examination in general, and of the extent of
testimonial impeachment in particular, should
be "left largely to the sound discretion of
the trial court; and the rule is well
established that an appellate court will not
interfere, unless that discretion has been
plainly abused."
Spruill v. Commonwealth, 221 Va. 475, 486, 271 S.E.2d 419, 425
(1980)(citation omitted). In this case, although the trial court
heard the Commonwealth's question to appellant and a small
portion of Wade's sworn statement, the record shows the trial
court did not consider these factors in reaching its decision.
As the trial court stated in its findings, it started "from the
proposition in this case, on that evening you had three beers, by
your own testimony, or any minimum you had three beers." The
trial court then summarized the abundant credible evidence
offered against appellant. In light of these facts, we cannot
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say that any error occurred that affected appellant's right to a
fair trial. See Code § 8.01-678.
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Accordingly, we affirm the conviction.
Affirmed.
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Brian Dudley McNeil v. Commonwealth
Combined Opinion