Dwayne Stuart McCarter v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bray and Annunziata
Argued by teleconference
DWAYNE STUART McCARTER
OPINION BY
v. 	Record No. 1020-01-4 	JUDGE ROSEMARIE ANNUNZIATA
JULY 23, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY
Jean Harrison Clements, Judge
Michael M. Palmer (The Palmer Law Office, on
brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
A jury convicted Dwayne S. McCarter of burglary, grand
larceny of firearms, two counts of grand larceny, and possession
of a firearm by a convicted felon. 	The court sentenced McCarter
in accordance with the jury's verdict, ordering that several of
the sentences run concurrently so that the active sentence
totaled twenty years and six months in prison.
McCarter appeals his convictions on the ground that the
trial court erred in admitting into evidence his Notice of Alibi
Defense. 	For the reasons that follow, we disagree and affirm
his convictions.

Background
On appeal, we state the evidence in the light most
favorable to the Commonwealth, the party prevailing below.
In accordance with Rule 3A:11(c)(2), McCarter filed a Notice of
Alibi Defense. 	The notice indicated that at the time of the
offense he was traveling to and from, and working at, the home
of Mandy Druckenbrod in Maryland and, that upon completion of
his work at Druckenbrod's home, he returned to his home in
Amissville, Virginia. 	At trial, however, McCarter's wife,
called as a witness by the defendant, testified that she and her
husband spent the entire day in question at home.
With the stated purpose of contradicting that testimony,
the Commonwealth offered into evidence McCarter's Notice of
Alibi Defense. 	The defendant objected on the grounds that
McCarter did not testify and that the prosecutor could not
impeach the witness, who had become his witness. 	The trial
court overruled the objection and admitted the notice as
substantive evidence in the case, as well as to impeach the
witness' testimony.
Analysis
McCarter claims that the trial court erred in admitting his
Notice of Alibi Defense into evidence to impeach the witness.
Specifically, he argues that our rule permitting the
introduction of the defendant's notice of alibi as impeachment
evidence is inapposite because he did not testify. 	See Thomas
- 2 -

v. Commonwealth, 24 Va. App. 614, 617, 484 S.E.2d 607, 609
(1997). 	Although we agree that the rule in Thomas is
inapplicable, it does not follow that the notice was
inadmissible.
In Thomas, we affirmed the trial court's ruling that the
Commonwealth could use a defendant's notice of alibi to impeach
the defendant. 	24 Va. App. at 617, 484 S.E.2d at 609. 	Because
the defendant "testified differently, and had the opportunity to
explain on either cross or redirect examination the
inconsistencies in his several statements," we concluded that
his notice of alibi was admissible as a prior inconsistent
statement. 	Id.
In this case, the Commonwealth sought to use the
defendant's notice of alibi to impeach the defendant's witness
by contradiction. 	Because the notice in Thomas was offered as
the witness' prior inconsistent statement, it is not applicable
on the issue before us.1 Rather, the rules of evidence
1 McCarter also argues that decisions in two of our sister
states support his theory that a Notice of Alibi Defense is
inadmissible when the defendant does not testify. 	See State v.
Lumumba, 601 A.2d 1178 (N.J. Super. Ct. App. Div. 1992)
(reversing conviction because, inter alia, the trial court erred
in permitting the prosecution to refer to the defendant's notice
of alibi); People v. Shannon, 276 N.W.2d 546 (Mich. Ct. App.
1976) (reversing conviction because prosecutor referred to
defendant's failure to call an alibi witness). 	McCarter's
reliance on these cases is misplaced.
In Lumumba, the prosecution referred to the defendant's
notice of alibi and his failure to call witnesses listed therein
to demonstrate that the defendant's alibi was not true. 	The
court relied on State v. Gross, 523 A.2d 212, 214 (N.J. Super.
- 3 -

pertaining to impeachment by contradiction govern our
determination in this case.
Evidence is admissible if it is relevant to an issue in the
case and is not precluded by a specific rule. 	Peacock Buick v.
Durkin, 221 Va. 1133, 1136, 277 S.E.2d 225, 227 (1981). 	When a
witness takes the stand, she puts her credibility at issue in
the case. 	See Smith v. Commonwealth, 212 Va. 675, 676, 187
S.E.2d 191, 192 (1972). 	Thus, the opposing party may impeach
the witness by "draw[ing] into question the accuracy of the
witness's perception, recordation, recollection, narration, or
sincerity." 	Strong, 1 McCormick on Evidence, § 33 n.5, at 123
(5th ed. 1999) (citations omitted). 	"Any evidence which would
tend to convince the jury that the witness's perception, memory,
Ct. App. Div. 1987), which held that such implications "are
unfair, since the failure to produce the named witness may have
any number of innocent explanations which cannot readily or
appropriately be exposed at trial." 	Similarly, the Michigan
Court of Appeals reversed the defendant's conviction because the
prosecutor unfairly prejudiced the defendant by improperly
commenting on his "failure to produce an alibi witness"
referenced in his notice of alibi. 	Shannon, 276 N.W.2d at 548.
Like the court in Lumumba, the Michigan court reasoned that the
prosecutor's comment was unfairly prejudicial to the defendant
as it permitted the jury to draw an impermissible inference of
guilt, which the defendant's decision did not warrant. 	Id.
In this case, the Commonwealth did not refer to the
defendant's failure to call his proposed alibi witnesses or his
failure to present his intended alibi; rather, the prosecutor
offered the notice of alibi for the purpose of contradicting the
testimony of the defendant's witness. 	The notice, therefore,
was relevant to the witness' credibility and accuracy. 	Neither
sister court held, as McCarter contends, that the prosecutor can
never mention a defendant's notice of alibi when the defendant
does not take the stand. 	The cases, therefore, are not
pertinent to the issue before us.
- 4 -

or narration is defective or that his or her veracity is
questionable is relevant for purposes of impeachment." 	Friend,
Law of Evidence in Virginia, § 4-1, at 101 (5th ed. 1993)
(citing 3A Wigmore, Evidence § 874 et seq. (Chadbourn rev.
1970)); see also Ragland v. Commonwealth, 16 Va. App. 913, 918,
434 S.E.2d 675, 678 (1993) (noting that evidence is relevant if
"it has any logical tendency, however slight, to establish a
fact at issue in the case").
A party may impeach a witness through a variety of methods,
including contradiction. 	See Jones v. Ford, 263 Va. 237, 258,
559 S.E.2d 592, 603 (2002) ("Contradiction can be a form of
impeachment . . . ."); Friend, supra, §§ 4-1, at 103, and 4-9,
at 136; Sinclair, Virginia Evidentiary Foundations, § 5.3 (1998)
("Proving the opposite of what a witness has testified to is a
form of impeachment."); Strong, supra, § 45 (describing
impeachment by specific contradiction); see also United States
v. Perez-Perez, 72 F.3d 224, 227 (1st Cir. 1995) (recognizing
impeachment by contradiction). 	To impeach a witness by
contradiction, the opposing party introduces "extrinsic
evidence" to show that the witness' testimony may not be
accurate.2 Friend, supra, § 4-9, at 136. 	In the usual case,
2 Contradiction should not be confused with prior
inconsistent statements. 	While both are methods of impeachment
and, thus, place in doubt the accuracy and/or the veracity of
the witness' testimony, the latter does so through evidence
produced by that witness, while the former may involve any
- 5 -

contradiction is accomplished through the testimony of a
subsequent witness who testifies to facts contrary to the first
witness; the law, however, imposes no such restriction. 	See
Jones, 263 Va. at 258, 559 S.E.2d at 603 (holding that plaintiff
may impeach defendant's witness with contradictory depositions);
Strong, supra, § 45 (explaining that specific statements by a
witness may be contradicted in "several ways," including the
same witness' later testimony, the testimony of another witness,
and judicial notice of contradictory facts); Sinclair, supra,
§ 5.3 (describing contradiction of one witness' testimony
through another witness).
McCarter's statement, his notice of alibi, "squarely
contradicts" his witness' testimony. 	McCarter's wife testified
that she and her husband spent the entire day in question at
home in Amissville, Virginia. 	McCarter stated in his Notice of
Alibi Defense that he was in Maryland working at Mandy
Druckenbrod's home on that day. 	Although the contradiction
between the notice and the witness' testimony does not prove
that the witness lacked credibility, "[t]he [defendant's]
contradictory [statement in his notice of alibi] places in doubt
. . . at least the accuracy of [his wife's] testimony . . . and
leaves the jury with the task of weighing the [statements] of
each to determine which[, if either,] will be believed."
admissible evidence that contradicts the witness' testimony.
See Friend, supra, §§ 4-5, 4-9.
- 6 -

Friend, supra, § 4-9, at 136; see also Epperly v. Commonwealth,
224 Va. 214, 230, 294 S.E.2d 882, 891 (1982) ("Every fact,
however remote or insignificant, that tends to establish the
probability or improbability of a fact in issue, is
admissible."); Wynn v. Commonwealth, 5 Va. App. 283, 291, 362
S.E.2d 193, 198 (1987). 	Accordingly, the notice was relevant to
impeach the witness, the purpose for which it was offered.
McCarter also argues that the Commonwealth could not
impeach Mrs. McCarter with his Notice of Alibi Defense because:
1) the witness had become the prosecution's witness and the
prosecution may not impeach its own witness; and 2) the notice
constituted inadmissible hearsay. 	We find no merit in either of
these contentions.
First, assuming without deciding that McCarter's wife
became the Commonwealth's witness on cross-examination, the rule
against impeaching one's own witness is inapplicable in this
context. 	See Washington and O.D. Ry. v. Jackson's Admr., 117
Va. 636, 639, 85 S.E. 496, 497 (1915) ("[I]t is very clear that
one producing a witness may prove the truth of material facts by
any other competent evidence, even though the effect of such
[evidence] is to directly contradict his own witness."); Friend,
supra, at 136 (noting that where extrinsic evidence is
introduced to show that the witness' testimony was not accurate,
the rule against impeaching one's own witness does not apply).
- 7 -

Second, the alibi statement is not excluded by the hearsay
rule because it was the defendant's admission. 	"Any statement
by a party to the proceedings, including an out-of-court
statement by a defendant in a criminal case, is admissible as an
exception to the hearsay rule when offered against that party."
Alatishe v. Commonwealth, 12 Va. App. 376, 378, 404 S.E.2d 81,
82 (1991) (citing E. Cleary, McCormick on Evidence, § 262 (3d
ed. 1984); Fed. R. Evidence § 801(d)(2)); accord Land v.
Commonwealth, 211 Va. 223, 176 S.E.2d 586 (1970). 	Party
admissions are admissible regardless of whether they are
inculpatory or incriminating when made, id. (citing C. Friend,
The Law of Evidence in Virginia, Hearsay §§ 252-53 (3d ed.
1988)), or whether the party testifies. 	See, e.g., Quintana v.
Commonwealth, 224 Va. 127, 148, 295 S.E.2d 643, 654 (1982)
(upholding admission of defendant's out-of-court statements
under the party admissions exception to the hearsay rule where
defendant did not testify). 	Because, McCarter's Notice of Alibi
Defense may be properly considered his statement, it cannot be
excluded on hearsay grounds. 	See Thomas, 24 Va. App. at 616-17,
484 S.E.2d at 608-09 (concluding that statements within
defendant's alibi notice should be treated as his declarations);
Asbury v. Commonwealth, 211 Va. 101, 107, 175 S.E.2d 239, 243
(1970) (considering pleading as defendant's statement because it
was filed with his authority and upon information furnished by
him (citing Browder v. Southern Ry. Co., 107 Va. 10, 57 S.E. 573
- 8 -

(1907))); Hall v. Commonwealth, 16 Va. App. 779, 783, 433 S.E.2d
489, 492 (1993) (holding that statements in suppression motion
were properly attributable to the defendant).
In short, because the notice was relevant to the witness'
credibility and not excludable on the grounds raised at trial,
the trial court did not abuse its discretion by admitting it
into evidence. 	See Peacock Buick, 221 Va. at 1136, 277 S.E.2d
at 227 (noting that relevant evidence is admissible unless a
specific rule, which the defendant raised at trial, precludes
its admission); Bottoms v. Commonwealth, 22 Va. App. 378, 384,
470 S.E.2d 153, 156 (1996) ("The admissibility of evidence is
within the broad discretion of the trial court, and a ruling
will not be disturbed on appeal in the absence of an abuse of
discretion."). 	Accordingly, we affirm McCarter's convictions.
Affirmed.
- 9 -