Opinion
Record No. 0168-93-4
Decided: March 28, 1995
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY, James H. Chamblin, Judge
Alexander N. Levay, Public Defender (Office of the Public Defender, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Barrow, Koontz and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Dennis Wayne West (appellant) was convicted in a jury trial of the second-degree murder of his wife Barbara West. The only issue raised on appeal is whether the trial court erred in allowing the Commonwealth to rehabilitate a witness by introducing a prior consistent statement recorded during the investigation. We hold that the trial court erred in allowing the use of the prior consistent statement but find such error to be harmless.
On March 13, 1988 at 12:30 p.m., appellant called Salem Police Chief Harry Haskins (Haskins) to tell him that he thought his wife Barbara had committed suicide. He asked Haskins to meet him at the police station. Haskins sent police officers to check the wife's house, and they found her dead at 1:30 p.m. During Haskins's cross-examination, appellant questioned his recollection of the events of March 13, 1988, by asking: "This has been four, four and a half years ago, hasn't it, Chief Haskins?" Appellant also attacked Haskins's credibility by questioning the time that Haskins said he received appellant's phone call and the time it took Haskins to arrive at the station.
On redirect examination, the Commonwealth sought to rehabilitate Haskins by having him read a brief portion of his notes recorded on March 14, 1988, the day after the body was found. Appellant objected, arguing that the notes were inadmissible hearsay and that he had "simply cross-examined Chief Haskins." The trial court found that, "because of the passage of time here, . . . [appellant was] questioning what Chief Haskins was testifying to" and allowed Haskins to read his notes that were consistent with his trial testimony. The judge gave a limiting instruction to the jury: "[W]hat Chief Haskins is going to read, do not receive it as the truth of what is stated in here, but only as to what Chief Haskins wrote or dictated on this particular day."
"As a general rule, a prior consistent statement of a witness is inadmissible hearsay." Faison v. Hudson, 243 Va. 397, 404, 417 S.E.2d 305, 309 (1992). The Supreme Court of Virginia has recognized, however, "a few narrowly circumscribed exceptions to the general rule excluding a prior consistent statement." Id. (emphasis added). These exceptions include when a witness is impeached by: (1) a suggestion that the witness is motivated by bias, interest, or corruption; (2) a charge that the witness's testimony is a recent fabrication or he has a motive to falsify his story; (3) an allegation that the witness had a design to misrepresent; and (4) an attack on the witness's credibility by the introduction of a prior inconsistent statement. Id. at 404-05, 417 S.E.2d at 309-10.
The record does not support a finding that any of these exceptions to the general rule excluding prior consistent statements applied in this case. In particular, the attack on credibility exception does not apply. Here, appellant did not use a specific inconsistent statement to attack Haskins's credibility but merely engaged in general cross-examination. See Clere v. Commonwealth, 212 Va. 472, 473, 184 S.E.2d 820, 821 (1971).
We decline to expand the prior inconsistent statement exception to include any attack on a witness's credibility. Mere contradiction or questioning of a witness's recollection does not support a deviation from the general rule. "The sort of impeachment evidence presented . . . does not trigger the application of any of the recognized exceptions to the general rule. . . . [T]he admission of a prior consistent statement after impeachment of just 'any sort' would create an unreasonably 'loose rule.' " Faison, 243 Va. at 405, 417 S.E.2d at 310. Thus, the trial court erred in allowing Haskins's prior consistent statement.
We conclude, however, that the admission of the prior consistent statement for rehabilitative purposes was harmless error.
A criminal conviction shall not be reversed for an error committed at trial when "it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached." Trial error is presumed to be prejudicial and "a fair trial on the merits and substantial justice are not achieved if an error at trial has affected the verdict."
Hanson v. Commonwealth, 14 Va. App. 173, 191, 416 S.E.2d 14, 24 (1992) (citations omitted). The trial judge instructed the jury not to receive the statement for the truth of the contents of it but only to show what the witness had written at the time. Because the record does not show otherwise, we must presume that the jury followed the instructions. LaVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983). Therefore, the erroneously admitted evidence could not, as a matter of law, have affected the verdict as the appellant contends, and the error was harmless.
Other arguments asserted by appellant on appeal were not raised at trial and are therefore barred by Rule 5A:18. See Hairston v. Commonwealth, 16 Va. App. 941, 944, 434 S.E.2d 350, 352 (1993). Accordingly, the judgment of the trial is affirmed.
Affirmed.