                                             Tuesday          5th

          October, 1999.


Derek Wayne Gurganus,                                         Appellant,

against      Record No. 2766-97-1
             Circuit Court Nos. 97-38-00 and 97-38-01

Commonwealth of Virginia,                                     Appellee.


                        Upon a Rehearing En Banc

  Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis,
          Elder, Bray, Annunziata, Bumgardner, Lemons and Frank


             Scott L. Reichle (Donald J. Reichle;
             Reichle & Reichle, P.C., on brief),
             for appellant.

             Donald E. Jeffrey, III, Assistant
             Attorney General (Mark L. Earley,
             Attorney General, on brief), for
             appellee.


          Upon a rehearing en banc, the stay of this Court’s

April 20, 1999 mandate is lifted, and the judgment of the trial

court is affirmed in accordance with the majority opinion of a

panel of this Court in Gurganus v. Commonwealth, 29 Va. App.

494, 513 S.E.2d 427 (1999).

          Judges Benton and Elder dissent for those reasons

expressed in the dissenting opinion of the panel.
          This order shall be published and certified to the

trial court.

                          A Copy,

                               Teste:

                                        Cynthia L. McCoy, Clerk

                               By:

                                        Deputy Clerk




                              - 2 -
                                             Tuesday        25th

           May, 1999.

Derek Wayne Gurganus,                                       Appellant,

against      Record No. 2766-97-1
             Circuit Court Nos. 97-38 and 97-38-01

Commonwealth of Virginia,                                   Appellee.

                        Upon a Rehearing En Banc

 Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis,
      Elder, Bray, Annunziata, Bumgardner, Lemons and Frank


           On April 29, 1999 came the appellant, by counsel, and

filed a petition praying that the Court set aside the judgment

rendered herein on April 20, 1999, and grant a rehearing en banc

thereof.

           On consideration whereof, the petition for rehearing

en banc is granted, the mandate entered herein on April 20, 1999

is stayed pending the decision of the Court en banc, and the

appeal is reinstated on the docket of this Court.

           The parties shall file briefs in compliance with Rule

5A:35. It is further ordered that the appellant shall file with

the clerk of this Court ten additional copies of the appendix

previously filed in this case.

                            A Copy,
                                 Teste:
                                          Cynthia L. McCoy, Clerk
                                  By:
                                          Deputy Clerk



                                 - 3 -
                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia


DEREK WAYNE GURGANUS
                                                 OPINION BY
v.   Record No. 2766-97-1                   JUDGE RICHARD S. BRAY
                                                APRIL 20, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
                    Westbrook J. Parker, Judge

             Scott L. Reichle (Donald J. Reichle;
             Reichle & Reichle, P.C., on brief), for
             appellant.

             Donald E. Jeffrey, III, Assistant Attorney
             General (Mark L. Earley, Attorney General, on
             brief), for appellee.


     Derek Wayne Gurganus (defendant) was convicted in a jury

trial for statutory burglary and grand larceny, violations of

Code §§ 18.2-91 and -95, respectively.     He complains on appeal

that the trial court erroneously admitted into evidence a prior

consistent statement given to police by a Commonwealth witness.

Finding no error, we affirm the convictions.

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.     See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).



                                 - 4 -
- 5 -
                                I.

     On the morning of September 9, 1996, James Elkins, an

employee of Hallmark Communications (Hallmark), discovered

evidence of forced entry into the business location in Isle of

Wight County and “stuff missing.”    Elkins notified the local

sheriff, and Lieutenant Tom Gibbons was assigned to investigate.

Gibbons proceeded to the scene, inspected the building, and

observed that “the entire place had been ransacked,” with damage

to both rear entry and interior doors.   A subsequent inventory

confirmed that numerous items had been stolen, including a

“console . . . T.V.” and nine pagers.

     Shortly after Gibbons’ arrival, Sheriff’s Deputy Willard

“showed up” and provided Gibbons with particulars relative to a

suspicious vehicle he had observed in the area at “about 4:30

[that] morning.”   Gibbons ascertained that the vehicle was

registered to a Virginia Beach address and immediately contacted

that city’s police, requesting assistance in locating the car.

Within hours, Virginia Beach police stopped the vehicle,

recovered the stolen TV and pagers, and arrested the driver,

Eric Landers, and his passenger, Kevin (Greg) Baucom, for

“possession of stolen articles.”

     Gibbons learned immediately of the arrests, proceeded

directly to Virginia Beach, arriving within an hour, questioned

Landers, and obtained the following signed statement:



                               - 6 -
          I, Eric Joseph Landers, left my house on the
          night of September 8th with my two friends
          [defendant and Baucom]. We went and picked
          up my car from Newport News. Then we went
          to [defendant’s] house and dropped his car
          off. We started driving to one of our
          friend’s house just to say hey and see what
          he was doing. But on the way there we had
          seen the store and they (Derek [defendant]
          and Greg [Baucom]) were like, hey, let’s hit
          this place. So after we visited our friend
          for a little while we headed back towards
          where we came from. They had told me to let
          them out and go pick them up in twenty
          minutes. I drove around and they . . . told
          me to drive down the dirt road so they could
          put the things in the car. So like an
          idiot, I did. I was sitting in the car
          telling them to leave because what they were
          doing was stupid. I never set one foot
          inside that building. That is the honest
          truth. All I did was get out of the car and
          walk where they could hear me and tell them
          I was leaving so they had better come on.
               I am so sorry for even driving around.
          Even though I didn’t take anything I still
          should have not ever drove around for them.
          I was scared and I didn’t know what to do.
          I’m not used to being scared so I just went
          along and drove around. I’ve never been
          more scared than I am right now. One of
          them has said (pretty much said) if someone
          rats them out they’re dead, so I don’t know
          what to do, but I am telling the truth and I
          will cooperate with you one hundred percent.
          I just want to go to college and make
          something of myself. I just hope that I
          haven’t already ruined that chance.

     Landers’ trial testimony, as a Commonwealth witness, was

substantially consistent with his earlier statement to Gibbons,

and the Commonwealth attempted to introduce it into evidence.

Defendant, however, objected, arguing that the Commonwealth was




                              - 7 -
attempting to improperly “bolster” Landers’ testimony.   In

sustaining the objection, the trial court concluded that the

evidence was inadmissible “until [defense counsel] attacks

[Landers’] credibility.”

     Defendant concedes on brief that counsel subsequently

“cross-examined Mr. Landers in an attempt to impeach his

testimony and challenge his credibility.”   In response to such

questioning, Landers acknowledged that the Virginia Beach charge

had been “dropped” following his arrest in Isle of Wight on

September 12, 1996 for the instant offenses and that trial in

Isle of Wight had been delayed until he testified in the subject

prosecution.   Landers admitted “hope” that “something good”

would result from his testimony but steadfastly denied that

anyone promised “anything” in return.   Defendant did not explore

Landers’ motives in making the earlier statement to Gibbons.

     The Commonwealth recalled Gibbons on rebuttal and offered

Landers’ statement “to refute the notion that’s been put forward

by the defense that he’s fabricated [a story] . . . to benefit

himself.”   Defense counsel objected, again arguing that the

statement would improperly bolster Landers’ credibility.    The

trial court, however, concluded that the statement was then

admissible as “one of the exceptions to the hearsay rule”

against prior consistent statements and permitted Gibbons to

relate it to the jury.   The disputed convictions followed and



                               - 8 -
defendant, on appeal, challenges the admissibility of the prior

statement.

                                  II.

     “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) (citations omitted).

However, the Supreme Court of Virginia has approved “a few

narrowly circumscribed exceptions,” id.,

             when the opposing party: (1) suggests that
             the declarant had a motive to falsify his
             testimony and the consistent statement was
             made prior to the existence of that motive,
             (2) alleges that the declarant, due to his
             relationship to the matter or to an involved
             party, had a design to misrepresent his
             testimony and the prior consistent statement
             was made before the existence of that
             relationship, (3) alleges that the
             declarant’s testimony is a fabrication of
             recent date and the prior consistent
             statement was made at a time when its
             ultimate effect could not have been
             foreseen, or (4) impeaches the declarant
             with a prior inconsistent statement.

Mitchell v. Commonwealth, 25 Va. App. 81, 84-85, 486 S.E.2d 551,

552-53 (1997) (citing Faison, 243 Va. at 404-05, 417 S.E.2d at

309-10); see also 1 Charles E. Friend, The Law of Evidence in

Virginia § 4-12 (4th ed. 1993 & Cum. Supp. 1998).       Manifestly,

such exceptions are intended to permit a party to “repel . . .

an imputation” that a witness testified untruthfully by

“show[ing] that the witness made a similar statement at a time




                                 - 9 -
when the supposed motive [to fabricate] did not exist.”      Repass

v. Richmond, 99 Va. 508, 515, 39 S.E. 160, 163 (1901).

     Thus, once defendant tainted Landers’ trial testimony with

evidence suggesting that self-interests had compromised his

veracity, Landers’ prior consistent statement to Gibbons was

admissible to repair his credibility, provided the statement was

made before Landers had reason or design to falsify.    In seeking

to escape the rule in this instance, defendant maintains that

“bias, interest or corruption” inhered in Landers’ post-arrest

statement to Gibbons.   He reasons that Landers then had a

“motive to lie” and “shift the blame from himself to another in

an attempt to get favorable treatment,” although the record does

not disclose evidence of promise, expectation or other incentive

to fabricate at that time.

     In support of his contention that Landers’ post-arrest

custodial status, without more, infected his statement with

self-interest, defendant relies upon Smith v. Commonwealth, 239

Va. 243, 387 S.E.2d 871 (1990).   In Smith, the accused had

brutally murdered a police officer, following earlier threats to

“shoot the first [police officer] that arrive[d].”     Id. at 249,

387 S.E.2d at 874.   Subsequent to arrest, Smith explained to

police that he fired his weapon in self-defense after an

assailant first shot him in the foot, a clearly exculpatory

statement reflective of a “motive to lie,” together with



                              - 10 -
“sufficient time to fabricate a story.”    Id. at 261, 387 S.E.2d

at 880.    In concluding that Smith’s statement was inadmissible

as a prior consistent statement, the court looked beyond Smith’s

mere status as an arrestee and considered the content of the

statement, together with attendant circumstances, to find that

it was fraught with self-serving motive, corrosive of truth.

See id.; see also United States v. Henderson, 717 F.2d 135 (4th

Cir. 1983), cert. denied, 465 U.S. 1009 (1984) (arrest alone

does not establish a motive to fabricate).

     In contrast, Landers’ prior statement was clearly

inculpatory, a confession not simply to possession of stolen

goods, the Virginia Beach offense for which he was then in

custody, but, additionally, a ready admission to participation

in the then uncharged burglary and larceny in Isle of Wight.

Unlike Smith, Landers further implicated rather than exonerated

himself.   Thus, the content of Landers’ statement, an

appropriate consideration to our analysis, countered any

attribution of taint arising solely from the attendant

circumstances.

     Moreover, the record offers no support to defendant’s claim

that Landers’ statement was otherwise prompted by unspoken

coercion, anticipation of leniency or favor, or improper motive.

No evidence suggests a scheme to mislead through the statement,

prior knowledge of its consequences or the existence of



                               - 11 -
inconsistent statements.   During cross-examination of Landers,

defendant probed only his reasons for testifying at trial, with

no inquiry into considerations that induced Landers to speak

with Gibbons months previously.   He now relies on a silent

record to discredit Landers’ statement.

     It is well established that “[t]he 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.”   Blain v. Commonwealth, 7 Va. App. 10, 16,

371 S.E.2d 838, 842 (1988) (citation omitted).   “Thus, we should

reverse only upon ‘clear evidence that [the decision] was not

judicially sound’ and not simply to substitute our ‘discretion

for that rendered below.’”   Jefferson v. Commonwealth, 27 Va.

App. 477, 488, 500 S.E.2d 219, 225 (1998) (alteration in

original).

     Under the instant circumstances, we find no abuse of

discretion in the admission of Landers’ prior consistent

statement into evidence and, accordingly, affirm the

convictions.

                                                        Affirmed.




                              - 12 -
Benton, J., dissenting.

     By well established “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).      See also

Howard v. Commonwealth, 81 Va. 488, 490 (1886).    As the Supreme

Court noted in Faison, “[t]o allow such a statement to

corroborate and buttress a witness’s testimony would be an

unsafe practice, one which not only would be subject to all the

objections that exist against the admission of hearsay in

general but also would tend to foster fraud and the fabrication

of testimony.”   243 Va. at 404, 417 S.E.2d at 309.    The rule is

subject only to “a few narrowly circumscribed exceptions.”        Id.

See also Gallion v. Winfree, 129 Va. 122, 127, 105 S.E. 539, 540

(1921).

     Pertinent to this appeal, the Supreme Court has described

one of the narrow exceptions by “stat[ing] that, when a witness

is impeached by ‘a charge of bias, or interest, or corruption,’

a prior consistent statement made by the witness is admissible

if it was made ‘before the time when the supposed bias, or

interest, or corruption could have existed.’”     Faison, 243 Va.

at 404, 417 S.E.2d at 309 (quoting Gallion, 129 Va. at 127, 105

S.E. at 540) (emphasis added).   I disagree with the majority’s

conclusion that Eric Landers’ statement qualified under this

exception.   The evidence clearly proved that Landers’ statement



                              - 13 -
was not made before the time when his bias, interest, and

corruption could have existed.

     Landers made his statement after the police arrested him.

When Landers was stopped and arrested by the police, Landers was

driving a vehicle containing some of the stolen property.

Indeed, he possessed the only parcels of stolen property that

have been recovered -- a large television and eight pagers.

After Landers was arrested in the City of Virginia Beach for

possession of the stolen property in his vehicle, he was

arrested in Isle of Wight County for breaking and entering.

     Landers was interrogated after his first arrest and made

the statements at issue.   When Landers was arrested for

possessing the stolen property and charged with a felony, those

events became the occasion that spawned the motive to exonerate

himself.   At that time, he was not free from any desire, motive,

or impulse he may have had to mitigate the very apparent

appearance of his own culpability.     As the Court noted in

Gallion, “[t]he [contact] between the parties [in the criminal

event] was made before the [statement] introduced in evidence

was had, and the interest of [Landers] was the same at the date

of the [statement] as at the time of the trial.    So that the

[statement] was not admissible under this exception to the

rule.”   129 Va. at 127, 105 S.E. at 540.   Simply stated, the

evidence does not establish that when Landers made the



                              - 14 -
confession he was free of motivation to mitigate the obvious

appearance of his culpability by spreading the blame and

overstating Derek Wayne Gurganus’ involvement.   Indeed, Landers’

statement implicates Gurganus as the primary criminal actor and

mitigates Landers’ participation through a self-serving

description of Landers as an unsuspecting companion who was

“telling them to leave because what they were doing was stupid.”

In a further attempt to exonerate himself and promote his

interest, Landers’ statement contains an offer to “cooperate

with [the police] one hundred percent” and expresses a desire

“to go to college and make something of [him]self . . . hop[ing]

that [he has not] already ruined that chance.”

     At the time Landers made these revelations, he had been

arrested for possession of the stolen goods.   “Hence, he had a

clear motive to lie about who [committed the burglary], and he

had sufficient time [between his arrest and later interrogation]

to fabricate a story.”   Smith v. Commonwealth, 239 Va. 243, 261,

389 S.E.2d 871, 880 (1990).   Furthermore, the evidence proved

that after Landers made his statement, the felony charge was

dismissed in the City of Virginia Beach.

     In affirming the trial judge’s admission of the prior

consistent statement, the majority creates a new evidentiary

standard.   The majority looks to the “inculpatory” nature of

Landers’ statement and concludes that it outweighs the “taint.”



                              - 15 -
In this respect, the majority confuses the prior consistent

statement exception to the hearsay rule with the declaration

against penal interest exception.    Furthermore, the majority’s

analysis fails to address the “narrowly circumscribed

exceptions” to the “general rule” barring admission of the prior

consistent hearsay statement.    Faison, 243 Va. at 404, 417

S.E.2d at 309.   I can find no case decision holding that a prior

consistent statement may be admitted under an exception to the

hearsay rule if the statement is proved to be inculpatory.

     For these reasons, I would hold that the trial judge erred,

reverse the convictions, and remand for retrial.




                                - 16 -
