                       COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Lemons and
          Senior Judge Duff
Argued at Alexandria, Virginia


MAURICE JOHNSON
                                              MEMORANDUM OPINION * BY
v.   Record No. 0096-98-4                     JUDGE DONALD W. LEMONS
                                                   JUNE 22, 1999
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                         John E. Kloch, Judge

            Steven L. Duckett, Jr. (MacDowell &
            Associates, P.C., on brief), for appellant.

            Michael T. Judge, Assistant Attorney General
            (Mark L. Earley, Attorney General, on brief),
            for appellee.


     Maurice Johnson was convicted of malicious wounding in

violation of Code § 18.2-51.     On appeal, Johnson contends that

the trial court erred by refusing to allow him to impeach the

victim using statements he allegedly made at Johnson’s

preliminary hearing.    We hold that the trial court committed no

error, and we affirm the conviction.

                            I.   BACKGROUND

     In the evening of June 25, 1997, Antonio Carroll, the

victim (“Antonio”), his brother Anthony Carroll (“Anthony”), and

two other men were standing in a parking lot in the City of

    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Alexandria.   Antonio testified at trial that three vehicles

drove into the parking lot and “cut us off so there wasn’t no

[sic] way we could run away” and “about six” people exited the

cars, including Maurice Johnson, appellant.   Antonio stated that

these individuals were looking for “this boy named Rashad,” a

friend of Antonio’s, but that Rashad was not with Antonio that

evening.

     Antonio testified that a fight broke out between Anthony

and one of the men who had exited the car.    Antonio stated, “I

went over there and helped my brother.   We started fighting.

Then before I could move away, I got stabbed.”   At trial,

Antonio identified Johnson, known to the victim as “Mookie,” as

the individual who stabbed him, testifying that he observed

Johnson “when he was pulling the knife out” of Antonio’s side.

     During his cross-examination of Antonio, Johnson’s counsel

asked Antonio whether he remembered telling a detective that two

vehicles, not three, had arrived at the parking lot on the night

of the attack.   Antonio responded that he remembered telling the

detective that there were three vehicles.    Johnson’s counsel

then inquired, “Do you remember testifying at the preliminary

hearing down in juvenile court?”   The Commonwealth objected on

the grounds that counsel was required to show Antonio prior

testimony before impeaching him.   The court agreed, stating, “I

think you can ask him if he said something different at some


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other time.    I don’t think you can go to the preliminary hearing

and say ‘Did you say something different than this?’”      Following

further objection to the form of the question by the

Commonwealth, Johnson’s counsel asked Antonio if he remembered

“testifying differently at the preliminary hearing?”      Antonio

responded “I might have did [sic].      I forgot it.”   Johnson’s

counsel then asked Antonio if he remembered “saying there were

two cars[.]”

     The Commonwealth objected, stating that Antonio had already

answered the question and that Johnson’s counsel was required to

independently establish what Antonio had allegedly said at the

preliminary hearing.   The court agreed with the Commonwealth,

stating that counsel had to show Antonio “the transcripts, let

him look at it, and say either, ‘I said that’ or ‘No, I

didn’t.’”   Johnson’s counsel agreed, but before he introduced a

transcript, the Commonwealth objected again, arguing that there

was no official transcript from the preliminary hearing.      The

Commonwealth argued that the court should prohibit Johnson from

“using an unofficial transcript that’s not been certified by

anyone.”    In response to the Commonwealth’s objection, the court

stated,

            Well, I think if he wants to impeach him, he
            has to make sure that’s correct. He hasn’t
            gotten to that stage yet. If he’s offering
            that to show that the defendant said
            something else, then I would agree with you.


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            He needs to show that foundation.   But he
            hasn’t reached that stage yet.

     Johnson’s counsel again asked whether Antonio remembered

what he said at the preliminary hearing, and Antonio responded,

“[i]t was a month ago[,] I can forget things, you know.”

Johnson’s counsel made no further attempt to introduce a

transcript from the preliminary hearing.

     Officer Valencia Burges of the City of Alexandria Police

Department testified that she spoke with Antonio at the hospital

the night of the stabbing.    Burges stated, “[Antonio] didn’t

know [who stabbed him].    The person came behind him.    He didn’t

see the person.”   Burges also stated that she only spoke to

Anthony for a few seconds and that she couldn’t recall whether

Anthony had given her any information.    Detective Derrill Scott

of the Alexandria Police Department, who investigated the

incident, stated that he interviewed both Antonio and Anthony

and neither of them mentioned a third vehicle.    Scott testified

that neither Anthony nor Antonio told him that Johnson was the

individual who had stabbed Antonio, but that Anthony told him

that Johnson was involved in the fighting.

                   II.   IMPEACHMENT OF ANTONIO CARROLL

     Johnson contends that the trial court erred when it refused

to permit him to “begin a line of impeachment questions without

a properly authenticated transcript from the preliminary

hearing.”   Johnson also argues that the court erred in refusing

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to allow him to “refresh a witness’ recollection of prior

testimony with an unauthenticated transcript, thus precluding

any possibility of impeaching that witness on the inconsistent

testimony.”    A witness may be impeached by prior statements made

by the witness that are inconsistent with his present testimony.

See Hall v. Commonwealth, 233 Va. 369, 374, 355 S.E.2d 591, 594

(1987); Code § 8.01-403; Code § 19.2-268.1.

     During its direct examination of Antonio, the Commonwealth

asked him how many cars drove up into the parking lot.     Antonio

stated, “I think it was about three.”   On cross-examination,

Johnson’s counsel asked Antonio whether he recalled telling

Detective Scott, the investigating detective, that there were

only two cars involved.   When Antonio responded that he had told

the officer that there had been three, the following colloquy

took place:

          Q: Do you also remember testifying at the
          preliminary hearing down in juvenile court?

          A:    Uh-huh.

          Q:    And do you remember telling the Court --

          [COMMONWEALTH]: Your Honor, I’m going to
          object at this point. If counsel is trying
          to impeach him with prior testimony, he
          needs to show him the prior testimony and
          find out why it’s different.

          [DEFENSE COUNSEL]: I have to ask him the
          question, Your Honor.

          THE COURT: I think you can ask him if he
          said something different at some other time.

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I don’t think you can go to the preliminary
hearing and say, “Did you say something
different than this?” If he says something
different than he said at the preliminary
hearing, then I think you can ask him. If
he says something different than that and he
denies it, then I think you can go into the
transcript and show it to him.

[DEFENSE COUNSEL]: That’s what I was about
to ask him, Your Honor.

THE COURT:   All right:

Q: Do you remember saying at the
preliminary hearing --

[COMMONWEALTH]:   It’s the same objection,
Judge.

THE COURT: What did he just say that you’re
challenging?

[DEFENSE COUNSEL]: About the incident in
toto [sic]. Everything he’s saying now is
totally different from every other statement
he’s given to the police, the preliminary
hearing, everything. I have a right to ask.
I have to ask him if he remembers making the
statement. That’s the way to impeach him.
You’ve got to remind him of the statement.
You’ve got to say, “Did you make that
statement?” He either says, “Yes” or “No.”

THE COURT: You’re impeaching him on
everything that he’s testified?

[DEFENSE COUNSEL]: For the most part.
There’s a lot of inconsistencies in what he
just said in court today.

THE COURT:   Well, let’s go through them one
at a time.

[DEFENSE COUNSEL]:   Okay.

Q:   Do you remember --


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THE COURT: On which of his present
testimony are you impeaching him? What did
he just say that you’re impeaching?

[DEFENSE COUNSEL]:   Well, that there were
two cars.

THE COURT:   And he said that?

[DEFENSE COUNSEL]: He said that there were
two cars at the preliminary hearing.

THE COURT:   All right.

[DEFENSE COUNSEL]:   He said that --

THE COURT: He said there were three cars
here. You can ask him whether he remembers
saying something differently at the
preliminary hearing.

Q: Do you remember testifying differently
at the preliminary hearing?

A:   I might have did [sic].   I forgot it.

Q:   You forgot?

A:   Yes.

Q: You don’t remember saying there were two
cars?

[COMMONWEALTH]: Your Honor, once again I’m
going to object to the form in which counsel
is doing this. He can ask the witness what
he’s testifying to today. He can ask him if
he remembers testifying differently on
another occasion
     He clearly said no. Counsel then has
to go the next step. And the next step is
not to put in the record what he thinks the
witness said on another occasion.

THE COURT: You have to show him the
transcripts, let him look at it, and say
either, “I said that” or “No, I didn’t.”


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          [DEFENSE COUNSEL]:   Okay.

          [COMMONWEALTH]: Your Honor, I think even
          preliminary to that, to the best of my
          knowledge, there was no court reporter. So
          I don’t know what kind of transcript counsel
          is even using. So I would object to his
          using an unofficial transcript that’s not
          been certified by anyone.
               I don’t know where the transcript came
          from. I don’t know who typed it up. And if
          counsel wants to use that, he’s got to
          preliminarily make sure that’s correct.
          He’s not done that.

          THE COURT: Well, I think if he wants to
          impeach him, he has to make sure that’s
          correct. He hasn’t gotten to that stage
          yet. If he’s offering that to show that the
          defendant said something else, then I would
          agree with you. He needs to show that
          foundation. But he hasn’t reached that
          stage yet.

          [DEFENSE COUNSEL]:   Okay.

     Once counsel elicits responses he or she believes are

inconsistent with a witness’ prior statements, counsel may

impeach the witness in three steps.    First, counsel must call

the witness’ attention to the circumstances of the particular

occasion on which the alleged prior statement was made.   Second,

counsel must ask the witness whether he recalls making the

inconsistent statement.   See Waller v. Commonwealth, 22 Va. App.

53, 60, 467 S.E.2d 844, 848 (1996).    Third, “[i]f the witness

denies or is unable to recall having made the statement, counsel

must then prove the statement actually was made.”    Patterson v.

Commonwealth, 222 Va. 612, 616-17, 283 S.E.2d. 190, 193 (1981).


                               - 8 -
Proof of the prior statement “includes the testimony of another

witness who heard the prior inconsistent statement, or the

transcript of a prior hearing.”       Edwards v. Commonwealth, 19 Va.

App. 568, 571, 454 S.E.2d 1, 2 (1995) (citations omitted). 1

       Johnson claims that he should have been permitted to

impeach Antonio’s testimony based upon statements that he

allegedly made about the number of cars that entered the parking

lot.       However, Johnson’s counsel did in fact impeach Antonio on

this issue.      Johnson’s counsel asked Antonio whether he recalled

telling Detective Scott that he only saw two cars.      Antonio

stated that he told Scott that there were three cars present.

Later, over the Commonwealth’s objection, the court permitted

defense counsel to ask Scott whether Antonio or his brother ever

mentioned a third vehicle, stating, “[defense counsel] laid the

foundation . . . for impeachment of the witness [Antonio], who

said he didn’t tell the officer that.”      Scott testified that in

the course of his investigation, Antonio had never mentioned a

third car.      Scott’s testimony completed the impeachment.




       1
      “Although laying a foundation prior to the introduction of
impeachment evidence is a separate and necessary step in the
impeachment process, it is not contingent on the existence of a
transcript. While using a transcript, if available, is the
preferable means of laying an impeachment foundation, it is not
the only means.” Edwards, 19 Va. App. at 571-72, 454 S.E.2d at
2.


                                   - 9 -
              III.   Refreshing Witness’ Recollection

     Johnson also argues that the trial court erred in refusing

to allow him to refresh Antonio’s recollection of his prior

testimony through the use of an unauthenticated transcript.

     A reviewing court need not consider whether the trial court

erred in refusing to allow a defendant to cross-examine a

witness for purposes of refreshing that witness’ recollection

when the defendant failed to make this same request at trial,

and where “[t]he sole avowed purpose for showing such prior

statements was to impeach or discredit the witness[]. . . .”

Virginia E & P. Co. v. Hall, 184 Va. 102, 109, 34 S.E.2d 382,

385 (1945).   Johnson never asserted at trial that he was

attempting to refresh Antonio’s recollection.    Rather, it is

apparent from the record that Johnson was attempting to lay a

foundation to impeach Antonio.    We will not consider this issue

for the first time on appeal.     See Rule 5A:18; Ingram v.

Commonwealth, 1 Va. App. 335, 341, 338 S.E.2d 657, 660 (1986).

                          IV.    CONCLUSION

     Based upon the foregoing, we hold that the court committed

no error, and we affirm the conviction.

                                                              Affirmed.




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