                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Salem, Virginia


GREGORY WILLIAM WILSON
                                           OPINION BY
v.        Record No. 2062-95-3     CHIEF JUDGE NORMAN K. MOON
                                          JULY 22, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL
                 Charles B. Flannagan, II, Judge
          Russell Vern Presley, II (Street, Street,
          Street, Scott & Bowman, on briefs), for
          appellant.

          John H. McLees, Jr., Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.


     Gregory William Wilson appeals his convictions of second

degree murder, malicious wounding and two counts of use of a

firearm in the commission of a felony.   Wilson asserts that the

trial court: (1) erred in failing to find that the Commonwealth

had suppressed exculpatory evidence consisting of the pretrial

statements of Pamela Statzer, Dawn Chapman, and Melissa Wilson;

(2) abused its discretion by failing to require the Commonwealth

to produce before trial or before cross-examination a written

statement used to impeach Melissa Wilson ("Mrs. Wilson"); (3)

erred in refusing Wilson's proposed jury instruction "C" on the

right to arm for self-protection; (4) erred in refusing Wilson's

proposed jury instruction "F" concerning self-defense; and (5)

erred in denying Wilson's motion for a mistrial or in the

alternative a new trial based on the alleged after-discovered
evidence and witness misconduct.

     We hold that: (1) the record does not support a finding that

the undisclosed statements of Statzer, Chapman, and Mrs. Wilson

presented the reasonable probability that, had they been

disclosed to the defense, the result of the trial would have been

different; (2) Wilson failed to properly preserve his argument

that the trial court abused its discretion in refusing to require

the Commonwealth to produce the written statement used to impeach

Mrs. Wilson; (3) Wilson's proposed instruction "C" on the right

to arm for self-protection was properly refused because it was

unsupported by the evidence; (4) Wilson's proposed instruction

"F" was properly refused because it was repetitive of the other

instructions which addressed the same legal principle; and (5)

the trial court did not err in denying Wilson's motion for a

mistrial or in the alternative a new trial because the

after-discovered evidence presented by Wilson did not support a

finding that the new evidence would have produced a different

result at another trial.
                               Facts

     At approximately 11:00 p.m. on January 13, 1995, Wilson and

Emmit Powers arrived at Pamela Statzer's apartment, located at

700 Russell Street in Bristol, Virginia.   Wilson's estranged wife

and Wilson's three children lived with Statzer and her three

children.   Wilson and Powers arrived at approximately the same

time that Jeffrey Hawkins, Bradley Moore, and Virginia Dawn




                                   2
Chapman came to visit Statzer.   Wilson spoke with Statzer at the

door for a few moments and then left, explaining that he was

going to get his car and would return to talk with his wife and

children.   Statzer agreed to permit the visit, provided there was

no "trouble."

     Wilson returned fifteen minutes later and joined Statzer,

Mrs. Wilson, Hawkins, Moore, and Chapman, who were in the living

room talking and drinking.   Another person, James Brock, who had

arrived at Statzer's apartment intoxicated, was asleep on the

floor in the bedroom of Statzer's sons.   Statzer testified that

after Wilson returned, Hawkins, who was angry with Brock, went to

the bedroom intending to wake him.   Wilson testified that Hawkins

entered the room and kicked Brock in the head.   Wilson stated

that he asked Hawkins not to bother Brock and that he and Statzer

convinced Hawkins to leave the room.   Statzer, Wilson, and

Hawkins then returned to the living room.   At trial Statzer

testified that she did not see Hawkins kick Brock, but that

Hawkins had stated that he wanted to wake Brock to "settle

something with him."   Brock testified that he remained asleep

until the police arrived and that consequently, he was unaware of

any of the incidents that occurred during the course of the

evening.
     Statzer's and Chapman's testimony regarding the

circumstances surrounding the subsequent events differed from the

version testified to by Wilson and his wife.   Statzer and Chapman




                                 3
stated that Wilson accused Moore of having a weapon and that

Moore, who was very intoxicated, stood and removed several shirts

in order to prove to Wilson that he was unarmed.   Hawkins

insisted that Moore was unarmed and that Wilson and Hawkins

argued.   Hawkins eventually shoved Wilson, causing him to fall

backward into a window, breaking the interior pane but not the

exterior storm pane.   Statzer testified that Wilson was in no

danger of falling out of the window.
     Wilson recovered from the fall, and as he did so, pulled a

gun from behind him and shot Hawkins four times in rapid

succession.   After the first shot, Statzer went to retrieve her

children, and as she got up, she saw Wilson shoot Moore while he

was still seated.   Statzer also stated that Moore had been so

intoxicated that he could barely stand.   Moore testified that

because he had consumed so much alcohol on the night that he was

shot, he did not remember being shot or the events preceding the

shooting.

     The Wilsons offered a different version of these events.

Wilson testified that he had been shooting debris with a friend

earlier in the day and that he had brought the gun into Statzer's

apartment because he feared it might be stolen from his car.

Wilson and his wife testified that an argument occurred between

Hawkins and Wilson and that Wilson was preparing to leave when

Hawkins grabbed Wilson and threw him toward the window as hard as

possible.   They stated that after Wilson shot Hawkins, Moore




                                 4
stood and was attempting to block Wilson's exit when Wilson shot

him.   Wilson fled the apartment after the shooting and drove

through a low cinder block wall in front of the apartment as he

sped away.

       When the police arrived at Statzer's apartment, they found

Hawkins lying on the living room floor.   He had been shot in the

face, the neck, the left ear, and the upper abdomen.   Moore was

also lying on the floor and was calling for help.    He had been

shot in the right chin, the left shoulder, and the lower back.
       The investigating officers took statements from the

witnesses, including a written statement from Mrs. Wilson, a

written statement from Chapman, and two written statements from

Statzer.    Statzer also gave an additional written statement on

January 19, 1995.   Wilson's court-appointed private investigator

also took statements from Statzer and Chapman.   During the course

of interviewing Statzer, the investigator learned that she had

given the two additional statements to the police.   However, no

effort was made by Wilson to obtain these additional statements.

At trial, Mrs. Wilson's statement was used by the Commonwealth

to impeach her testimony.   Wilson's counsel objected to the use

of the statement, arguing that the Commonwealth had not shown the

statement to Mrs. Wilson before cross-examining her regarding its

contents.

       After the trial, Wilson learned for the first time that

Chapman had made an undisclosed statement.   In addition, Powers,




                                  5
who had testified for the Commonwealth, informed Wilson that

while waiting to testify, he had overheard a conversation between

Chapman and Statzer.   Statzer allegedly stated that she had not

actually seen the shooting and questioned her ability to testify

to the events in question.   Chapman allegedly reassured Statzer

and coached her regarding what had happened during the shooting.

     Wilson's counsel filed a motion for a mistrial or in the

alternative a new trial, arguing that by withholding the written

statements made by Statzer, Chapman, and Mrs. Wilson, the

Commonwealth had failed to comply with the trial court's May 19,

1995 order requiring the Commonwealth to disclose any exculpatory

evidence.   Wilson asserted that all four statements contained

exculpatory evidence because each statement "contained

information concerning Hawkins' aggression or provocation which

supported Wilson's theory of self-defense."
     At a hearing on Wilson's motion, the trial court reviewed in

camera the undisclosed statements made by Chapman and Statzer.

Although the trial judge found minor inconsistencies between the

statements and the testimony at trial, he concluded that the

differences were not material.   Regarding the assertion

concerning newly discovered evidence, the trial judge did not

hear live testimony by Powers, and instead, considered a

transcript of Powers' interview with the defense's investigator

and the written statements of the other witnesses.   Based on his

determination that there were no material differences in



                                 6
Statzer's statements and her trial testimony, the judge found

that there had been no prejudice to Wilson's defense and,

therefore, denied Wilson's motion.




                                7
                       Exculpatory Evidence

     Brady v. Maryland, 373 U.S. 83 (1963), recognizes the

prosecution's duty to disclose to an accused exculpatory evidence

which is material to guilt or punishment.     "Exculpatory evidence

is material if there is a reasonable probability that the outcome

of the proceeding would have been different had the evidence been

disclosed to the defense.   A `reasonable probability' is one

which is sufficient to undermine confidence in the outcome of the

proceeding."   Bowman v. Commonwealth, 248 Va. 130, 133, 445

S.E.2d 110, 112 (1994) (citing United States v. Bagley, 473 U.S.

667, 682 (1985); Robinson v. Commonwealth, 231 Va. 142, 151, 341

S.E.2d 159, 164 (1986)); see also Humes v. Commonwealth, 12 Va.

App. 1140, 1143, 408 S.E.2d 553, 555 (1991).

     Here, the trial judge reviewed in camera the pretrial

statements and determined that there were no material

differences.   The record establishes that the testimony of

Statzer and Chapman was consistent with their pretrial

statements, and consequently that there was no reasonable

probability that the outcome of Wilson's trial would have been

different had the statements been disclosed to the defense before

trial.

     Statzer's and Chapman's testimony concerning the sequence of

events during the course of the evening was substantially

identical to their statements and to Wilson's testimony.

Statzer, Chapman, and Wilson testified that Hawkins pushed Wilson



                                 8
before Wilson fired on him.   They also indicated that the

interior window pane was broken when Wilson fell into the window.

At trial, Statzer and Chapman stated they believed that the push

or shove was "slight."   Neither Statzer's nor Chapman's

statements indicated that the push was slight.   Their undisclosed

statements merely indicated that Hawkins had shoved Wilson,

without qualifying the severity of the push.

     Wilson's claim that Statzer's pretrial statements

corroborated his statement that Hawkins acted aggressively toward

Brock is unsupported by the record.   In the undisclosed

statements Statzer told police:
          Jeff Hawkins asked where James Brock was. I
          told him he was asleep in my son's bedroom.
          Jeff Hawkins and Greg Wilson walked into the
          bedroom and flipped on the light. Hawkins
          and Wilson began arguing. . . . I went
          across the room and got Greg and Jeff to come
          out of my son's room.

          Jeff said where is James Brock. I asked why
          and said noone is going to bother James cause
          he's been asleep a [sic] hour or so in the
          boys floor on a sleeping bag. So Jeff goes
          to the boys room + turned the light on which
          Greg was right behind him. Greg told Jeff to
          not bother James cause he was asleep + my
          boys were in there too asleep. So I got out
          of my chair + talked to them and got them to
          come back into the living room.


In the statement which was disclosed to the defense, Statzer

provided details that were in fact more favorable to the defense

than those contained in her undisclosed statements:
          Everyone was setting [sic] in the living room
          for about 30 minutes, when Jeff asked where
          James Brock was and Ms. Statzer said in the
          bedroom sleeping in the floor, where her kids



                                 9
          were sleeping. She (Statzer) said why, Jeff
          Hawkins said he was going to hurt James.
          [Wilson] told Jeff if he had a problem with
          James to settle it later that there were 6
          kids in the house.


Similarly, Statzer's statement to the defense investigator was

consistent with her previous statements and more favorable to the

defense than her two undisclosed statements:
          Yea, there was one argument. Jeff said he
          was going to whoop [Brock's] butt. Greg got
          all bent out about it. Before he said it
          [blank space] wooden door and I walked up to
          [blank space] and turned the light out and me
          and my boys [blank space] and Greg came
          [blank space] I said No Greg you all come on.
           I got them out of there and then they came
          back in the living room and everybody said
          they were arguing about a tape or something,
          but I never heard them arguing about no [sic]
          tape.

Statzer's trial testimony was not as favorable as her two

disclosed statements, but both the more favorable undisclosed

statements were available to the defense and could have been used

to impeach Statzer.

     Wilson further claimed that Statzer's undisclosed statements

corroborated his assertion that Moore was hostile, that he had

stood up behind Hawkins, and that Wilson shot Moore in

self-defense.   Statzer testified "that Moore stayed in his chair

the entire evening because he was too drunk," and that "she never

saw Moore do anything aggressive to Wilson or anyone else."   In

her undisclosed statements, Statzer indicated that "[Moore] was

real drunk and I felt he was going to start arguing also," and

that at the time that Wilson and Hawkins were in her sons'



                                10
bedroom, that "[w]hen I was standing there with [Wilson] and

[Hawkins], [Moore] got up barely and come by me.    But I talked

[Moore] into sitting back down."     At trial Wilson advanced the

theory that Moore had actually stood up behind Hawkins and then

blocked Wilson's exit.   Nothing contained in Statzer's

undisclosed statements supports this assertion, nor do they

materially contradict her trial testimony.    Consequently, we

conclude that the record does not support a finding that there

was a reasonable probability that if Statzer's statements had

been disclosed, the outcome of the trial would have been

different.
     Regarding Chapman's undisclosed statement, Wilson first

asserted that it would have served to contradict Statzer's

testimony that Moore did nothing aggressive while at Statzer's

apartment.   The record fails to support this assertion.

Chapman's statement, in relevant part, provided that,
          [e]verything went along real fine for a while
          until Jeff Hawkins and Greg Wilson got into a
          loud argument. I saw Brad Moore take off at
          least two shirts. Brad told Greg, man I
          ain't got nothing. He repeated again. After
          this some more words were exchanged between
          Jeff Hawkins and Greg Wilson.


Nothing in Chapman's statement supports a finding that Moore was

hostile or aggressive during the altercation between Hawkins and

Wilson.   Wilson also asserts that Chapman's statement would have

supported Wilson's theory that Hawkins acted aggressively.

However, Chapman testified at trial that an argument occurred and




                                11
furthermore, the undisclosed statements and testimony of both

Statzer and Chapman are consistent in suggesting that Wilson

caused the argument.

        Finally, Wilson also contends that Chapman's statement did

not indicate that Chapman saw Wilson shoot Moore while Moore was

still seated.    Chapman testified that after Wilson first shot

Hawkins, she fled to get the police, rendering it unlikely that

she would have been able to comment on when or how Moore was

shot.    Furthermore, even if Statzer's undisclosed statements had

supported Wilson's version of the facts, such evidence would not

have been exculpatory.    Wilson's argument that he shot Moore

three times because Moore got up from his chair, stood behind

Hawkins, and then blocked Wilson's exit, does not support a

theory of self-defense.    Accordingly, we hold there is no

reasonable probability of a different outcome had Chapman's

statement been disclosed, and therefore hold that the statement

was not exculpatory.
        Mrs. Wilson's undisclosed statement was similar to Wilson's

trial testimony.    She stated that Hawkins pushed Wilson against

the window and broke it.    At trial, however, Mrs. Wilson's

testimony contradicted her written statement and consequently,

her statement was used to impeach her.    Compared with her

testimony at trial, her undisclosed statement was inculpatory not

exculpatory.    Accordingly, we hold that the record did not

support a finding that a reasonable probability existed that a




                                  12
different outcome would have resulted had the Commonwealth

disclosed Mrs. Wilson's statement.




                               13
                    Impeachment of Mrs. Wilson

     Wilson argues that the trial court erred in not requiring

the Commonwealth, under Code § 19.2-268.1, to produce the

inconsistent writing used to impeach Mrs. Wilson.   Rule 5A:18

provides that "[n]o ruling of the trial court . . . will be

considered as a basis for reversal unless the objection was

stated together with the grounds therefor at the time of the

ruling . . . ."   McQuinn v. Commonwealth, 20 Va. App. 753, 755,

460 S.E.2d 624, 626 (1995) (en banc).   Wilson failed to properly

raise the issue at trial, and Rule 5A:18 now bars our

consideration of the matter.   Wilson also failed to raise the

issue in his petition for appeal, and thus the matter is likewise

barred under Rule 5A:12(c).

       Instruction "C" - Right to Arm for Self-protection

     "`Both the Commonwealth and the defendant are entitled to

appropriate instructions to the jury of the law applicable to

each version of the case, provided such instructions are based

upon the evidence adduced.'"   Stewart v. Commonwealth, 10 Va.

App. 563, 570, 394 S.E.2d 509, 514 (1990) (citation omitted).

Here, the trial court refused instruction C, which stated that if

a person reasonably apprehends that another intends to kill him

or seriously injure him, the person "has a right to arm himself

for his own necessary self-protection, and in such case, no

inference of malice can be drawn from the fact that he prepared

for it."




                                14
     "An instruction is properly refused when it is unsupported

by the evidence."    Bennett v. Commonwealth, 8 Va. App. 228, 234,

380 S.E.2d 17, 21 (1989).    Here, the evidence demonstrated that

Wilson armed himself long before he entered the apartment, argued

with Jeff Hawkins, or possibly could have perceived that Hawkins

intended him harm.    There was no evidence that Wilson armed

himself in reaction to a threat from Hawkins.     In fact, Wilson

testified that he brought the gun into Statzer's apartment

because he feared that it would be stolen from his car.       Thus,

instruction C was inapplicable to the facts of the case, and the

trial court did not err in refusing it.
                    Instruction "F" - Self-defense

     "When one instruction correctly states the law, the trial

court does not abuse its discretion by refusing multiple

instructions upon the same legal principle."      Cirios v.

Commonwealth, 7 Va. App. 292, 303-04, 373 S.E.2d 164, 170 (1988).

The principles pertaining to self-defense set forth in

instruction F were contained in instructions E and G.     The only

information contained in instruction F not included in either

instruction E or G was characterization of one of the alternative

verdicts as "excusable" homicide.      Specific use of the term

"excusable" was not required, however, as the underlying concepts

were clearly and fairly presented in the other instructions.

Therefore, the trial court did not err in refusing instruction F

where it granted instructions E and G.



                                  15
                       Newly Discovered Evidence

        Four requirements must be met for a new trial to be granted

upon a claim of newly discovered evidence:    "(1) the evidence was

discovered after trial; (2) it could not have been obtained prior

to trial through the exercise of reasonable diligence; (3) it is

not merely cumulative, corroborative or collateral; and (4) is

material, and as such, should produce an opposite result on the

merits at another trial."     Mundy v. Commonwealth, 11 Va. App.

461, 480, 390 S.E.2d 525, 535, aff'd on rehearing en banc, 399
S.E.2d 29 (1990), cert. denied, 502 U.S. 840 (1991).     The burden

is on the proponent of after-discovered evidence to show that all

requirements have been met in order to justify the granting of a

new trial.     Carter v. Commonwealth, 10 Va. App. 507, 512-13, 393

S.E.2d 639, 642 (1990).    The granting of such a motion is

addressed to the sound discretion of the trial court and that

decision will not be reversed absent an abuse of discretion.

Mundy, 11 Va. App. at 481, 390 S.E.2d at 536.

        After trial, Wilson alleged that Statzer and Chapman

discussed their testimony while secluded in the witness room and

that Chapman coached Statzer as to what testimony she should

give.    The alleged conversation was overheard by Powers, a

witness called by the Commonwealth.    A transcript of Powers'

interview with the defense's investigator was attached as an

exhibit to Wilson's motion for a new trial. Powers stated that:
          It was more like two women sitting here
          discussing the whole thing and one of them
          [Statzer] saying well I didn't really see


                                  16
          anything. I had to get up and run grab my
          kids, and I was in the kitchen and this that
          and the other and I was so messed up I didn't
          know where I was. And she [Chapman] says
          well you know you saw him do this that and
          the other. And that's basically what it was.
           They set there like that for an hour, an
          hour and a half with me and my wife both
          sitting there listening.


     The trial court reviewed in camera Powers' interview,

Statzer's trial testimony, and the written statements Statzer

made shortly after the shootings.   The court concluded, and the

record demonstrated, that Statzer's statements did not differ

materially from her testimony at trial.   Thus, there is no

evidence that, even if the conversation between Statzer and

Chapman occurred, Statzer's testimony was affected.   Because the

record does not support a finding that the after-discovered

evidence would have produced a different result at another trial,

the trial court did not abuse its discretion in denying

appellant's motion for a new trial.
     Further, at the hearing on post-trial motions, the trial

court stated that, in light of the exhibits previously filed by

appellant, which included a transcript of Powers' interview, it

was not necessary for appellant to present further evidence.    The

court said that if Powers possessed information beyond that

contained in the documents, he would be permitted to testify.

Wilson did not object to this procedure and did not call Powers

as a witness.

     Wilson argues, however, that the trial court erroneously



                               17
excluded the testimony of Powers.      Wilson failed to properly

raise the issue at trial, and Rule 5A:18 bars our consideration

of the matter on appeal.

     Holding that the trial court did not err in finding that the

undisclosed written statements did not present the reasonable

probability that, had they been disclosed to the defense, the

result of the trial would have been different, that the trial

court did not err in denying Wilson's motion for a mistrial or in

the alternative a new trial on the basis of newly discovered

evidence, and that the trial did not err in refusing Wilson's

instructions C or F, we affirm.

                                                 Affirmed.




                                  18
