                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia


MONTE M. PERKINS
                                          MEMORANDUM OPINION * BY
v.   Record No. 1839-98-2                  JUDGE MARVIN F. COLE
                                              JANUARY 27, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge

          Maureen L. White for appellant.

          Jeffrey S. Shapiro, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Daniel J. Munroe, Assistant Attorney General,
          on brief), for appellee.


     Appellant was convicted in a jury trial of first degree

murder and use of a firearm in the commission of murder.   On

appeal, appellant contends that the trial court erred:    (1) by

refusing to admit into evidence a videotape of Detective Simmons'

interview with Shamal Benjamin, a codefendant, and (2) by failing

to strike the evidence on the charge of first degree murder

because the evidence was insufficient as a matter of law to

sustain a finding of guilt.   We disagree and affirm.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                               FACTS

     "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."   Martin v. Commonwealth, 4

Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     In the fall of 1997, Shamal L. Benjamin was released from

boot camp.   He testified on behalf of the Commonwealth that when

he returned home, he had problems at school with two youths, Wayne

Martin and Matthew Jones.   In explaining the trouble, Benjamin

said, "[t]hey were going around saying that I had robbed them."

Generally, he said that they "harassed, beat up and banked" him.

Benjamin testified that he reported these incidents to his

probation officer and the school authorities.    This trouble would

stop for a short time and then resume.

     Prior to the October 25, 1997 shooting, Benjamin had

discussed his difficulties with two friends, Dominique Waller and

Rasheen Waller, who were appellant's cousins.    The Wallers told

Benjamin that "[t]hey were going to handle it."   On the morning of

October 25, 1997, Benjamin received a phone call from appellant

and Rasheen Waller.   Appellant said he had a red Taurus car and

that he would be around later in the day to pick up Benjamin.

Later in the day, appellant, his stepbrother William Culpepper,

Dominique Waller and Rasheen Waller arrived at Benjamin's home.

Appellant said to Benjamin that "he had heard what was going on

with the problems I was having at school."   Appellant also said,

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"we're going to handle that."   Benjamin further testified that

they walked to the Dominique Waller and Rasheen Waller house,

located in the San Souci Apartments.

     All five of them got in the red Taurus.      At first, Rasheen

Waller was driving and Benjamin was in the passenger seat.

Appellant was in the back seat behind the driver; Culpepper was in

the rear middle seat; Dominique Waller was in the other rear seat.

According to Benjamin's testimony, they "rode around for a little

while, back and forth."   Eventually, they came back to where they

had started and dropped off Dominique Waller.     At this point,

Benjamin started driving the car.    They went through Deering Manor

Apartments because Martin and Jones lived there.     Benjamin told

appellant he wanted to drive through there "to see was . . .

Martin and . . . Jones out there."      Benjamin testified that he saw

only Martin, but he also saw some "boys" he had never seen before.

     Benjamin testified that appellant said "let's go back to San

Souci and get the gun."   They drove back to the San Souci

Apartments and parked in the back of Dominique Waller's house.

Rasheen Waller and appellant got out of the car and went inside.

Benjamin and Culpepper stayed in the car.     Benjamin and Culpepper

were called in the house and everybody went inside Dominique

Waller's house.   Benjamin explained what occurred there as

follows:

           So, everybody went in the house. The gun
           was brought out. It had the clip and
           everything in it. So, Dominique Waller was

                                - 3 -
            like y'all do it another time, don't even go
            around there, wait later. So, Rasheen
            Waller and [appellant] was like, no, we're
            going to do this now and get it over with.

       In response to a question, Benjamin testified that

Dominique Waller "went and got the gun."    After this discussion,

they got back in the red Taurus.    Appellant was the driver;

Rasheen Waller was in the front passenger seat; Benjamin was in

the back seat behind the driver; Culpepper was in the back seat

behind the front passenger seat.    Benjamin had the gun, an

AK-47, in his hands.    They left the San Souci Apartments and

returned to the Deering Manor Apartments.   By this time it was

dark, Benjamin told the others that he would direct the driver

how to get to Deering Manor Apartments, how to get in, and how

to get out.   Appellant followed Benjamin's instructions in and

out.

       As the group approached the area in which they had seen

Martin earlier, appellant stopped the car and waited for a

nearby car to drive away.   Once that car had left, appellant

pulled up and stopped the car.    Benjamin then jumped out and

"started shooting."    Benjamin jumped or was pulled back into the

car.   Appellant drove from the scene according to instructions

from Benjamin and returned to Dominique Waller's house in the

San Souci Apartments.   The gun was returned to Dominique Waller.

The police found ten cartridges at the crime scene.   Daryl

Pettiford was shot in the chest and died later that night.


                                 - 4 -
     At the conclusion of the Commonwealth's evidence, appellant

moved to strike the evidence because "the Commonwealth has

proven no more than mere presence here" and that the testimony

of Benjamin was incredible.    The trial judge denied the motion

stating that, "it's a jury question."    The same motion was

renewed at the conclusion of all the evidence and was likewise

denied.

     The jury found appellant guilty of first degree murder and

guilty of use of a firearm in the commission of murder.     The

Court convicted him accordingly.

                  I.    ADMISSION OF THE VIDEOTAPE

     At trial, the Commonwealth put on its evidence, which

included the testimony of Benjamin.     It then rested its case.

     The trial judge called upon appellant to present his

defense.   After appellant made a motion to strike the evidence,

the following discussion took place between the judge and

defense counsel while the jury was out:

           [DEFENSE COUNSEL]: Your Honor, the only
           evidence we would like to present is the
           tape of Shamal Benjamin in his interview
           with the police.

           THE COURT: I think that it would have to go
           to impeachment. I don't know what's
           impeachable and what's not impeachable [in
           the tape].

            *      *       *       *      *      *      *

           THE COURT:   Well, where is the detective?




                                - 5 -
[COMMONWEALTH'S ATTORNEY]: The detective is
here. He has been sequestered.

THE COURT: Call him to ask a specific
question, did he tell you so and so on such
and such a date?

[COMMONWEALTH'S ATTORNEY]: Detective
Simmons is right back there.

THE COURT:   I mean, if you want to call him.

 *      *       *      *      *      *      *

THE COURT:   What point do you intend to
impeach?

[DEFENSE COUNSEL]: Your Honor, I have got
it here. In the tape he testified, he told
the police -- first he told the police the
red Taurus had been there earlier and a
crowd of people had been there and he was in
there with four people. Then he said that
he was hanging out with these guys. Monte
Perkins and Rasheen left and during that
period of time a blue Cavalier with these
two guys he is beefing with came around. It
was only at that time that he had the idea
to get the gun. And, it was at that time --

THE COURT: Well, how did that impeach him?
Excuse me just a minute. You want to
impeach the Commonwealth's witness. You
have asked him did he interview with the
detective. You might have laid a proper
foundation. I am going to give you the
benefit of the doubt, but I don't think you
did. You must give time, place, and
circumstances. He is interviewed by the
police. Now, you can ask specific questions
did he tell you at that time this, did he
tell you that, did he tell you this, and
then the officer will answer whatever the
answer will be. But, you just can't take
the tape because there's probably a lot of
inadmissible evidence in the tape.

 *      *       *      *      *      *      *



                     - 6 -
          [DEFENSE COUNSEL]: Well, I think, you
          Honor, we're entitled to introduce prior
          inconsistent statements.

          THE COURT: I'm not arguing [on that point].
          I'm just telling you how to do it . . . .
          That's all I'm doing.

           *      *       *      *        *        *    *

          [COMMONWEALTH'S ATTORNEY]: The tape is
          almost 45 minutes long, Judge.

          THE COURT: That's not the point. The point
          is some of it is admissible, some of it
          isn't. The only thing that's admissible to
          impeach your witness, that's prior
          inconsistent statements. . . .

          [DEFENSE COUNSEL]: Your Honor, I think the
          whole tape is inconsistent with his
          testimony today. That's the point.

          [COMMONWEALTH'S ATTORNEY]:    That's entirely
          untrue, entirely.

          [DEFENSE COUNSEL]: I don't think it is.
          But, that is the point and that's why I'm
          offering --

          THE COURT: I am not going to let the whole
          tape in. If you want to call the officer.

          [DEFENSE COUNSEL]:   Yes, sir.      I call
          Detective Simmons.

          THE COURT:   All right.    Return the jury.

     Appellant called Simmons as a witness and questioned him

about any prior inconsistent statements made by Benjamin.

Simmons testified that he interviewed Benjamin on November 15,

1997, regarding the events that occurred on October 25, 1997.

The trial court permitted defense counsel to extensively

question Simmons concerning the interview with Benjamin and any


                               - 7 -
inconsistent statements made by Benjamin.     After the testimony

of Simmons was concluded, appellant rested his case.

     Appellant again renewed his request to admit into evidence

the entire videotape and have the jury see it.     The motion was

overruled.    Appellant moved that the videotape be made part of

the record.   This motion was granted.

     Appellant contends that the trial court erred in refusing

to allow him to introduce the videotape containing prior

inconsistent statements made by Benjamin.     He argues that this

refusal violated his Sixth Amendment right to confront the

witnesses and to present evidence in his defense.     He claims it

also violated the Due Process Clause of the Fifth and Fourteenth

Amendments to the United States Constitution.     Additionally, he

argues that the admission of the tape would have enabled the

jury to compare the demeanor of Benjamin at trial and his

demeanor during the interview.    Since we find the videotape

inadmissible, we do not address this issue.

     "A witness may be impeached by showing that he has formerly

made statements inconsistent with his present testimony."     1

Charles E. Friend, The Law of Evidence in Virginia § 4-3(a) (4th

ed. 1993).    "[P]rior inconsistent statements are admitted solely

to attack the credibility of the witness who has told different

stories at different times."     Id.   "If a witness gives testimony

that is inconsistent with a prior statement, or testifies that

he does not recall making the prior statement, a sufficient

                                 - 8 -
foundation for impeachment has been laid, and opposing counsel

may cross-examine the witness as to the inconsistency."      Smith

v. Commonwealth, 15 Va. App. 507, 511, 425 S.E.2d 95, 98 (1992)

(citation omitted) (holding that there was no Sixth Amendment

violation when trial court failed to admit the transcript of a

witness' prior statement after the witness admitted that his

prior statement was inconsistent with his trial testimony).

Counsel must call the witness' attention to the circumstances of

the particular occasion on which the alleged prior statement was

made.     See Waller v. Commonwealth, 22 Va. App. 53, 58, 467

S.E.2d 844, 847 (1996) (citation omitted); see Code § 8.01-403.

The witness must be asked whether he previously made a particular

statement, "[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).

        "Although it is proper under Virginia law to use a witness'

prior inconsistent statement for impeachment purposes, the trial

court has some discretion in determining how such a statement

shall be used."    Smith, 15 Va. App. at 510-11, 425 S.E.2d at 98.

"[T]he extent of testimonial impeachment . . . should be 'left

largely to the sound discretion of the trial court; and the rule

is well established that an appellate court will not interfere,

unless that discretion has been plainly abused.'"    Spruill v.



                                 - 9 -
Commonwealth, 221 Va. 475, 485, 271 S.E.2d 419, 425 (1980)

(citation omitted).

     The record reflects that Benjamin was called as a

Commonwealth's witness and on direct examination testified

extensively about the appellant's involvement in the shooting.

He admitted that he shot the victim.    Appellant did not object

to any of his testimony.

     Upon completion of the direct examination, appellant fully

cross-examined Benjamin about all of his actions that occurred

on October 25, 1997.   The cross-examination takes up twenty-one

pages in the sixty-page transcript of the proceeding.       Although

some mention was made about an interview with Simmons and two

other officers, there was no suggestion that a videotape was

made of the interview.   During the cross-examination, appellant

did not call Benjamin's attention to any statements that were

inconsistent with the videotaped police interview.

     Appellant, by proffering the entire videotaped statement at

the conclusion of the Commonwealth's case, and after he had

completed his cross-examination of the witness, did not proceed

properly in attempting to use the videotape to impeach Benjamin's

trial testimony.   The trial court permitted appellant to

extensively question Simmons concerning his interview with

Benjamin and any inconsistent statements made by Benjamin.

     Moreover, we have reviewed the transcription of the

videotape, which was made part of the record upon appellant's

                               - 10 -
motion.    Those present at the interview held on November 15, 1997,

were Detective J.A. Simmons and Detective King of the Richmond

Police Department and Detective Carroll of the Chesterfield County

Police Department.   No explanation was given for the presence of

the Chesterfield officer.   However, as the interview progressed,

it became obvious that Benjamin was in the custody of the

Chesterfield police.    Simmons asked Benjamin, "Even after the

shooting, what are you doing out here in Chesterfield shooting up

people?"   Benjamin responded, "This time we was – this is

self-defense.    This is self-defense."   In response to a question

from King, Benjamin stated, "I know we had an AK last night, but

that wasn't the weapon.    That weapon that we got last night, that

was somebody else's weapon."   The interview ended with Simmons

thanking Benjamin for his "honesty" and King expressing his

appreciation to Benjamin for "telling us the truth."

     Much of the interview was concerned with problems that

existed between Benjamin and other persons in his school that had

little if any relevance to this case.     The videotape contains much

duplication.    Very few dates and times of day are included in the

interview, making it impossible to determine what occurred on

October 25, 1997, and what took place on other occasions.     We find

that Benjamin's testimony at trial and his statements to the

police were substantially the same.      Therefore, the trial judge

did not abuse his discretion in refusing to admit the videotape in



                                - 11 -
evidence and did not violate appellant's right to confront the

witnesses and present evidence in his defense.

                   II.   SUFFICIENCY OF EVIDENCE

     Appellant contends that the Commonwealth elicited evidence

that appellant was at home with his mother at the time of the

shooting and that there was a reasonable hypothesis that he was

mistakenly identified.   Appellant asserts that "Howard based her

identification of [appellant] on the information related to her by

the police and not on her recollection of his face."

     The record provides no mention of any person named "Howard,"

and the record is devoid of any evidence that appellant was

anywhere but driving the car.   Furthermore, appellant's statement

of facts provides that the "undisputed facts establish that on

October 25, 1998 [sic], Shamal Benjamin got out of a car driven by

[appellant] . . . ."   The Commonwealth's evidence was competent,

was not inherently incredible, and was sufficient to prove beyond

a reasonable doubt that appellant was guilty of first degree

murder and use of a firearm in the commission of murder.

     For the foregoing reasons, we affirm the convictions.

                                                           Affirmed.




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