                     COURT OF APPEALS OF VIRGINIA


Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia


WILLIAM LOYD FETTY
                                          MEMORANDUM OPINION * BY
v.   Record No. 0176-99-2                 JUDGE NELSON T. OVERTON
                                              FEBRUARY 1, 2000
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF HANOVER COUNTY
                   David F. Berry, Judge Designate

          Eugene M. Simmons (William A. Parks, Jr., on
          brief), for appellant.

          John H. McLees, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     William Loyd Fetty, appellant, appeals his convictions for

second degree murder and use of a firearm in the commission of

that murder.   Appellant contends (1) that the trial court erred by

overruling his request to call the Commonwealth's Attorney as a

material witness, (2) that the trial court erred by overruling his

request to call Deputy Sheriff Chris Kothe as an adverse witness,

(3) that the trial court erred by refusing his request for a

mistrial, and (4) that the evidence was insufficient to support

appellant's convictions.    For the following reasons, we find no

error and affirm the convictions.


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

        On the evening of the shooting, appellant went to his son's

home to look for items missing from his home.     Appellant suspected

that his son, Scott, had stolen these missing items.     Thereafter,

Scott telephoned appellant because Scott thought appellant owed

him an apology.    Appellant called Scott "a little bastard" and

denied owing him anything.    A series of angry telephone calls

followed between appellant and Scott.

        Scott drove to appellant's home to have a face-to-face talk

with appellant.    Chris Crampton rode with Scott to appellant's

home.    Appellant claimed that he thought Scott was coming to "kick

[his] ass" so he put his eleven gauge shotgun near the back door.

When Scott arrived, he approached appellant's deck and appellant

approached Scott with balled fists.      Scott said, "I'm not here for

this, if you put your hands on me I will defend myself."

Appellant, who has a history of becoming "enraged," was mad.

Appellant said, "[T]wo of us can play this game."

        Appellant went inside his house and then returned with his

shotgun.    Appellant pointed the gun at Scott's face.   Scott asked

appellant whether he was going to shoot him.     Appellant said,

"[Y]ou see that truck?"    Appellant fired two rounds into Scott's

truck.    Scott put his hands in front of his father and yelled

three times that his "buddy's in the truck."     Appellant looked

Scott in the eye, raised the gun up and continued firing at the

passenger door of Scott's truck.    Scott ran to his truck and saw

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Crampton laying across the seat.    Scott yelled that appellant had

killed his friend, and then drove to a neighbor's home to call the

sheriff's department.

     Appellant told a man in jail that "he thought he had seen

something duck down in the truck" before he fired gunshots at

Scott's truck.

     In a statement to the police, appellant claimed that Scott

had not told him anyone was in the truck until after he had fired

five shots into the truck.    At trial, appellant's sister testified

that Scott said he had not told appellant anyone was in the truck

until the last gunshot.    Appellant's sister's roommate testified

that Scott told her that appellant did not know anyone was in the

truck until after the last gunshot.      Scott denied making these

statements.

                          Issues I through III

     Appellant complains that the trial court erred by refusing to

allow him to call the Commonwealth's Attorney as a material

witness, by refusing to allow him to call Kothe as an "adverse

witness," and by refusing to declare a mistrial.     In reality,

these complaints amount to the single claim that the trial court

erred by refusing to allow him to call the Commonwealth's Attorney

as a witness in order to impeach Kothe with a prior inconsistent

statement.

     "Code § 8.01-403 allows a party to impeach his or her own

witness by prior inconsistent statements only when the witness

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whom the party expected to testify favorably has suddenly given

unexpected, adverse testimony on the stand."    Maxey v.

Commonwealth, 26 Va. App. 514, 519-20, 495 S.E.2d 536, 539

(1998).   One's own witness may be impeached if the testimony of

that witness "proves adverse," which means the testimony of the

witness is "injurious or damaging."

     Defense counsel called Kothe to testify about appellant's

reaction when appellant was told that the person in the truck

had been killed.    Kothe testified that appellant said, "Oh, no."

However, Kothe had no present recollection of telling the

Commonwealth's Attorney that the color drained from appellant's

face when told that Crampton was dead.    On the day before this

issue was raised in trial, appellant learned that Kothe had no

present recollection of saying anything about the color on

appellant's face.   Therefore, defense counsel was not surprised

when Kothe testified that he had no present recollection

regarding the color draining from appellant's face.

Additionally, testimony that Kothe could not recall saying the

color drained from appellant's face was not adverse to

appellant, but only failed to meet appellant's expectations.

See Brown v. Commonwealth, 6 Va. App. 82, 85-86, 366 S.E.2d 716,

718 (1988).   Therefore, Kothe did not "prove adverse" within the

meaning of Code § 8.01-403, and defense counsel could not

impeach Kothe pursuant to that section.



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     The trial court correctly noted that allowing the defense

to call the Commonwealth's Attorney as a witness would require

that someone else be brought in to prosecute the case.      The

court noted that the Commonwealth's Attorney disclosed Kothe's

statement to the defense but has no control over how that

information is utilized.   Moreover, there was no showing as to

why defense counsel could not be disqualified from the case, as

he too heard Kothe's previous statement.    The court noted that

the matter should have been "sifted through" and denied the

motion for a mistrial "because it comes too late."       The matter

could have been avoided.   Therefore, the trial court properly

exercised its discretion when it denied appellant's motion for a

mistrial.   See Beavers v. Commonwealth, 245 Va. 268, 280, 427

S.E.2d 411, 420 (1993).

                             Issue IV

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

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"     Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

    So viewed, the evidence showed that Scott Fetty confronted

his father, the appellant, about what happened during an earlier

visit.   They began to argue, and appellant asked his son, Scott,

to leave.   Scott refused to leave.    Enraged, appellant went

inside his house and came back outside with a shotgun.      Scott

                               - 5 -
asked if he was going to shoot him.    Appellant replied, "Hell,

yeah. . . . You see that truck?"   Appellant fired two rounds

into the back wheel of Scott's truck before dropping the gun

down to his side.   Scott held up his hands and said, "my buddy's

in the truck, my buddy's in the truck, my buddy's in the truck."

Appellant looked Scott "dead in the eye," picked up the gun and

shot into the passenger door, killing Chris Crampton who was in

the truck.

    In a statement to Investigator Stanley Kirks, appellant

claimed that Scott did not tell him anyone was in the truck

until after appellant fired at the passenger door.

    The fact finder believed the Commonwealth's evidence, and

rejected appellant's claim that he did not know anyone was in

the truck when he fired his gun.   "The credibility of the

witnesses and the weight accorded the evidence are matters

solely for the fact finder who has the opportunity to see and

hear that evidence as it is presented."    Sandoval v.

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).

The Commonwealth's evidence was competent, was not inherently

incredible, and was sufficient to prove beyond a reasonable

doubt that appellant committed second degree murder.

                                                         Affirmed.




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