COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Senior Judge Hodges 

Argued at Alexandria, Virginia 

CHARLES MOMODOU THOMAS, A/K/A 

 MOMODOU CHARLES THOMAS 

 OPINION BY 

v. Record No. 2787-95-4 JUDGE RICHARD S. BRAY 

 APRIL 29, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Paul F. Sheridan, Judge 

 Mark S. Thrash for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Charles Momodou Thomas (defendant) was convicted by a jury 

of multiple felonies arising from several armed robberies and 

related offenses committed in Arlington County. On appeal, 

defendant complains that the trial court improperly permitted the 

Commonwealth to impeach him through "Notice[s] of Alibi Defense," 

signed only by his counsel and filed pursuant to Rule 

3A:11(c)(2). Finding no error, we affirm the convictions. 

 Prior to trial, defendant, by counsel, filed a "Notice of 

Alibi Defense" with the court which represented that defendant 

intended to "offer evidence" that he was at the residence of his 

sister in Falls Church at the time of the alleged offenses. 

Subsequently, defendant, again by counsel, lodged an "Amended 

Notice of Alibi Defense," advising that he would assert an alibi 

that he "was in touch . . . with his sister . . . from a public 
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telephone in . . . Falls Church," that she "picked him up . . . 

from that location" and drove him to Washington, D. C., where he 

"took a train . . . to New York." Neither notice was signed by 

defendant. 

 During trial, defendant testified that he was in New York 

the "whole day" of the crimes. When the prosecutor attempted to 

impeach defendant using the prior alibi notices, defense counsel 

objected, arguing that each set forth only "representation of 

counsel -- what counsel believe[d]." The trial court overruled 

the objection and instructed the jury, "There's a requirement in 

Virginia law . . . that a defendant in a criminal case who elects 

to put on an alibi has to give notice of what it's going to be. 

That written notice is a part of this file. The Commonwealth can 

rely upon it in cross exam." During the ensuing 

cross-examination, defendant acknowledged that the notices placed 

him in Falls Church at the time of the offenses and offered no 

explanation for the inconsistencies. 

 Following trial, defendant's counsel moved for a mistrial, 

arguing that use of the alibi notices "in essence . . . could 

make [him] a witness in the case," thereby implicating the 

attorney-client privilege. However, the trial judge concluded 

that it was "an authorized statement by an agent and an 

attorney," "clearly usable as a prior inconsistent statement." 

 In Hall v. Commonwealth, 16 Va. App. 779, 433 S.E.2d 489 

(1993), we reasoned that statements of defense counsel set forth 
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in a written suppression motion and spoken during an attendant 

hearing were properly attributable to Hall, although he neither 

signed the motion nor testified at the hearing. We noted that 

Hall had "sat silently during the suppression hearing," and that 

the statements of his counsel were made "with [his] actual or 

constructive knowledge and . . . express or tacit consent." Id.

at 783, 433 S.E.2d at 492 (quoting Coppola v. Commonwealth, 220 

Va. 243, 251, 257 S.E.2d 797, 802-03 (1979), cert. denied, 444 

U.S. 1103 (1980)); see id. at 783-84, 433 S.E.2d at 492-93. 

 Defendant's effort to distinguish Hall from the instant case 

ignores the lesson of Asbury v. Commonwealth, 211 Va. 101, 175 

S.E.2d 239 (1970). In Asbury, the accused acknowledged on 

cross-examination that he had previously provided information to 

an attorney incidental to the preparation of a pleading in an 

unrelated civil proceeding, but denied reading the pleading or 

otherwise vouching for its contents. See id. at 106-07, 175 

S.E.2d at 242-43. Nevertheless, the Court concluded that Asbury 

could be impeached in a later criminal prosecution by prior 

inconsistent statements found in the civil filing. See id.; see

also Taylor v. Illinois, 484 U.S. 400, 418 (1988) ("In responding 

to discovery, the client has a duty to be candid and forthcoming 

with the lawyer, and when the lawyer responds, he or she speaks 

for the client."); Browder v. Southern Ry. Co., 107 Va. 10, 

12-13, 57 S.E. 572, 573 (1907) ("[A]bandoned or superseded 

pleadings . . . may be introduced in cross-examination to impeach 
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the plaintiff," even if he did not read or execute them, "in the 

absence of evidence that the pleading was unauthorized."). 

 Here, the alibi notices were specifically related to the 

pending criminal prosecution and filed in that cause by 

defendant's counsel pursuant to Rule 3A:11(c), which, inter alia, 

permits the court to require that the accused disclose an 

intention to offer alibi evidence, including "the place at which 

he claims to have been at the time of the commission of the 

alleged offense," whenever discovery is ordered from the 

Commonwealth. Permitting a defendant to later disavow such 

declarations with impunity would at once visit an injustice upon 

the Commonwealth and countenance a subversion of the Rules 

governing discovery in criminal proceedings. 

 On review, we are guided by the principle 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). Defendant in this 

instance was responsible for the content of his alibi notices, 

testified differently, and had the opportunity to explain on 

either cross or redirect examination the inconsistencies in his 

several statements. Under such circumstances, we cannot conclude 

that the trial court abused its discretion in allowing the 

Commonwealth to use the notices for purposes of impeachment.1

 

 1Because this record does not disclose a violation of the 

attorney-client privilege, we decline to address this issue and 
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 Accordingly, we affirm the convictions. 

 Affirmed.

 

attendant implications of Code § 19.2-268.1.