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 
 2 

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 
 3 

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 
 4 

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 
 5 

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, 
 6 

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 
 7 

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. 
 8 

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 
 9 

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 
 10 

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' 
 11 

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 
 12 

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 
 13 

different outcome would have resulted had the Commonwealth 

disclosed Mrs. Wilson's statement. 
 14 

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." 
 15 

 "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. 
 16 

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 
 17 

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 
 18 

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.