COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Baker and Bray 

Argued at Norfolk, Virginia 

KEVIN STANLEY PAINTER 

 MEMORANDUM OPINION* BY 

v. Record No. 1502-97-1 JUDGE RICHARD S. BRAY 

 APRIL 7, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

John K. Moore, Judge 

 Theresa B. Berry (Samford & Berry, P.C., on 

brief), for appellant. 

 Jeffrey S. Shapiro, Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 A jury convicted Kevin Stanley Painter (defendant) for the 

rape and murder of Amber Zajac (victim). On appeal, defendant 

complains that the trial court erroneously (1) declined to 

declare a defense witness adverse, thereby precluding impeachment 

by defendant through prior inconsistent statements,1 and (2) 

refused an instruction admonishing the jury on the proper 

consideration of a "person['s] false statement to the police." 

Finding no error, we affirm the convictions. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 1On brief, defendant also argues that the trial court 

erroneously refused to admit the witness' prior inconsistent 

statements as declarations against penal interest. However, this 

issue was not presented in defendant's petition for appeal and 

will not now "be noticed" by this Court. Rule 5A:12(c). 
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 I. 

 At approximately midnight on August 7, 1995, the victim 

began to walk home following a visit with friends. When she 

failed to arrive as expected, family members initiated a search 

of the area and soon discovered the victim's partially clothed 

body along a wooded path en route from the friends' home. She 

had been beaten, raped and strangled by an assailant. 

 The ensuing investigation immediately focused on Kenneth 

Pallett, a nearby resident who had approached police at the scene 

and offered his assistance. Pallett agreed to a police interview 

and volunteered hair and blood specimens for forensic 

examination. During the interview, Pallett provided numerous 

conflicting statements relative to the offenses. After initially 

denying involvement and implicating others in the crimes, he 

described himself as "lookout," while an individual known to 

Pallett only as "Toothless" attacked the victim. As a result, 

police arrested and charged Pallett with the offenses. 

 Nevertheless, police continued to investigate and, on August 

17, 1995, Detective Alan Ball interviewed defendant. Defendant 

admitted that he had seen the victim immediately prior to her 

death, but denied any sexual contact. Police also obtained blood 

and hair samples from defendant. 

 Comparisons of the blood and hair characteristics of Pallett 

and defendant with "genetic material" recovered from the victim 

eliminated Pallett as a source of the male donor DNA but 
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identified defendant, with statistical certainty, as the 

contributor. Pallett was thereafter released, and police 

arrested defendant. 

 At trial, Pallett, called as a defense witness, testified 

that he was at home with his family at the time of the offenses. 

 Defendant then moved the court to declare Pallett "an adverse 

witness," testifying to divert suspicion from himself to 

defendant. In overruling the motion, the court observed that 

"there is very convincing and uncontradicted evidence 

that . . . Pallett has been totally exonerated." However, the 

court permitted defendant's counsel to "refresh [Pallett's] 

recollection" with his earlier statements to police and to then 

inquire into these diverse accounts. Pallett attributed the 

inconsistencies to a decision to "say anything, whatever they 

wanted to hear so they would let me go." 

 Defendant testified, claiming that he and the victim had 

engaged in consensual sex and that the victim was dressing when 

he left the wooded area. 

 II. 

 "As a general rule at common law, a party was not allowed to 

impeach its own witness." Maxey v. Commonwealth, 26 Va. App. 

514, 518, 495 S.E.2d 536, 538 (1998) (citation omitted). 

However, "Virginia has enacted two statutes that impact [this] 

rule," Code §§ 8.01-401, -403. Id. Code § 8.01-401 permits a 

party to call a witness "having an adverse interest" and examine 
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such witness "according to the rules applicable to 

cross-examination." Code § 8.01-401. The statute contemplates 

persons with a "financial or other personal interest in the 

outcome of the case." Maxey, 26 Va. App. at 520, 495 S.E.2d at 

539; Weller v. Commonwealth, 16 Va. App. 886, 892, 434 S.E.2d 

330, 335-36 (1993). Thus, a party may impeach an adverse witness 

with prior statements inconsistent with his or her trial 

testimony. Id.

 Code § 8.01-403 also allows a party producing a witness to 

"prove that he has made at other times a statement inconsistent 

with his present testimony," provided such witness "shall in the 

opinion of the court prove adverse." Code § 8.01-403 (emphasis 

added). A witness "prove[s] adverse" "when the witness whom the 

party expected to testify favorably has suddenly given 

unexpected, adverse testimony on the stand," Maxey, 26 Va. App. 

at 519-20, 495 S.E.2d at 539, testimony "injurious or damaging to 

the . . . party who called the witness." Ragland v. 

Commonwealth, 16 Va. App. 913, 920, 434 S.E.2d 675, 680 (1993). 

The trial court must exercise its sound discretion in determining 

if a witness has proven adverse. See Code § 8.01-403; Maxey, 26 

Va. App. at 522, 495 S.E.2d at 540. 

 Here, counsel first moved the court to declare Pallett an 

adverse witness after Pallett testified that he was "in [his] 

house" during the offenses. The court concluded, however, that 

Pallett had "been totally exonerated" by "convincing and 
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uncontradicted evidence" and was "not an adverse witness," 

leaving defendant with "no basis . . . to cross-examine" him 

pursuant to Code § 8.01-401. Further, Pallett's trial testimony 

was neither "damaging" nor "injurious" to defendant's case within 

the purview of Code § 8.01-403. Thus, there was no statutory 

authority for defendant to impeach Pallett, either as an adverse 

witness or a witness whose testimony proved adverse, and the 

court properly denied his motion. 

 Moreover, it is clear from the record that the court, 

nevertheless, permitted defendant to thoroughly question Pallett 

regarding his conflicting statements to police, including actual 

use of the interview to "refresh the witness' recollection." 

 III. 

 "If the principles set forth in a proposed instruction are 

fully and fairly covered in other instructions that have been 

granted, a trial court does not abuse its discretion in refusing 

to grant a repetitious instruction." Joseph v. Commonwealth, 249 

Va. 78, 90, 452 S.E.2d 862, 870 (1995) (citations omitted). "In 

fact, trial courts should avoid giving redundant or repetitive 

jury instructions." League v. Commonwealth, 9 Va. App. 199, 210, 

385 S.E.2d 232, 239 (1989) (citation omitted). 

 Defendant's proposed instruction admonished the jury that, 

"if a person gives a false statement to the police, this creates 

no presumption that the person is guilty of having committed the 

crime." It was rejected by the trial court as an "improper 
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comment on specific evidence." However, the jury was charged, in 

pertinent part: "You are the judges of the facts, the 

credibility of the witnesses, and the weight of the evidence. 

You may consider . . . their prior inconsistent statements, or 

whether they have testified untruthfully . . . [to] determine 

which witnesses are more believable and weigh their testimony 

accordingly." Virginia Model Jury Instructions, Criminal, No. 

2.500 (1993 repl. ed. with 1997 Supp.). Thus, the jury was 

properly instructed on the credibility issue, the subject of 

defendant's proposed instruction. 

 Accordingly, we affirm the convictions. 

 Affirmed.