COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Bumgardner 

Argued at Salem, Virginia 

KELVIN LYNN WHITEHEAD 

 OPINION BY 

v. Record No. 2151-98-3 JUDGE JAMES W. BENTON, JR. 

 JANUARY 11, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 S. Jane Chittom (Elwood Earl Sanders, Jr.; 

Public Defender Commission, on briefs), for 

appellant. 

 Steven A. Witmer, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 A jury convicted Kelvin Lynn Whitehead of aggravated 

malicious wounding. On appeal, he contends the trial judge erred 

by (1) allowing the prosecutor to cross-examine a defense witness 

on issues which were beyond the scope of direct examination and 

(2) admitting testimony from a Commonwealth's witness concerning 

out-of-court statements made by the same defense witness. For 

the reasons that follow, we affirm Whitehead's conviction. 

I. 

 A grand jury indicted Whitehead for aggravated malicious 

wounding of Ronnie Russell Cobbs occurring on September 7, 1997. 

At trial in the Commonwealth's case-in-chief, Cobbs testified 

that on the night of August 28, 1997, he was asleep on a sofa in 

Karen Noble's house when Whitehead burst through the front door 
and came toward him armed with a metal stake. Cobbs subdued 

Whitehead, whom he had known twenty years, by striking him on the 

head with a hammer. Explaining the presence of the hammer, Cobbs 

testified that he had earlier used it to seal Noble's windows 

"because [Whitehead] had been coming in and out." During the 

struggle, Whitehead dropped the stake, retreated to Joe Duncan's 

house nearby, and called the police. The evidence is silent 

regarding any further events occurring that evening after the 

police arrived. 

 Cobbs further testified that he was again inside Noble's 

house on the night of September 7, when he heard Duncan calling 

his name. Cobbs opened the door, saw Duncan and Whitehead 

standing by the door, and told Noble that the two men were 

outside her door. Noble came to the door. As Cobbs and 

Whitehead argued, Whitehead threw liquid from a container in 

Cobbs' face, blinding Cobbs' left eye and scarring his neck and 

body. The evidence proved the liquid was chemically consistent 

with sulfuric acid. 

 Cobbs ran to the kitchen sink and rinsed his body. When he 

could not get relief from the pain or assistance from Noble, who 

panicked after the attack, Cobbs ran to a neighbor's residence to 

ask for help. As Cobbs was crossing the street, he saw Whitehead 

approaching him and preparing to throw more liquid on him. Cobbs 

testified that he screamed and that Noble yelled, "Whitehead, you 

are going to pay for this." Cobbs testified that the police were 

arriving as Whitehead and Duncan ran to Duncan's home. 

 Several witnesses testified in Whitehead's defense. Westley 

Hayes, who lived two houses away from Noble, testified that on 

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the night of September 7 Whitehead and Duncan were at his house. 

Hayes testified that he and Whitehead walked to a store together 

that evening and returned to Hayes' house. Hayes further 

testified that Whitehead had been sitting continuously on Hayes' 

porch and in his presence for forty-five minutes when they saw 

the police arrive at Noble's house. 

 Duncan testified that he went to Noble's house during the 

daylight on September 7. He denied that he was at Noble's house 

the night Cobbs was injured. Duncan testified that he, 

Whitehead, and Hayes walked to the store that night and returned 

to Hayes' house after the police arrived to assist Cobbs. Duncan 

said he was intoxicated and running to get inside his house when 

the police arrested him. 

 As Whitehead's witness, Noble testified that she and 

Whitehead are the lessees of the house where she resides. She 

testified that Whitehead is her "boyfriend" and that her 

relationship with him was now "excellent." In August, however, 

she "put him out" after they had an argument. She testified that 

on August 28, while Cobbs was awake in the house, Whitehead 

opened the door with his key and entered the house. When he 

entered, Cobbs hit him on the head with a hammer. She said 

Whitehead did not break into the house and did not have a stake 

in his hand. 

 Although Noble did not testify on direct examination about 

the September 7 incident, the prosecutor asked on 

cross-examination if she was home during the September 7 

incident. Over Whitehead's objection, the trial judge allowed 

the prosecutor to continue his examination of Noble. In response 

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to the prosecutor's questioning, Noble said she was home when 

Cobbs was splashed with acid. She could not recall, however, 

telling a police officer that she saw Whitehead throw the liquid 

and testified that she "didn't see it." She also testified that 

the day after the incident she gave a signed statement to a 

detective but disavowed disclosing details of the incident. She 

said she only told the detective details of another incident that 

occurred when Duncan came to her house during daylight. 

 Whitehead testified that he used a key to enter the house on 

August 28. He denied that he was armed with a stake and denied 

that he attacked Cobbs. He said Cobbs attacked him with a hammer 

and without provocation. Whitehead also denied throwing liquid 

on Cobbs on September 7. He testified that he went to the store 

with Hayes and Duncan that night and that he sat on Hayes' porch 

a long time after returning from the store. While sitting on the 

porch with Hayes, they saw the police arrive at Noble's house. 

He denied having heard Cobbs' screams. 

 As the Commonwealth's rebuttal witness, a detective 

testified that Noble gave a written, signed statement on 

September 8. Over Whitehead's objection, the detective read the 

statement. It related that Whitehead and Duncan knocked at her 

door the night of September 7 and that Cobbs then went outside. 

Although she "didn't see anybody throw anything," she "heard 

[Cobbs] holler and saw him holding his face and [heard him say] 

call the ambulance." She stated that Whitehead ran when the 

police arrived. Also in rebuttal, another police officer 

testified that when he arrived to assist Cobbs on September 7, 

Noble said she saw Whitehead throw the liquid on Cobbs. 

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 The jury convicted Whitehead of aggravated malicious 

wounding. The trial judge sentenced him to thirty years in 

prison, as recommended by the jury. This appeal followed. 

II. 

 Whitehead contends the trial judge erred in allowing the 

prosecutor to examine Noble about the September 7 attack on Cobbs 

because it was beyond the scope of her direct testimony. At 

trial, Whitehead's counsel "object[ed] to this line of 

questioning unless [the prosecutor] is going to make her his own 

witness because . . . [the] sole purpose of the testimony was to 

deal with . . . Cobbs' version of this hammer incident." When 

the prosecutor responded that Noble's testimony demonstrated that 

"she . . . is not friendly to me as a witness," the trial judge 

ruled that Noble was an adverse witness and permitted the 

prosecutor to examine her further. 

 In pertinent part, Code § 8.01-401(A), which applies in both 

civil and criminal cases, see McCue v. Commonwealth, 103 Va. 870, 

996, 49 S.E. 623, 627-28 (1905), provides that "[a] party called 

to testify for another, having an adverse interest, may be 

examined by such other party according to the rules applicable to 

cross-examination." In construing the predecessor statute, which 

contained this identical language, the Supreme Court ruled as 

follows: 

It is clear that the intent of the 

legislature was, first, to compel a 

litigant, if called by another party to the 

cause, to testify in behalf of such other 

party; and, second, to permit any litigant 

to call and cross-examine any person "having 

an adverse interest" in the outcome of the 

litigation, whether or not a party. The 

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only conclusion to be drawn from the 

language of the act and the context of the 

words, "having an adverse interest," is that 

the legislature intended to include, first, 

a party to the litigation, and, second, a 

person, though not a party, who had a 

financial or other personal interest in the 

outcome. The legislature did not mean to 

include a party merely because his testimony 

was or would be adverse to the party calling 

him. "Adverse interest" was used in its 

common and accepted meaning and was not used 

synonymously with "adverse testimony." 

Butler v. Parrocha, 186 Va. 426, 431-32, 43 S.E.2d 1, 4 (1947). 

Relying on well-established practice, the Supreme Court has also 

ruled that "'[this same statute] has expressly been held to apply 

where the witness has no adverse interest, but is shown to be 

adverse or hostile to the party introducing him.'" Nelson v. 

Commonwealth, 153 Va. 909, 919, 150 S.E. 407, 410 (1929) 

(citation omitted). See also Virginia Elec. and Power Co. v. 

Hall, 184 Va. 102, 106, 34 S.E.2d 382, 383 (1945) (ruling that a 

witness proves adverse when the testimony of the witness is 

"injurious or damaging to the case of the party"). 

 Noble's direct testimony proved she had an adverse interest 

to that of the Commonwealth. She described her relationship with 

Whitehead as "excellent," testified that he was her "boyfriend," 

and disclosed that she and Whitehead had a joint financial 

obligation as lessee of the house. On cross-examination, she 

testified that she regularly had visited him in jail. In 

addition, Noble's relationship with Whitehead was such that one 

of Whitehead's witnesses referred to her as Whitehead's "wife." 

Indeed, Whitehead concedes on brief that "Noble was a witness 

with an 'adverse interest' under "Code [§] 8.01-401." Thus, we 

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hold that the trial judge did not err in ruling that Noble was an 

"adverse witness." 

 In stating his objection at trial, Whitehead proposed to the 

trial judge that the prosecutor's "line of questioning" might 

continue if the prosecutor "is going to make [Noble] his own 

witness." Because the prosecutor was then cross-examining Noble, 

who was Whitehead's witness, we conclude that the trial judge, by 

ruling that Noble was an adverse witness, in effect allowed the 

prosecutor to proceed as if Noble was the Commonwealth's witness, 

a course of conduct suggested by Whitehead when he made his 

objection. See Miller v. Miller's Adm'r., 92 Va. 510, 515-16, 23 

S.E. 891, 893 (1896) (ruling that a party who cross-examines a 

witness beyond the scope of the witness' direct testimony in 

effect makes the witness that party's witness). 

 The Commonwealth clearly could have called Noble as a 

rebuttal witness in an attempt to counter the testimony of 

Whitehead and his witnesses, Duncan and Hayes, that Whitehead was 

not the assailant on September 7. As the Commonwealth's witness, 

Cobbs had earlier testified that Noble was at the door when the 

attack occurred. Cobbs also testified that Noble yelled at 

Whitehead as he again approached Cobbs in the street. Moreover, 

the prosecutor was aware that Noble had made statements to the 

police that she had seen Whitehead attack Cobbs. 

 By allowing the prosecutor to continue the examination of 

Noble while she was then testifying, the trial judge merely 

re-ordered the manner of the examination. See Martin v. 

Thierjung, 238 Va. 434, 439-40, 384 S.E.2d 86, 89 (1989) (ruling 

that the trial judge has the discretion to allow impeachment of 

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an adverse witness on cross-examination or rebuttal). The rule 

is well established in Virginia that "great latitude [will be 

given] to the discretion of the trial [judge] as to the order in 

which witnesses may be called and the manner of their 

examination." Butler, 186 Va. at 433, 43 S.E.2d at 5. Absent a 

showing of abuse of that discretion or substantial harm to 

Whitehead, we will not disturb the judge's ruling. See id. 

 In response to the Commonwealth's leading questions, see

Code § 8.01-401(A), Noble denied telling the police officer that 

she saw Whitehead throw the liquid, denied seeing Whitehead throw 

the liquid, and denied signing a statement that Whitehead was 

present when the liquid was thrown on Cobbs. After the 

prosecutor read to Noble several excerpts from her statement, 

Whitehead objected by asking "what is he impeaching . . . she has 

no testimony. . . ." 

 The trial judge did not err in overruling that objection 

because Noble had already testified that she had not seen the 

attack. When Noble denied seeing the attack, the Commonwealth 

was entitled to impeach her by her prior inconsistent statement. 

See Maxey v. Commonwealth, 26 Va. App. 514, 519, 495 S.E.2d 536, 

539 (1998) (noting that "our common law clearly holds, albeit 

with little discussion, that a party may impeach a witness having 

an adverse interest with the witness' prior inconsistent 

statements"). Furthermore, in proving the prior inconsistent 

statement, the Commonwealth could prove the details of the 

statement. See Hall v. Commonwealth, 233 Va. 369, 374, 355 

S.E.2d 591, 594 (1987); McCue, 103 Va. at 996-99, 49 S.E. at 628. 

Accordingly, we hold that this record contains no evidence to 

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establish substantial harm to Whitehead or an abuse of discretion 

by the trial judge. 

III. 

 We also find no merit to Whitehead's contention that the 

trial judge erred in admitting testimony by the police of Noble's 

statements. Over Whitehead's objection, the police officer and 

the detective testified that Noble gave statements that Whitehead 

was present when the acid was thrown on Cobbs and that Whitehead 

threw the liquid. Once Noble testified and denied that Whitehead 

was present and threw the liquid and further denied that she made 

the statements to the officer and the detective, the Commonwealth 

could impeach her credibility by proving her prior inconsistent 

statements. See Maxey, 26 Va. App. at 521, 495 S.E.2d at 540. 

"So much of the statement as was inconsistent with her testimony 

was clearly admissible for the purpose stated." Epps v. 

Commonwealth, 190 Va. 93, 101-02, 56 S.E.2d 237, 241 (1949). See

also Hall, 233 Va. at 374, 355 S.E.2d at 594. Furthermore, the 

record discloses that the trial judge instructed the jury that it 

could consider the inconsistent statement only for the purpose of 

impeaching the credibility of Noble's testimony. See id. at 375, 

355 S.E.2d at 595. See also Hardy v. Commonwealth, 110 Va. 910, 

927, 67 S.E. 522, 529 (1910). 

 The record discloses no abuse of discretion by the trial 

judge or substantial harm to Whitehead resulting from the manner 

in which the trial judge allowed the testimony to develop. 

Accordingly, we affirm the conviction. 

 Affirmed. 

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