COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Annunziata 

Argued by teleconference 

DWAYNE STUART McCARTER 

 OPINION BY 

v. Record No. 1020-01-4 JUDGE ROSEMARIE ANNUNZIATA 

 JULY 23, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY 

Jean Harrison Clements, Judge 

 Michael M. Palmer (The Palmer Law Office, on 

brief), for appellant. 

 Virginia B. Theisen, Assistant Attorney 

General (Randolph A. Beales, Attorney 

General, on brief), for appellee. 

 A jury convicted Dwayne S. McCarter of burglary, grand 

larceny of firearms, two counts of grand larceny, and possession 

of a firearm by a convicted felon. The court sentenced McCarter 

in accordance with the jury's verdict, ordering that several of 

the sentences run concurrently so that the active sentence 

totaled twenty years and six months in prison. 

 McCarter appeals his convictions on the ground that the 

trial court erred in admitting into evidence his Notice of Alibi 

Defense. For the reasons that follow, we disagree and affirm 

his convictions. 
Background

 On appeal, we state the evidence in the light most 

favorable to the Commonwealth, the party prevailing below. 

In accordance with Rule 3A:11(c)(2), McCarter filed a Notice of 

Alibi Defense. The notice indicated that at the time of the 

offense he was traveling to and from, and working at, the home 

of Mandy Druckenbrod in Maryland and, that upon completion of 

his work at Druckenbrod's home, he returned to his home in 

Amissville, Virginia. At trial, however, McCarter's wife, 

called as a witness by the defendant, testified that she and her 

husband spent the entire day in question at home. 

 With the stated purpose of contradicting that testimony, 

the Commonwealth offered into evidence McCarter's Notice of 

Alibi Defense. The defendant objected on the grounds that 

McCarter did not testify and that the prosecutor could not 

impeach the witness, who had become his witness. The trial 

court overruled the objection and admitted the notice as 

substantive evidence in the case, as well as to impeach the 

witness' testimony. 

Analysis

 McCarter claims that the trial court erred in admitting his 

Notice of Alibi Defense into evidence to impeach the witness. 

Specifically, he argues that our rule permitting the 

introduction of the defendant's notice of alibi as impeachment 

evidence is inapposite because he did not testify. See Thomas 

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v. Commonwealth, 24 Va. App. 614, 617, 484 S.E.2d 607, 609 

(1997). Although we agree that the rule in Thomas is 

inapplicable, it does not follow that the notice was 

inadmissible. 

 In Thomas, we affirmed the trial court's ruling that the 

Commonwealth could use a defendant's notice of alibi to impeach 

the defendant. 24 Va. App. at 617, 484 S.E.2d at 609. Because 

the defendant "testified differently, and had the opportunity to 

explain on either cross or redirect examination the 

inconsistencies in his several statements," we concluded that 

his notice of alibi was admissible as a prior inconsistent 

statement. Id.

 In this case, the Commonwealth sought to use the 

defendant's notice of alibi to impeach the defendant's witness 

by contradiction. Because the notice in Thomas was offered as 

the witness' prior inconsistent statement, it is not applicable 

on the issue before us.1 Rather, the rules of evidence 

 1

 McCarter also argues that decisions in two of our sister 

states support his theory that a Notice of Alibi Defense is 

inadmissible when the defendant does not testify. See State v. 

Lumumba, 601 A.2d 1178 (N.J. Super. Ct. App. Div. 1992) 

(reversing conviction because, inter alia, the trial court erred 

in permitting the prosecution to refer to the defendant's notice 

of alibi); People v. Shannon, 276 N.W.2d 546 (Mich. Ct. App. 

1976) (reversing conviction because prosecutor referred to 

defendant's failure to call an alibi witness). McCarter's 

reliance on these cases is misplaced. 

In Lumumba, the prosecution referred to the defendant's 

notice of alibi and his failure to call witnesses listed therein 

to demonstrate that the defendant's alibi was not true. The 

court relied on State v. Gross, 523 A.2d 212, 214 (N.J. Super. 

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pertaining to impeachment by contradiction govern our 

determination in this case. 

 Evidence is admissible if it is relevant to an issue in the 

case and is not precluded by a specific rule. Peacock Buick v. 

Durkin, 221 Va. 1133, 1136, 277 S.E.2d 225, 227 (1981). When a 

witness takes the stand, she puts her credibility at issue in 

the case. See Smith v. Commonwealth, 212 Va. 675, 676, 187 

S.E.2d 191, 192 (1972). Thus, the opposing party may impeach 

the witness by "draw[ing] into question the accuracy of the 

witness's perception, recordation, recollection, narration, or 

sincerity." Strong, 1 McCormick on Evidence, § 33 n.5, at 123 

(5th ed. 1999) (citations omitted). "Any evidence which would 

tend to convince the jury that the witness's perception, memory, 

 

Ct. App. Div. 1987), which held that such implications "are 

unfair, since the failure to produce the named witness may have 

any number of innocent explanations which cannot readily or 

appropriately be exposed at trial." Similarly, the Michigan 

Court of Appeals reversed the defendant's conviction because the 

prosecutor unfairly prejudiced the defendant by improperly 

commenting on his "failure to produce an alibi witness" 

referenced in his notice of alibi. Shannon, 276 N.W.2d at 548. 

Like the court in Lumumba, the Michigan court reasoned that the 

prosecutor's comment was unfairly prejudicial to the defendant 

as it permitted the jury to draw an impermissible inference of 

guilt, which the defendant's decision did not warrant. Id. 

In this case, the Commonwealth did not refer to the 

defendant's failure to call his proposed alibi witnesses or his 

failure to present his intended alibi; rather, the prosecutor 

offered the notice of alibi for the purpose of contradicting the 

testimony of the defendant's witness. The notice, therefore, 

was relevant to the witness' credibility and accuracy. Neither 

sister court held, as McCarter contends, that the prosecutor can 

never mention a defendant's notice of alibi when the defendant 

does not take the stand. The cases, therefore, are not 

pertinent to the issue before us. 

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or narration is defective or that his or her veracity is 

questionable is relevant for purposes of impeachment." Friend, 

Law of Evidence in Virginia, § 4-1, at 101 (5th ed. 1993) 

(citing 3A Wigmore, Evidence § 874 et seq. (Chadbourn rev. 

1970)); see also Ragland v. Commonwealth, 16 Va. App. 913, 918, 

434 S.E.2d 675, 678 (1993) (noting that evidence is relevant if 

"it has any logical tendency, however slight, to establish a 

fact at issue in the case"). 

 A party may impeach a witness through a variety of methods, 

including contradiction. See Jones v. Ford, 263 Va. 237, 258, 

559 S.E.2d 592, 603 (2002) ("Contradiction can be a form of 

impeachment . . . ."); Friend, supra, §§ 4-1, at 103, and 4-9, 

at 136; Sinclair, Virginia Evidentiary Foundations, § 5.3 (1998) 

("Proving the opposite of what a witness has testified to is a 

form of impeachment."); Strong, supra, § 45 (describing 

impeachment by specific contradiction); see also United States 

v. Perez-Perez, 72 F.3d 224, 227 (1st Cir. 1995) (recognizing 

impeachment by contradiction). To impeach a witness by 

contradiction, the opposing party introduces "extrinsic 

evidence" to show that the witness' testimony may not be 

accurate.2 Friend, supra, § 4-9, at 136. In the usual case, 

 2

 Contradiction should not be confused with prior 

inconsistent statements. While both are methods of impeachment 

and, thus, place in doubt the accuracy and/or the veracity of 

the witness' testimony, the latter does so through evidence 

produced by that witness, while the former may involve any 

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contradiction is accomplished through the testimony of a 

subsequent witness who testifies to facts contrary to the first 

witness; the law, however, imposes no such restriction. See

Jones, 263 Va. at 258, 559 S.E.2d at 603 (holding that plaintiff 

may impeach defendant's witness with contradictory depositions); 

Strong, supra, § 45 (explaining that specific statements by a 

witness may be contradicted in "several ways," including the 

same witness' later testimony, the testimony of another witness, 

and judicial notice of contradictory facts); Sinclair, supra, 

§ 5.3 (describing contradiction of one witness' testimony 

through another witness). 

 McCarter's statement, his notice of alibi, "squarely 

contradicts" his witness' testimony. McCarter's wife testified 

that she and her husband spent the entire day in question at 

home in Amissville, Virginia. McCarter stated in his Notice of 

Alibi Defense that he was in Maryland working at Mandy 

Druckenbrod's home on that day. Although the contradiction 

between the notice and the witness' testimony does not prove 

that the witness lacked credibility, "[t]he [defendant's] 

contradictory [statement in his notice of alibi] places in doubt 

. . . at least the accuracy of [his wife's] testimony . . . and 

leaves the jury with the task of weighing the [statements] of 

each to determine which[, if either,] will be believed." 

 

admissible evidence that contradicts the witness' testimony. 

See Friend, supra, §§ 4-5, 4-9. 

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Friend, supra, § 4-9, at 136; see also Epperly v. Commonwealth, 

224 Va. 214, 230, 294 S.E.2d 882, 891 (1982) ("Every fact, 

however remote or insignificant, that tends to establish the 

probability or improbability of a fact in issue, is 

admissible."); Wynn v. Commonwealth, 5 Va. App. 283, 291, 362 

S.E.2d 193, 198 (1987). Accordingly, the notice was relevant to 

impeach the witness, the purpose for which it was offered. 

 McCarter also argues that the Commonwealth could not 

impeach Mrs. McCarter with his Notice of Alibi Defense because: 

1) the witness had become the prosecution's witness and the 

prosecution may not impeach its own witness; and 2) the notice 

constituted inadmissible hearsay. We find no merit in either of 

these contentions. 

 First, assuming without deciding that McCarter's wife 

became the Commonwealth's witness on cross-examination, the rule 

against impeaching one's own witness is inapplicable in this 

context. See Washington and O.D. Ry. v. Jackson's Admr., 117 

Va. 636, 639, 85 S.E. 496, 497 (1915) ("[I]t is very clear that 

one producing a witness may prove the truth of material facts by 

any other competent evidence, even though the effect of such 

[evidence] is to directly contradict his own witness."); Friend, 

supra, at 136 (noting that where extrinsic evidence is 

introduced to show that the witness' testimony was not accurate, 

the rule against impeaching one's own witness does not apply). 

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 Second, the alibi statement is not excluded by the hearsay 

rule because it was the defendant's admission. "Any statement 

by a party to the proceedings, including an out-of-court 

statement by a defendant in a criminal case, is admissible as an 

exception to the hearsay rule when offered against that party." 

Alatishe v. Commonwealth, 12 Va. App. 376, 378, 404 S.E.2d 81, 

82 (1991) (citing E. Cleary, McCormick on Evidence, § 262 (3d 

ed. 1984); Fed. R. Evidence § 801(d)(2)); accord Land v. 

Commonwealth, 211 Va. 223, 176 S.E.2d 586 (1970). Party 

admissions are admissible regardless of whether they are 

inculpatory or incriminating when made, id. (citing C. Friend, 

The Law of Evidence in Virginia, Hearsay §§ 252-53 (3d ed. 

1988)), or whether the party testifies. See, e.g., Quintana v.

Commonwealth, 224 Va. 127, 148, 295 S.E.2d 643, 654 (1982) 

(upholding admission of defendant's out-of-court statements 

under the party admissions exception to the hearsay rule where 

defendant did not testify). Because, McCarter's Notice of Alibi 

Defense may be properly considered his statement, it cannot be 

excluded on hearsay grounds. See Thomas, 24 Va. App. at 616-17, 

484 S.E.2d at 608-09 (concluding that statements within 

defendant's alibi notice should be treated as his declarations); 

Asbury v. Commonwealth, 211 Va. 101, 107, 175 S.E.2d 239, 243 

(1970) (considering pleading as defendant's statement because it 

was filed with his authority and upon information furnished by 

him (citing Browder v. Southern Ry. Co., 107 Va. 10, 57 S.E. 573 

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(1907))); Hall v. Commonwealth, 16 Va. App. 779, 783, 433 S.E.2d 

489, 492 (1993) (holding that statements in suppression motion 

were properly attributable to the defendant). 

 In short, because the notice was relevant to the witness' 

credibility and not excludable on the grounds raised at trial, 

the trial court did not abuse its discretion by admitting it 

into evidence. See Peacock Buick, 221 Va. at 1136, 277 S.E.2d 

at 227 (noting that relevant evidence is admissible unless a 

specific rule, which the defendant raised at trial, precludes 

its admission); Bottoms v. Commonwealth, 22 Va. App. 378, 384, 

470 S.E.2d 153, 156 (1996) ("The 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."). Accordingly, we affirm McCarter's convictions. 

Affirmed. 

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