COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

BRIAN DUDLEY McNEIL 

 MEMORANDUM OPINION* BY 

v. Record No. 1477-94-4 JUDGE LARRY G. ELDER 

 OCTOBER 31, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

James W. Haley, Jr., Judge 

 David B. Albo for appellant. 

 Michael T. Judge, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General; Robert 

 B. Condon, Assistant Attorney General, on brief), 

 for appellee. 

 Brian Dudley McNeil (appellant) appeals his conviction for 

driving under the influence of alcohol in violation of Code 

§ 18.2-266(ii). Appellant contends the trial court erred in 

receiving into evidence part of a police report containing a 

statement made by appellant to a third party who was not called 

to testify. We hold the Commonwealth's failure to call the third 

party to testify about appellant's prior inconsistent statement 

left appellant unimpeached, and therefore appellant was 

unaffected by the Commonwealth's introduction of the statement 

during appellant's cross-examination. Additionally, the trial 

judge, sitting without a jury, presumably disregarded any 

prejudicial or inadmissible evidence. For these reasons, we 

 

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

designated for publication. 
 2 

affirm the conviction. 

 Viewed in the light most favorable to the Commonwealth, the 

record reveals that on October 29, 1993 appellant was arrested 

for driving under the influence of alcohol. At trial, appellant 

testified that on the night in question, he drank one beer at the 

Board Room, a club at the FBI Academy in Quantico, Virginia and 

two beers at Fat Tuesday's, a nearby bar. Later that night, when 

appellant approached a checkpoint at the Quantico military base, 

Lance Corporal Mark Dickerson smelled alcohol on appellant's 

person and administered sobriety tests on appellant. Appellant 

mumbled incoherently, failed two different sobriety tests, and 

then left the scene in his car at a high rate of speed, lightly 

striking Dickerson in the process. Appellant drove onto 

Interstate 95, where he proceeded at a "very high rate of speed 

and out of control," while swerving between lanes. Appellant 

then re-entered the military base through an unguarded gate. 

Corporal Robert Dunn testified he followed a vehicle matching 

appellant's car's description, which traveled at a rate of 

seventy miles per hour and refused to pull over despite Dunn 

activating his lights and siren. Military police took appellant 

into custody at approximately 2 a.m. 

 During cross-examination, the prosecutor attempted to 

impeach appellant with the use of a statement appellant made to 

Major William Wade after the incident. The prosecutor, over 

objection, asked appellant whether he told Major Wade he had 
 3 

consumed "a couple" of beers, as opposed to one beer, at the 

Board Room club prior to the incident. 

 The trial court found appellant guilty of driving under the 

influence of alcohol. 

 We hold the Commonwealth unsuccessfully attempted to impeach 

appellant with the use of a prior inconsistent statement made to 

Wade and that this unsuccessful attempt does not warrant a 

reversal of appellant's conviction. 

 Code § 19.2-268.1; Edwards v. Commonwealth, 19 Va. App. 568, 

454 S.E.2d 1 (1995); and Smith v. Commonwealth, 15 Va. App. 507, 

425 S.E.2d 95 (1992), detail the procedure by which a witness may 

be confronted with a prior inconsistent statement or writing. In 

this case, the record reveals the Commonwealth laid the proper 

foundation for impeachment and afforded appellant the chance to 

deny making the disputed statement to Wade. However the 

Commonwealth did not show the statement to appellant and failed 

to call Wade to the stand to offer testimony that would have 

proven appellant made a prior inconsistent statement. Therefore, 

arguably the trial court never received into evidence any 

improper impeachment evidence, as "the mere denial [by appellant 

did] not in itself constitute impeachment." 1 Charles E. Friend, 

The Law of Evidence in Virginia § 4-3(a), at 123-24 n.7 (4th ed. 

1993)(citing Floyd v. Commonwealth, 191 Va. 674, 62 S.E.2d 6 

(1950)). 

 Furthermore, because this was a non-jury trial, the trial 
 4 

court is presumed to have used its unique "training, experience, 

and judicial discipline to disregard potentially prejudicial 

comments and to separate, during the mental process of 

adjudication, the admissible from the inadmissible, even though 

[it] . . . heard both." Echkhart v. Commonwealth, 222 Va. 213, 

216, 279 S.E.2d 155, 157 (1981). We will not reverse a decision 

unless clear evidence exists that the trial court failed to 

disregard inadmissible or prejudicial evidence. Hall v. 

Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992)(en 

banc). Additionally, the: 

 determination of the scope of crossexamination in general, and of the extent of 

testimonial impeachment in particular, should 

be "left largely to the sound discretion of 

the trial court; and the rule is well 

established that an appellate court will not 

interfere, unless that discretion has been 

plainly abused." 

Spruill v. Commonwealth, 221 Va. 475, 486, 271 S.E.2d 419, 425 

(1980)(citation omitted). In this case, although the trial court 

heard the Commonwealth's question to appellant and a small 

portion of Wade's sworn statement, the record shows the trial 

court did not consider these factors in reaching its decision. 

As the trial court stated in its findings, it started "from the 

proposition in this case, on that evening you had three beers, by 

your own testimony, or any minimum you had three beers." The 

trial court then summarized the abundant credible evidence 

offered against appellant. In light of these facts, we cannot 
 5 

say that any error occurred that affected appellant's right to a 

fair trial. See Code § 8.01-678. 
 6 

 Accordingly, we affirm the conviction. 

Affirmed.