COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Bray 

Argued at Norfolk, Virginia 

WILLIAM "PIG" WOOTEN, S/K/A 

 WILLIAM R. WOOTEN 

 MEMORANDUM OPINION* BY 

v. Record No. 1740-95-1 JUDGE RICHARD S. BRAY 

 APRIL 8, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Robert W. Curran, Judge 

 G. Curtis Overman, Jr. (Overman, Cowardin & 

Martin, PLC, on brief), for appellant. 

 Monica S. McElyea, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 William R. Wooten (defendant) was convicted in a bench trial 

of two counts of distributing cocaine. On appeal, he complains 

that the trial court erroneously (1) denied his motion for 

mistrial arising from contact between the prosecutor and a 

sequestered witness, (2) admitted the hearsay testimony of a 

police evidence custodian, and (3) found the evidence sufficient 

to support the convictions. We disagree and affirm the decisions 

of the trial court. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

 

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

designated for publication. 
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MOTION FOR MISTRIAL

 The "purpose of excluding the witnesses from the courtroom 

is . . . to deprive a later witness of the opportunity of shaping 

his testimony to correspond to that of an earlier one." 

Huddleston v. Commonwealth, 191 Va. 400, 405, 61 S.E.2d 276, 279 

(1950). "A trial court has discretion to decide whether a 

witness who violates an exclusion order should be prevented from 

testifying. Factors to be considered include whether prejudice 

will result to the defendant and whether the violation of the 

rule resulted from intentional impropriety." Jury v. 

Commonwealth, 10 Va. App. 718, 721, 395 S.E.2d 213, 215 (1990). 

 Here, the prosecuting attorney proffered that she admonished 

witness Barnwell that they were not permitted to discuss the case 

during the luncheon recess. Barnwell confirmed this exchange and 

further testified that he had remained alone in the Commonwealth 

Attorney's office and discussed nothing related to the trial with 

the prosecutor. This testimony was corroborated by the 

prosecutor's representations to the court.1

 Despite defendant's characterization of the 

witness/prosecution contact as an "intentional impropriety," 

presumptively prejudicial to him, the trial court expressly found 

neither willful misconduct nor attendant prejudice to defendant. 

 

 1We acknowledge that the Virginia Code of Professional 

Responsibility, DR 9-101, instructs that an attorney should avoid 

"[e]ven the [a]ppearance of [i]mpropriety"; however, the issue 

before the Court relates only to the trial court's ruling on 

defendant's mistrial motion. 
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 "On appeal the denial of a motion for a mistrial will not be 

overruled unless there exists a manifest probability that the 

denial of a mistrial was prejudicial." Harward v. Commonwealth, 

5 Va. App. 468, 478, 364 S.E.2d 511, 516 (1988). Finding no 

evidence of actual prejudice to defendant attributable to the 

contact, we are unable to conclude that the trial court abused 

its discretion in refusing to grant a mistrial. 

CHAIN OF CUSTODY EVIDENCE

 Well established rules of evidence permit the admission of a 

"past recollection recorded . . . , over a hearsay objection, 

[of] a witness with no independent recollection of an incident 

. . . if certain requirements are met." James v. Commonwealth, 8 

Va. App. 98, 102, 379 S.E.2d 378, 380 (1989). The witness may 

 testify directly from notes or reports if 

 . . . (1) the witness . . . had firsthand 

knowledge of the event; (2) the written 

statement . . . [is] an original memorandum 

made at or near the time of the event, when 

the witness had a clear and accurate memory 

of it; (3) the witness . . . lack[s] a 

present recollection of the event; and (4) 

the witness . . . vouch[es] for the accuracy 

of the written memorandum. 

Id. at 102, 379 S.E.2d at 380-81 (citations omitted). 

 Here, Detective Miller testified that he had no independent 

recollection of his involvement as custodian of the offending 

drugs and was relying upon notes written by himself 

contemporaneously recording his actions, thereby implicitly 

vouching for the accuracy of such notes during trial. Thus, 

Miller's evidence properly qualified as a past recollection 
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recorded exception to hearsay. 
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SUFFICIENCY OF THE EVIDENCE

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987). The judgment of a trial court, sitting 

without a jury, is entitled to the same weight as a jury verdict 

and will be disturbed only if plainly wrong or without evidence 

to support it. See id. The credibility of a witness, the weight 

accorded the testimony, and the inferences to be drawn from 

proven facts are matters solely for the fact finder's 

determination. See Long v. Commonwealth, 8 Va. App. 194, 199, 

379 S.E.2d 473, 476 (1989). The fact finder is not required to 

believe a witness' entire testimony, but may accept a part as 

creditable and reject the balance as implausible. See Pugliese 

v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993). 

 Evidence in support of defendant's conviction included 

Barnwell's testimony that Barnwell gave defendant money in 

exchange for drugs. The trial judge "accept[ed] that [Barnwell] 

told . . . the truth about the transaction[s]" and concluded that 

Barnwell's "testimony taken as a whole, along with the 

corroboration of the testimony of [Officer Warren] is 

sufficient." When such evidence is considered together with the 

evidence of Warren's supervision of the purchases by Barnwell and 

related testimony, the record provides ample support for the 
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convictions. 

 Accordingly, we affirm the judgments of the trial court. 

 Affirmed.