COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphr eys and Senior Judge Annunziata Argued by teleconference

JAMES O’NEAL KELLY MEMORANDUM OPINION * BY v. Record No. 0103-08-2 J UDGE ROBERT J. HUMPHREYS JANUARY 27, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF WESTMORELAND COUNTY Buford M. Parsons, Jr., Judge Designate Brent A. Jackson (The Jackso n Law Group, P.C. , on brief), for appellant. Gregory W. Franklin, Assistan t Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
James O’Neal Kelly (“appellant ”) appeals his convictions fo r three counts of malicious wounding, in violation of Code § 18.2-51, 1 three counts of attempted murder, in violation of Code §§ 18.2-26 and 18.2-32, one count of use of a firearm while committing a felony, in violation of Code § 18.2-53.1, and one count of knowingly possessing a firearm after having been convicted of a felony, in violation of C ode § 18.2-308.2(A). Appellant contends that the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 The Court notes that the conviction order indicates that the appellant was found guilty of malicious wounding in Circuit Court No s. CR07-412, CR07-452 and CR07-454 in violation of Code § 18.2-51.2. The sentencing order, in CR07-452 and CR07-454, indicates that appellant was convicted of malicious wounding in vi olation of Code § 18.2-51; in CR07-412, the sentencing order indicates that appellant was convicted of malicious wounding in violation of Code § 18.2-51.2. However, from a review of th e record, it is clear that the appellant was convicted of three counts of malicious wounding in violation of Code § 18.2-51. Accordingly, we conclude that the orders refl ect a clerical error, and this matter is remanded to the trial court for the sole purpose of correcting the said orders to reflect that the appellant was convicted of three counts of malicious wounding under Code § 18.2-51.- 2 - trial court erred in not allowing the introduction of extrinsic evidence to prove prior inconsistent statements made by the Commonwea lth’s witnesses. For the reas ons that follow, we disagree and affirm his convictions. On appeal, we will not overturn a trial court’s exercise of discretion to admit or exclude evidence unless the court abused its discretion. May v. Caruso , 264 Va. 358, 362, 568 S.E.2d 690, 692 (2002). “It is fundamental to the righ t of cross-examination that a witness who is not a party to the case on trial may be impeached by prior statements made by the witness which are inconsistent with his pr esent testimony . . . .” Hall v. Commonwealth , 233 Va. 369, 374, 355 S.E.2d 591, 594 (1987) (citing Thornton v. Downes , 177 Va. 451, 459, 14 S.E.2d 345, 348 (1941)). Such statements are admissible for pur poses of impeachment but inadmissible “to prove the truth of the matter asserted.” Groggins v. Commonwealth , 34 Va. App. 19, 24, 537 S.E.2d 605, 607 (2000). However, “[b]efore any prior incons istent statement may be used to impeach a witness, a proper foundation for such use must firs t be laid. This is accomplished during the cross-examination of the witness to be impeached.” Charles E. Friend, The Law of Evidence in Virginia § 4-5(c)(1), at 147 (6th ed. 2003). “[T]he foundation should be laid by first calling the attention of the witness to the alleged inconsistent statement and enquiring whether he made it .” Adams v. Ristine , 138 Va. 273, 293, 122 S.E. 126, 132 (1924) (emphasis added). “In dire cting the witness’s at tention to the prior statement, the cross-examiner must provide suffi cient details about the occasion alluded to to warn the witness and to enable him to prepare to explain or disprove the alleged inconsistency.” Friend, supra , at 147. “After the foundation is laid, ‘[t]he witness may then usually be impeached by the introduction of evidence to prove that the prior inconsistent statement was in- 3 - fact made.’” Edwards v. Commonwealth , 19 Va. App. 568, 571, 454 S.E.2d 1, 2 (1995) (quoting Friend, supra , § 4-3(d), at 123). In this case, appellant attempted to impeach the testimony of two of the Commonwealth’s witnesses by introducing prior inconsistent statem ents made by each to a third party, Kevin Kelly (“Kelly”). 2 According to appellant, Otis Fisher (“ Fisher”) and Jonathan Smith (“Smith”) made statements to Kelly following the shooting that cont radicted their testimony at trial. Allegedly, Smith told Kelly that “he did not know w ho did it” and was only cooperating with the Commonwealth in order to get out of jail. Likewise, Fisher told Kelly that he was testifying to get a deal and in fact, was not even pres ent at the nightclub du ring the shooting. However, appellant did not lay a proper foundation for the introduction of Kelly’s testimony. During his cross-examin ation of Fisher and Smith, appellant never confronted either witness with his alleged inconsis tent statement. Instead, appe llant merely asked Fisher and Smith if they knew Kelly and had discussed th e case with him. The following exchange took place during appellant’s cro ss-examination of Fisher: Q: Do you know a gentleman by the name of Kevin Kelly? A: Yeah. Q: And he is at the Northern N eck Regional jail with you; is that correct? A: No, he is not with me. He is there. Q: Did you discuss this case with him? A: No, I didn’t talk to Kevin Kelly. Q: You have never talked to Kevin Kelly -- A: I have never talked to Kevin Kelly about no case.

2 Kevin Kelly is unrelated to the appellant in this case.- 4 - Q: And never informed him that -- [Prosecutor]: He said he didn’t talk to him. [Defense]: I have Mr. Kevin Kelly here. A similar exchange occurred during appe llant’s cross-examination of Smith: Q: Thank you, sir. Please have a seat. Sir, do you know Kevin Kelly? A: Kevin Kelly, yeah, I know him. Q: Did you spend some time in a holding cell when you were coming back to Westmoreland Circuit Court with him? A: Yeah, we was all in the van together. Q: During that time period did you converse with him regarding the events that occurred on December 10th at Vet’s Inn, or as you know it, Ferman Dixon’s? A: No, I didn’t. Q: So it is your testimony under oath today that you never told him anything about what transp ired and what you knew and did not know that day? A: I didn’t talk to nobody. Nevertheless, appellant maintains that this limited inquiry was sufficient to establish a foundation because Fisher and Smith were “adequately warned of the thrust of the inquiry and [understood] which occasion [was] bei ng referred to.” We disagree. Appellant is correct that the omissi on of one or more details concerning the
circumstances under which a prior inconsistent stat ement was made is not fatal to the admissibility of the statement. See Gordon v. Funkhouser , 100 Va. 675, 42 S.E. 677 (1902). However, this does not relieve a ppellant of his foundational burden to confront the witness with the prior inconsistent statement itself. Contra ry to appellant’s position, the omission of the statement is fatal to its later admissi bility for impeachment purposes.- 5 - This Court addressed a similar situation in Via v. Commonwealth , 42 Va. App. 164, 590 S.E.2d 583 (2004). There the defendant sought to introduce certain love letters written by the victim which, according to the defense, “total ly contradicted” her testimony in court. Id. at 184, 590 S.E.2d at 593. However, the trial court refuse d to admit the letters into evidence. On appeal, we upheld the trial cour t’s ruling stating that “although [defendant’s] counsel proffered the love letters for the record, she never identif ied or proffered any statements in the letters which contradicted [the victim’s] testimony, nor did she bring the letters to [ the victim’s ]
attention [during cross-examination] or lay any foundation for introduction of the letters as prior inconsistent statements.” Id. (emphasis added). Like the defendant in Via , appellant never confronted Fish er and Smith with their prior inconsistent statements. The purpose of this founda tional requirement is “to enable [the witness] to prepare to explain or disprove the alleged inconsistency.” Friend, supra , at 147. The witness cannot do so unless he is confronted with the statement itself. Th erefore, we hold that the trial court did not abuse its discretion in refusing to admit Kelly’s testimony. Appellant also contends that the trial court prevented him from laying a proper foundation during the cross-exam ination of Fisher by “affirm[ing] the Commonwealth’s objection when counsel commenced to ask the prior inconsistent statement . . . .” However, the record does not support appellant’s assertion. This Court only revi ews alleged errors of the trial court, not errors of tria l counsel. From the transcript, it is clear that the tria l court never made any ruling that restricted or prevented the la ying of a proper foundation for the impeachment of either Fisher or Smith by confronting them w ith the substance of their prior inconsistent statements. Consequently, we find this argument to be without merit. Because appellant did not lay an adequate foundation on cross-examination for the introduction of extrinsic evidence of prior incons istent statements made by Fisher and Smith, the- 6 - trial court did not abuse its di scretion in refusing to admit Ke lly’s testimony. Therefore, we affirm his convictions and remand this matter to the trial court for correction of the clerical error in the conviction and sentencing orders. Affirmed.