COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Overton 

Argued at Norfolk, Virginia 

TERRY FEEBACK 

 MEMORANDUM OPINION* BY 

v. Record No. 2469-95-1 JUDGE ROSEMARIE ANNUNZIATA 

 MAY 13, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Edward W. Hanson, Jr., Judge 

 J. Roger Griffin, Jr. (Christie & Kantor, on 

brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

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

brief), for appellee. 

 Following a jury trial, appellant, Terry Feeback, was 

convicted of rape. On appeal, he contends the trial court erred 

in allowing the jury to hear certain statements made during his 

interrogation concerning the alleged crime. Finding no error in 

the trial court's admission of the statements, we affirm. 

 I. 

 Kimberly Chapman testified that she met appellant and his 

friend, Joshua Angel (Josh), at a Virginia Beach bar. Chapman, 

who had been drinking, discussed "doing drugs" with appellant and 

Josh. Chapman, appellant and Josh left the bar and proceeded to 

a hotel room, intending to smoke crack cocaine. Chapman 

testified that she had money to pay for the drugs, and she denied 

 

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

designated for publication. 
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appellant's contention that she had offered to perform sexual 

acts with appellant and Josh in return for drugs or money. At 

the hotel room, Chapman placed a telephone call, attempting to 

obtain some crack. When it became evident that she would be 

unable to obtain any crack, Chapman attempted to leave. 

 Chapman testified that as she moved toward the door, 

appellant pushed her back onto the bed. Appellant threatened 

Chapman and told her he wanted her to perform oral sex on him. 

While Josh restrained Chapman's arms, appellant removed her 

shorts and Chapman performed oral sex on appellant. Chapman 

testified that, during these events, appellant continually struck 

her on the head and called her a "crack whore." Appellant also 

attempted to insert his penis in Chapman's vagina, but his 

attempts to have intercourse with Chapman were short-lived 

because of a failed erection. Appellant continued to threaten 

and curse Chapman during these efforts. When appellant stopped, 

he ordered Chapman to "please" Josh. Josh penetrated Chapman's 

vagina with his penis. Meanwhile, appellant sat on the bed 

behind Chapman's head; he later sat in a chair to the side of the 

bed. When Josh's intercourse with Chapman ended, appellant 

stated that he intended to phone the front desk to complain about 

Chapman soliciting sex. Chapman gathered her clothes and left. 

Chapman's complaint of rape was corroborated by the investigating 

detective and the emergency room nurse to whom she was referred. 

 Some hours later, appellant was interrogated by Detective 
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Ball. Appellant told Ball that he and Josh met Chapman at a 

Virginia Beach bar and that the three of them returned to the 

hotel room. He stated that Chapman sought to "sell herself" to 

the two men upon reaching the doorway of the room. He stated 

that he then called security, and Chapman ran away. Ball then 

stated, "[w]ell, she's claiming that she was raped by your buddy 

and orally sodomized by you." Appellant responded, "[t]o my 

knowledge there was no sex whatsoever that went on in that room." 

 Appellant again stated that Chapman needed money and that she 

had attempted to sell herself. 

 Appellant then stated that Chapman had first attempted to 

sell herself upon exiting the bar, and he subsequently 

acknowledged that Chapman came inside the hotel room to place a 

call, attempting to obtain crack. Appellant also stated that 

Chapman remained in the room for an hour but that he went to 

sleep. Ball then commented, "[w]ell, according to other people, 

you were awake." When Ball asked whether Josh had sex with 

Chapman, appellant responded that he did not know. Ball 

responded, "He's already told me he did. Okay? . . . Now, tell 

me what happened." 

 Appellant denied having sex with Chapman but admitted having 

oral sex with her. Appellant stated that he could not get an 

erection, so that was the end of his "deal." Although he 

acknowledged that Josh and Chapman then had sex, he maintained 

that the sex was consensual and that Chapman wanted the men to 
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buy her crack in exchange for sex. Appellant told Ball that 

Chapman became upset and demanded to be paid for the sexual acts 

when it became apparent to her that the crack deal would not go 

through. He stated that he told Chapman to leave and called the 

front desk to assure her departure. Ball stated, "Well, I've 

heard it differently than what you're telling me . . . . [T]hat's 

not what she told me. That's not what Josh told me," but 

appellant maintained his account of the events. 

 In response to further questions from Ball, appellant denied 

having hit or threatened Chapman. Continuing the interrogation, 

Ball then stated, "Josh has told me pretty much similar to what 

she's told me, and . . . you're telling me something a lot 

different than what they've told me." When appellant continued 

his denials, Ball left to interview Josh for the first time. 

 Upon returning from interviewing Josh, Ball told appellant, 

"I just got done talking to Josh again. Okay. And he's really 

upset. He's over there crying like I've never seen a man cry 

before. . . . [H]e's pretty much told me everything and he's 

hoping that you'll do the right thing." Ball then stated, 

"[Josh] told me you hit her." In response, appellant admitted 

that he struck Chapman once on the head but stated he was just 

"joking around." Appellant also admitted that he attempted to 

insert his penis in Chapman's vagina but stated he could not get 

an erection; he further admitted that he and Josh had sex with 

Chapman at the same time but stated he did not remember Chapman 
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being upset or afraid. To appellant's latter contention, Ball 

responded, "Josh does." Appellant then admitted having smacked 

Chapman another time but characterized the smack as foreplay. 

Ball continued by telling appellant that Josh was "so sick," that 

"he's worked himself up into such a tizzy and -- and he feels 

really bad about it, and I think he's sincere." Appellant 

responded by admitting that he inserted his penis into Chapman's 

mouth and told her to perform oral sex on him a second time from 

the back of the bed, while Josh was penetrating her vagina. 

 When appellant denied the use of force, Ball asked, "Well, 

why was Josh trying to tell her . . . do what he says?" 

Appellant again denied using force, but he admitted he could have 

been a "little mean," raising his voice when he told Chapman to 

perform oral sex on him and calling her a whore. Appellant also 

admitted telling Chapman to perform oral sex on Josh and that he 

may have hit Chapman more than twice. 

 II. 

 Appellant contends that the trial court erred in allowing 

the jury to hear the statements made and questions posed by Ball 

during the interrogation which related the alleged statements of 

Josh and Chapman. Specifically, he contends that those 

statements were inadmissible hearsay and "highly prejudicial" 

and, therefore, should have been redacted from the presentation 

to the jury.1

 We disagree. 

 1The Commonwealth argues that appellant is procedurally 

barred from raising a constitutional claim. However, we do not 
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 While Virginia courts have not addressed the precise issue 

before us, we find the controlling principle well articulated in 

Atkins v. Commonwealth, 13 Va. App. 365, 412 S.E.2d 194 (1991). 

 Whether statements which draw responses are 

inadmissible as hearsay depends upon the 

nature of the statements. Words which 

constitute a question or accusation that 

result in a party admission are not barred by 

the hearsay evidence rule. It is only when 

the prompting statements have the quality of 

evidence (offered for the truth of the matter 

asserted) that they become inadmissible 

hearsay. 

Id. at 368, 412 S.E.2d at 196 (citing Tellis v. Traynham, 195 Va. 

447, 453, 78 S.E.2d 581, 584 (1953)); see also State v. Miller, 

921 P.2d 1151, 1159 (Ariz. 1996) (declarant's statement, made 

during course of interrogation, admitted to show effect on 

defendant during interrogation, not for its substantive content 

and therefore not hearsay); Williams v. State, 669 N.E.2d 956, 

958 (Ind. 1996) (declarant's statements largely designed to 

prompt defendant to speak held not to be hearsay; "it was the 

statements made by [defendant] that really constituted the 

evidentiary weight of the conversation"); Worden v. State, 603 

So.2d 581, 583 (Fla. App. 1992) (questions propounded and 

statements of detectives not offered for their truth, but to 

place defendant's answers in context). 

(..continued) 

read appellant's brief to assert a constitutional claim 

independent of his hearsay contention. Appellant simply frames 

his hearsay argument, in part, in terms of the right to confront 

witnesses, a right necessarily affected by the admission of 

hearsay evidence. 
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 The statements at issue in the present case were not offered 

for the truth of the matter asserted. Rather, they were offered 

to show the prompts to appellant's statements and the context of 

the interrogation, throughout which, appellant's version of 

events changed dramatically. As such, the statements were not 

objectionable as hearsay. See Atkins, 13 Va. App. at 368, 412 

S.E.2d at 196. 

 It remains only to determine whether the probative value of 

the statements is outweighed by the harm or prejudice to 

appellant. See Worden, 603 So.2d at 583. We find that 

appellant's case was not prejudiced by the admission of the 

statements. "Since the questions were set forth in their proper 

context, interrogation of a suspected [rapist], we conclude that 

a rational jury would understand that law enforcement officers 

use many techniques to secure confessions and that the methods 

used here were indicative of that." Id. Indeed, Ball admitted 

on cross-examination that she spoke to Josh for the first time 

when she left in the midst of appellant's interrogation. As 

such, the jury was fully aware that Ball's statements concerning 

what Josh had told her prior to that point were subterfuge. 

Furthermore, appellant's own statements ultimately established 

the material facts asserted in the statements he challenges. By 

the end of the interrogation, appellant acknowledged having 

struck Chapman at least twice and having spoken to her in a 

"mean" tone as he told her to perform oral sex on him. On all 
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material points, appellant's ultimate statements corroborated 

Chapman's testimony. 

 The decision of the trial court is accordingly affirmed. 

Affirmed.