COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Frank 

Argued at Chesapeake, Virginia 

RUBEN E. MARTINEZ 

 OPINION BY 

v. Record No. 0051-03-1 JUDGE ROBERT P. FRANK 

 DECEMBER 23, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Louis R. Lerner, Judge 

 Charles E. Haden for appellant. 

 Michael T. Judge, Assistant Attorney General (Jerry W. Kilgore, 

Attorney General, on brief), for appellee. 

 Ruben E. Martinez (appellant) was convicted in a jury trial of first-degree murder, in 

violation of Code § 18.2-32, aggravated malicious wounding, in violation of Code § 18.2-51.2, 

and two counts of use of a firearm in the commission of a felony, in violation of Code 

§ 18.2-53.1. On appeal, he contends the trial court erred (1) in denying his motion to suppress 

statements given to police, based on a violation of the Vienna Convention of Consular Relations; 

(2) in rejecting his Batson challenge to the Commonwealth’s peremptory strike of the only 

African-American male on the jury panel; (3) in failing to reduce the murder charge to voluntary 

manslaughter; (4) in failing to reduce the aggravated malicious wounding charge to “simple” 

maiming; and (5) in denying his motion for a mistrial based on the Commonwealth’s failure to 

timely disclose its intent to impeach the testimony of appellant’s witness. For the reasons stated, 

we affirm the convictions. 
BACKGROUND

 During a crack cocaine party at the home of Vickie McGillis and David Lee Perry, 

appellant gave Perry a rock of crack cocaine to sell for him. Appellant told Perry to give him the 

proceeds of the sale by noon the following day. Perry apparently agreed to this arrangement. 

 The next morning, at McGillis’s home, appellant asked her if she and Gretchen Norris 

would buy a $20 rock of crack cocaine for him. Norris and McGillis left the house and picked 

up Vincent Edward Johnson while they were trying to find a drug dealer. Johnson eventually 

found someone from whom to buy drugs, and the three returned to McGillis’s residence with the 

cocaine. 

 Appellant and Perry, among others, were at the residence. McGillis gave appellant the 

rock of crack cocaine she had purchased. Appellant expressed his dissatisfaction with the size of 

the rock and demanded that McGillis refund his money. At first, McGillis told appellant that she 

could not return the money, but then said she would pay appellant twenty dollars for the rock. 

Appellant told McGillis that he wanted the money by noon. He then turned to Perry and 

informed him that he also wanted the ten dollars Perry owed him by noon. Appellant indicated 

that, if either one of them did not pay him, he was “going to come in here and take --” Perry 

interrupted appellant and said that he was “not going to disrespect [his] home and come in and 

take anything.” As Perry finished this statement, appellant “reached in the back of his britches 

and pulled out a gun and shot [Perry] in the head.” 

 Norris testified, “they didn’t argue.” While appellant was loud, Perry “just sat on the 

couch and had his hands on his knees.” Prior to the shooting, appellant stood five to six feet 

from Perry. Once he pulled the gun, he leaned forward. At that point, the gun was three to four 

feet from Perry. 

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 McGillis testified she went to the restroom after appellant set the deadline for re-payment 

of his money. While in the bathroom, she heard “arguing going on.” She then heard “a loud 

pop” and “feet running.” Once it “got real quiet,” she opened the door and saw appellant 

standing in front of Perry. Perry’s head was slumped over. McGillis said, “Oh, my God, what 

happened?” Appellant, who was standing there, did not respond. McGillis then felt the gun on 

her upper left arm. She pleaded, “Don’t shoot me . . . .” Appellant then shot her. 

 After appellant shot Perry, Norris testified she left the house and went to her car. As she 

attempted to unlock her car door, she saw appellant leaving the residence. Norris then heard 

McGillis say, “Oh, my God, you shot him.” Appellant re-entered the house, saying, “I’ll shoot 

them up.” Norris then heard several more gunshots. As she began to back her car out of the 

driveway, appellant left the house again and entered Norris’s car with a gun in his hand.1 

Appellant asked Norris to drive him to a bank. Norris drove to the corner of the street and then 

told appellant she could not drive, suggesting he take the car. Appellant then got out of the car 

and ran. 

 Johnson testified that, after he assisted Norton and McGillis purchase the crack cocaine, 

they had returned to McGillis’s residence. Johnson testified that, after appellant said the rock 

was too small, appellant and Perry were “having words back and forth.” “They wasn’t [sic] 

yelling, but it wasn’t a quiet talk either.” Suddenly, Johnson noticed appellant “went in his back 

pocket and pulled out a gun.” He then heard a gunshot. Johnson saw smoke come from the gun 

and saw Perry slumped over on the couch. Johnson then ran out of the house. He heard a second 

shot as he was fleeing down an alley. 

 1 A neighbor testified he saw appellant exit the house with a gun in his hand and get into 

the car with Norris.

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 McGillis was taken to the hospital and underwent surgery for the wounds she sustained. 

Two years after the surgery, she still had not regained the full use of her left arm.2

 Specifically, 

because she had not regained full, normal use of her left thumb and left index finger, she was 

unable to hold anything with “a real good grip.” Three of her fingers did not “bend down all the 

way.” Due to this continuing condition, she had difficulty picking up money, buttoning clothes, 

and doing “anything tedious.” While McGillis noted she had made some improvement, she 

characterized her loss of use of her left hand as “significant.” 

 Around July 11, 2001, appellant was apprehended in Cape May, New Jersey. Detective 

Thurman Clark of the Hampton Police Department interviewed appellant in Cape May. Clark 

was told appellant might feign an inability to speak English. The detective read appellant his 

Miranda v. Arizona, 384 U.S. 436 (1966), rights and confronted appellant about a feigned 

language barrier. Detective Clark told appellant that he believed appellant “could understand 

and speak English very well.” Clark and appellant then communicated in English and “had no 

problems communicating whatsoever.” 

 In response to Clark’s questions, appellant acknowledged he knew Perry was killed, that 

Perry owed him “about a thousand dollars,” and that he was present when Perry was killed. He 

denied shooting Perry. He then invoked his right to counsel, and the interview ceased. 

 During the course of selecting the jury panel, the Commonwealth exercised a peremptory 

strike of Leslie Bailey, the sole African-American male on the panel. Appellant challenged the 

strike. In response, the Commonwealth explained: 

While recognizing the fact that [Bailey’s] civil rights have been 

restored, . . . he has a prior record of serious felonies, for which he 

was convicted, serious, violent felonies. It causes some concern to 

the Commonwealth about maybe some attitudes that he may have 

 2

 Years earlier, McGillis’s right arm had been injured in an automobile accident, resulting 

in some disability of that hand. 

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towards the Commonwealth or towards law enforcement, and 

based upon those reasons, the Commonwealth elected to strike 

him. 

Appellant did not argue that this explanation was pretextual. The trial court denied appellant’s 

Batson v. Kentucky, 476 U.S. 79 (1986), motion, finding “it’s a race neutral strike.” 

ANALYSIS

I. VIENNA CONVENTION OF CONSULAR RELATIONS 

 Appellant contends the trial court erred in denying his motion to suppress his statement to 

the police. He argues the police were obligated to advise him of certain rights under the Vienna 

Convention on Consular Relations because he is a foreign national. Since he was not advised of 

those rights, appellant reasons his statement should have been suppressed. 

 Article 36 of the Vienna Convention on Consular Relations, 21 U.S.T.S. 77, provides in 

subsection (1)(b): 

competent authorities . . . shall, without delay, inform the consular 

post of the sending State, if . . . a national of that State is arrested 

or committed to prison or to custody pending trial or is detained in 

any other manner. Any communication addressed to the consular 

post by the person arrested, in prison, custody or detention shall 

also be forwarded by the said authorities without delay. The said 

authorities shall inform the person concerned without delay of his 

rights under this sub-paragraph . . . . 

See also Bell v. Commonwealth, 264 Va. 172, 187, 563 S.E.2d 695, 706 (2002), cert. denied, 

537 U.S. 1123 (2003). This provision of the Vienna Convention only applies to nationals when 

they are in a foreign country. Id.

 The record here does not establish that appellant is a foreign national in the United States 

and, thereby, entitled to any application of the Vienna Convention. Apparently, the trial court 

held a separate hearing on the motion to suppress appellant’s statement. On appeal, the 

transcript of that hearing was not timely filed, in violation of Rule 5A:8. By a previous order of 

this Court, appellant was allowed to proceed with the appeal, but admonished to “make no 

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reference to any issue which relies on the transcript of the April 17, 2002 hearing.” Martinez v. 

Commonwealth, Rec. No. 0051-03-1 (May 7, 2003). No evidence in the remaining record 

establishes appellant’s nationality. 

 Appellant has failed to provide an adequate record to consider his argument on appeal. 

“If an insufficient record is furnished, the judgment appealed from will be affirmed.” White v. 

Morano, 249 Va. 27, 30, 452 S.E.2d 856, 858 (1995). As appellant provides us no basis in the 

record upon which to consider his allegation of error, we find no error in the trial court’s denial 

of his motion to suppress. 

 Additionally, appellant’s argument would not prevail if the record had established that 

appellant is a foreign national. Appellant presumes, if the police do not comply with the 

provisions of Article 36 or inform him of its provisions, then the exclusionary rule would 

prohibit use of his statement at trial. This premise is incorrect. 

 In several cases, the Supreme Court has held that Article 36 does not create an individual 

right to exclusion of a statement, based on failure to comply with its provisions. In Bell, the 

Supreme Court explained: 

[E]ven if Article 36 creates legally enforceable individual rights, it 

does not provide -- explicitly or otherwise -- that a violation of 

those rights should be remedied by suppression of evidence. See

United States v. Li, 206 F.3d 56, 61 (1st Cir.) (en banc), cert.

denied, 531 U.S. 956 (2000); United States v. Chaparro-Alcantara, 

37 F. Supp. 2d 1122, 1125-26 (C.D. Ill. 1999), aff’d, 226 F.3d 616 

(7th Cir.), cert. denied, 531 U.S. 1026 (2000). Such a remedy is 

generally not available when a fundamental right is not implicated. 

Id. The language of Article 36 does not create a fundamental right 

comparable to the privilege against self-incrimination. Id. Thus, 

Bell’s claim that the alleged violation of his rights under Article 36 

should be remedied by suppressing his statement to the police finds 

no support in the provisions of the Vienna Convention. 

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264 Va. at 189, 563 S.E.2d at 707. See also Shackleford v. Commonwealth, 262 Va. 196, 207, 

547 S.E.2d 899, 905-06 (2001); Kasi v. Commonwealth, 256 Va. 407, 419, 508 S.E.2d 57, 64 

(1998). 

 While appellant concedes these cases “would appear to be controlling,” he contends they 

“were wrongly decided.” Whether he is correct or not, we are bound by the decisions of the 

Supreme Court. See Roane v. Roane, 12 Va. App. 989, 993, 407 S.E.2d 698, 700 (1991) (“[W]e 

are bound by decisions of the Supreme Court of Virginia and are without authority to overrule 

[them].”). We cannot and do not ignore the clear precedent established by these cases. 

Appellant had no right to have his statement excluded based on the provisions of Article 36. 

 We conclude the trial court did not err in denying appellant’s motion to suppress his 

statement. 

II. BATSON CHALLENGE 

 Appellant maintains the trial court erred in allowing the Commonwealth to strike the sole 

African-American male from the venire panel. 

The United States Supreme Court has outlined the procedure for 

determining whether a prosecutor exercised a peremptory strike to 

remove a prospective juror solely on account of the juror’s race. A 

defendant must first establish a prima facie showing that the 

peremptory strike was made on the basis of race. Powers v. Ohio, 

499 U.S. 400, 409 (1991). At that point, the burden shifts to the 

prosecution to produce explanations for striking the juror which 

are race-neutral. Batson, 476 U.S. at 96-97. Even if race-neutral, 

the reasons may be challenged by the defendant as pretextual. 

United States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991). Finally, the 

trial court must decide whether the defendant has carried his 

burden of proving purposeful discrimination by the prosecutor in 

selecting the jury panel. Batson, 476 U.S. at 98. On appeal, the 

trial court’s findings will be reversed only if they are clearly 

erroneous. Hernandez v. New York, 500 U.S. 352, [368-69] 

(1991); Wright v. Commonwealth, 245 Va. 177, 186, 427 S.E.2d 

379, 386 (1993). 

Buck v. Commonwealth, 247 Va. 449, 450-51, 443 S.E.2d 414, 415 (1994). 

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 We assume, without deciding, that appellant made a prima facie showing of 

discrimination. The prosecutor then explained he struck the juror because he had “serious 

violent felonies” convictions. While the juror’s civil rights had been restored, the 

Commonwealth was concerned about his attitude toward the Commonwealth and law 

enforcement. Appellant did not assert that the Commonwealth’s reasons were pretextual. 

The trial court found the reasons were race neutral. This ruling was not erroneous. See Spencer 

v. Commonwealth, 238 Va. 295, 310, 384 S.E.2d 785, 795 (1989) (noting that a venireman’s 

criminal record can provide a race-neutral basis for peremptory strike). 

 On appeal, appellant contends that, “[a]lthough the record does not disclose whether there 

were whites on the jury with criminal records,” the Commonwealth’s stated reason for the strike 

was pretextual. However, appellant did not argue to the trial court that the Commonwealth’s 

reason was pretextual. Therefore, Rule 5A:18 bars our review of this argument. See Buck, 247 

Va. at 452-53, 443 S.E.2d at 416 (discussing Rule 5:25, the Supreme Court’s version of Rule 

5A:18). 

III. EVIDENCE OF PREMEDITATION 

 Appellant maintains the trial court erred in not reducing the murder charge to voluntary 

manslaughter because the Commonwealth failed to prove premeditation or malice aforethought. 

Specifically, he claims he was provoked into sudden rage by being “short-changed” on a drug 

purchase and that the victim’s attitude further provoked him. We find the trial court did not err. 

 First, appellant did not preserve his argument regarding the element of malice. See Rule 

5A:18. In his motion to strike at the close of the Commonwealth’s evidence, he argued the 

indictment was defective because it did not contain the word, “malice.” Appellant then 

presented his evidence. At the conclusion of all the evidence, he renewed the “same motions” he 

made at the end of the Commonwealth’s case. At no time did he argue the evidence was 

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insufficient to prove malice. As the trial court was not given the opportunity to consider this 

issue at trial, we will not consider the issue on appeal. See Campbell v. Commonwealth, 12 

Va. App. 476, 481, 405 S.E.2d 1, 3 (1991) (en banc). 

 When an appellant argues the evidence was insufficient to prove the crime of which he 

was convicted, we review the trial record in the light most favorable to the Commonwealth. 

Snow v. Commonwealth, 33 Va. App. 766, 774, 537 S.E.2d 6, 10 (2000). 

 Appellant did preserve his argument regarding premeditation when he argued the charge 

should be reduced to second-degree murder. Appellant now argues that he shot Perry without 

premeditation. He contends he shot while in a sudden rage, brought on by “being short-changed 

on a cocaine purchase,” in combination with “Perry essentially ‘diss[ing]’” him. We find the 

evidence was sufficient for the jury to find appellant shot the victim with premeditation. 

 Premeditation is a factual question, reserved for determination by the fact finder: 

The question whether a defendant is guilty of a premeditated 

killing of the victim is usually a jury question. The intention to kill 

need not exist for any specified length of time prior to the actual 

killing; the design to kill may be formed only a moment before the 

fatal act is committed provided the accused had time to think and 

did intend to kill. 

Weeks v. Commonwealth, 248 Va. 460, 477, 450 S.E.2d 379, 390 (1994). The Supreme Court 

explained premeditation in Smith v. Commonwealth: 

What is in issue is the sufficiency of the evidence to show 

premeditation. To premeditate means to adopt a specific intent to 

kill, and that is what distinguishes first and second degree murder. 

The intent to kill must come into existence at some time before the 

killing; it need not exist for any particular length of time. As we 

said in Pannill v. Commonwealth, 185 Va. 244, 255, 38 S.E.2d 

457, 463 (1946), quoting from McDaniel v. Commonwealth, 77 

Va. 281, 284 (1883), “it is necessary that the killing should have 

been done on purpose and not by accident or without design. . . .” 

The exact state of the defendant’s mind at the time of killing is the 

crucial factor in determining intent. “It is the will and purpose to 

kill, not necessarily the interval of time, which determine the grade 

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of the offense.” Akers v. Commonwealth, 216 Va. 40, 48, 216 

S.E.2d 28, 33 (1975). 

220 Va. 696, 700-01, 261 S.E.2d 550, 553 (1980). See Remington v. Commonwealth, 262 Va. 

333, 352-53, 551 S.E.2d 620, 632 (2001), cert. denied, 535 U.S. 1062 (2002). When the 

sufficiency of the evidence to prove premeditation is challenged on appeal, “it is our duty to look to 

that evidence which tends to support the verdict and to permit the verdict to stand unless plainly 

wrong.” Snyder v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961). See also

Norman v. Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d 44, 45 (1986) (noting that the 

appellate courts will examine the evidence in the light most favorable to the Commonwealth). 

 The evidence here supports the jury’s finding of premeditation. Appellant was engaged 

in a minor argument with Perry prior to the shooting. Perry was sitting on the couch, presenting 

no threat. Appellant deliberately reached into the back of his waistband, pulled out a loaded gun, 

aimed it at Perry’s head, leaned over, and shot him at a very short distance. This evidence is 

sufficient to find premeditation. See Schmitt v. Commonwealth, 262 Va. 127, 143, 547 S.E.2d 

186, 197-98 (2001), cert. denied, 534 U.S. 1094 (2002) (finding the evidence sufficient to prove 

premeditation where the accused entered the bank with a concealed, loaded gun, approached the 

victim, and then shot him from close range); Bailey v. Commonwealth, 259 Va. 723, 749, 529 

S.E.2d 570, 585, cert. denied, 531 U.S. 995 (2000) (finding sufficient evidence of premeditation 

where the accused walked into a bedroom and shot the victim “twice in the head at close range”); 

Joseph v. Commonwealth, 249 Va. 78, 87, 452 S.E.2d 862, 868 (1995) (“In our opinion, 

Joseph’s decision to shoot Anderson because he ‘laughed’ at him, coupled with his extra effort to 

lean over the counter and shoot Anderson in the back, provide ample evidence of 

premeditation.”). From appellant’s purposeful reaching for the gun, his aiming the gun at Perry, 

and his shooting of Perry in the head, the jury could conclude appellant planned to kill Perry and 

then executed his plan. We affirm the conviction. 

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IV. PERMANENT DISABILITY 

 Appellant next contends the trial court erred in not reducing the aggravated malicious 

wounding under Code § 18.2-51.2 to “simple” malicious wounding under Code § 18.2-51. He 

claims the evidence was insufficient to prove McGillis’s injuries were severe, causing her “to 

suffer permanent and significant physical impairment,” a required element of the crime of 

aggravated malicious wounding.3

 Code § 18.2-51.2. He further argues no expert testimony 

“describe[d] the nature of McGillis’[s] wounds, the prognosis for recovery or whether the 

injuries were permanent and significant.”4

 Our decision in Newton v. Commonwealth, 21 Va. App. 86, 462 S.E.2d 117 (1995), is 

instructive. Newton cut the victim with a razor “on the cheek, under his eye, on the wrist, on the 

ear and several times on the back.” Id. at 88, 462 S.E.2d at 118. At trial, after the victim had 

displayed the scars, the trial court noted that the scar on the right side of the victim’s face was 

“obvious and visible.” Id. at 89, 462 S.E.2d at 118. No expert testimony was presented to 

explain the long-term implications of the injuries. Newton argued that the scars did not 

constitute “permanent and significant physical impairment.” We rejected Newton’s argument, 

adopting the definition of “physical impairment” found in Title 51.5 of the Code: “any physical 

condition, anatomic loss, or cosmetic disfigurement which is caused by bodily injury, birth 

defect, or illness.” Id. at 90, 462 S.E.2d at 119. We held, “[t]he trial court reasonably could 

 3

 Code § 18.2-51.2 says, in part: 

A. If any person maliciously shoots, stabs, cuts or wounds any 

other person, or by any means causes bodily injury, with the intent 

to maim, disfigure, disable or kill, he shall be guilty of a Class 2 

felony if the victim is thereby severely injured and is caused to 

suffer permanent and significant physical impairment. 

4

 Appellant did not argue the testimony of an expert is required under the statute to prove 

permanency of the injury. This issue is defaulted, therefore, under Rule 5A:18. Scott v. 

Commonwealth, 31 Va. App. 461, 464-65, 524 S.E.2d 162, 163-64 (2000).

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have found from the number of wounds, the need for stitches for some of them, and the resulting 

scars, still visible after five months, that Bryant’s injuries constituted ‘permanent and significant 

physical impairment.’” Id. 

 Here, appellant shot McGillis in her left shoulder. The bullet entered her shoulder, 

exited, and re-entered her body. She had two entrance wounds and one exit wound because of 

the path of the bullet. The bullet lodged next to her spine and had to be removed during surgery. 

At trial, McGillis showed her scars to the jury, and the jury observed photographs of her wounds 

prior to surgery. McGillis testified that, two years after the shooting, she still had not regained 

full use of her left arm and hand. She said she did not have a “real good grip” because her index 

finger and thumb “don’t work right.” While she had seen some improvement since the surgery, 

McGillis characterized her impairment as a significant loss. She explained that she could not 

pick up money or change and could not button her clothes. She added that she could not do 

“anything tedious” with her hand. 

 Considering McGillis’s testimony and the physical evidence, the jury could reasonably 

conclude that McGillis had a permanent and significant physical impairment as a result of the 

shooting. Accordingly, the trial court did not err in refusing to reduce the charge. 

V. MISTRIAL 

 Lastly, appellant contends the trial court erred in denying his motion for a mistrial. 

Appellant claims the Commonwealth deprived him of a fair trial by waiting until the last minute 

to disclose to him that it intended to impeach the testimony of appellant’s investigator. We find 

appellant’s argument without merit. 

 Prior to the presentation of appellant’s case, the prosecutor advised appellant’s counsel 

that, based on prior actions of appellant’s investigator, the Commonwealth planned to challenge 

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the investigator’s credibility if he testified. Appellant argued his case would be prejudiced if he 

could not present the investigator’s testimony to impeach the prosecution’s witness. The trial 

court denied the motion for a mistrial. 

 On appeal, appellant asserts the prosecutor had a duty to timely disclose his intention to 

impeach appellant’s witness. He contends, “evidence challenging the investigator’s credibility 

operated as a surprise . . . and had the effect of depriving him of a fair trial.” Without citing any 

authority, he claims this “trial by ambush . . . effectively deprived [him] of due process.”5 In 

effect, appellant argues he has a right to discovery of evidence that the Commonwealth intends to 

use to impeach his witnesses. 

 We start with the well established premise that there is no general constitutional right to 

discovery in criminal cases. Weatherford v. Bursey, 429 U.S. 545, 559-60 (1977) (explaining 

the Constitution does not include a general right to discovery in criminal cases); Spencer, 238 

Va. at 303-04, 384 S.E.2d at 791 (noting due process does not include a general right to 

discovery); Lowe v. Commonwealth, 218 Va. 670, 679, 239 S.E.2d 112, 118 (1977) (“There is 

no general constitutional right to discovery in a criminal case.”). However, a defendant is 

entitled to exculpatory evidence in the possession of the prosecution. 

The Due Process Clause of the United States Constitution also 

provides that failure to disclose exculpatory evidence may require 

reversal where the evidence is material to either guilt or 

punishment. Lowe v. Commonwealth, 218 Va. 670, 679, 239 

S.E.2d 112, 118 (1977), cert. denied, 435 U.S. 930 (1978). 

* * * * * * * 

Evidence is exculpatory if it is favorable to the accused and 

“‘material only if there is a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the proceeding 

would have been different. A “reasonable probability” is a 

 5

 Appellant does not argue the Commonwealth violated Rule 3A:11 (discovery in 

criminal cases) or Code § 19.2-265.4 (failure to provide discovery in criminal cases). 

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probability sufficient to undermine confidence in the outcome [of 

the trial].’” Taitano v. Commonwealth, 4 Va. App. 342, 349, 358 

S.E.2d 590, 593-94 (1987) (quoting Brady v. Maryland, 373 U.S. 

83, 87 (1963); United States v. Bagley, 473 U.S. 667, 682 (1985)) 

(other citations omitted). 

Knight v. Commonwealth, 18 Va. App. 207, 212, 443 S.E.2d 165, 168 (1994). Under Brady, 

373 U.S. at 87, exculpatory evidence includes evidence that impeaches the credibility of a 

prosecution witness. Correll v. Commonwealth, 232 Va. 454, 465, 352 S.E.2d 352, 358 (1987); 

Robinson v. Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986). Appellant does not 

argue that impeachment evidence related to a defense witness is exculpatory. He instead 

contends he was “unfairly ambushed” and, thus, denied a fair trial. 

 We find the trial court did not abuse its discretion. “[W]hether a trial court should grant a 

mistrial is a matter resting within its discretion, and absent a showing of abuse of discretion, the 

court’s ruling will not be disturbed on appeal.” Cheng v. Commonwealth, 240 Va. 26, 40, 393 

S.E.2d 599, 607 (1990). The Commonwealth was under no obligation to disclose its intention to 

impeach or cross-examine appellant’s witness, given the evidence was not exculpatory. The trial 

court correctly denied appellant’s motion. 

CONCLUSION 

 We affirm appellant’s convictions, finding no error in the trial court’s rulings. 

Affirmed.

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