COURT OF APPEALS OF VIRGINIA

Present: Judg e Bray, Senior Judges Cole and Overton Argued at Rich mond, Virginia

WILLIAM LO YD FETTY MEMORANDUM OPINION * BY v. Record No. 0176-99-2 JUDGE NELSON T. OVERTON FEBRUARY 1, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HANOVER COUNTY David F. Berry, Judge Designate Eugene M. Simm ons (William A. Parks, Jr., on brief), for appellant. John H. McLees, Jr ., Assistan t Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. William Loyd Fetty, appellant, appeals his convictions for second degree murder and use of a firearm in the commis sion of that murder. Appellan t contends (1) that th e trial cour t erred by overruling his request to call th e Commonweal th's Attorney as a material witness, (2) that the trial court er red by overruling his request to call Deputy Sheriff Ch ris Kothe as an adverse witness, (3) that the trial co urt erred by refusing his request for a mistrial, and (4) that the evidence was in sufficient to support appellant's co nvictions. For the follow ing reasons, we find no error and affirm the convictions.Facts On the evening of the shooting , appellant went to his son's home to look for item s missing from his home . Appellan t suspected that his son, Scott, had stolen these missin g items. Thereafter, Scott telephon ed appellant beca use Scott thought appellant owed him an apology. Appe llant called Scott "a little bastard" and denied owing him anyt hing. A series of angry teleph one calls followed between appe llant and Sc ott. Scott drove to appellant's home to have a face -to-face talk with appellant. Chri s Crampton rode with Scott to appellant's home. Appellant claime d that he thou ght Scott was co ming to "kick [his] ass" so he put hi s eleven gauge shotgun near the back door. When Scott arrived, he approached appellant' s deck and appellant approached Scott with ba lled fists. Scott sa id, "I'm not here for this, if you put your hands on me I will defend myself." Appellant, who has a history of becoming "enraged ," was mad. Appellant said, "[T]wo of us can pl ay this game." Appellant went insi de his house and then returned with his shotgun. Appell ant pointed the gu n at Scott's face . Scott asked appellant whet her he was going to shoo t him. Appe llant said, "[Y]ou see that truck? " Appellant fi red two rounds into Scott's truck. Scott pu t his hands in front of his father and yelled three times that his "buddy's in the truck." Ap pellant looked Scott in the eye, rais ed the gun up and cont inued firing at the passenger door of Scott's truck. Scott ran to hi s truck and saw

- 2 -Crampton laying across the seat. Scott yell ed that ap pellant had killed his friend, and th en drove to a neighbor's home to call the sheriff's depa rtment. Appellant told a ma n in jail that "he thought he had seen something duck do wn in the truck" before he fired gu nshots at Scott's truck. In a statement to the police , appellant clai med that Scott had not told him anyone was in the truck unti l after he had fired five shots into the truc k. At trial, appell ant's sister testified that Scott said he ha d not told appellant an yone was in the truck until the last gunshot. Appellant's sister's roomma te testified that Scott told her th at appellant did not kn ow anyone was in the truck until after the last gunshot. Scot t denied making these

statements. Issues I through III Appellant compla ins that the trial court erred by refusing to allow him to call th e Commonwealth's Attorney as a material witness, by refu sing to allow him to call Kothe as an "adverse witness," and by refusi ng to declare a mist rial. In reality, these complain ts amount to the single claim that the trial court erred by refusing to al low him to call the Co mmonwealth's Attorney as a witness in order to impeach Koth e with a prior inconsistent

statement. "Code § 8.01-403 allows a party to impeach his or her own witness by prior inconsistent statements only when the witness

- 3 -whom the party expected to testify favorably has suddenly given unexpected, adverse testimony on the stand." Maxey v. Commonwealth , 26 Va. App. 514, 519-20, 495 S.E.2d 536, 539 (1998). One's own witness may be impeached if the testimony of that witness "proves adverse," which means the testimony of the witness is "injurious or damaging." Defense counsel called Kothe to testify about appellant's reaction when appellant was told that the person in the truck had been killed. Kothe testified that appellant said, "Oh, no." However, Kothe had no present recollection of telling the Commonwealth's Attorney that the color drained from appellant's face when told that Crampton was dead. On the day before this issue was raised in trial, appellant learned that Kothe had no present recollection of saying anything about the color on appellant's face. Therefore, defense counsel was not surprised when Kothe testified that he had no present recollection regarding the color draining from appellant's face. Additionally, testimony that Kothe could not recall saying the color drained from appellant's face was not adverse to appellant, but only failed to meet appellant's expectations.
See Brown v. Commonwealth , 6 Va. App. 82, 85-86, 366 S.E.2d 716, 718 (1988). Therefore, Kothe did not "prove adverse" within the meaning of Code § 8.01-403, and defense counsel could not impeach Kothe pursuant to that section.

- 4 -The trial court correctly noted that allowing the defense to call the Commonwealth's Attorney as a witness would require that someone else be brought in to prosecute the case. The court noted that the Commonwealth's Attorney disclosed Kothe's statement to the defense but has no control over how that information is utilized. Moreover, there was no showing as to why defense counsel could not be disqualified from the case, as he too heard Kothe's previous statement. The court noted that the matter should have been "sifted through" and denied the motion for a mistrial "because it comes too late." The matter could have been avoided. Therefore, the trial court properly exercised its discretion when it denied appellant's motion for a mistrial. See Beavers v. Commonwealth , 245 Va. 268, 280, 427 S.E.2d 411, 420 (1993).

Issue IV "On appeal, 'we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth , 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). So viewed, the evidence showed that Scott Fetty confronted his father, the appellant, about what happened during an earlier visit. They began to argue, and appellant asked his son, Scott, to leave. Scott refused to leave. Enraged, appellant went inside his house and came back outside with a shotgun. Scott

- 5 -asked if he was going to shoot him. Appellant replied, "Hell, yeah. . . . You see that truck?" Appellant fired two rounds into the back wheel of Scott's truck before dropping the gun down to his side. Scott held up his hands and said, "my buddy's in the truck, my buddy's in the truck, my buddy's in the truck." Appellant looked Scott "dead in the eye," picked up the gun and shot into the passenger door, killing Chris Crampton who was in the truck. In a statement to Investigator Stanley Kirks, appellant claimed that Scott did not tell him anyone was in the truck until after appellant fired at the passenger door. The fact finder believed the Commonwealth's evidence, and rejected appellant's claim that he did not know anyone was in the truck when he fired his gun. "The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented." Sandoval v. Commonwealth , 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). The Commonwealth's evidence was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable doubt that appellant committed second degree murder. Affirmed.

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