COURT OF APPEALS OF VIRGINIA 

Present: Judge Bray, Senior Judges Cole and Overton 

Argued at Richmond, Virginia 

WILLIAM LOYD FETTY 

 MEMORANDUM OPINION* BY 

v. Record No. 0176-99-2 JUDGE NELSON T. OVERTON 

 FEBRUARY 1, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

David F. Berry, Judge Designate 

 Eugene M. Simmons (William A. Parks, Jr., on 

brief), for appellant. 

 John H. McLees, Jr., Assistant 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 commission of 

that murder. Appellant contends (1) that the trial court erred by 

overruling his request to call the Commonwealth's Attorney as a 

material witness, (2) that the trial court erred by overruling his 

request to call Deputy Sheriff Chris Kothe as an adverse witness, 

(3) that the trial court erred by refusing his request for a 

mistrial, and (4) that the evidence was insufficient to support 

appellant's convictions. For the following 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 items missing from his home. Appellant suspected 

that his son, Scott, had stolen these missing items. Thereafter, 

Scott telephoned appellant because Scott thought appellant owed 

him an apology. Appellant called Scott "a little bastard" and 

denied owing him anything. A series of angry telephone calls 

followed between appellant and Scott. 

 Scott drove to appellant's home to have a face-to-face talk 

with appellant. Chris Crampton rode with Scott to appellant's 

home. Appellant claimed that he thought Scott was coming to "kick 

[his] ass" so he put his eleven gauge shotgun near the back door. 

When Scott arrived, he approached appellant's deck and appellant 

approached Scott with balled fists. Scott said, "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 play this game." 

 Appellant went inside his house and then returned with his 

shotgun. Appellant pointed the gun at Scott's face. Scott asked 

appellant whether he was going to shoot him. Appellant said, 

"[Y]ou see that truck?" Appellant fired two rounds into Scott's 

truck. Scott put his hands in front of his father and yelled 

three times that his "buddy's in the truck." Appellant looked 

Scott in the eye, raised the gun up and continued firing at the 

passenger door of Scott's truck. Scott ran to his truck and saw 

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Crampton laying across the seat. Scott yelled that appellant had 

killed his friend, and then drove to a neighbor's home to call the 

sheriff's department. 

 Appellant told a man in jail that "he thought he had seen 

something duck down in the truck" before he fired gunshots at 

Scott's truck. 

 In a statement to the police, appellant claimed that Scott 

had not told him anyone was in the truck until after he had fired 

five shots into the truck. At trial, appellant's sister testified 

that Scott said he had not told appellant anyone was in the truck 

until the last gunshot. Appellant's sister's roommate testified 

that Scott told her that appellant did not know anyone was in the 

truck until after the last gunshot. Scott denied making these 

statements. 

Issues I through III 

 Appellant complains that the trial court erred by refusing to 

allow him to call the Commonwealth's Attorney as a material 

witness, by refusing to allow him to call Kothe as an "adverse 

witness," and by refusing to declare a mistrial. In reality, 

these complaints amount to the single claim that the trial court 

erred by refusing to allow him to call the Commonwealth's Attorney 

as a witness in order to impeach Kothe 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 

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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. 

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 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 

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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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