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COURT OF APPEALS OF VIRGINIA
Present:    Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
MICHAEL WAYNE LUCK
OPINION BY
v.                                                                  Record No.  0196-98-2   JUDGE MARVIN F. COLE
JUNE  15,  1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
Elwood Earl Sanders, Jr., Appellate Defender
(Public Defender Commission of Virginia, on
briefs), for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Appellant, Michael Wayne Luck, was tried by a Spotsylvania
County jury for the first degree murder of William Smith
(Smith), the felonious use of a firearm in the murder of Smith,
and the robbery of Smith.    The jury found appellant guilty of
the charged offenses.    The trial judge sentenced appellant, in
accordance with the jury's verdict, to sixty-eight years of
imprisonment.
On appeal, appellant challenges the trial judge's refusal
to admit evidence of Smith's prior convictions of petit larceny
and the reckless handling of a firearm.1    Finding no reversible
error, we affirm.
1Appellant also challenges the trial judge’s refusal to
admit Smith’s conviction of statutory burglary which, appellant




FACTS
"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).
At about  6:00 p.m. on January  8,  1997, the police found
Smith's dead body near Davenport Bridge in a rural section of
Spotsylvania County.    Smith had sustained shotgun wounds to the
face and the left arm.    The wallet in Smith's pocket contained
approximately forty-two dollars.    The police found no firearms
or shotgun casings at the scene.    Smith's burned and abandoned
truck was found the following day in Caroline County.
On the day of his death, Smith began work at around noon at
his job at a CB radio and electronics shop at a truck plaza in
Doswell, Virginia.    Appellant, who had been staying at the truck
plaza motel while his vehicle was under repair, appeared at the
radio shop at about  1:00 p.m. that day.    Appellant, who was
conceded at oral argument, was reduced at Smith’s sentencing to
the misdemeanor of trespassing.    Appellant did not contend at
trial, as he does on appeal, that this conviction was admissible
to impeach a hearsay statement of Smith.    We will not consider
an argument on appeal which was not presented to the trial
court.    See Jacques v. Commonwealth,  12 Va. App.  591,  593,  405
S.E.2d  630,  631  (1991)  (citing Rule  5A:18).    Accordingly, Rule
5A:18 bars our consideration of this aspect of appellant’s
argument on appeal.    Moreover, the record does not reflect any
reason to invoke the good cause or ends of justice exceptions to
Rule  5A:18.
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familiar with Smith, asked if Smith could give him a ride.
Smith was then unavailable.
Appellant returned to the shop twice more that afternoon,
looking for Smith.    During appellant's last visit, Smith was on
the telephone ordering a CB radio for a customer.    Mark Bayne,
Smith's employer, asked if Smith had enough money to cover the
COD order.    Bayne testified, without objection, that Smith
"looked in his wallet and counted his money and said, 'Yes, I
got that and then some.'"2    Smith showed his wallet to Bayne, and
Bayne could see that it contained money.3    Bayne testified that
the radio Smith had ordered cost  $256.
Smith left the radio shop with appellant at about  3:00 p.m.
Smith said he would be back in a few minutes, but he never
returned.    At  3:40 p.m., one of Smith's cousins saw Smith
driving in his truck with a passenger.    Smith was heading away
from the truck plaza and in the direction of the residence of
Hazel Gayle, appellant's sister.
Gayle testified that appellant called her at work at  3:58
p.m. that day.    Appellant said he was at her home, had broken
into the gun cabinet, and intended to take her husband's
2Bayne testified about Smith's statement during the
Commonwealth's case-in-chief.    Appellant voiced no objection to
this testimony.
3The record shows that on January  8,  1997, Smith sold a CB
radio to William Burkhardt for  $150 in cash.    Smith also worked
on the electronic equipment of at least five trucks that day.
Smith would have been paid fifteen dollars in cash for each job.
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shotgun.    Gayle spoke with appellant until  4:10 p.m., trying to
persuade him not to take the gun.    Gayle arrived home at  4:35
p.m.    She found the glass in the gun cabinet broken and a
shotgun missing.    Thomas Galbraith was working at a residence
near Davenport Bridge that afternoon.    At some point after  4:10,
Galbraith heard the sound of two gunshots.
Between  4:40 and  4:45, Samuel Smith  (Samuel), who also was
Smith's cousin, saw appellant driving Smith's truck on a narrow
dirt road in Hanover County.    Samuel slowed down to talk to
appellant and questioned appellant about the truck.    Appellant
said the truck belonged to Gary Smith.    Samuel saw a shotgun on
the seat beside appellant.    Samuel challenged appellant's
statement about the truck, stating that appellant knew it was
not Gary Smith's truck.    Appellant abruptly ended the
conversation and drove away.
At  4:55 p.m., appellant drove Smith's truck to the home of
Roger Miles.    At appellant's request, Miles took a ride with
appellant.    Miles recognized Smith's truck and asked where Smith
was.    Appellant said Smith had been shot and was at Davenport
Bridge.
That evening, appellant called his sister's residence and
spoke with her son, Forrest Gayle  (Forrest).    Appellant said he
had killed a man.    He asked Forrest to come to the truck plaza
motel and retrieve the gun.    Forrest went to the motel, where he
found appellant drunk.    Forrest returned the shotgun to his
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mother's home.    At that time, the gun contained no ammunition.
The weapon had been loaded before it disappeared from the gun
cabinet.
Later that night, appellant appeared at Gayle's residence.
He arrived in a truck which Gayle did not recognize.    Appellant
said he had killed a man named "Smith."    He did not mention
having done so in self-defense.
Appellant was at the home of Thomas Lemonedes watching
television on the night of January  10,  1997 when a news program
reported that appellant was wanted for murder.    Appellant said
that "somebody else did it" and that he would surrender himself
to the police the next day.
Appellant was arrested in Louisa County on January  11,
1997.    Through DNA testing, the police found that blood stains
on appellant's clothing were consistent in all respects with
Smith's blood.
Testifying in his own behalf, appellant claimed that he and
Smith rode in Smith's truck to Davenport Bridge on the afternoon
of January  8,  1997.    Appellant stated that he and Smith were
negotiating the sale of a shotgun from appellant to Smith.    The
gun was the same one appellant had taken from his sister's
residence.
According to appellant, he and Smith argued over the
purchase price, and both men got out of the truck.    Smith
grabbed the barrel of the shotgun appellant was holding.
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Appellant jerked the gun away and pushed Smith.    As Smith backed
up and reached into his jacket, he threatened to kill appellant.
Appellant testified that he "panicked" and shot Smith with the
shotgun.
Appellant said that Smith had showed him a gun the previous
night.    Appellant testified that he thought Smith was reaching
for a firearm, and he feared for his life when he shot Smith.
After the shooting, appellant drove away in Smith's truck.
Appellant claimed Forrest assisted him that night in burning
Smith's truck and transporting him back to the motel.    On
cross-examination, appellant admitted he was drunk that day and
did not remember encountering anyone on the road after the
shooting.
After appellant testified, the defense sought to introduce
orders reflecting Smith's  1991 convictions for petit larceny and
the reckless handling of a firearm.    Appellant contended the
petit larceny conviction was admissible "to impeach statements
made by William Smith that he had a certain amount of money in
his wallet."    Appellant argued the firearm conviction was
admissible to demonstrate Smith's propensity for violence.    The
trial court sustained the Commonwealth's objections and refused
to admit the convictions into evidence.
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ANALYSIS
I.
Appellant first contends that, in light of the evidence
that he acted in self-defense when he shot Smith, Smith's prior
conviction for the reckless handling of a firearm was admissible
to demonstrate Smith's propensity for violence.
"Where the defendant claims self-defense, evidence of prior
acts of violence by the victim is relevant as bearing on the
reasonable apprehension which the defendant may have experienced
and on the likelihood of the victim's aggressive behavior as
claimed by the defendant."    Edwards v. Commonwealth,  10 Va. App.
140,  142,  390 S.E.2d  204,  206  (1990).
When admissible, such evidence bears on the
questions as to who was the aggressor or
what were the reasonable apprehensions of
the defendant for his life and safety.    As
to the latter question, "[t]he true solution
is to exercise a discretion, and to admit
such facts when common sense tells us that
they could legitimately affect a defendant's
apprehensions."    As to the former, who was
the aggressor, the question is what the
deceased probably did, and evidence of
recent acts of violence towards a third
person ought to be received if "so connected
in time, place and circumstance with the
homicide, as to likely characterize the
deceased's conduct towards the defendant."
Randolph v. Commonwealth,  190 Va.  256,  265,  56 S.E.2d  226,  230
(1949)  (citations omitted).
The evidence offered by appellant to show Smith's
propensity for violence was a record from Hanover County General
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District Court indicating that, on January  4,  1991, Smith was
convicted of recklessly handling a firearm in violation of Code
§  18.2-56.1.    At the time of Smith's conviction, Code
§  18.2-56.1(A) provided that "[i]t shall be unlawful for any
person to handle recklessly any firearm so as to endanger the
life, limb or property of any person.    Any person violating this
section shall be guilty of a Class  2 misdemeanor."4
In Darnell v. Commonwealth,  6 Va. App.  485,  491-92,  370
S.E.2d  717,  720  (1988), we stated that
the recklessness involved in reckless
handling of a firearm may or may not equate
with the "recklessness" involved in criminal
negligence.    The meaning of "reckless"
varies significantly depending on who uses
it and in what circumstances.    In laymen's
terms, "reckless" means "lacking in
caution."    In legal terms, the definition
depends on the context; what is "reckless"
behavior in tort law may not be so construed
in criminal law.
*                                                                    *   *   *   *   *   *
In  [Code  §  18.2-56.1]  .  .  ., the term
"reckless" is not defined.    At this point,
however, we are not prepared to hold that
the "reckless" handling of a firearm is
limited to a handling "so gross, wanton or
culpable as to show a reckless disregard of
human life."
The record contains no information about the basis for
Smith's  1991 conviction for violating Code  §  18.2-56.1.    The
4For his conviction, Smith received a suspended sentence of
a  $100 fine and sixty days in jail.    A violation of Code
§  18.2-56.1 has since been upgraded to a Class  1 misdemeanor.
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unlawful activity leading to Smith's conviction could have
arisen under a myriad of circumstances, which may have involved
careless, but not violent or turbulent, behavior.    Indeed, Smith
need not have actually discharged a firearm at a person or at
property in order for him to be convicted under the statute.
Under these circumstances, in the absence of a proffer of
evidence of the basis for Smith's conviction, we fail to see how
the bare conviction order is evidence of Smith's prior violent
or turbulent behavior.    Cf. Short v. Commonwealth,  213 Va.  746,
747,  196 S.E.2d  79,  80  (1973)  (evidence of the defendant's prior
homosexual advances to a third party did not "disclose such
violent and turbulent acts as to make the evidence admissible").
Therefore, the trial court did not err in refusing to admit
Smith's prior conviction of Code  §  18.2-56.1 as evidence of
Smith's propensity for violence.
II.
The Commonwealth introduced Smith's statement to Bayne to
prove that, when Smith left the radio shop with appellant,
Smith's wallet contained an amount of money substantially
greater than the amount found on his body a few hours later.
During its case-in-chief, the defense sought to introduce
Smith's  1991 petit larceny conviction to impeach Smith's
credibility.    The trial judge refused to permit appellant to
introduce this evidence.
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The Commonwealth contends appellant waived his objection to
the trial judge's ruling because appellant did not object to the
admission of Smith's statement when the Commonwealth introduced
it.    As it was offered for the truth of the matter it asserted,
Smith's statement clearly was hearsay.    See Garcia v.
Commonwealth,  21 Va. App.  445,  450,  464 S.E.2d  563,  565  (1995)
(en banc).    We find no applicable exception to the hearsay rule
through which Smith's statement would have qualified for
admission.    However, to accept the Commonwealth's waiver
argument on appeal would be to permit the Commonwealth to
benefit from its own wrong in offering the inadmissible evidence
at trial.5    "'No litigant  .  .  . will be permitted to approbate
and reprobate  -- to invite error  .  .  . and then to take
advantage of the situation created by his own wrong.'"    Manns v.
Commonwealth,  13 Va. App.  677,  680,  414 S.E.2d  613,  615  (1992)
5Nor do we find a basis to apply the doctrine of curative
admissibility, which, "in its broadest form, allows a party to
introduce otherwise inadmissible evidence when necessary to
counter the effect of improper evidence previously admitted by
the other party without objection."    Wright v. Commonwealth,  23
Va. App.  1,  7,  473 S.E.2d  707,  709-10  (1996)  (en banc).
"[W]hile a trial court generally has discretion in ruling on the
admissibility of evidence, a trial court has no discretion to
apply the doctrine of curative admissibility if the party
seeking to invoke it intentionally failed to object to the
inadmissible evidence in order to gain admission of otherwise
inadmissible evidence."    Id. at  8-9,  473 S.E.2d at  710  (citation
omitted).    We find no evidence in the record that the defense
intentionally failed to object to the admission of Smith's
statement in order to gain the admission of Smith's prior
conviction.
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(quoting Fisher v. Commonwealth,  236 Va.  403,  417,  374 S.E.2d
46,  54  (1988)).
Nor do we find merit in the Commonwealth's contention that,
to comply with Rule  5A:18, appellant was required to offer his
impeachment evidence at the time the Commonwealth introduced
Smith's statement.    It is within a trial judge's discretion to
permit impeachment of a witness at a time other than when the
witness testifies.    See Mastin v. Theirjung,  238 Va.  434,  440,
384 S.E.2d  86,  89  (1989)  (no abuse of discretion to permit
introduction of impeachment evidence on rebuttal although the
evidence could have been introduced in cross-examination of the
witness).
The litigants have identified no Virginia appellate
decision concerning the impeachment of a hearsay declarant, and
we have found none.    Several legal treatises, however, state
that a hearsay declarant may be impeached in the same manner as
a witness who actually appears in court.    See, e.g.,  3A John
Henry Wigmore, Evidence in Trials at Common Law  §  884  (Chadbourn
rev.  1970)  (stating that a hearsay statement admitted in
evidence is subject to "impeachment in the appropriate ways");  1
Charles E. Friend, The Law of Evidence in Virginia  §  4-9(a)  (4th
ed.  1993)  (opining that "[a] person whose hearsay statement is
admitted into evidence is subject to impeachment, though the
declarant did not appear in court").    Federal Rule of Evidence
806 provides in part that "[w]hen a hearsay statement  .  .  . has
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been admitted in evidence the credibility of the declarant may
be attacked  .  .  . by any evidence which would be admissible for
those purposes if declarant had testified as a witness."    A vast
majority of states have adopted similar rules.    See Arthur Best,
Supplement to Wigmore on Evidence  §  884  (1998)  (listing
forty-one states with a rule of evidence the same as or similar
to Fed. R. Evid.  806).
"When the testimony of a witness concerning an
extrajudicial statement declared by another is offered as
evidence of the truth of the thing stated, the credibility of
the declarant becomes crucial to the truth-determining process."
Claud v. Commonwealth,  217 Va.  794,  796-97,  232 S.E.2d  790,  792
(1977).    Therefore, we adopt the majority rule and hold that
when a hearsay statement has been admitted into evidence, the
credibility of the declarant may be attacked by any evidence
which would be admissible for those purposes if the declarant
had testified as a witness.
As a general rule, a witness may be impeached by evidence
that he or she previously was convicted of a misdemeanor
involving moral turpitude.    See Johnson v. Commonwealth,  2 Va.
App.  447,  456,  345 S.E.2d  303,  308  (1986).    "The Supreme Court
of Virginia has recognized petit larceny as an offense involving
moral turpitude  .  .  .                                                  ."    Dowell v. Commonwealth,  12 Va. App.
1145,  1147,  408 S.E.2d  263,  264  (1991), aff'd on reh'g en banc,
14 Va. App.  58,  414 S.E.2d  440  (1992).    Thus, Smith's  1991 petit
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larceny conviction was admissible to impeach Smith's statement
concerning the contents of his wallet.
"Before we adjudge an error to be harmful or harmless, we
must carefully examine all the evidence.    An error committed in
the trial of a criminal case does not automatically require
reversal of an ensuing conviction."    Galbraith v. Commonwealth,
18 Va. App.  734,  742,  446 S.E.2d  633,  638  (1994).
A nonconstitutional error is harmless if "it
plainly appears from the record and the
evidence given at trial that the error did
not affect the verdict."    "An error does not
affect the verdict if a reviewing court can
conclude, without usurping the jury's fact
finding function, that had the error not
occurred, the verdict would have been the
same."
Scott v. Commonwealth,  18 Va. App.  692,  695,  446 S.E.2d  619,  620
(1994)  (quoting Lavinder v. Commonwealth,  12 Va. App.  1003,
1005,  407 S.E.2d  910,  911  (1991)  (en banc)).    "An error may be
harmless because other evidence of guilt is 'so overwhelming and
the error so insignificant by comparison that the error could
not have affected the verdict.'"    Ferguson v. Commonwealth,  16
Va. App.  9,  12,  427 S.E.2d  442,  444  (1993)  (citation omitted).
Smith was shot and killed in January of  1997.    He was
convicted of petit larceny in  1991, when he was twenty-one years
old.    The remoteness in time of Smith's petit larceny conviction
would have affected the conviction's tendency to diminish
Smith's credibility.    Moreover, in contrast to Smith's prior
larceny conviction, the Commonwealth introduced testimony,
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without objection, from numerous witnesses who described Smith
as a dependable, honest, and hard-working young man at the time
of his death.
Smith's statement concerning the contents of his wallet was
relevant only to appellant's robbery charge, as the statement
tended to prove that Smith possessed more than forty-two dollars
when he left the shop with appellant.    By offering Smith's petit
larceny conviction, appellant sought to diffuse the probative
effect of Smith's statement.    However, other evidence introduced
by the Commonwealth tended to prove that Smith possessed more
than forty-two dollars when he left his place of employment a
short time before his death.    Since noon that same day, Smith
had been paid  $150 in cash for a radio he owned.    Smith also
performed at least five radio jobs for which he would have been
paid fifteen dollars each.
Furthermore, the evidence was uncontroverted that, after
shooting Smith, appellant stole Smith's truck.    Especially in
light of appellant's subsequent efforts to conceal his taking of
the vehicle, the jury could have found that appellant's taking
of the truck was a sufficient basis upon which to find appellant
guilty of robbery.    "The violence or intimidation by which
robbery is accomplished must precede or be concomitant with the
taking.    If the robbery is accomplished by killing the victim,
it is immaterial that the victim is dead when the theft occurs."
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Shepperson v. Commonwealth,  19 Va. App.  586,  591,  454 S.E.2d  5,
8  (1995).
We conclude that any error in excluding Smith's conviction
for petit larceny was harmless.    Therefore, for the foregoing
reasons, appellant's convictions are affirmed.
Affirmed.
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