Opinion
Record No. 1596-93-4
Decided: January 3, 1995
FROM THE CIRCUIT COURT OF CLARKE COUNTY, James L. Berry, Judge
Rebecca H. Norris, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Marla Lynn Graff, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Barrow, Koontz and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
David Jonathan Bryant (Bryant) appeals his conviction by jury trial for first degree murder. Bryant asserts that the trial court erred in limiting his cross-examination of a witness. Holding that Bryant failed to make a sufficient proffer of the witness' anticipated testimony, we affirm.
The parties are familiar with the facts of this case. Accordingly, we restate only those facts necessary to explain our holding. Henry Rytter (Rytter), who was living with Bryant in Bryant's dilapidated house, testified that Bryant told him that Donald Spencer (Spencer) had stolen Rytter's radio and food stamps. Bryant and Spencer had previously been on friendly terms but had recently quarreled. Rytter further testified that Spencer arrived at Bryant's house on the evening of December 19, 1992. The three men drank beer until Spencer "went to sleep" on Bryant's bed. Bryant and Rytter left the house and returned a short time later. In Rytter's presence, Bryant shot and killed Spencer while Spencer was asleep. Bryant threatened Rytter and Rytter's family with harm if Rytter "said anything."
Rytter and Bryant then left the state, heading for Florida. Rytter was arrested in Georgia for DUI. Bryant continued on to Florida without Rytter. When Rytter was released, he went to Florida where he told family members about the murder. Police were contacted and Rytter cooperated with them in the investigation.
On cross-examination, the defense questioned Rytter about his relationship with the victim and the defendant. The defense then asked, "Did you have a driver's license with you [when you were stopped in Georgia]?" The Commonwealth objected and at a bench conference revealed that Rytter had a driver's license with a false name when he was stopped. After discussion as to whether Rytter had been convicted of using a false name (he apparently had not) or had falsified the application for the license under oath (it was not known if this was the case), the trial court sustained the Commonwealth's objection. The trial court ruled that the fact of possessing a false driver's license was, without more, collateral to the facts of the crime charged and not a proper form of impeachment evidence.
When cross-examination is limited by the court and the accused challenges the court's ruling on appeal, he or she must make a proper proffer of the excluded testimony. Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977); see Blount v. Commonwealth, 213 Va. 807, 811, 195 S.E.2d 693, 696 (1973). A proper proffer may consist of a unilateral avowal of counsel, if unchallenged, or a mutual stipulation of the testimony expected. Absent such acquiescence or stipulation, the error assigned to the rejection of the testimony will not be considered unless it has been given in the absence of the jury and made a part of the record. Whittaker, 217 Va. at 969, 234 S.E.2d at 81.
Stewart v. Commonwealth, 10 Va. App. 563, 568, 394 S.E.2d 509, 512 (1990).
The use of an avowal of expected testimony as a proffer, though long recognized as permissible, is not the preferred practice. See, e.g., Owens v. Commonwealth, 147 Va. 624, 630-31, 136 S.E. 765, 767 (1927). Accordingly, it is essential that a party seeking to preserve an objection to the exclusion of testimony through an avowal make a clear and unambiguous recitation of the expected testimony, otherwise the appellate court has no means of determining if the evidence is material or otherwise admissible. See Speller v. Commonwealth, 2 Va. App. 437, 440, 345 S.E.2d 542, 545 (1986).
Apart from the statement made by the Commonwealth that Rytter possessed a driver's license with a false name, nothing in the discussion between counsel and the trial court purports to express facts which Rytter was expected to admit upon examination or which could have been proved if he denied their truth. Accordingly, the only avowal came in the form of the stipulation that Rytter possessed a driver's license with a false name. We agree with the trial court that Bryant was not permitted to impeach Rytter with collateral evidence of a bad act which is not a felony or a misdemeanor crime of moral turpitude. Specific matters of veracity and instances of lying which are collateral to the facts of the case are not proper areas of inquiry. See, e.g., Ramdass v. Commonwealth, 246 Va. 413, 423-24, 437 S.E.2d 566, 572 (1993), cert. granted and decision vacated on other grounds, 114 S.Ct. 2701, aff'd on remand, ___ Va. ___, ___ S.E.2d ___ (1994); Clark v. Commonwealth, 202 Va. 787, 790, 120 S.E.2d 270, 272 (1961).
Here, there was no suggestion that Rytter had been convicted for using the false driver's license. Similarly, the other matters upon which counsel speculated during the bench conference, while suggesting that Rytter may have used an alias on other occasions, did not rise to the level of an avowal of proper impeachment evidence which could have been elicited. For these reasons, we find no error in the trial court's limitation of Bryant's cross-examination of Rytter and affirm Bryant's conviction.
Affirmed.