Opinion
Record No. 2119-92-1
Decided: May 24, 1994
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK, William H. Hodges, Judge Designate
Affirmed.
W. Jeffrey Overton (Ferguson and Rawls, on brief), for appellant.
Thomas D. Bagwell, Assistant Attorney General (Stephen D. Rosenthal, Attorney General; Virginia B. Theisen, Assistant Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Jan T. Burnell (defendant) was convicted by a jury for credit card forgery, two counts of credit card theft, grand larceny, and statutory burglary. On appeal, defendant complains that the trial court erred in refusing to permit him to introduce the testimony of a rebuttal witness. We disagree and affirm the judgment of the trial court.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issue on appeal.
"The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988); Jackson v. Commonwealth, 13 Va. App. 599, 603, 413 S.E.2d 662, 665 (1992).
Evidence is admissible if it is both relevant and material. "[E]vidence is relevant if it tends to establish the proposition for which it is offered." Evidence is material if it relates to a matter properly at issue. . . . "[T]he court . . . is in fact always balancing the probative value of the evidence against the disadvantages (delay, confusion, prejudice, surprise, etc.) which may attend its admission. Each decision is made in light of the individual circumstances of the case, and the same evidence might well be admitted in one case and excluded in another because the balance struck between the factors is different in the two instances."
Evans-Smith v. Commonwealth, 5 Va. App. 188, 196-97, 361 S.E.2d 436, 441 (1987) (citations omitted).
Here, David Schnur, a "cell mate" with defendant during approximately five months of his incarceration, was a witness for the Commonwealth. Schnur testified that defendant admitted to him that he committed the subject offenses. Defendant's counsel, apparently surprised by this evidence, later proffered to the trial court that William Holland, a cell mate with defendant and Schnur for approximately four months and "a trustee over there," "would deny that he ever heard [defendant] making any confessions . . . to Mr. Schnur."
"To establish a proper record on appeal, the content of a witness' expected testimony may be set forth in the trial record by . . . a unilateral avowal of counsel, if unchallenged. . . ." Lowery v. Commonwealth, 9 Va. App. 304, 307, 387 S.E.2d 508, 510 (1990).
When questioned by the court, counsel acknowledged that Holland had been placed on trustee status, assigned to the "laundry," "about a month and-a-half ago" and could not represent that Holland "was present and awake at all times [defendant and Schnur] were together." Under such circumstances, the trial judge concluded that "just saying [Holland] didn't hear something would [not] constitute proper evidence."
Assuming Holland would have testified as proffered, the record does not establish that Holland was present in the jail cell with defendant and Schnur under circumstances which would contradict or negate Schnur's testimony. Moreover, there was no assurance that Holland was available to the trial proceedings. Thus, the presence of the witness and the relevancy and probative value of his testimony were tentative and uncertain, and we are unable to find an abuse of discretion in the trial court's ruling.
Accordingly, we affirm the convictions.
Affirmed.