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EPPS v. COMMONWEALTH

Court of Appeals of Virginia. Argued at Salem, Virginia
Mar 28, 1995
Record No. 1502-93-2 (Va. Ct. App. Mar. 28, 1995)

Opinion

Record No. 1502-93-2

Decided: March 28, 1995

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG, Oliver A. Pollard, Jr., Judge

Mary Katherine Martin, Assistant Public Defender, for appellant.

Leah A. Darron, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: Judges Barrow, Koontz and Elder


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Hugh Royal Epps (Epps) appeals his convictions for two counts of distribution of cocaine and one count of possession of cocaine with intent to distribute. Epps contends that the trial court erred in limiting his cross-examination of a Commonwealth's witness. Epps further contends that the Commonwealth failed to disclose exculpatory evidence relevant to the issue upon which the trial court limited cross-examination. For the following reasons, we affirm Epps' convictions.

Epps' convictions arose out of an undercover operation conducted by Petersburg police following-up citizen complaints of drug activity. Police utilized the services of Clarence Williams, a paid undercover informant, to make controlled buys of illegal drugs. The police had used Williams in the past and believed he was a reliable operative. Williams purchased two packets of cocaine from Epps on June 3, 1992 at the direction of the officers conducting the operation. On June 22, 1992, Williams made a second drug buy at the officers' direction.

Williams testified at trial. He admitted having a prior felony record and that he had abused cocaine in the past. During cross-examination, Williams admitted that he had used drugs during the period that he had worked "off and on" as an informant, the last time being "over a year ago." He further testified that he was subject to random drug screening by the police agencies for which he worked, although he had not been tested by the Petersburg Police Department. The following exchange then took place:

Defense counsel: When was the last time you were tested?

Williams: Two weeks, maybe two weeks ago.

Defense counsel: That is something that you don't wish to share with me —

Commonwealth: Your Honor, I object to that, confidentiality —

The trial court and counsel had an extended discussion concerning the line of questioning the defense was pursuing. The Commonwealth maintained that no discovery request had been made concerning Williams' drug screens. The defense maintained that the information, regardless of which police agency had knowledge or possession of the drug screen results, should have been released pursuant to its Brady motion. The trial court ruled that the discovery motion was too broad to cover specific instances of drug testing. The trial court further ruled that the fact of drug testing alone did not relate to credibility unless the defense was prepared to show that the results of the tests were different from Williams' testimony. The defense made no proffer concerning Williams' expected answer or the results of the drug screens.

In the defense's case-in-chief, Epps elicited testimony from several witnesses asserting that Williams had used drugs recently and that his testimony against Epps had been fabricated with police assistance.

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. 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.

Stewart v. Commonwealth, 10 Va. App. 563, 568, 394 S.E.2d 509, 512 (1990) (citations omitted).

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).

Here, the defense made no proffer of Williams' expected answer or that, if he denied having had a positive drug screen, evidence could be presented to rebut that claim. Accordingly, the requirements of Stewart have not been satisfied and we are barred from considering the error, if any, of limiting cross-examination of Williams.

We will assume, without deciding, that a positive drug screen from a period after Williams made the two drug purchases from Epps would be exculpatory impeachment evidence available to the defense under the mandate of Brady v. Maryland, 373 U.S. 83, 87 (1963). Accordingly, the Commonwealth would have been required to disclose the existence of such evidence. Nothing in the record before us suggests that the Commonwealth failed to reasonably comply with the discovery order.

The discovery order directed the Commonwealth to disclose relevant information from "personal files" and "other records" concerning witnesses. The response to the discovery order asserts that the accompanying answers and materials complied with that order. Absent evidence or a proffer of evidence that exculpatory evidence was not properly disclosed, we presume compliance with the discovery order. See Cherricks v. Commonwealth, 11 Va. App. 96, 101, 396 S.E.2d 397, 400 (1990).

As noted above, Epps was required to make at least an avowal of the existence of a positive drug screen. While we presume Epps desired for such evidence to exist, he failed to assert its existence and nothing in the record suggests its existence. Accordingly, the record contains no basis upon which we might hold that the Commonwealth withheld, purposefully or by lack of knowledge, exculpatory evidence it was required to disclose.

For these reasons, we affirm Epps' convictions.

Affirmed.


Summaries of

EPPS v. COMMONWEALTH

Court of Appeals of Virginia. Argued at Salem, Virginia
Mar 28, 1995
Record No. 1502-93-2 (Va. Ct. App. Mar. 28, 1995)
Case details for

EPPS v. COMMONWEALTH

Case Details

Full title:HUGH ROYAL EPPS v. COMMONWEALTH OF VIRGINIA

Court:Court of Appeals of Virginia. Argued at Salem, Virginia

Date published: Mar 28, 1995

Citations

Record No. 1502-93-2 (Va. Ct. App. Mar. 28, 1995)