Perry v. Commonwealth

Full title: JOHN FRANCIS PERRY v. COMMONWEALTH OF VIRGINIA

Court: Court of Appeals of Virginia. Alexandria

Date published: Apr 20, 1993

Record No. 1829-91-4 (Va. Ct. App. Apr. 20, 1993)

Opinion

Record No. 1829-91-4

April 20, 1993

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY THOMAS R. MONROE, JUDGE.

J. Douglas Lewis (Garnett, Garnett Lewis, on brief), for appellant.

Virginia B. Theisen, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.

Present: Chief Judge Koontz, Judges Barrow and Moon.

Argued at Alexandria, Virginia.

MEMORANDUM OPINION^_

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

CHIEF JUDGE LAWRENCE L. KOONTZ, JR.

John Francis Perry (Perry) was convicted in a jury trial of attempted first degree murder. On appeal, Perry challenges the trial court's refusal to permit his expert witness, Dr. Steyn, to testify regarding the effects of ether on Perry's behavior at the time the offense was committed. For the following reasons, we affirm.

We find that Perry's claim is procedurally barred. Although Perry proffered the questions he would ask Dr. Steyn, Perry did not proffer the expected answers to those questions. "When an objection is sustained and evidence is rejected, it is incumbent upon the proponent of the evidence to make a proffer of the expected answer; otherwise, the appellate court has no means of determining if the evidence is material or otherwise admissible." Speller v. Commonwealth, 2 Va. App. 437, 440, 345 S.E.2d 542, 545 (1986). Our review of the record discloses no unchallenged, unilateral avowal of counsel or mutual stipulation of the expected testimony.See id. Accordingly, in the absence of a proffer of Dr. Steyn's expected testimony, we are unable to reach the merits of the issue. See Spencer v. Commonwealth, 238 Va. 295, 305-06, 384 S.E.2d 785, 792 (1989), cert. denied, 493 U.S. 1093 (1990).

Perry also contends that the trial court erred in ruling that Dr. Steyn was not qualified as an expert. At trial, Perry tried to qualify Dr. Steyn as an expert on the toxicological, psychological and behavioral effects of ether. The trial court sustained the Commonwealth's attorney's objection to Dr. Steyn's qualification as an expert in this field, and Dr. Steyn did not testify. Following the court's ruling refusing to qualify Dr. Steyn as an expert, Perry voiced no objection. Therefore, Perry has waived his claim that the court improperly refused to recognize Dr. Steyn as an expert. Rule 5A:18.

For these reasons, we affirm Perry's conviction for attempted first degree murder.

Affirmed.