Darrell A. Smith v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 24, 1998
• Docket: 0972971
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Baker and Bray Argued at Norfolk, Virginia

DARRELL A. SMITH MEMORANDUM OPINION * BY v. Record No. 0972-97-1 JUDGE RICHARD S. BRAY MARCH 24, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Junius P. Fulton, III, Judge John R. Doyle, III, for appellant.

Eugene Murphy, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

On February 13, 1997, a jury convicted Darrell A. Smith

(defendant) of second-degree murder, attempted first-degree

murder, and the related use of a firearm in the commission of

such offenses. On appeal, defendant complains that the trial

court erroneously refused to permit cross-examination of a

Commonwealth witness with respect to possible bias. Finding no

error, we affirm the convictions.

The parties are fully conversant with the record, and this

memorandum opinion recites only the dispositive facts.

The evidence established that Cecil Manley was the target

of an April 1, 1996 attack by defendant and two accomplices, each

brandishing a firearm. Manley escaped, safely hiding himself

while his assailants searched the area, randomly discharging * Pursuant to Code § 17-116.010 this opinion is not designated for publication. their weapons. A bullet fired by one among the trio entered a

nearby house, struck and killed three-year-old Taylor R. Ricks.

Prior to trial of the subject indictments, the Norfolk

Commonwealth Attorney's office (prosecutor) nolle prossed

unrelated murder charges then pending against Manley. In

anticipation of Manley's testimony in the instant trial,

defendant's counsel thereafter moved the court to allow him to

explore through cross-examination of Manley any relationship

between the nolle prosequi and Manley's impending trial

testimony.

During a pretrial hearing on defendant's motion, the

prosecutor explained that the nolle prosequi resulted from

acquittals of others similarly charged, together with the

assessment that "we had the weakest case [against Manley] to

start with . . . and other weaknesses in our evidence . . . ."

The prosecutor also disclaimed "any type of [plea] agreement with

Mr. Manley" or "any discussion . . . bearing upon him testifying

in this particular case." Based upon this unilateral avowal by

the prosecutor, unchallenged by defendant, the court found "no

connection between the nol-pros . . . and [Manley's] cooperation

and testimony . . . against defendant" and denied defendant's

motion. See Stewart v. Commonwealth, 10 Va. App. 563, 568, 394

S.E.2d 509, 512 (1990) (unchallenged unilateral avowal of counsel

may constitute sufficient proffer).

"'When cross-examination is limited by the court and the

- 2 - accused challenges the court's ruling on appeal, he or she must

make a proper proffer of the excluded testimony,'" McGann v.

Commonwealth, 15 Va. App. 448, 451, 424 S.E.2d 706, 708 (1992)

(quoting Stewart, 10 Va. App. at 568, 394 S.E.2d at 512),

"otherwise, the appellate court has no means of determining if

the evidence is material or . . . admissible." Speller v.

Commonwealth, 2 Va. App. 437, 440, 345 S.E.2d 542, 545 (1986)

(citation omitted). Thus, we "will not consider an error

assigned to the rejection of testimony unless such testimony has

been . . . made a part of the record." Id. (citing Whittaker v.

Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81 (1977)); see

also Owens v. Commonwealth, 147 Va. 624, 631, 136 S.E. 765, 767

(1927) (simply noting counsel's exception is insufficient).

Here, defendant clearly failed to make a proffer for the

record of Manley's responses to the proposed cross-examination,

and we decline defendant's invitation to find error upon

speculation that the "situation created bias in Manley's mind to

gain favor with the [prosecutor's] office" "in a way that

affected the nature of his testimony." As defendant acknowledged

on brief, "[w]e . . . do not know what Manley's response would

have been." Accordingly, we affirm the convictions. Affirmed.

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