Sean Malcolm Parker v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: January 14, 1997
• Docket: 2409951
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Senior Judge Hodges Argued at Norfolk, Virginia

SEAN MALCOLM PARKER MEMORANDUM OPINION * BY v. Record No. 2409-95-1 JUDGE WILLIAM H. HODGES JANUARY 14, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK John E. Clarkson, Judge Walter B. Dalton for appellant.

Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

On appeal from his convictions of murder and use of a

firearm in the commission of a felony, Sean Malcolm Parker

contends that the trial court erred in refusing to allow Parker

to introduce a copy of the preliminary hearing transcript in

order to impeach a witness. Because Parker failed to proffer the

transcript of the preliminary hearing, we affirm Parker's

convictions.

At Parker's trial, Kevin McClammy testified that he was

riding in a car driven by the victim when a man shot into the

car, killing the victim. Two days after the incident, McClammy

identified Parker as the shooter from a photographic lineup.

McClammy also positively identified Parker at the trial. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. On cross-examination, Parker's counsel referred McClammy to

the preliminary hearing transcript, attempting to impeach

McClammy with prior inconsistent statements made at the

preliminary hearing. Parker's counsel moved for the admission of

the preliminary hearing transcript, arguing that the jury

"need[ed] the opportunity to review the statement in its

entirety" because McClammy had testified inconsistently at trial.

The trial judge ruled that admitting the transcript would

introduce "a lot of extraneous matter that ha[d] not been

testified to" at the trial. The trial judge further stated, "You

can question [McClammy] concerning [the preliminary hearing

testimony] for purposes of impeachment of his testimony, but you

cannot put the record in." When Parker's counsel resumed his examination of McClammy,

he made no further references to the preliminary hearing

transcript. Parker's counsel did not proffer the preliminary

hearing transcript for the record.

"An appellant must demonstrate that the excluded evidence is

relevant and material and that the party was entitled to have it

introduced in order to establish on appeal that the trial court

erred by excluding it." Toro v. City of Norfolk, 14 Va. App.

244, 254, 416 S.E.2d 29, 35 (1992). "'When . . . evidence is

rejected, it is incumbent upon the proponent of the evidence to

make a proffer of the expected answer.' An 'appellate court has

no basis for adjudication unless the record reflects a proper

-2- proffer.'" Mostyn v. Commonwealth, 14 Va. App. 920, 924, 420

S.E.2d 519, 521 (1992) (citations omitted).

Thus, in order for this Court to determine whether the trial

court erred in excluding the preliminary hearing transcript, the

record must contain the contents of the transcript. However, the

record before the Court does not reflect a proper proffer of the

preliminary hearing transcript. Therefore, because Parker failed

to present a complete record to this Court for proper review of

the issue he raises, we are unable to rule on the merits of that

issue, and we affirm the judgment of the trial court. See Lowery

v. Commonwealth, 9 Va. App. 304, 308-09, 387 S.E.2d 508, 510

(1990).

Affirmed.

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