James Lee Lane v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Elder and Fitzpatrick
Argued at Salem, Virginia
JAMES LEE LANE
v. Record No. 0349-94-3 MEMORANDUM OPINION * BY
JUDGE LAWRENCE L. KOONTZ, JR.
COMMONWEALTH OF VIRGINIA JULY 11, 1995
FROM THE CIRCUIT COURT OF SCOTT COUNTY
William C. Fugate, Judge
Melanie L. Jorgensen (Quillen, Hamilton & Jorgensen, on
brief), for appellant.
Richard B. Smith, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellee.
James Lee Lane (Lane) appeals his convictions for first
degree murder, use of a firearm in the commission of a felony,
and assault and battery. Lane asserts that the trial court erred
both in refusing to strike certain jurors from the venire for
cause and in limiting appellant's cross-examination of Wayne
Anderson. Finding no error, we affirm.
Lane's convictions arise out of a domestic dispute. During
voir dire, the defense challenged numerous members of the venire
for cause. In response to questions from the defense, four
veniremen made statements to the effect that defense counsel
would have to prove Lane's innocence or would have to put on a
defense. In subsequent redirect examination by the Commonwealth
and examination by the trial court, each said that they
understood the burden of proof lay with the Commonwealth and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
indicated that they could remain impartial. The defense also
objected to the qualification of Jim Taylor, because his
father-in-law was a deputy sheriff employed as a bailiff in Scott
County. Taylor testified that he did not discuss cases with his
father-in-law and that he could decide the case without
prejudice. Another member of the panel indicated a personal
animus against drinking, but stated that she could set aside that
prejudice and consider the case on its merits.
Determination of whether a venireman is qualified is within
the discretion of the trial court. In reviewing the trial
court's determination, the entire voir dire must be examined, not
just isolated statements. Chrisman v. Commonwealth, 3 Va. App.
371, 373-74, 349 S.E.2d 899, 901 (1986). The trial judge is in a
unique position to observe the demeanor of the challenged
venireman and to evaluate all aspects of their testimony. The
trial judge's decision in these matters will not be overturned
unless the appeals court deems it to be erroneous. Educational
Books, Inc. v. Commonwealth, 3 Va. App. 384, 390, 349 S.E.2d 903,
908 (1986); see also Webb v. Commonwealth, 11 Va. App. 220, 223,
397 S.E.2d 539, 540 (1990).
Appellant's reliance on Foley v. Commonwealth, 8 Va. App.
149, 379 S.E.2d 915, aff'd en banc, 9 Va. App. 175, 384 S.E.2d
813 (1989), is misplaced. In Foley, we held that the trial court
may not rehabilitate a potential juror by asking leading
questions "in such a manner as to suggest and influence [the
juror's] answers." Id. at 159, 379 S.E.2d at 921. The Court
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held that a potential juror's answers that amount to "mere assent
to persuasive suggestions" are not sufficient to rehabilitate.
Id. at 160, 379 S.E.2d at 921.
The instant case is distinguishable from Foley in that the
trial court was neither leading nor suggestive in its questioning
regarding the potential jurors' impartiality and ability to
understand the burden of proof. Rather, the trial court merely
stated the proper legal standards and asked the venire if they
understood and were able to apply those standards. The trial
court, after observing the potential jurors' demeanors when
responding to its questions and considering their answers, did
not abuse its discretion in denying Lane's request to strike them
for cause.
Lane further contends that the trial court erred in limiting
his cross-examination of a Commonwealth's witness. At trial,
Deputy Wayne Anderson testified concerning a statement made by
Lane while he was being transported to jail. During
cross-examination, Lane first questioned Anderson about
inconsistencies in reports he had later filed concerning Lane's
statement in the patrol car. Lane then attempted to ask Anderson
about the events prior to Lane's arrest. The Commonwealth
objected and the trial court ruled that Lane's questions exceeded
the scope of direct examination. The trial court stated that the
defense could seek to impeach Anderson's direct testimony, but
would have to call Anderson as its own witness to go beyond the
scope of the Commonwealth's direct examination. No proffer was
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made of the expected testimony.
When cross-examination is limited by the court and the party
challenges the court's ruling on appeal, he or she must make a
proper proffer of the excluded testimony. Stewart v.
Commonwealth, 10 Va. App. 563, 568, 394 S.E.2d 509, 512 (1990).
A unilateral avowal of counsel, if unchallenged, constitutes a
proper proffer. Absent such proffer, the appellate court will
not consider error assigned to the rejection of testimony.
Speller v. Commonwealth, 2 Va. App. 437, 440, 345 S.E.2d 542, 545
(1986).
At oral argument, appellant asserted that the record as a
whole, including the defense's opening statement and proffered
testimony of another witness concerning police procedure, would
serve as an unchallenged, unilateral avowal of Anderson's
expected testimony. We disagree. Appellant's suggestion during
opening argument that the jury should pay close attention to the
officers' testimony and the subsequent attempt to bring forth
evidence that would lay a foundation for showing that Anderson's
actions were improper, does not adequately memorialize Anderson's
expected testimony. Accordingly, there is no proffer on the
record for this Court to consider.
For these reasons, we affirm Lane's convictions.
Affirmed.
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