Harry M. Young, s/k/a Harry Moutier Young v. Commonwealth of Virginia ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Haley, Petty and Powell
Argued at Salem, Virginia
HARRY M. YOUNG, S/K/A
HARRY MOUTIER YOUNG
MEMORANDUM OPINION ∗ BY
v. Record No. 0014-08-3 JUDGE JAMES W. HALEY, JR.
FEBRUARY 3, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL
Charles B. Flannagan, II, Judge
Michael A. Bishop (Michael A. Bishop, P.C., on brief), for
appellant.
Rosemary V. Bourne, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
I. INTRODUCTION
Harry Moutier Young (“Young”) argues the trial court erred in refusing to permit him to
inquire, upon cross-examination, about certain details of pending charges against a
Commonwealth witness. On brief, Young concedes he “did not make a record of such question
during the trial.” Thus, Young failed to preserve his argument for our review as required by
Rule 5A:18. 1 Accordingly we affirm.
∗
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
This point was likewise conceded during oral argument.
II. BACKGROUND
A grand jury indicted Young on three counts of distribution of cocaine. The evidence
against Young came from a female police informant (“P.N.”) and the police officers working
with her.
Prior to trial, Young filed a motion asking the court “to determine . . . whether the
informant’s relationship with the drug task force may be questioned for bias.” Young asserted
“that the informant is currently under investigation for crimes involving narcotics” and that those
alleged acts, “although criminal in nature and currently pending . . . [cause] legal bias.” The
circuit court addressed the motion at the beginning of the trial. The court held “the defendant is
entitled to show” bias and that it would “take that up as the issue arises.”
During her testimony, P.N. stated she worked with the police because she “was tired of
the crack being out on the streets” and because she received money for her help. On
cross-examination, defense counsel asked P.N. about pending charges against her. The
following exchange occurred:
Q. What was the offense?
A. Breaking and entering.
Q. What were you alleged to have stolen?
A. DVDs.
[Prosecutor]: Your Honor, I’m going to object. I think he
can ask her what she was charged with going towards bias, not
impeachment, but to go into the actual allegations of the offense,
first off, they’re hearsay; secondly, they’re still pending charges. I
think that would be going too far otherwise.
[Defense counsel]: Your Honor, the Commonwealth has
opened the door by her feelings towards narcotics.
[Prosecutor]: Your Honor, she’s charged with breaking
and entering and petit larceny. We think, therefore, asking her the
nature of the offense as well as the offense dates may be relevant
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and, therefore, the defendant — defense counsel can ask, but to ask
for what the allegations are of the charges, first, they are hearsay,
and they have nothing to do with her bias.
[Judge]: All right. Maybe you’d better restate your
question. You are permitted to inquire as to the nature of the
offenses, but we don’t need to get into the details of the offense.
After this colloquy, defense counsel began a new line of questioning and did not raise the
issue of allegations against P.N. concerning theft again. A jury convicted Young on all charges.
Young filed a motion to set aside the verdict based on the circuit court sustaining the
Commonwealth’s objection, quoted above, as to the scope of cross-examination. The motion
stated Young’s pretrial motion asked the court “to rule on his ability to cross-examine the
confidential informant about the details of her pending charges involving the theft of controlled
substances for possible legal bias.” It further asserted the informant’s professed desire to help
police eradicate narcotics permitted defense counsel to inquire concerning “the subject of her
motives for aiding the narcotics law enforcement agents.”
That motion was considered at a sentencing hearing on November 5, 2007. Counsel
maintained P.N. “exhibited to the Court and to the jury her disgust with narcotics, while she had
current pending charges involving the theft of narcotics.” Summarizing, counsel stated that if the
jury “knew that she was stealing narcotics and her statement of disgust for drugs wasn’t entirely
truthful, that her believability may have been altered, and that if her believability were altered,
that the case itself may have been altered.” Significantly, even at this stage of the proceeding,
Young never demonstrated that P. N. had been charged with stealing narcotics rather than DVDs,
as she had testified at trial. The court denied the motion, holding Young received an adequate
opportunity to cross-examine the informant.
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III. ANALYSIS
Rule 5A:18 provides in part: “No ruling of the trial court . . . will be considered as a
basis for reversal unless the objection was stated together with the grounds therefor at the time of
the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of
justice.” “‘The Court of Appeals will not consider an argument on appeal which was not
presented to the trial court.’” George v. Commonwealth, 51 Va. App. 137, 148, 655 S.E.2d 43,
48 (2008) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998)).
The contemporaneous objection rule exists “‘to alert the trial judge to possible error so
that the judge may consider the issue intelligently and take any corrective actions necessary to
avoid unnecessary appeals, reversals and mistrials.’” Neal v. Commonwealth, 15 Va. App. 416,
422, 425 S.E.2d 521, 525 (1992) (quoting Martin v. Commonwealth, 13 Va. App. 524, 530, 414
S.E.2d 401, 404 (1992)). The requirement also “gives the opposing party the opportunity to
meet the objection at that stage of the proceeding.” West v. Commonwealth, 43 Va. App. 327,
337, 597 S.E.2d 274, 278 (2004).
To these ends, an objection “must be both specific and timely.” Thomas v.
Commonwealth, 44 Va. App. 741, 750, 607 S.E.2d 738, 742, adopted upon reh’g en banc, 45
Va. App. 811, 613 S.E.2d 870 (2005). As we have previously summarized:
It is the duty of a party, as a rule . . . to state the grounds of
his objection, so that the trial judge may understand the precise
question or questions he is called upon to decide. The judge is not
required to search for objections which counsel have not
discovered, or which they are not willing to disclose.
Darnell v. Commonwealth, 12 Va. App. 948, 952-53, 408 S.E.2d 540, 542 (1991) (internal
quotation marks and citation omitted). Furthermore, “one specific argument on an issue does not
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preserve a separate legal point on the same issue for review.” Edwards v. Commonwealth, 41
Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc).
Applying these standards, we conclude Young failed to preserve his assignment of error,
during trial, for our review. He concedes that point.
Nonetheless, Young maintains the trial court should somehow have perceived the basis of
his objection. Young’s pretrial motion never mentioned the informant was charged with or being
investigated concerning theft of narcotics. Rather, it stated she “is currently under investigation
for crimes involving narcotics.” The nature of those crimes, if any, remained, and still remain,
unspecified. Second, the dialogue in question, quoted above, failed to give the trial court notice
that defense counsel wished to question the informant concerning alleged theft of narcotics.
When defense counsel asked the informant what her pending charges alleged her to have stolen,
she responded “DVDs.” The prosecution then objected to revealing the details of the alleged
offenses, and defense counsel argued to the court that “the Commonwealth has opened the door
by her feelings towards narcotics.” Defense counsel’s statement did not alert the judge the
informant was alleged to have stolen narcotics. Since Young failed to alert the trial court to his
assignment of error at trial, we may not consider it on appeal.
Although Young presented the trial court with the argument he raises on appeal in his
motion to set aside the verdict, this came too late to preserve the contention for appeal. As our
Supreme Court has held: “No objection was made . . . until argument by [defense] counsel on
the motion to set aside the verdict. Thus, the objection came too late for any error to be
corrected by the trial court, and for the error, if any, to constitute reversible error.” Ryan v.
Commonwealth, 219 Va. 439, 447, 247 S.E.2d 698, 704 (1978); see also Carter v. Nelms, 204
Va. 338, 343, 131 S.E.2d 401, 404 (1963); Boblett v. Commonwealth, 10 Va. App. 640, 651, 396
S.E.2d 131, 137 (1990).
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Even if Rule 5A:18 did not apply, Young’s assignment of error would still fail because he
did not proffer the substance of the excluded testimony. 2 If a trial court excludes testimony, the
offended party must proffer the expected answer by an unchallenged statement of counsel,
mutual stipulation, or testimony in the absence of the jury. Whittaker v. Commonwealth, 217
Va. 966, 969, 234 S.E.2d 79, 81 (1977). Without a proffer, “we cannot competently determine
error [or] much less reversible error.” Tynes v. Commonwealth, 49 Va. App. 17, 21, 635 S.E.2d
688, 689 (2006). This Court “will not consider testimony which the trial court has excluded
before it was presented without a proper showing of what that testimony would have been.”
Lockhart v. Commonwealth, 34 Va. App. 329, 340, 542 S.E.2d 1, 6 (2001). “The failure to
proffer the expected testimony is fatal to [a] claim on appeal.” Molina v. Commonwealth, 47
Va. App. 338, 367-68, 624 S.E.2d 83, 97 (2006).
Here Young failed to present the trial court with a proper proffer to preserve his claim for
appeal. As noted previously, Young’s pretrial motion only stated “that the informant is currently
under investigation for crimes involving narcotics.” At trial, Young simply told the court the
prosecution “has opened the door by her feelings towards narcotics.” After the trial court
sustained the prosecution’s objection, Young did not seek to question the informant outside the
presence of the jury or make a proffer. Young also did not try to introduce the desired evidence
by other means of questioning. While Young indicated he believed P.N. to have pending charges
concerning the theft of narcotics in his motion to set aside the verdict, this assertion, made after
the jury was discharged, and with no evidence supporting the assertion in the record, came too
2
This point was conceded at oral argument.
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late for preservation upon appeal. Roadcap v. Commonwealth, 50 Va. App. 732, 740 n.1, 653
S.E.2d 620, 624 n.1 (2007). 3
For the foregoing reasons, we affirm the judgment of the trial court.
Affirmed.
3
The cited footnote in Roadcap stated:
In his post-trial briefs and arguments, Roadcap’s counsel
stated that he needed to amplify his position with additional points
he had not specifically raised at trial. A litigant, however, cannot
wait until after trial to present foundation evidence pertinent to a
trial court’s decision during trial to allow or exclude testimony.
See Jones v. Commonwealth, 50 Va. App. 437, 445, 650 S.E.2d
859, 863 (2007) (agreeing that “post-trial motions regarding
admission of evidence generally are not timely, especially after the
jury has reached a verdict and been excused”); see also Boblett v.
Commonwealth, 10 Va. App. 640, 650-51, 396 S.E.2d 131, 136-37
(1990). Rule 5A:18 requires both the objection and the “grounds
therefor” to be made “at the time of the ruling.”
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