Troy Lee Estep v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia
TROY LEE ESTEP
MEMORANDUM OPINION * BY
v. Record No. 2887-95-3 JUDGE RICHARD S. BRAY
MAY 20, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WISE COUNTY
J. Robert Stump, Judge
Susan D. Oglebay for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Troy Lee Estep (defendant) was convicted by a jury of
burglary, malicious wounding, robbery and abduction. On appeal,
defendant contends that the trial court erroneously received into
evidence portions of his statement to police, while denying his
request for admission of the entire statement. Finding no
reversible error, we affirm the convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
"The ancient rule in this Commonwealth is that the
prosecution has no right to introduce selected portions of a
defendant's confession and exclude those which tend to mitigate,
justify, or excuse the offense charged." Boggs v. Commonwealth,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
229 Va. 501, 517, 331 S.E.2d 407, 419 (1985), cert. denied, 475
U.S. 1031 (1986). However, this principle does not render
admissible irrelevant and immaterial contents of a statement,
otherwise inadmissible. See Pierce v. Commonwealth, 2 Va. App.
383, 389-91, 345 S.E.2d 1, 4-5 (1986). Accordingly,
"objectionable portion[s] of [a] statement [which] can easily be
separated from the remainder of the admission without adverse
effect" should be redacted, with only relevant parts admitted
into evidence. Id. at 391, 345 S.E.2d at 5.
"When . . . evidence is rejected, it is incumbent upon the
proponent of the evidence to make a proffer of the expected
[content]; 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). "[I]t is axiomatic that an appellate court's review
. . . is limited to the record on appeal." Turner v.
Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986).
Here, defendant proffered only a portion of the statement in
issue, leaving the record silent with respect to the remainder
and precluding our review of its exclusion for error.
Assuming, without deciding, that exclusion of the proffered
evidence was error, we find it harmless. "An error, if
non-constitutional in nature as is this one, is harmless if '"it
plainly appears from the record and the evidence given at the
trial that" the error did not affect the verdict.'" Woodward v.
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Commonwealth, 16 Va. App. 672, 675, 432 S.E.2d 510, 512 (1993)
(emphasis omitted) (quoting Lavinder v. Commonwealth, 12 Va. App.
1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting Code
§ 8.01-678)).
The proffered portion of the statement indicates only that
defendant had been drinking throughout the day of the offense.
Without objection from defendant, the trial court instructed the
jury that
[v]oluntary intoxication is not a defense to
any of the crimes that [defendant] is charged
with. Even if you find that he was greatly
intoxicated by the voluntary use of alcohol
you must still find him guilty if you find
that the Commonwealth has proved every
element of the crimes beyond a reasonable
doubt.
Defendant was, therefore, bound by this legal principle, see
Shamblee v. Virginia Transit Co., 204 Va. 591, 594-95, 132 S.E.2d
712, 714 (1963); see also Commonwealth v. Millsaps, 232 Va. 502,
509, 352 S.E.2d 311, 315 (1987), which removed intoxication from
the jury's consideration in the guilt phase of trial.
Moreover, such evidence was merely cumulative of
uncontroverted testimony which established that defendant was
"very loud," smelled of alcohol and "[a]ppear[ed]" to have been
"drinking" moments after the offense. "Evidence admitted in
error does not affect a verdict if it is 'merely cumulative of
other, undisputed evidence.'" Woodward, 16 Va. App. at 675, 432
S.E.2d at 512 (quoting Ferguson v. Commonwealth, 16 Va. App. 9,
12, 427 S.E.2d 442, 445 (1993)). Conversely, the erroneous
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exclusion of cumulative evidence may also be harmless.
Thus, the record plainly demonstrates that exclusion of the
proffered evidence could not have properly affected the verdict,
rendering the ruling harmless, even if in error. Accordingly, we
affirm the convictions.
Affirmed.
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