Sean Malcolm Parker v. Commonwealth

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
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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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