COURT OF APPEALS OF VIRGINIA 

Present: Judges Clements, Agee* and Felton 

Argued at Richmond, Virginia 

DAIRAREI TRENDELL BROCKENBROUGH 

 MEMORANDUM OPINION** BY 

v. Record No. 3023-01-2 JUDGE WALTER S. FELTON, JR. 

 APRIL 22, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Margaret P. Spencer, Judge 

 John F. McGarvey for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Dairarei Brockenbrough was convicted in a jury trial of 

first-degree murder, in violation of Code § 18.2-32. On appeal he 

contends that the trial court erred in (1) allowing the 

Commonwealth to impeach its own witness and (2) overruling 

Brockenbrough's objection to the Commonwealth's refreshing the 

recollection of its witness. For the following reasons, we 

affirm the judgment of the trial court. 

 

* Justice Agee participated in the hearing and decision of 

this case prior to his investiture as a Justice of the Supreme 

Court of Virginia. 

** Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
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I. BACKGROUND 

 On October 14, 2000, a vehicle registered to Tracy 

Richardson was involved in a hit-and-run accident in the Church 

Hill area of the City of Richmond. On October 19, Detective 

Daniel Thaw talked with Richardson about the accident and was 

informed that Brockenbrough had borrowed the car that day. 

Subsequently, Richardson and Detective Thaw attempted to contact 

Brockenbrough via telephone but neither was successful. 

 On October 25, 2000, at approximately midnight, Diane 

Edwards saw a group of men standing near the front of her house. 

She recognized several of the men, including Brockenbrough, and 

asked them to move away from the front of her house.1 One of the 

men in the group "flagged down" Richardson as he drove by. 

Richardson stopped, got out of his car and began speaking with 

Brockenbrough. Ms. Edwards heard someone say, "You have the 

nerve to ask me some s*** like this." She then saw Richardson 

fall backwards onto the sidewalk and hit his head on the 

pavement. 

 After Richardson fell to the ground, Ms. Edwards saw 

Brockenbrough "kicking and stomping" him around his head and 

stomach. Richardson did not move or shield himself from the 

blows. Brockenbrough continued to strike Richardson until some 

of the other men pulled him away. Richardson died from blunt 

1

 Edwards knew Brockenbrough because she had braided his 

hair in the past. 
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force trauma to the head. His neck was bruised, his larynx was 

broken, his lips torn, and the bone around his eye was 

fractured. 

 Brockenbrough was indicted for first-degree murder, in 

violation of Code § 18.2-32. At trial, his primary defense was 

alibi, that he was elsewhere when Richardson was attacked. The 

police officers testified that Brockenbrough had been 

inconsistent in relating where he was on the night of 

Richardson's slaying. In his defense, Brockenbrough called 

Wendy Baldwin to testify. Baldwin stated that she was friends 

with Brockenbrough and Amanda Franks. She testified that 

Brockenbrough left Franks' apartment only when she (Baldwin) 

took him to his grandmother's to shower. She also stated 

Brockenbrough did not go to a convenience store near the 

apartment while he was staying with Franks.2

 The Commonwealth called Amanda Franks as a rebuttal 

witness. She testified that Brockenbrough was her boyfriend, 

but in October 2000 they were only "close friends." She stated 

that between October 21-28, he did not leave her apartment 

except to shower at his grandmother's house. Franks stated that 

because "he was being with other females," they had trust 

issues. As a result, she said Brockenbrough stayed with her in 

the apartment, but had no clothes there and would leave only to 

2

 The convenience store and Franks' apartment are within 

walking distance of the scene of Richardson's slaying. 
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go to his grandmother's house to shower. Her friend Wendy 

Baldwin would drive him to his grandmother's house. 

 During direct examination, Franks stated she was unable to 

recall certain statements she had made to police investigators. 

When the Commonwealth asked if she recalled talking with the 

officers, Brockenbrough objected, stating the Commonwealth was 

attempting to impeach its own witness. The Commonwealth 

responded that it was seeking only to refresh the witness' 

memory. The trial court ruled that because Franks had testified 

that she could not recall certain statements she had made to the 

police, the Commonwealth was permitted to refresh her memory. 

 To refresh Franks' memory, the Commonwealth sought to use 

an audiotape containing a taped conversation with the police. 

Brockenbrough objected on the grounds that it was improper to 

play the tape in front of the jury to refresh a witness' memory. 

The trial court overruled the objection and permitted Franks, in 

the presence of the jury, to listen to her taped conversation 

with the police. At the direction of the trial judge, the 

contents of the tape were not reported in the transcript by the 

court reporter.3

 Following the playing of the tape, Brockenbrough failed to 

move for a mistrial, make a proffer of the tape, or to seek any 

3

 The transcript recites the following: "Note: At this 

time, the tape is played, not reported by the court reporter per 

order of the Judge." 
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other relief from the trial court. Upon completing the 

examination of the witness, the Commonwealth attempted to 

introduce the tape into evidence. However, the court sustained 

Brockenbrough's objection to admitting the tape into evidence. 

Brockenbrough was found guilty of murder. 

II. IMPEACHMENT OF WITNESS

 We first consider whether the trial court erred in allowing 

the Commonwealth to impeach its own witness. Brockenbrough 

contends that the Commonwealth in its examination of Amanda 

Franks was improperly permitted to impeach its own witness at 

trial. We disagree. 

 A party's ability to impeach a witness it calls is limited 

by the provisions of Code § 8.01-403. Code § 8.01-403 provides: 

A party producing a witness shall not be 

allowed to impeach his credit by general 

evidence of bad character, but he may, in 

case the witness shall in the opinion of the 

court prove adverse, by leave of the court, 

prove that he has made at other times a 

statement inconsistent with his present 

testimony . . . . 

On the other hand, refreshing a witness' memory has long been 

permitted in Virginia. 

Though a witness can testify only to such 

facts as are within his own knowledge and 

recollection, yet he is permitted to refresh 

and assist his memory, by the use of a 

written instrument, memorandum or entry in a 

book, and may be compelled to do so if the 

writing is present in court. It does not 

seem to be necessary that the writing should 

have been made by the witness himself, nor 

that it should be an original writing, 
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provided, after inspecting it, he can speak 

to the facts from his own recollection. And 

it is not necessary that the writing thus 

used to refresh the memory, should itself be 

admissible in evidence. . . . 

The doctrine established by the authorities 

seems to be that if a witness, after looking 

at the paper to recall the facts, can speak 

from his own recollection of them, and not 

merely because they are stated or referred 

to in the paper, his evidence will be 

admissible, notwithstanding the manner in 

which his recollection was revived, and no 

matter when or by whom the paper was made, 

nor whether it be original, a copy, or an 

extract, nor whether referred to by the 

witness in court or elsewhere. 

Harrison v. Middleton, 52 Va. (11 Gratt.) 527, 544 (1854). 

 At trial, the Commonwealth called Brockenbrough's 

girlfriend, Amanda Franks, as a rebuttal witness. After 

establishing her relationship with Brockenbrough, the 

Commonwealth asked Franks if she recalled talking with an 

investigator. Brockenbrough objected that the Commonwealth was 

impermissibly attempting to impeach its witness. The 

Commonwealth then told Franks it wanted to refresh her 

recollection. The trial court ruled that the witness had not 

testified that she had forgotten anything. 

 Franks was then asked whether she remembered speaking with 

Investigator Williams and Detective Burt and making certain 

statements to them. She testified that she recalled talking 

with the officers, but did not recall making certain statements 

to them. When asked whether she remembered telling Investigator 
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Williams that on several occasions she watched Brockenbrough 

through her window going to the store, she answered that she did 

not recall or remember telling him that. The Commonwealth 

continued, asking her if she recalled telling Detective Burt 

that she watched Brockenbrough when he went to the store. She 

stated she recalled talking with Detective Burt, but not telling 

him she watched Brockenbrough out of her window. After several 

additional questions, including how often Brockenbrough stayed 

at her apartment, the Commonwealth requested a tape recorder to 

play the taped conversation between Franks and Detective Burt. 

Over Brockenbrough's objection that the Commonwealth was 

impeaching its witness, the trial court concluded the 

Commonwealth was not seeking to impeach Franks but was 

attempting to refresh her memory. The court further held that 

playing the tape was a permissible means to refresh the witness' 

recollection. 

 The trial court did not err in concluding that the 

Commonwealth was refreshing Franks' memory rather than 

impeaching her testimony. During her testimony, Franks was 

unable to recall details from her conversations with police 

investigators. 

Generally, when a witness has a memory lapse 

on the stand and "forget[s] some portion (or 

even all) of the facts of the matter about 

which [he or she is] called to testify," a 

party may attempt to "refresh" the witness's 

memory . . . . 
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McGann v. Commonwealth, 15 Va. App. 448, 451-52, 424 S.E.2d 706, 

709 (1992) (quoting Charles E. Friend, The Law of Evidence in 

Virginia § 18 (3d ed. 1988)). 

III. REFRESHING RECOLLECTION

 We next consider whether the trial court erred in 

permitting the Commonwealth to refresh Franks' memory by 

playing, in the presence of the jury, an audio-taped 

conversation between Franks and Detective Burt. Brockenbrough 

asserts that the trial court committed error by allowing the 

jury to hear the audiotape used to refresh Franks' memory. By 

failing to include either the tape or the contents of the tape 

in the record on appeal, we are unable to determine whether any 

error occurred. 

 Rule 5A:25(c) provides in pertinent part that the contents 

of the appendix shall include "any testimony and other incidents 

of the case germane to the question presented," Rule 

5A:25(c)(3), and "exhibits necessary for an understanding of the 

case that can reasonably be reproduced," Rule 5A:25(c)(6). 

Brockenbrough has an obligation to provide this Court with a 

proper record for appeal. Jenkins v. Winchester Dep't of Soc. 

Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991); see 

also Thrasher v. Burlage, 219 Va. 1007, 1009-10, 254 S.E.2d 64, 

66 (1979) (per curium); Lowery v. Commonwealth, 9 Va. App. 304, 

307-08, 387 S.E.2d 508, 509-10 (1990). He failed to do so. 
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 At trial, the court reporter did not transcribe the 

contents of the tape into the record pursuant to the trial 

judge's instructions. However, Brockenbrough did not seek to 

include for the record a transcript of the tape's content or the 

tape itself.4 In addition, at the conclusion of Franks' 

testimony, the Commonwealth sought to have the tape admitted 

into evidence. On Brockenbrough's objection, the trial court 

did not admit it. Again, Brockenbrough did not seek to include 

the tape or its contents in the record presented to us for 

review. Without a transcript of the tape's content in the 

record or the tape itself, we have no basis for determining 

whether the trial court committed error in permitting the tape 

to be played. See Jenkins, 12 Va. App. at 1185, 409 S.E.2d at 

20. 

 On our review of the record presented to us, including the 

testimony of an eyewitness who knew Brockenbrough, and 

Brockenbrough's inconsistent accounts of his whereabouts at the 

time of the crime, we conclude that the evidence was clearly 

 4

 At oral argument, Brockenbrough's attorney indicated that 

he was unaware that the tape had not been transcribed by the 

court reporter. However, the record does not reflect what 

efforts, if any, he made to have the tape made a part of the 

record for our review once he became aware that the transcript 

did not contain the contents of the tape. 
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sufficient to sustain the jury's finding of guilt of 

first-degree murder. 

 The judgment of the trial court is affirmed. 

 Affirmed.