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. 
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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.