COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton , Judges Clements and Beales Argued at Richmond, Virginia

ROLAND WILLIAMS, JR. MEMORANDUM OPINION * BY v. Record No. 0901-05-2 J UDGE RANDOLPH A. BEALES MARCH 6, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG Pamela S. Baskervill, Judge Joseph R. Winston, Special Appellate Counsel (Office of the Appellate Defender, on briefs), for appellant. Virginia B. Theisen, Senior As sistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
A jury convicted Roland Will iams, Jr. (appellant) of arme d robbery, pursuant to Code § 18.2-58. On appeal, he contends that the trial cour t erred when it refused to allow a particular line of questioning during cross-examination of a Co mmonwealth’s witness. For the reasons stated below, we affirm his conviction.
I. BACKGROUND Appellant was charged with robbing a taxi ca b driver during the ear ly morning hours of December 20, 2003. One of the Commonwealth’s witnesses was Garrett Greer, who was with appellant that morning and in the cab at the time of the robbery. Before any of the witnesses testified, appellant made a motion in limine , asking the trial court to permit cross-examination of Greer regarding prior plea agreements that he ha d reached with prosecutors in other, unrelated

cases.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - Appellant’s counsel represented to the court that Greer had a “p rior history of testifying on behalf of the Commonwealth to work a case out while represen ted by counsel.” Counsel further explained: that [Greer’s] lawyer actually comm unicated the fact that he’s quite good at this because he has done this before. . . . [T]he fact and the reason that it’s relevant to bias in this case an d relevant to credibility in this case is because when the facts of the ca se unfold as I expect them to, it will be very clear that although his testimony is what it is today, that is not the ki nd of information that he gave when he first was interdicted by the police. . . . Th e point is that that is a pattern of willingness to work out charges by testifying for the Commonwealth. The Commonwealth objected to th is line of cross-examination, ar guing that “an un related crime would be highly prejudicial” and “clouds the issue.” The trial court found the “pattern evidence” th at appellant wanted to introduce through cross-examination of Greer would “end up trying so mething that becomes a peripheral issue that I think takes us away from what you’re trying to get at . . . and, s econdly, I do think it’s prejudicial.” The court explai ned that appellant was allowed to ask Greer about his prior convictions and about the plea agreement that he had with the Commonwealth for his testimony against appellant. The trial court then added, “I don’t think from what you’re telling me there is enough to establish that without unduly pr ejudicing other aspects of the case.” During the trial, Ulysses Butts, the taxi dr iver who was robbed, testified that he was dispatched in response to a telephone call requesti ng a taxi. He positively identified appellant as one of the men who got into his cab and also id entified appellant as the man who robbed him. Officer Jerome George testified th at he talked to appellant and Gr eer that morning, in the general area where the robbery occurred, but he did not take either man in to custody at that time. The officer then talked to the dispatcher for th e taxi company and got the telephone number from- 3 - which the call requesting a taxi was made. Wh en he called that telephone number, appellant answered the phone. Appellant admitted to O fficer George that he owned the cell phone. 1 Greer testified that appellant committed th e robbery. During cross-examination, Greer admitted he was “in and out of consciousness” an d not paying attention while he and appellant were in the taxi. He admitted that he was arrest ed as a co-conspirator in the robbery and that he had entered a guilty plea pursuant to an agreement with the Commonwealth on reduced charges. The details of the plea agreement were presente d to the jury. Greer also admitted that he “kn[e]w how things go” in negotiating deals with the Commonwealth. Appe llant’s counsel also asked Greer about inconsistencies between his prior written statem ent to the police and his trial testimony. Appellant testified that he saw Greer that ev ening, but claimed he never got into a taxi and did not commit a robbery. He also pres ented alibi evidence a nd evidence intended to impeach the credibility of Butts’s identification of him.
II. ANALYSIS In order to determine whether a trial court e rred in refusing to perm it a particular line of inquiry, this Court must find in the record a sufficient proffer of the excluded evidence. Owens v. Commonwealth , 147 Va. 624, 630, 136 S.E. 765, 767 (1927) (e xplaining that a proffer must be sufficient to determine whether the evidence wa s material or irrelevant ). As we explained recently: When an appellant claims a tria l court abused its discretion in excluding evidence, we cannot competently determine error -- much less reversible error -- wi thout “a proper showing of what that testimony would have been.” Holles v. Sunrise Terrace, Inc. , 257 Va. 131, 135, 509 S.E.2d 494, 497 (1999). Such a proffer allows us to examine both the “admissibility of the proposed

1 Appellant told the officer that he loaned his cell phone to someone else, but he did not identify the person to whom he allegedly loaned his phone. Appellant testif ied at trial that he used his cell phone frequently th at morning to talk to a woman.- 4 - testimony,” and whether, even if admissible, its exclusion “prejudiced” the proffering party. Molina v. Commonwealth , 47 Va. App. 338, 368, 624 S.E.2d 83, 97 (2006) (citations omitted). Tynes v. Commonwealth , 49 Va. App. 17, 21, 635 S.E.3d 688, 689-90 (2006). We find, from the record presented to us on a ppeal, appellant’s proffer to the trial court was inadequate to determine whether the trial court erred in refu sing to allow the cross-examination questions. A defendant does not have the right to ask a nything he desires in cross-examination, even if he believes the line of questioning may illustrate bi as or diminish the credibility of the witness. See, e.g. , Jackson v. Commonwealth , 266 Va. 423, 438, 587 S.E.2d 532, 543 (2003) (noting that a trial court can limit cross-examinati on of witnesses); Clark v. Commonwealth , 202 Va. 787, 790, 120 S.E.2d 270, 272 (1961) (holding that evidence of “specific acts of illegal and immoral conduct” were “properly excluded” although Clark argued the acts were relevant to the witness’ credibility); Maynard v. Commonwealth , 11 Va. App. 437, 444, 399 S.E.2d 635, 639 (1990) ( en banc ) (“A witness cannot be impeached by evidence of a collateral fact which is not relevant to the issues of the trial, even though to some exte nt it has a bearing on the issue of credibility.”). To find error, this Court must be able to determine whether the evidence was relevant, rather than peripheral, to issu es in the case. See Valentine v. Commonwealth , 28 Va. App. 239, 243-44, 503 S.E.2d 798, 800 (1998); Johnson v. Commonwealth , 2 Va. App. 598, 601, 347 S.E.2d 163, 165 (1986). The “bare bones” proffer he re does not provide sufficient information for this Court to determine if the line of que stioning would have been relevant to bias or credibility, as appellant alleges. When a trial court limits cross-examination, th e affected party must proffer the excluded testimony for the record on app eal. Stewart v. Commonwealth , 10 Va. App. 563, 568, 394 S.E.2d 509, 512 (1990). “The purpose for the proffe r ‘is to assure that the record will be complete.’ Lowery v. Commonwealth , 9 Va. App. 304, 308, 387 S.E.2d 508, 510 (1990).”- 5 - Evans v. Commonwealth , 39 Va. App. 229, 236, 572 S.E.2d 481, 484 (2002). Counsel’s statements regarding the purpose of the exclude d testimony are “not sufficient to proffer the substance of [the] testimony.” Id. The record here contains onl y counsel’s statement that Gr eer allegedly was “quite good” at working out plea agreements “because he has done this before.” This statement does not disclose the nature of the other cases in which Greer testified for the Commonwealth, the substance of the agreement(s) that were reached, the number of times Greer testified pursuant to plea agreements, or how long ago he testified fo r the Commonwealth. The proffer presented in the record does not suggest that Greer obtaine d any advantage under the earlier plea agreements when he testified against appellant in this case. 2 The proffer does not suggest that Greer lied when he testified for the Co mmonwealth in accordance with th e earlier plea agreements. The proffer does not suggest that Greer held any animos ity against appellant or bias in favor of the Commonwealth. Appellant did not ask to cross-examine Greer outside the jury’s presence to put into the record the answers to his questions. See id. (noting that a defendant can ask to conduct the cross-examination out of the presen ce of the jury to put the answer s into the record). Appellant did not proffer any expected answ ers to his questions. Given the dearth of information in the record, we cannot determine whether appellant’s line of inquiry may have established Greer’s bias or impeached his credibility. We cannot conclude, based on the proffer pr esented, that the excluded evidence was relevant to Greer’s credibility or bias, either in favor of the Commonwealth or against appellant. The excluded evidence, as described by the proffer, was so tangential to any relevant issue that

2 Greer’s plea agreement and reduced charges related to this robbery were presented to the jury in both direct an d cross-examination of Greer.- 6 - the trial court properly excluded it. See Hunt v. Commonwealth , 126 Va. 815, 822, 101 S.E. 896, 898 (1920) (“It is true that the general ru le is that a witness cannot be impeached by questions with regard to his pers onal conduct which is not relevant to the case on tr ial.”); see also Maynard , 11 Va. App. at 444, 399 S.E.2d at 639. In Burrows v. Commonwealth , 17 Va. App. 469, 438 S.E.2d 300 (1993), Burrows made a similar argument regarding prior plea agreements to the trial court. However, on appeal the argument involved a Brady v. Maryland , 373 U.S. 83 (1963), issue as the prosecutor failed to provided to the defense any information regarding the extensive criminal history of a prosecution witness. Burrows , 17 Va. App. at 472-73, 438 S.E.2d at 303. The Court in Burrows , therefore, did not address the question presented here, na mely, whether prior tes timony pursuant to plea agreements involving unrelated cases is relevant to a witness’ credibility. In addition, the record in Burrows contained a copy of the entire crim inal record of the witness, id. at 471-72, 438 S.E.2d at 302-03, and the Commonwealth conceded th e information was releva nt to the witness’ credibility, id. at 473 n.3, 438 S.E.2d at 303 n.3. This Court’s holding in Burrows provides no insight to the issue before us here. Finally, even without Greer’s testimony, the evidence was overwhelmingly against appellant. See Maynard , 11 Va. App. at 448-51, 399 S.E.2d at 641-43 (discussing constitutional analysis of harmless error and finding the evid ence against Maynard was so overwhelming that any error in excluding some cross-examination questions was harmless). Here, the victim positively identified appellant as the man who r obbed him. The call requesting the taxi came from appellant’s phone. The timing of appellant’s alibi testimony certainly did not exclude the possibility that appellant committed the robbery.- 7 - III. CONCLUSION Appellant did not provide a sufficient proffer for this Court to determine whether the trial court erred in refusing to permit the cross-ex amination of Greer rega rding his past plea agreements. Therefore, we affirm the conviction. Affirmed.