COURT OF APPEALS OF VIRGINIA Present: Judges Kelsey, McClanahan and Senior Judge Willis Argued at Chesapeake, Virginia
ALBERT LEE TYNES OPINION BY v. Record No. 0754-05-1 JUDGE D. ARTHUR KELSEY OCTOBER 17, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS David F. Pugh, Judge Robert C. Astor for appellant. Michael T. Judge, Senior Assistan t Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
On appeal, Albert Tynes argues that his c onvictions for robbery, abduction, and felonious use of a firearm should be vacated and the cas e retried because the trial court erroneously restricted his cross-examinati on of a prosecutio n witness. Finding Tynes’s proffers of the rejected testimony inadequate to demonstrate error, much less pr ejudicial error, we affirm.
I. At Tynes’s bench trial, the Co mmonwealth presented evidence that Tynes and two others robbed Quentin Matthews and Jeffrey Scott at g unpoint. In his cross-examination of Scott, Tynes’s counsel asked: “As you were walking with Mr. Matthews . . . just before this incident were you discussing with him your plans for the evening?” “We already knew what our plans was,” Scott answered. Counsel continued: “Y eah, but you were talking back and forth; were you not?” At that point, the prosecutor objected on relevanc e and hearsay grounds. The trial court sustained the objection and invi ted Tynes’s counsel to make a proffer for the record. Tynes’s counsel stated that he wa nted “to explore this line of questioning” and intended “to show through other evidence that [Scott] had gone down there, he had made- 2 - statements to others that he was going to ha ng for awhile, that he was going to get a cab home later and that he had a little bit on him.” This evidence, c ounsel suggested, would corroborate Tynes’s claim that the inci dent involved a disputed dr ug transaction, not a robbery. After hearing the proffer, the trial court stat ed counsel could “ask th e witness if he had any illegal contraband or substance on him at th e time that he was robbed.” Instead of asking this question, however, Tynes’s counsel s ought leave to ask whet her Scott found “drug paraphernalia” when he went “back to the scen e” after the alleged r obbery. The trial court refused that question, finding it irrelevant “what happened late r on after the alleged robbery, what may or may not have been found.” In response to this ruling, Tynes’s counse l proffered that “contraband was found among the personal effects and also f ound at the scene of the incident .” The trial court noted, “You have your objection on the record. Next question.” At that poi nt, counsel abandoned any further cross-examination of Scott with the stat ement, “I have no further questions.”
II. “Given the ‘broad discretion’ of a trial judge over evidentiary matters, we apply a deferential abuse-of-discretion standard of appellate review.” Seaton v. Commonwealth , 42 Va. App. 739, 752, 595 S.E.2d 9, 15 (2004) (citation om itted). The abuse-of-discretion standard, “if nothing else, means that the trial judge’s ‘r uling will not be reversed simply because an appellate court disagrees.’” Thomas v. Commonwealth , 44 Va. App. 741, 753, 607 S.E.2d 738, 743 (quoting Henry J. Friendly, Indiscretion About Discretion , 31 Emory L.J. 747, 754 (1982)), adopted upon reh’g en banc , 45 Va. App. 811, 613 S.E.2d 870 (2005). “Only when reasonable jurists could not differ can we say an a buse of discretion has occurred.” Id. When an appellant claims a trial court abus ed its discretion in excluding evidence, we cannot competently determine error — much less reversible error — without “a proper showing- 3 - of what that testimony would have be en.” 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 testimony,” and whether, even if admiss ible, its exclusion “prejudiced” the proffering party. Molina v. Commonwealth , 47 Va. App. 338, 368, 624 S.E.2d 83, 97 (2006) (citations omitted). We can perform this examination only when the proponent proffers the “testimony he expected to elicit,” Clagett v. Commonwealth , 252 Va. 79, 95, 472 S.E.2d 263, 272 (1996), rather than merely his theory of the case. 1 “The failure to proffer the expected testimony is fatal to his claim on appeal.” Molina , 47 Va. App. at 367-68, 624 S.E.2d at 97 (emphasis added). To be sure, even when “we are not to tally in the dark con cerning the nature of th e evidence,” we still must “know enough about the specifics” to be able to “say with assurance” that the lower court committed prejudicial error. Smith v. Hylton , 14 Va. App. 354, 358, 416 S.E.2d 712, 715 (1992). In this case, Tynes argues that the trial c ourt committed prejudicial error by disallowing two questions he wanted to as k Scott during cross-examination. 2 Because we cannot “speculate

1 This specificity principle

⎯ requiring the proffer to s how what the “testimony would have been”

⎯ has been a settled feature of appell ate practice in Virginia. Lockhart v. Commonwealth , 34 Va. App. 329, 340, 542 S.E.2d 1, 6 (2001) (citation omitted); see , e.g. , Brown v. Commonwealth , 246 Va. 460, 464-65, 437 S.E.2d 563, 565 (1993) (“substance of the anticipated testimony”); Barrett v. Commonwealth , 231 Va. 102, 108, 341 S.E.2d 190, 194 (1986) (“evidence sought to be in troduced”); Owens v. Commonwealth , 147 Va. 624, 631, 136 S.E. 765, 767 (1927) (“the answer of the witness”); Molina , 47 Va. App. at 364, 624 S.E.2d at 97 (“expected testimony”); Durant v. Commonwealth , 35 Va. App. 459, 462 & 466, 546 S.E.2d 216, 218 & 220 (2001) (“expected testimony”); Lockhart , 34 Va. App. at 340, 542 S.E.2d at 6 (“answers that [the witn ess] would have given”); Speller v. Commonwealth , 2 Va. App. 437, 440, 345 S.E.2d 542, 545 (1986) (“expected answer”).

2 In his appellate brief, Tynes also claims th e trial court violated th e Confrontation Clause of the Sixth Amendment. Because he did not raise this claim at trial, he cannot raise it for the first time on appeal. Rule 5A:18; see Juniper v. Commonwealth , 271 Va. 362, 387, 626 S.E.2d 383, 400 (2006) (holding that an asse rtion of a “due process violati on” in the trial court, without- 4 - what the answer might have been to these questions,” O’Dell v. Commonwealth , 234 Va. 672, 697, 364 S.E.2d 491, 505 (1988), we look solely to the pr offers made by Tynes in the trial court. (a) The Disallowed “Back and Forth” Question The first disallowed question asked Scott wh ether he and Matthews talked “back and forth” about their plans. Couns el never proffered what Scott’s likely response to this question would have been. Nor did counsel explain how a statement made in a conversation between Scott and Matthews (prior to the alleged robbery) would have survived the prosecutor’s relevance and hearsay objections. Instead, counsel said only that he wanted to “explore” the subject with Scott because “other evidence” w ould show Scott had “a little bit on him” and planned to participate in some so rt of a drug deal. In other word s, rather than disclosing what Scott’s “testimony would have been” on this subject, Lockhart v. Commonwealth , 34 Va. App. 329, 340, 542 S.E.2d 1, 6 (2001), counsel merely repeated his theory of the case. Consequently, we have no way of knowing wh ether Scott’s answer to the disallowed “back and forth” question would have been admissible

⎯ thus rendering its exclusion error. All the more, the inadequacy of Tynes’s proffer precludes us from knowing whether any such alleged error would be considered prejudi cial under harmless error principles. 3 What we do know is that the trial court permitted Scott to be asked whether “he had any illegal contraband or

more, does not preserve for appeal a “claim unde r the Sixth Amendment Confrontation Clause”); Riner v. Commonwealth , 268 Va. 296, 325 n.11, 601 S.E.2d 555, 572 n.11 (2004) (finding waiver where appellant failed to “mention the Si xth Amendment or the Confrontation Clause” at trial); Husske v. Commonwealth , 252 Va. 203, 213 n.*, 476 S.E.2d 920, 926 n.* (1996) (holding Confrontation Clause claim waived when not expressly asserted in trial court).

3 Code § 8.01-678 makes “harmless-error review required in all cases.” Ferguson v. Commonwealth , 240 Va. ix, ix, 396 S.E.2d 675, 675 (1990) (e mphasis in original and text in parenthetical to statutory citation); Walker v. Commonwealth , 144 Va. 648, 652, 131 S.E. 230, 231 (1926) (holding that the harmle ss error statute “puts a limitati on on the powers of this court to reverse the judgmen t of the trial court

⎯ a limitation which we must consider on every application for an appeal and on the heari ng of every case submitted to our judgment”).- 5 - substance on him at the time that he was robbe d.” Tynes’s counsel, however, never followed up with this question. (b) The “Drug Paraphernalia” Question The second disallowed question would have as ked Scott if he saw “drug paraphernalia” at the scene after the alleged r obbery incident. The trial court ruled that “what happened later” (after the robbery) was not releva nt. The court had already ruled Scott could be questioned about possessing drugs at the time of the robbery

⎯ but Tynes never asked that question. Instead, counsel relied solely on his general proffe r that “contraband was found among the personal effects and also found at the scene of the inci dent.” Counsel did not say Scott would have testified to this fact. Nor did counsel suggest how the disallowed ques tion (drug paraphernalia found by Scott after the alleged robb ery) would have elicited tes timony materially different from the allowed question (Scott’ s possession of drugs duri ng the alleged robbery). At oral argument on appeal, Tynes’s counsel added to hi s proffer by suggesting that Scott’s likely testimony w ould have been that Matthews possessed drug paraphernalia at the time of the robbery which fell to the ground during a fight over a disputed dr ug transaction. Counsel admitted he did not give this specific proffer at trial, but contended he could not do so because the trial judge abruptly “cut off” the discussion. The record, however, sugge sts only that the trial judge acknowledged the objection an d instructed counsel to ask th e next question. Because “the record does not reflect that any pro ffer was refused,” Kemph v. Commonwealth , 17 Va. App. 335, 342, 437 S.E.2d 210, 214 (1993), counsel was not re lieved of his obligation to make one.
III. In sum, Tynes failed to make an adequate proffer in support of the two questions disallowed by the trial court and failed to ask th e one question (equally cons istent with his theory of the case) specifically allowed by the trial court. For these reasons, Tynes has shown no basis- 6 - to support his assertion that th e trial court abused its discretion in maki ng these evidentiary rulings.

Affirmed.