                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia


RONNIE LEE
                                            MEMORANDUM OPINION * BY
v.   Record No. 2181-99-3               JUDGE RUDOLPH BUMGARDNER, III
                                                AUGUST 29, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                         James F. Ingram, Judge

             Elwood Earl Sanders, Jr., Appellate Defender
             (Public Defender Commission, on brief), for
             appellant.

             (Mark L. Earley, Attorney General; Amy L.
             Marshall, Assistant Attorney General, on
             brief), for appellee.


     The trial judge convicted Ronnie Lee of one count of driving

after having been adjudicated an habitual offender in violation of

Code § 46.2-357(B)(3).    On appeal, he contends the trial judge

erred in refusing to allow him to ask during cross-examination

whether race was a criterion in selecting a traffic checkpoint.

For the following reasons, we affirm the defendant's conviction.

                                  I.

     Field Training Officer Ricky Luck, of the Danville Police

Department, testified that on May 11, 1999 he was in charge of a

routine traffic checkpoint on the corner of Betts and Epps Streets

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
in the City of Danville.    In accordance with departmental policy,

the deputy chief of police approved the checkpoint plan as part of

the community-policing program.    All vehicles that came through

the checkpoint were stopped.    The defendant's car was stopped.

When an officer asked him if he had his license, the defendant

said he did not have one.

     During cross-examination, Officer Luck explained the criteria

for selecting a checkpoint.    They included:   (1) location within

the community-policing area; (2) the amount of traffic; (3) the

number of past arrests in the area based on community-policing

logs; (4) the physical proximity to an entrance to the

community-policing area; (5) the visibility of the checkpoint for

the motorists' and officers' safety, and (6) the width of the road

which enabled officers to pull vehicles off the road safely.

Defense counsel then asked Luck whether the housing development

near the checkpoint was predominantly black.     The Commonwealth

objected and asked, "What relevance does that have?"

     Defense counsel claimed that if race was a factor in

determining where to conduct the checkpoint, it adversely

affected the black community.     The trial judge noted that the

essence of public housing was a lack of racial bias, and because

the checkpoint was conducted on a public street, he believed

defense counsel was "injecting something into this, that's

improper."   The trial judge sustained the Commonwealth's



                                - 2 -
objection.    Defense counsel accepted the judge's ruling:      "All

right."

     On appeal, the defendant contends the trial judge

improperly limited his cross-examination of Officer Luck by

refusing to allow him to ask whether race was an additional

criterion used in establishing the checkpoint.      He argues the

police did not use neutral criteria to select the checkpoint,

and therefore, the results of the stop should be suppressed.

     The defendant's claim is procedurally barred.         First, the

defendant failed to file a motion to suppress the evidence in

accordance with Code § 19.2-266.2. 1     See Upchurch v.

Commonwealth, 31 Va. App. 48, 53, 521 S.E.2d 290, 292 (1999)

(statutory requirement that motion to suppress be timely filed

is mandatory and trial court did not abuse its discretion in

"finding lack of good cause for excusing" defendant's failure to

do so).    The defendant also failed to proffer the answer Officer

Luck would have given had the trial court permitted the

question.     See Spencer v. Commonwealth, 238 Va. 563, 570, 385

S.E.2d 850, 854 (1989) (where defendant claims court erroneously


     1
         Code § 19.2-266.2 provides that:

                  Defense motions or objections seeking
             (i) suppression of evidence on the grounds
             such evidence was obtained in violation of
             the . . . Constitution of the United States
             or . . . the Constitution of Virginia . . .
             shall be raised by motion or objection, in
             writing, before trial.


                                 - 3 -
limited cross-examination, record must contain proffer of both

questions to be asked and expected answers), cert. denied, 493

U.S. 1093 (1990).   Absent a proper proffer of the anticipated

evidence of the use of race as a criterion in selecting

checkpoints, "we are precluded from a consideration of this

issue on appeal."   Mostyn v. Commonwealth, 14 Va. App. 920, 924,

420 S.E.2d 519, 520 (1992) (citations omitted).   See Whittaker

v. Commonwealth, 217 Va. 966, 968-69, 234 S.E.2d 79, 81 (1977).

     In addition, the defendant is required to show the excluded

evidence was relevant and material to his case.   See Toro v.

City of Norfolk, 14 Va. App. 244, 254, 416 S.E.2d 29, 35 (1992).

The defendant did not file a motion to suppress or challenge the

constitutionality of the checkpoint.   He never raised the issue,

so the issue of race was collateral and immaterial to his case.

See Maynard v. Commonwealth, 11 Va. App. 437, 444, 399 S.E.2d

635, 640 (1990) (en banc) (cross-examination questions about

existence of probable cause are irrelevant to the issue of guilt

or innocence because defendant did not challenge the legality of

his arrest).   Cf. Stewart v. Commonwealth, 10 Va. App. 563, 568,

394 S.E.2d 509, 512 (1990) (no abuse of discretion where defense

counsel properly prevented from engaging in a fishing

expedition).

     Accordingly, we affirm the conviction.

                                                          Affirmed.



                               - 4 -
Benton, J., dissenting.

     The right to cross-examine prosecution witnesses is

"fundamental to the truth-finding process [and] is an absolute

right guaranteed to an accused by the confrontation clause of

the Sixth Amendment."     Barrett v. Commonwealth, 231 Va. 102,

108, 341 S.E.2d 190, 194 (1986).    "While it is true that the

trial [judge] may, in the exercise of discretion, limit

cross-examination of a witness within reasonable bounds, that

does not mean that in the exercise of such judicial discretion

[the trial judge] should exclude relevant evidence."     Hummel v.

Commonwealth, 217 Va. 548, 550, 231 S.E.2d 216, 217 (1977).

"Subject to such reasonable limitations as the trial [judge] may

impose, a party has an absolute right to cross-examine his

opponent's witness on a matter relevant to the case, which the

opponent has put in issue by direct examination of the witness."

Washington v. Commonwealth, 228 Va. 535, 549, 323 S.E.2d 577,

587 (1984).

     The issue of the criteria used to establish the roadblock

was relevant and was placed in issue by the prosecutor when he

presented testimony from Officer Ricky Luck concerning

"procedures mandated by departmental policies" for the

roadblock.    On cross-examination, Officer Luck testified that

"all of our [driver's license traffic] checks are located near

housing developments, or near the areas that we walk, and patrol

[as part of the community-policing program]."    Ronnie Lee's

                                 - 5 -
counsel was entitled to explore this and the other criteria used

to establish the roadblock.

     The following exchange occurred between Lee's counsel and

Officer Luck on cross-examination:

          [DEFENSE COUNSEL]: Well, do you run traffic
          checks . . . traffic count checks all over
          the city of Danville. . . .

          [OFFICER LUCK]:     Yes.

          [DEFENSE COUNSEL]: . . . or just in those
          areas?

          [OFFICER LUCK]: No. We go all over . . .
          community police . . . we only do them
          within our areas.

          [DEFENSE COUNSEL]:    Okay.

          [OFFICER LUCK]:     Patrol goes all over the
          city.

          [DEFENSE COUNSEL]: All right, so community
          police, if I understand it, only do it
          within the areas that you previously
          identified to me? Is that correct?

          [OFFICER LUCK]: Yes. But now, again, we go
          several blocks . . . we can go several
          blocks away from it. Now this is just a
          policy within community police.

          *      *      *        *       *     *         *

          [DEFENSE COUNSEL]: And that was the
          criteria that was used to draw . . . to have
          this stop?

          [OFFICER LUCK]:     Yes.

          [DEFENSE COUNSEL]: Now, the housing
          development that's over there near Betts and
          Epps Streets . . .

          [OFFICER LUCK]:     Uh-huh.

                                 - 6 -
          [DEFENSE COUNSEL]:   . . . it's predominantly
          black, isn't it?

          [PROSECUTOR]: Objection.     What relevance
          does that have?

     The record clearly establishes that Lee's counsel preserved

for the record his argument that his question was relevant and

that the area the police chose for the roadblock was

predominantly African-American.   After the prosecutor objected

as to the relevance of Lee's counsel's questions concerning the

racial composition of the housing development near the

checkpoint, the following colloquy occurred between Lee's

counsel and the trial judge:

          [DEFENSE COUNSEL]: It has good relevance.
          If the community police are picking things
          that have an adverse impact on the black
          community, then it has some relevance.

          [PROSECUTOR]:   No it doesn't.

          [DEFENSE COUNSEL]: And if they are choosing
          that as a criteria for where their stops are
          going to be made . . . that's it . . . and
          that's why I'm asking these questions.

          [PROSECUTOR]: I don't think . . . I don't
          think race has got anything to do with this
          case.

          [DEFENSE COUNSEL]: If they are choosing
          areas that are predominantly black, it does
          have something to do with it, because there
          are predominantly going to be black people
          in it.

          [PROSECUTOR]: Judge, he has testified they
          choose the areas where they patrol. I mean,
          that's got nothing to do with the racial
          composition of the areas they patrol.

                               - 7 -
[DEFENSE COUNSEL]: The areas that they
patrol have been identified . . . are those
areas that you identified, that are owned by
the Public Housing Authority . . . are those
predominantly . . . the occupants
predominantly black?

[PROSECUTOR]:   Objection.

 *      *       *      *     *      *      *

[DEFENSE COUNSEL]: I have to ask these
questions, as to the basis of it.

THE COURT: Well, I think you are . . . I
think you are entitled to ask him questions
about the thing . . . , but I don't think
that race is one of the issues to be
injected into this. If it's public streets,
and there are people of all races living in
these areas . . . I think you are out of
line on that.

[DEFENSE COUNSEL]: Well, Judge, that's to
be established. According to his testimony,
the areas that they are . . . that they are
set up in . . . community policing . . .
from what I understand, are things that are
owned by the Danville Redevelopment and
Housing Authority. Now again, I've been
away from Danville a long time, but the ones
that I know about . . . and this one I know
about, over there, I know what the
composition of it was, and I'm asking that
. . . if that's going to be a criteria, I
think that . . . that has got to be set out
here, and that ought to be set out here,
because as we are making a record, we have
to make the record full, and this Court
. . . and the Supreme Court of Virginia
. . . the Court of Appeals have looked at
these stops, and they . . . these stops have
. . . are subject to a greater
constitutional scrutiny, because of the way
they are done . . . .




                     - 8 -
          [JUDGE]: Well, the Redevelopment and
          Housing Authority is predicated on the thing
          that it's open to . . .

          [DEFENSE COUNSEL]:   Oh, I agree Judge . . .
          I . . .

          [JUDGE]: . . . people of all races, creeds
          and colors [counsel], so I mean I think you
          are attacking it on that, the every basis of
          the foundation of the thing is that there be
          no racial bias in that.

          [DEFENSE COUNSEL]:   I agree with . . .

          [JUDGE]: And we're talking about public
          streets. We don't know who is going to be
          coming down the street, using the public
          roads, so I think you are injecting
          something into this, that's improper.

          [DEFENSE COUNSEL]:   All right.

     Defense counsel's argument was sufficient to preserve for

appeal the issues of criteria for establishing the roadblock.

The trial judge simply did not want defense counsel to inquire

whether race was a factor in locating the roadblock.     Indeed,

the trial judge resisted defense counsel's best efforts to

establish any more of a record as to the actual racial

composition of the housing development, saying his efforts were

"improper."   In view of defense counsel's statements on the

record and the trial judge's admonition to defense counsel, I

would hold that Lee's counsel created an adequate record to

preserve the issue of the criteria for establishing the

roadblock and the issue of relevance.




                               - 9 -
     The trial judge should not have barred cross-examination to

prove this evidence because whether the neighborhood is or is

not predominantly African-American was relevant to the issue

whether the checkpoint was based on neutral criteria or had a

discriminatory impact.   The Commonwealth bears the burden of

proving that a "roadblock [has been] carried out pursuant to a

plan or practice which . . . contains neutral criteria."

Simmons v. Commonwealth, 238 Va. 200, 202-03, 380 S.E.2d 656,

658 (1989); see also Brown v. Commonwealth, 20 Va. App. 21, 25,

454 S.E.2d 758, 759 (1995).   Thus, the question of impermissible

criteria is germane not just to suppression of evidence but also

to whether the prosecution itself is lawful.

     "Selectivity in the enforcement of criminal laws is . . .

subject to constitutional constraints."     United States v.

Batchelder, 442 U.S. 114, 125 (1979).     Indeed, the Equal

Protection Clause of the Constitution prohibits selective

enforcement of the law based on considerations such as race.

See Arnold v. North Carolina, 376 U.S. 773, 774 (1964); Oyler v.

Boles, 368 U.S. 448, 456 (1962).   When, as in this case, the

neutrality of the criteria is at issue, the Equal Protection

Clause guarantees the defendant the right to inquire about the

use of race as an impermissible factor as a defense to the

prosecution.   See Turner v. Murray, 476 U.S. 28, 35-36 (1986);

Ham v. South Carolina, 409 U.S. 524, 529 (1973).     A conviction

cannot be based upon state activity that denies an accused equal

                              - 10 -
protection of the law.   See Brown v. Louisiana, 383 U.S. 131

(1966); Wright v. Georgia, 373 U.S. 284 (1963).

     For these reasons, I would hold that the trial judge erred

in limiting cross-examination on a relevant issue.   Accordingly,

I would reverse the conviction and remand for retrial,

permitting consideration of the evidence concerning racial

composition of the area adjacent to the checkpoint and the

criteria for placing the checkpoint.

     I dissent.




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