                     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.
                           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.
                               - 2 -
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.
                               - 3 -
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."

                                - 4 -
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,
                                - 5 -
           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

                               - 6 -
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 . . . .

                               - 7 -
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.


                                - 8 -
      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.
                               - 9 -
sufficient to sustain the jury's finding of guilt of

first-degree murder.

     The judgment of the trial court is affirmed.

                                                       Affirmed.




                             - 10 -
