                     COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia


DAVID C. PETTY
                                            MEMORANDUM OPINION * BY
v.   Record No. 1648-01-3                 JUDGE ROSEMARIE ANNUNZIATA
                                              SEPTEMBER 24, 2002
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
                      George E. Honts, III, Judge

             Malcolm G. Crawford for appellant.

             Stephen R. McCullough, Assistant Attorney
             General (Jerry W. Kilgore, Attorney General,
             on brief), for appellee.


     A grand jury indicted David C. Petty for distributing

cocaine, in violation of Code § 18.2-248(C).      At trial, the

court refused to allow Petty to introduce expert testimony by a

police sergeant concerning proper narcotics investigation

procedures.     A jury found Petty guilty and the court sentenced

him to five years in prison, in accordance with the jury's

recommendation.     Petty appeals on the ground that the trial

court erroneously refused to admit his proffered expert

testimony.     For the reasons that follow, we affirm.




     *
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                Background

     On appeal, we review the evidence in the light most

favorable to the Commonwealth, the prevailing party below,

granting to it all reasonable inferences fairly deducible

therefrom.    Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,

407 S.E.2d 47, 48 (1991).   In October 2000, Special Agent Robert

P. Chappell, of the Virginia State Police, began investigating

drug use in the Goshen area of Rockbridge County.   Karen

Strickler assisted the police in its investigation by making

controlled buys of drugs.

     On November 2, 2000, the police had planned for Strickler

to make a controlled buy of "crank," or methamphetamine, from

Allen Petty, the defendant's brother.   Before permitting

Strickler to assist with the investigation, Chappell performed a

background check on Strickler, searched her person, and had

Special Agent Glenn Thompson search her car.    Chappell searched

Strickler's pockets, felt around her socks, and had her pull her

shirt tight.   He used the back of his hand to detect any hidden

substances.    Thompson performed a "thorough" search of

Strickler's vehicle.   They subsequently provided Stickler with a

tape recorder and gave her $100 to make the purchase, the going

rate for a gram of methamphetamine.

     On November 2, they followed Strickler's car and observed

the transaction from approximately one hundred yards away.

Strickler parked her car in Petty's driveway.   She disappeared
                               - 2 -
from sight for a "few seconds" as she walked to the door of the

residence.    When no one answered her knock, she returned to her

car.   David Petty approached her while she was in her car.     She

asked him if he had any "crank," and he said "yeah."     He sold

her what he claimed was a gram for $100.    Strickler was unable

to record the conversation with Petty because she could not

start the tape recorder in time.    Strickler's car remained in

the officers' view the entire time.     Chappell and Thompson

monitored the transaction with binoculars.

       After Strickler completed the buy, the police followed her

to a secluded location and again searched her person and her

vehicle.   She handed them a small bag containing white powder,

which proved to be half a gram of crank.

       The defendant vigorously questioned Chappell on

cross-examination concerning the meticulousness of his search of

Strickler.    In addition, he cross-examined Chappell as to

whether he employed proper police procedures in permitting

Strickler to assist with the controlled buy, in searching her

before the buy, and with respect to other policies regarding a

controlled buy.

             [Defense Counsel]: So, you have no written
             policy, or guidelines, just a case by case basis
             whether or not you opt to work with somebody?

             [Officer Chappell]: It’s a case by case basis,
             there are some parameters, for example, I can’t



                                - 3 -
          work someone who is on probation. So there are
          some guidelines set by the Court, for example.

                 *       *       *        *       *       *       *

          [Defense Counsel]: [If I] called you up and said
          I want to work for the drug task force, and you
          were to ask me are you using drugs and I say no,
          that's the extent of your investigation, correct?

          [Officer Chappell]: Well, I met with her, it's
          not just a telephone call, but I met with her.

                 *       *       *        *       *       *       *

          [Defense Counsel]: [W]hen searching a female,
          isn't it policy to have females search females?

          [Officer Chappell]:         Show me the policy.

          [Defense Counsel]:         There's no such policy?

          [Officer Chappell]:         There was no female
          available.

             *       *       *        *       *       *       *

          [Defense Counsel]: In your opinion, Special
          Agent Chappell, when an informant leaves your
          line of sight, is that still a controlled
          situation?

          [Officer Chappell]:         Controlled as best as
          possible. . . .

On re-direct, the Commonwealth also addressed this issue:

          [Commonwealth's Attorney]: And, and there was
          questions [sic] about whether there's policies,
          is there any written state police policy other
          than strip searches that would deal with
          informants or anything like that?

          [Officer Chappell]: I've reviewed the state
          police manual, and the Bureau of Criminal
          Investigations manual, and I, I'm unaware of
          . . .


                                     - 4 -
          [Commonwealth's Attorney]: So, as far as you
          knew, everything you were doing on this occasion
          was appropriate and proper?

          [Officer Chappell]:    As far as I know, yes.

     After the Commonwealth rested, Petty sought to introduce

expert testimony from Sergeant Dennis Patrick O'Toole of the

Anne Arundel County Police Department in Maryland.   The

defendant proffered:

          It is our submission that [Chappell] has not
          followed established procedures. Since Officer
          Chappell has stated that specialized training is
          needed to conduct a proper narcotics
          investigation, there's no way that a lay person
          can rebut that. The only way that can be
          rebutted is by expert testimony. And as for the
          patdown, laymen do not know what is required for
          a patdown.

                *      *    *           *   *   *     *

          [E]ssentially you had Officer Ragland and Officer
          Chappell testify in an expert capacity that we've
          done everything right, no, there are no
          guidelines, and well, maybe we should have done
          this and maybe we should have done that, Your
          Honor, there is no way for us to rebut that but
          for expert testimony, to say that there are
          guidelines and there are ways that this should be
          done.

The trial court ruled that the testimony should be excluded,

stating as follows:

          I'm holding the evidence here in my hand, and it,
          I don't think it takes an expert to tell us that
          this could be secreted in the cleavage of a
          woman's breast or in her bra, or in a body
          cavity, or in her underpants, and the soles of
          her shoe . . . . That's just common practical
          sense.


                                - 5 -
Because we find the issue Petty raises on appeal is procedurally

defaulted, we affirm the conviction.

     "When . . . an objection is sustained and a party's

evidence is ruled inadmissible . . . the party must proffer or

avouch the evidence for the record in order to preserve the

ruling for appeal; otherwise, the appellate court has no basis

to decide whether the evidence was admissible."    Lockhart v.

Commonwealth, 34 Va. App. 329, 340, 542 S.E.2d 1, 6 (2001)

(internal quotation and citation omitted).    The party must

proffer "the [witness'] expected response[s] . . . [or] any

other evidence from other sources that, if believed, would

[assist] the fact finder . . . ."     Id.; see also Whittaker v.

Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81 (1977)

(holding that "it [is] incumbent upon the defendant to make the

record show the expected answer [to a question]").

     In the instant case, Petty did not proffer the expert

witness' expected responses to questions about police procedures

and guidelines, except in a general and conclusory way.    Counsel

failed to state specific testimony regarding what constitutes

proper police procedures and guidelines, in the witness'

opinion.   Without a proper proffer, we are unable to perform an

analysis to determine whether any error was harmless, assuming

the trial court erred in excluding the witness' testimony.     See

Lacks v. Commonwealth, 182 Va. 318, 325, 28 S.E.2d 713, 716

(1944); Crawford v. Commonwealth, 22 Va. App. 663, 669, 472

                              - 6 -
S.E.2d 658, 661 (1996); Lowery v. Commonwealth, 9 Va. App. 304,

307, 387 S.E.2d 508, 510 (1990).    We find that, since the record

is silent as to the content of the excluded testimony, Petty's

claim is barred procedurally.    We, therefore, affirm his

conviction.

                                                               Affirmed.




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