                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and Haley
Argued by teleconference


LORENA MARISOL ESCALANTE
                                                             MEMORANDUM OPINION ∗ BY
v.     Record No. 1051-09-4                                  JUDGE JAMES W. HALEY, JR.
                                                                  AUGUST 17, 2010
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                               Mary Grace O’Brien, Judge

                 (Mufeed W. Said; Mufeed W. Said, P.L.L.C., on brief), for
                 appellant.

                 Alice T. Armstrong, Assistant Attorney General II (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


                                        I. INTRODUCTION

       Appealing her conviction for perjury in violation of Code § 18.2-434, Lorena Marisol

Escalante argues the trial court erred in precluding her from questioning two police officers,

another witness, and herself concerning the potential bias of the two officers. We hold Escalante

failed to sufficiently proffer how the two officers would have testified. We also hold the

challenges to the exclusion of testimony from Escalante and the other witness barred by Rule

5A:12(c). Accordingly, we affirm.

                                        II. BACKGROUND

       Given the issues in dispute and our disposition of this case, the relevant facts may be

succinctly stated.




       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        A grand jury indicted Escalante for perjury arising from testimony she gave in the

criminal case of another defendant on March 19, 2008. A jury trial was held on January 21,

2009.

        During cross-examination of Police Officer Andrew Shumate, defense counsel asked

whether Shumate had become frustrated that Escalante’s son had been acquitted of a disorderly

conduct charge on May 5, 2008. The following dialogue occurred:

                  [DEFENSE COUNSEL]: Frustrated about that a little bit again
                  based on his behavior toward you and the police department?

                  [SHUMATE]: Was I?

                  [PROSECUTOR]: Objection, irrelevant.

                  THE COURT: Sustained.

                  [DEFENSE COUNSEL]: If I may respond, please?

                  THE COURT: Sure.

                  [DEFENSE COUNSEL]: Your Honor, it goes to bias. Part of my
                  argument is that one of the reasons that this charge was brought
                  against my client is because of the frustration with the police
                  department with her son.

        When the court continued to sustain the objection, defense counsel requested and

received permission to make a proffer. Counsel stated: “My follow up questions to him are

going to confirm that he talked to Officer Porter after the May 5 hearing. In fact, the warrant of

arrest brought against Lorena Escalante was brought two days after the hearing date on May 5.” 1

Counsel later continued: “Your Honor, it goes to his basis for having talked to Officer Porter

and the discussions they had between them.”

        During cross-examination of First Sergeant Michael Porter, defense counsel attempted to

inquire about contacts Porter had with Shumate. The following took place:


        1
            Porter obtained a warrant for Escalante’s arrest for perjury on May 7, 2008.

                                                 -2-
                [DEFENSE COUNSEL]: In fact, do you recall [Shumate]
                complaining to you, saying that [Escalante’s son] was a problem?

                [PROSECUTOR]: Objection, relevance.

                THE COURT: How is that relevant . . .?

                [DEFENSE COUNSEL]: Your Honor, again it goes to my
                position that my client was charged arising out of this because of
                her son’s behavior.

        The Court sustained the objection. Counsel then made the following proffer:

                My proffer would be this -- and frankly I think that the Court
                actually has some additional information based on what you’ve
                heard from a witness earlier about what Officer Shumate said to
                one of the other witnesses there.

                        They consider [Escalante’s son] to be a big problem. He
                got off and literally two days after the fact . . . the warrants were
                obtained for . . . his mother and not against [another defendant]
                who Officer Porter alleges perjured himself at the hearing on
                March 19.

                        It is because my client is being -- the argument I can make
                to the jury is my client is being prosecuted because of their
                frustrations with . . . her son.

                        I will also tell the Court this. I think some of our evidence
                is going to indicate that when she was arrested, Officer Shumate
                and Officer Harris said she was being charged because of her son
                that was causing all kinds of problems, or something along those
                lines.

        During the defense case, defense counsel recalled Michelle Surdam as Escalante’s own

witness who had testified for the Commonwealth. Counsel sought to question her concerning a

conversation she had with Shumate outside the courtroom after Shumate testified, where

Shumate stated he disliked Escalante’s family and said Escalante “is here because of” her son.

However, upon objection, the court excluded the testimony, finding it not relevant and

potentially distracting to the jury.




                                                 -3-
       When Escalante testified, her counsel sought to question her about what Shumate said

when he arrested her. However, the court sustained a hearsay objection.

       The jury convicted Escalante, and she now appeals.

                                          III. ANALYSIS

                               A. Testimony of Shumate and Porter

       The Commonwealth maintains Escalante failed to proffer how Shumate and Porter would

have testified at trial and so has not preserved her objections for appeal. We agree.

       Where a trial court sustains an objection to testimony, a party must provide a proper

proffer to preserve the issue of the excluded testimony for appeal. Whittaker v. Commonwealth,

217 Va. 966, 968, 234 S.E.2d 79, 81 (1977). Proffers may come by an unchallenged assertion of

counsel, a mutual stipulation of the parties, or testimony outside the presence of the jury. Id. at

969, 234 S.E.2d at 81.

       A proffer allows an appellate court to determine whether the exclusion of testimony

prejudiced a party. Graham v. Cook, 278 Va. 233, 249, 682 S.E.2d 535, 544 (2009). In this

regard, the proffer provides a complete record for review. Wyche v. Commonwealth, 218 Va.

839, 843, 241 S.E.2d 772, 775 (1978). “Absent a proffer showing ‘harm was done,’ we are

‘forbidden to consider the question.’” Ray v. Commonwealth, 55 Va. App. 647, 650, 688 S.E.2d

879, 881 (2010) (quoting Scott v. Commonwealth, 191 Va. 73, 78-79, 60 S.E.2d 14, 16 (1950)).

An appropriate proffer includes the witness’ “expected answer.” Owens v. Commonwealth, 147

Va. 624, 630, 136 S.E. 765, 767 (1927). It gives a record of “what the testimony would have

been.” Holles v. Sunrise Terrace, Inc., 257 Va. 131, 135, 509 S.E.2d 494, 497 (1999). It is not

sufficient that a party proffer “merely his theory of the case” rather than the substance of the

excluded testimony. Tynes v. Commonwealth, 49 Va. App. 17, 21, 635 S.E.2d 688, 690 (2006).




                                                -4-
       The requirement of a proffer applies to testimony excluded on cross-examination. King

v. Cooley, 274 Va. 374, 380, 650 S.E.2d 523, 527 (2007). While leading questions may suggest

an answer, they do not suffice as a proffer. Cf. Norfolk & W. Ry. Co. v. Arrington, 131 Va. 564,

568, 109 S.E. 303, 305 (1921) (explaining that “[i]t is, however, not fair, even upon cross-

examination, for attorneys to assume that a witness has made a statement which he has not made,

and such a practice should be firmly restrained by the trial courts”). This Court will not

“‘speculate what the answer might have been.’” Tynes, 49 Va. App. at 22, 635 S.E.2d at 690

(quoting O’Dell v. Commonwealth, 234 Va. 672, 697, 364 S.E.2d 491, 505 (1988)). “To be

sure, even when ‘we are not totally in the dark concerning the nature of the evidence,’ we still

must ‘know enough about the specifics’ to be able to ‘say with assurance’” that error occurred.

Id. (quoting Smith v. Hylton, 14 Va. App. 354, 358, 416 S.E.2d 712, 715 (1992)). If a party does

not know how a witness would answer so as to simply state what the answer would have been to

the court, the party should take the testimony outside the presence of the jury. Whittaker, 217

Va. at 969, 234 S.E.2d at 81. A proffer from testimony outside the presence of the jury has

understandably been described as preferable since it provides the most clear, complete record.

See id.; see also Brown v. Commonwealth, 246 Va. 460, 465, 437 S.E.2d 563, 565 (1993).

       The case of Kearney v. Commonwealth, 36 Va. App. 106, 549 S.E.2d 1 (2001) (en banc),

clearly demonstrates how a party must proffer nothing less than a witness’ expected testimony.

A jury convicted the defendant of murder by shooting a person. Id. at 107, 549 S.E.2d at 1.

During testimony from the defendant in the sentencing phase, defense counsel asked: “On the

day of the shooting, were you at all aware that people were going to pull out guns and start

shooting?” Id. at 108, 549 S.E.2d at 2. The prosecution objected, and the trial court sustained

the objection. Id. The defendant did not proffer his testimony. Id. On appeal, the defendant

admitted he failed to make a proffer, but argued a proffer was unnecessary given the obvious


                                               -5-
answer. Id. at 109, 549 S.E.2d at 2. This Court disagreed, finding a proffer absolutely

necessary. Id.

       In this case, Escalante did not provide an appropriate proffer for the excluded testimony

of Shumate or Porter. When the court refused to allow Escalante to ask Shumate whether he was

frustrated, Escalante only stated the question tended to establish bias as the reason the perjury

charge was brought and that Shumate spoke with Porter shortly before Escalante was charged

with perjury. Escalante did not proffer an answer to the question of how Shumate would respond

to the question about his frustration. When the court did not permit Escalante to inquire of Porter

whether Shumate complained to him about Escalante’s son, the purported proffer was the

defense theory of the case. Counsel told the court that “my client is being prosecuted because of

their frustrations with” her son. While counsel also stated that the police thought the son was “a

big problem,” this was not a proffer of how Porter would respond to the question, but rather part

of an explanation of the defense theory. 2 It did not indicate Shumate expressed these views to

Porter. Furthermore, although counsel mentioned other evidence would show Shumate said the

son was troublesome, this did not indicate Shumate stated this to Porter. The defense provided

no proffer of how Porter would testify. If Shumate would have testified he was not frustrated,

appellant’s argument of bias would fail. Accordingly, the challenges to the excluded testimony

of Shumate and Porter were not preserved for appeal.

                             B. Testimony of Surdam and Escalante

       The Commonwealth argues Escalante failed to include the testimony of Surdam and

herself in her question presented. We agree.




       2
          Escalante’s brief agrees with this description of the significance of counsel’s statement
that the police thought the son was “a big problem.” The brief states this represented one of
several reasons the question should have been allowed.

                                                -6-
       Under Rule 5A:12(c), this Court will only consider errors assigned in questions

presented. See Painter v. Commonwealth, 47 Va. App. 225, 235-36, 623 S.E.2d 408, 413

(2005). Nonetheless, we may not invoke this rule to prevent consideration of an appeal “without

considering whether a party’s failure to adhere strictly to the rule’s requirements is insignificant,

or so substantial as to preclude the court’s addressing the merits of the case.” Moore v.

Commonwealth, 276 Va. 747, 753, 668 S.E.2d 150, 154 (2008).

       Escalante’s question presented asks: “Whether the Court erred by not allowing defense

counsel to cross-examine Commonwealth’s witnesses concerning their bias in the case?”

       The testimony of Escalante, the defendant, was obviously not from a Commonwealth

witness, nor did it involve cross-examination by defense counsel. We conclude this failure to

argue under the question presented is significant and operates as a waiver of the contention. See

id. at 754, 668 S.E.2d at 154.

       The excluded testimony of Surdam came when the defense recalled her after she testified

for the Commonwealth. The recall made Surdam a defense witness on direct examination. See

Smith v. Stanley, 114 Va. 117, 122, 75 S.E. 742, 744 (1912); Charles E. Friend, The Law of

Evidence in Virginia § 3-9 (5th ed. 1999). Although Surdam came to court at the request of the

Commonwealth, our review of the record indicates the testimony defense counsel sought to elicit

fell outside the scope of direct examination during Surdam’s initial testimony for the

Commonwealth. This means defense counsel could not have gained the information from cross-

examination instead of recalling her. Furthermore, the Commonwealth has not conceded the

Rule 5A:12(c) issue, but instead seeks its enforcement, which represents an important concern.

See Moore, 276 Va. at 756, 668 S.E.2d at 155; see also Carroll v. Commonwealth, 54 Va. App.

730, 740, 682 S.E.2d 92, 97 (2009). Under these circumstances, we conclude Escalante has




                                                -7-
significantly failed to comply with the rule and has waived this issue. See Moore, 276 Va. at

754, 668 S.E.2d at 154.

       For the foregoing reasons, the judgment of the trial court is affirmed.

                                                                                       Affirmed.




                                               -8-
