                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia


HARRY JOSEPH McNAIR
                                            MEMORANDUM OPINION * BY
v.   Record No. 1238-00-2                JUDGE JERE M. H. WILLIS, JR.
                                                 JULY 31, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
                       James A. Luke, Judge

          Barbara G. Mason for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     On appeal from his bench trial conviction of operating a

motor vehicle while under the influence of alcohol, in violation

of Code § 18.2-266, Harry Joseph McNair contends that the trial

court abused its discretion in refusing to admit photographs of

his truck into evidence.    Because McNair's appeal is

procedurally barred by Rule 5A:18, we affirm.

                            I.   BACKGROUND

     On February 12, 2000, at approximately 3:00 a.m., Officer

Lloyd Ligon was following McNair's pickup truck when he noticed

"objects hanging from the rear view mirror."     Although a camper

shell with tinted windows covered the bed of the truck, Officer

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Ligon could see the dangling objects because the "lights from

[his] patrol car were shining through [McNair's] vehicle" and

because of the "lights from oncoming traffic and the street

lights."    As Officer Ligon followed, McNair "made a right hand

turn, crossing the center line."    Officer Ligon pulled him over.

     Officer Ligon noticed that McNair's eyes were bloodshot,

his speech was slurred, and he smelled strongly of alcohol.        He

was off balance when he walked.     Officer Ligon administered a

preliminary breath test and placed McNair under arrest for

driving while intoxicated.

     At trial, McNair sought to introduce six photographs, some

of which showed in the bed of the truck a "high back chair" or

"sofa," which obstructed the rear window.    Officer Ligon

testified that the chair could not have been present when he

pulled McNair over because he "could see the driver, the back of

his head.   The back of the seat.   The rear view mirror.    The

objects hanging down."

     McNair testified that he took four of the photographs at

night, using a flash, at a location different from where the

stop occurred.   He testified that he took the other two

photographs during the daytime.     He stated that he took some of

the photographs before his general district court trial and the

rest the morning before his trial in the trial court.

     The Commonwealth objected to the admission of the

photographs on the ground that they did not "fairly and

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accurately depict the truck on that night, nor [did] they

picture the scene."   The trial court refused to admit the

photographs into evidence, holding that

          [t]he photos taken with the flash, where the
          flash reflects off the glass making it act
          [as] a mirror, you see nothing beyond it.

               These taken in the daytime you can see
          through, but you can't -- you don't see the
          detail that the officer has described, and I
          don't know why you can't see the detail he
          described, except he saw it on entirely
          different circumstances then [sic] this.

McNair made no objection to this ruling, offered no

countervailing argument, and did not proffer the photographs for

the record.

                           II.    ANALYSIS

     Rule 5A:18 provides, in relevant part:

          [n]o ruling of the trial court . . . will be
          considered as a basis for reversal unless
          the objection was stated together with the
          grounds therefor at the time of the ruling,
          except for good cause shown or to enable the
          Court of Appeals to attain the ends of
          justice.

     Here, McNair made no objection to the trial court's

rejection of the photographs.    He did not dispute the trial

court's ruling.   He made to the trial court no argument setting

forth his position as to why the photographs, or any of them,

should be admissible.   Thus, he failed to preserve that issue

for appeal.




                                 - 3 -
     Moreover, McNair failed to proffer the photographs for the

record.   Being unable to view them, we cannot assess the trial

court's exercise of its discretion in rejecting them as

evidence.

     The record sets forth no reason for us to apply the "ends

of justice" exception to the application of Rule 5A:18.

     Accordingly, we affirm the judgment of the trial court.

                                                          Affirmed.




                               - 4 -
Benton, J., concurring.

     I believe the issue whether the trial judge erred in

refusing the photographic exhibits is not barred from review by

Rule 5A:18.    I agree, however, that the record on appeal is

insufficient for us to review the issue raised by McNair.

     McNair testified as follows on direct examination before

the prosecutor objected:

          Q: Why can't you see [the dangling object
          on the rear view mirror]?

          A: Because there's a black, high back chair
          that sits in my camper. It has been in my
          camper for over five years and it covers up
          the rear view mirror.

          Q:    Okay.

          A: Well, I mean the rear window.     It covers
          up majority of that rear window.

          Q: Okay. And you've even taken pictures of
          that in the daytime, correct --

          A:    Yes, I have.

          Q: -- the back of this Chevy.     I've shown
          these to you.

          A:    Yes, ma'am.

          Q: Does this reflect where that sofa is in
          your chair -- pickup truck on the morning
          that you were stopped?

          A:    Yes, it does.

          Q: And are you able to see your rear view
          mirror from that picture?

          A: I can see my side view, but not the rear
          view.




                                - 5 -
          Q: You can't see the rear view, you can
          only see the side view?

          A:   No, you can't.

          Q: And that's the condition that the truck
          was in on the morning it was stopped?

          A:   It simply had more junk in it.

          [Defense Attorney]: I'd like to offer those
          pictures into evidence, Your Honor.

          [Prosecutor]: We're going to object at this
          time, Your Honor. I'd like to voir dire the
          Defendant on the photos.

     On an extensive voir dire examination, the prosecutor

showed McNair the six photographs.       McNair testified about the

matter that each photograph depicted, and he identified when and

where he took the photographs.    After this testimony, the

prosecutor again objected to the admission of the photographs,

stating "They don't fairly and accurately depict the truck on

that night, nor do they picture the scene."      McNair's counsel

then questioned McNair further about the photographs.        After a

voir dire testimony that spanned seven pages of transcript, the

following occurred:

          [Defense Attorney]: Again, I move       to
          introduce these photos. It fairly       and
          accurately describes the condition      of the
          truck, at the time the vehicle was      stopped.

             The witness has testified that he changed
          nothing in it. He took the photos. He has
          -- the sofa was in there. And it's been in
          there for over five, six years and it's
          still in there.

          [Judge]: You took the photos with a
          Polaroid camera?

                                 - 6 -
             [Defendant McNair]:   Yes, sir, I did.

             [Judge]:    Using a flash?

             [Defendant McNair]:   At night I used a
             flash. At night.

             [Judge]: Thank you. The Court will not
             admit the photos; the photos of using a
             flash, which is obvious. The --

             [Defense Counsel]:    There are also photos
             without the flash.    Maybe I should ask.

                There are two photos in the -- in the
             daytime that the flash was not used on.

             [Judge]: No, I didn't see those.       Would you
             like to place them up here?

             I'll take a look at them.

              *      *        *      *        *      *      *

                The photos taken with the flash, where
             the flash reflects off the glass making it
             act a mirror, you see nothing beyond it.

                These taken in the daytime you can see
             through, but you can't -- you don't see the
             detail that the officer has described, and I
             don't know why you can't see the detail he
             described, except he saw it on entirely
             different circumstances then this.

             [Defense Attorney]:   Your Honor, I would
             submit that --

             [Judge]: I will not admit the photographs --

     The photographs were excluded upon the prosecutor's

objection.    After voir dire and a statement of purpose by

McNair's counsel, the trial judge ruled on the prosecutor's

objection.    Thus, Rule 5A:18 does not come into issue on

McNair's appeal from that ruling.         "The purpose of Rule 5A:18 is



                                   - 7 -
to allow the trial court to correct in the trial court any error

that is called to its attention."       Lee v. Lee, 12 Va. App. 512,

514, 404 S.E.2d 736, 737 (1991) (en banc).       As the above quoted

passages indicate, the trial judge had the issue before him and

ruled on it.   Thus, no risk of judicial inefficiency would arise

by our hearing the case.   Moreover, traditionally, when the

trial judge sustains an objection to the admissibility of

evidence, the proponent of the evidence was required to note an

exception to the ruling.    See State v. Cheek, 299 S.E.2d 633,

639 (N.C. 1983).    In Virginia, however, the legislature has

abolished the requirement to take formal exceptions to rulings

so that "[a]rguments made at trial via . . . oral argument

reduced to transcript . . . shall, unless expressly withdrawn or

waived, be deemed preserved therein for assertion on appeal."

Code § 8.01-384.

     The problem this case poses is not a lack of objection or

exception but, rather, the absence of the rejected exhibits in

the record.    "Photographs are generally admitted into evidence

for two purposes:   to illustrate a witness' testimony, and as an

'independent silent witness' of matters revealed by the

photograph."    Bailey v. Commonwealth, 259 Va. 723, 738, 529

S.E.2d 570, 579 (2000).    Thus, "a photograph which is verified

by the testimony of a witness as fairly representing what that

witness has observed is admissible in evidence."       Ferguson v.

Commonwealth, 212 Va. 745, 746, 187 S.E.2d 189, 190 (1972).      The

                                - 8 -
trial judge viewed the photographs at trial and concluded that

they either did not show the interior of the truck or did not

depict circumstances relevant to the testimony of the events.

     The Supreme Court "consistently [has] held that the

admission of photographs into evidence rests within the sound

discretion of a trial [judge]."     Bailey, 259 Va. at 738, 529

S.E.2d at 579.   In order for us to determine whether the judge

abused his discretion, we must view the photographs.       See Fields

v. State, 144 S.E.2d 339, 343 (Ga. 1965); Wood v. State, 512

N.E.2d 1094, 1097 (Ind. 1987).    In view of the judge's comments,

the significance of what the photographs might depict is not

readily apparent.   "It is simply impossible to determine the

effect of photographs without seeing them."       Fields, 144 S.E.2d

at 343.   When the judge sustained the objection and barred the

photographs, McNair's attorney should have offered them as

rejected exhibits to complete the record for review on appeal.

See Scott v. Commonwealth, 191 Va. 73, 78, 60 S.E.2d 14, 16

(1950).   See also Rule 5A:7(a)(3).      In the absence of the

rejected photographs in the record, we have no basis to conclude

that the trial judge abused his discretion in refusing to admit

the photographs.

     For these reasons, I concur in affirming the judgment.




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