McGann v. Com.

• Decision Date: 15 December 1992
• Docket Number: No. 1383-91-4,1383-91-4
• Citation: 424 S.E.2d 706,15 Va.App. 448
• Court: Virginia Court of Appeals
• Parties: Osbourne Clinton McGANN v. COMMONWEALTH of Virginia. Record

Page 706

424 S.E.2d 706

15 Va.App. 448

Osbourne Clinton McGANN v. COMMONWEALTH of Virginia.

Record No. 1383-91-4.

Court of Appeals of Virginia.

Dec. 15, 1992.

Marvin D. Miller, Alexandria, for appellant.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BARROW and WILLIS, JJ. KOONTZ, Chief Judge.

Osbourne Clinton McGann (McGann), appellant, was convicted by a jury of distribution of cocaine. On appeal, he contends that the trial court erred (1) in limiting his cross-examination of two police witnesses, and (2) in refusing to strike jurors who had previously heard a prosecution witness testify against a different defendant in an unrelated case. Finding no error, we affirm.

On June 29, 1990, Special Agent Jeffrey Zirkle of the Virginia State Police and Investigator James Printz of the City of Winchester Police Department met with Kathy Lewis (Lewis), a confidential informant. Lewis, who had been charged with several drug distribution offenses and was working for the police pursuant to a plea agreement, had worked with the officers on five other occasions.

On this occasion, the officers instructed Lewis to meet and purchase crack cocaine from McGann and gave her $700 for that purpose. After Special Agent Zirkle "patted down" Lewis, he and Investigator Printz proceeded to a surveillance location across the street from the location where Lewis would attempt to purchase the drugs; they observed the events and monitored Lewis' bodywire. Officer Miller of the City of Winchester Police Department drove Lewis near the location where she would make the purchase and placed a wire on her body. Lewis left the vehicle at 12:35 p.m. and walked to the designated location.

No one responded when Lewis knocked on the side porch door of the residence. When Lewis returned to the residence a few moments later, she saw McGann on the front porch. Lewis told McGann she wanted to purchase $700 worth of cocaine, but McGann said that he could only offer her $500 worth of cocaine. Once Lewis agreed to these terms, McGann went around to the side of the house and returned to the side porch twenty seconds later. He appeared to have something in his hand and was "messing around with his pants." McGann leaned down and placed an object under a bench on the side porch. When McGann "came back up, he didn't have anything in his hand." McGann returned to the front porch and told Lewis to place the money "in a little hole in a cushion" of a bench on the front porch, and then to get the drugs from the side porch. After Lewis placed the money in the cushion, she went to the side porch, "bent down under the bench where [McGann] had placed something, picked an object up and put it in her pocket, and left." At approximately 12:45 p.m., Lewis returned to Officer Miller's car and delivered the cocaine and $200 to him. Two minutes after Lewis left, McGann retrieved the money Lewis had placed in the cushion.

I.

McGann first contends that the trial court improperly limited his cross-examination of Officer Miller and Special Agent Zirkle.

Before cross-examining Officer Miller, defense counsel approached the bench and, out of the hearing of the jury, sought a ruling from the trial judge regarding the use of certain information for impeachment. Defense counsel told the trial judge that he had been informed that Officer Miller was under investigation by the police department and may have been demoted, but admitted that he did not have any documents or "anything specific" to support the allegations. The trial judge ruled that the information could not be used for impeachment. McGann alleges on appeal that he was improperly denied the right to question Officer Miller regarding a motive for bias.

We find that defense counsel's failure to proffer the expected testimony of Officer Miller bars our review of this issue. "When cross-examination is limited by the court and the accused challenges the court's ruling on appeal, he or she must make a proper proffer of the excluded testimony." Stewart v. Commonwealth, 10 Va.App. 563, 568, 394 S.E.2d 509, 512 (1990). The record shows that defense counsel did not make a proffer of the expected testimony of Officer Miller regarding his alleged investigation and demotion nor did the witness respond to questions posed by defense counsel outside the presence of the jury. Because the record does not contain the expected testimony of Officer Miller, we are unable to review the trial court's ruling. Thus, we can find no error.

McGann also contends that he should have been permitted to examine notes that Special Agent Zirkle reviewed the morning of trial before coming into court to testify. Although the exact nature of these notes is not entirely clear from the record, the trial judge referred to the notes defense counsel sought as materials from the case file. McGann asserts that the principle of "present recollection refreshed" entitles him to review and use in cross-examination the materials Special Agent Zirkle used to refresh his recollection prior to testifying. We disagree.

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 by having the witness examine materials relating to the matter for which they are testifying. Charles E. Friend, The Law of Evidence in Virginia § 18 (3d ed. 1988). One method of refreshing a witness's memory, commonly referred to as "present recollection refreshed," permits a witness who is unable to independently recall all of his testimony to examine "any material" and then "testify from independent memory, which has supposedly returned to him upon sight of the refreshing material." Id. at § 18(a) (emphasis in original). When a witness's recollection is refreshed in this manner, "the adverse party has the right to examine the material, to use it in cross-examining the witness, and to show it to the jury." Id.

Here, Special Agent Zirkle did not have a memory lapse while testifying. To the contrary, he was able to independently recall the facts of the incident and, therefore, it was unnecessary for the prosecutor to show Special Agent Zirkle materials in order to refresh his memory. Because Special Agent Zirkle testified from an independent recollection of the incident and did not refresh his memory while on the stand by examining any materials, the principle of "past recollection recorded" does not apply. ¹

Indeed, the majority of jurisdictions have held that materials used by a witness before coming into the courtroom to testify in order to refresh his or her memory are not available for inspection by the opposing party unless the court in its discretion orders otherwise. Annotation, Refreshment of Recollection By Use of Memoranda or Other Writings, 82 A.L.R.2d 473, 562 (1962). E.g., Kimbrough v. State, 219 So.2d 122, 124 (Fla.App.1969). Contra People v. Scott, 29 Ill.2d 97, 193 N.E.2d 814, 821-22 (1963) (finding "no substantial or logical difference" between refreshing memory prior to stepping into courtroom and refreshing memory while testifying in the courtroom). Moreover, as a practical matter, requiring a witness to remember, reveal, and produce all those documents which may have refreshed his or her recollection before testifying would not only be cumbersome, but also would discourage witnesses from reviewing records prior to trial to ensure the accuracy of their testimony. It is simply unrealistic to expect a police officer to testify competently and accurately without reviewing a casefile prior to the trial. Thus, we find no abuse of discretion in the trial court's refusal to order the production of these materials for defense counsel's inspection.

II.

McGann's second assignment of error alleges that he was denied an impartial jury because the trial court refused to strike jurors who had previously heard Lewis, the prosecution's chief witness, testify against a different defendant in an unrelated trial, Commonwealth v. Pink. ²

During voir dire, defense counsel asked the court to strike these jurors for cause, stating that Lewis' credibility was a "crucial issue in this case" and that it would be difficult for the jury to "weigh her credibility and testimony" given the fact that "they have seen her testify before." The trial court replied that "if they found her credible on the one occasion, that doesn't necessarily mean they will find her credible [on] another." The trial court instructed defense counsel to phrase the question: "So as to the fact that they have sat on a jury in which she was one of the witnesses, would that affect their [ability] to sit as fair and impartial jurors in this case." Defense counsel, after noting his objection, began asking a series of questions, without pausing for a response, until the judge finally interrupted and asked the jury: "Can you weigh her testimony the same as any other? Would you give her testimony any more weight because you have heard her testify before?" The record reflects that "[n]one of the jurors responded in the negative." The judge then noted, "All right. And there is no response from the alternate either." During the preliminary instructions before voir dire, the trial judge had instructed the jurors that "if any of you have a response to any questions, I would ask that you raise your right hand." At a post-trial hearing, the judge stated that when the jurors did not make any negative...