COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Millette
Argued at Chesapeake, Virginia
AARON AHMAD ATKINS
MEMORANDUM OPINION* BY
v. Record No. 1372-07-1 JUDGE ROBERT J. HUMPHREYS
JULY 1, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William C. Andrews, Judge
Charles E. Haden for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(Robert F. McDonnell, Attorney General, on brief), for appellee.
Aaron Ahmad Atkins (“Atkins”) appeals his conviction for distribution of cocaine, in
violation of Code § 18.2-248. He argues that the trial court erred in refusing to permit him to
cross-examine his codefendant about his codefendant’s discussions with his attorney. For the
reasons that follow, we do not address his argument, as it is procedurally defaulted.
“It is well settled that when a party’s evidence has been 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.”
Smith v. Hylton, 14 Va. App. 354, 357-58, 416 S.E.2d 712, 715 (1992) (citing Whittaker v.
Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977)).
In this case, the following colloquy took place between Atkins’ counsel, Ernest Edwards,
the prosecutor, and the trial court:
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
[DEFENSE COUNSEL]: Now I take it-or was it true or not,
Mr. Edwards, that your attorney told
you what the penalty range was for
distribution of cocaine?
[PROSECUTOR]: Your Honor, I’m going to object. I
think this is irrelevant and improper in
this context.
[DEFENSE COUNSEL]: If it please the court, the response on
this is that this individual has made
statements that make allegations about
my client, Mr. Atkins. I think it’s very
important to see the size of what he
gained from the memorandum of plea
agreement, which the Commonwealth
has introduced as Commonwealth’s
Exhibit Number 6.
THE COURT: I’m going to sustain the objection. If
you want me to put the reason on the
record, we’ll take the jurors out.
[DEFENSE COUNSEL]: No, that’s okay. I’d rather not break up
the cross-examination.
Atkins did not proffer or avouch for the record what Edwards would have said had he
been allowed to answer the question. Furthermore, the trial court specifically asked Atkins’
counsel if he would like the trial court to excuse the jury in order to state more fully on the
record the reason for sustaining the objection. This would also have provided an opportunity for
Atkins to proffer the expected testimony he was seeking outside the presence of the jury.
Instead, counsel for Atkins responded, “No, that’s okay. I’d rather not break up the
cross-examination.” Therefore, per Atkins’ own request, the record is devoid of the reason
beyond the grounds stated by the prosecutor for why the trial court sustained the
Commonwealth’s objection. Atkins’ argument is therefore procedurally defaulted for this reason
as well. See Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 42-43, 645 S.E.2d
261, 270 (2007) (“In the specific context of the appellate review of a claim of abuse of
-2-
discretion, the appellant must provide a record” upon which an appellate court makes its
decisions.).
Accordingly, we do not address the merits of Atkins’ argument, and we affirm his
conviction.
Affirmed.
-3-