dissenting.
I.
I respectfully dissent.
II.
“‘[T]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.’ ” Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986) (quoting Davis v. Alaska, *84415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974)). Here, the trial court denied Cortez-Hernandez any opportunity to cross-examine a key Commonwealth witness on the material issue of whether he was the unprovoked perpetrator of murder.
The Commonwealth concedes the error. Appellee Br. at 13. Cortez-Hernandez objected to the denial of re-cross-examination before the trial court, which understood and ruled on the objection. Nonetheless, the majority holds that because Cortez-Hernandez failed to proffer proposed cross-examination questions, the evidentiary dimension of this error was waived pursuant to Rule 5A:18. The majority also narrowly interprets Cortez-Hernandez’s second objection, made during the bench conference, to find he never raised any constitutional issue before the trial court. I believe that the constitutional basis of appellant’s error was preserved and that the trial court’s improper constriction of Cortez-Hernandez’s right to cross-examination was not harmless beyond a reasonable doubt.
Moreover, even assuming arguendo the constitutional component of appellant’s argument was not properly preserved for appellate review, I believe the trial court’s error remains reversible pursuant to Code § 8.01-678. Thus, I respectfully dissent.
I concur with the majority that the trial court correctly denied appellant’s proposed jury instructions on excusable self-defense and voluntary manslaughter, upon the record before us.
III. Sixth Amendment Right to Confrontation
The Confrontation Clause of the Sixth Amendment “ ‘ “guarantees an opportunity for effective cross-examination,” ’ ” Crump v. Commonwealth, 20 Va.App. 609, 612-13, 460 S.E.2d 238, 239 (1995) (quoting Nichols v. Commonwealth, 6 Va.App. 426, 429, 369 S.E.2d 218, 220 (1988) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985))), because it is “fundamental to the truth-finding process,” Shanklin v. Commonwealth, 222 Va. 862, *85864, 284 S.E.2d 611, 612 (1981) (citing Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977)). Indeed it is the primary means by which the credibility and trustworthiness of a witness is tested. Davis, 415 U.S. at 316, 94 S.Ct. at 1109-10. Accordingly, it “is only after the right of cross-examination has been substantially and fairly exercised that the allowance of further cross-examination becomes discretionary with the court.” Moore v. Commonwealth, 202 Va. 667, 669-70, 119 S.E.2d 324, 327 (1961) (emphasis added); United States v. Jordan, 466 F.2d 99, 105 (4th Cir.1972); see also Brown v. Commonwealth, 246 Va. 460, 463-64, 437 S.E.2d 563, 564-65 (1993) (finding the right to cross-examination, “when not abused, is absolute”). “ ‘Complete foreclosure of cross-examination as to a subject matter relevant to the witness’s credibility, which may have deprived the jury of access to information bearing upon the trustworthiness of crucial testimony, cannot be treated as falling within the trial court’s discretion.’” Jordan, 466 F.2d at 105 (alterations omitted) (quoting United States v. Kartman, 417 F.2d 893, 897 (9th Cir.1969)).
“The principles underlying the right of cross-examination apply with equal strength to recross-examination when new matter is brought out on redirect.” United States v. Riggi, 951 F.2d 1368, 1376 (3d Cir.1991) (emphasis added); see also Atlantic & D. Ry. v. Rieger, 95 Va. 418, 424, 28 S.E. 590, 592 (1897) (where new matter is brought out on redirect, “an opportunity ought to be given to the opposite party to interrogate the witness as to the new matter”); Charles E. Friend, The Law of Evidence in Virginia § 3-14, at 99 (5th ed.1999); 20 Michie’s Jurisprudence, Witnesses § 47, p. 701 (2004). In such a case “‘the defendant’s first opportunity to test the truthfulness, accuracy, and completeness of that testimony is on recross examination.’ ” Riggi, 951 F.2d at 1376 (quoting United States v. Caudle, 606 F.2d 451, 458 (4th Cir.1979)). In other words, the “recross is to redirect as cross-examination is to direct. To allow redirect examination on new material but deny recross on the same material is to violate both the Confrontation Clause and fundamental principles of fairness.” *86Id. at 1375; see also United States v. Jones, 982 F.2d 380 (9th Cir.1992); United States v. Morris, 485 F.2d 1385 (5th Cir.1973).
Here, the majority finds Cortez-Hernandez failed to preserve his constitutional argument because he “never mentioned the Sixth Amendment.” I believe that by doing so, the majority does not appreciate the constitutional magnitude of counsel’s arguments, set forth in both open court and in the bench conference. In its analysis, the majority subordinates substance to form contrary to the longstanding policy of this Court. See, e.g., Irvine v. Carr, 163 Va. 662, 668, 177 S.E. 208, 210 (1934) (“it has been the policy of this court for many years, and is still, to subordinate form to substance, and not to allow the substantial rights of parties to be taken away for the sake of adherence to any forms of procedure not essential to the orderly conduct of judicial proceeding” (emphasis added)). In applying Rule 5A:18 to this case, my analysis is guided by the substance of Cortez-Hernandez’s objections, not their form.
Counsel’s mutual understanding of the trial court’s prior ruling on Cortez-Hernandez’s scope objection cannot be ignored when considering whether she adequately raised the constitutional dimension of her cross-examination argument to the trial court. Appellant’s counsel objected, “This exceeds the scope,” when the prosecution started to broach new material on re-direct examination of Hermenjildo Rivera. The prosecution met appellant’s objection with an offer to “relieve [the witness] and re-call him back.” The trial court denied the objection without comment, but both parties interpreted the court’s adverse ruling as permission for the Commonwealth to informally recall the testifying witness. To be sure, the Commonwealth takes the position on appeal that the trial court did not err in permitting “the prosecutor to recall the witness.” Appellee Br. at 11. With this mutual understanding, the prosecution continued to ask Rivera about the shooting, believing her re-direct had become the logical equivalent of direct examination. Defense counsel, without repeated objections, awaited for what she believed to be her absolute right to cross.
*87Viewing the bench conference dialogue against this backdrop, it becomes clear Cortez-Hernandez’s counsel adequately apprised the trial court of her desire to cross-examine Rivera on new material. Indeed she specifically mentioned the new material—“the actual shooting”—during her argument. The trial judge, after acknowledging the new material, ruled, “You cannot go recross.” The trial court undoubtedly understood both that new material was brought out on re-direct and that defense counsel wanted the opportunity to re-cross the witness on that material.
By permitting the Commonwealth to question Rivera about new material and denying Cortez-Hernandez re-cross on the same material, the trial court violated “both the Confrontation Clause and fundamental principles of fairness.” Riggi, 951 F.2d at 1375. Under these facts, I would hold that the trial court’s arbitrary refusal to allow any re-cross-examination whatsoever was an abuse of discretion.
Like other Confrontation Clause errors, though, improper denial of Cortez-Hernandez’s opportunity to cross-examine Rivera is subject to harmless-error analysis. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438. The correct inquiry is whether the “ ‘the beneficiary of the constitutional error ... proves beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Williams v. Commonwealth, 32 Va.App. 395, 399, 528 S.E.2d 166, 168 (2000) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)); see also Olden v. Kentucky, 488 U.S. 227, 232-33, 109 S.Ct. 480, 483-84, 102 L.Ed.2d 513 (1988); Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 (1999). Even if other evidence amply supports the obtained verdicts, the error is not harmless if “the disputed testimony may well have affected the ... decision.” Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978). Whether the error was harmless requires consideration of a host of factors including “‘the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony *88of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.’” Dearing v. Commonwealth, 260 Va. 671, 673, 536 S.E.2d 903, 904 (2000) (quoting Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438).
I believe the unchallenged damaging testimony elicited during the re-direct examination of Rivera contributed to Cortez-Hernandez’s conviction. During re-direct, Rivera identified Cortez-Hernandez as an unprovoked shooter, stating he was not involved in the prior physical altercation. He testified Cortez-Hernandez ran into the yard where Omar was standing, yelled a Mexican idiomatic phrase meaning “I’m going to finish you up,” then “took out the gun and he pointed the gun, and ... started to move [it] around ... and he fired it. A few seconds went by, and he took it up again and he fired again.” Rivera’s testimony directly contradicted the testimony of Cortez-Hernandez and Jose Ontiveros on the issue of self-defense and served to corroborate the harmful testimony of Ruben Vasquez and Esteban Moreno. The court’s ban on re-cross prevented Cortez-Hernandez from challenging any of Rivera’s incriminating testimony.
I believe Rivera’s testimony on re-direct, denied challenge on cross, necessarily contributed to Cortez-Hernandez’s conviction. Accordingly, I would reverse his conviction on the grounds that the trial court violated his Sixth Amendment right to confrontation.
TV. Evidentiary Objection to Denial of Re-cross
Even if the constitutional error were not properly preserved, however, I believe the trial court’s error is reversible pursuant to Code § 8.01-678. The majority cites Code § 8.01-678, but finds that Cortez-Hernandez’s failure to proffer proposed cross-examination questions precludes appellate consideration of this assignment of error pursuant to Rule 5A:18.
I disagree that a proffer is necessary in this case because the prejudice caused by the court’s denial of re-cross-examination is apparent. The Commonwealth concedes the denial was *89error. Code § 8.01-678 permits reversal where it does not plainly appear that the parties had a “fair trial on the merits____” In my view, a fair trial on the merits presupposes the opportunity to cross-examine adversarial witnesses—an opportunity denied to Cortez-Hernandez.
Undoubtedly, as the majority states, a proper proffer is required when a trial court limits the testimony of a witness and the proffer is required for the appellate court to determine whether the exclusion of the testimony prejudiced the party seeking it. Graham v. Cook, 278 Va. 233, 249, 682 S.E.2d 535, 544 (2009). Where the trial court forecloses altogether any cross-examination of a crucial witness, however, a proffer is unnecessary to find prejudice. See, e.g., Edwards v. Commonwealth, 19 Va.App. 568, 572-73, 454 S.E.2d 1, 3 (1995) (finding prejudice in the absence of a proffer because there “was no way appellant could have proffered what a potential cross-examination answer would have been until he laid the initial foundation”); Craig v. Commonwealth, 14 Va.App. 842, 845, 419 S.E.2d 429, 431 (1992) (finding prejudice without a proffer because the nature of the witness’ response was unnecessary for the determination).
Cross-examination is the ‘“greatest legal engine ever invented for the discovery of truth.’ ” California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970) (citing 5 J. Wigmore, Evidence § 1367, p. 32). The opportunity for effective cross-examination is “ ‘one of the safeguards essential to a fair trial.’ ” Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965) (quoting Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 219-20, 75 L.Ed. 624 (1931)).
Code § 8.01-678 safeguards a trial judge from reversal where it plainly appears that the parties had a fair trial on the merits. By foreclosing on Cortez-Hernandez’s opportunity to cross-examine Rivera on the material issue of whether he was the unprovoked perpetrator of murder, however, the trial court denied Cortez-Hernandez a fair trial on the merits. *90Neither appellant’s potential questions nor Rivera’s expected responses are necessary to make this determination.
V Conclusion
For the foregoing reasons, I respectfully dissent.