Sylvester Gary v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
SYLVESTER GARY
MEMORANDUM OPINION * BY
v. Record No. 0720-99-2 JUDGE ROSEMARIE ANNUNZIATA
MAY 2, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
William T. Linka (Boatwright & Linka, on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Sylvester Gary was convicted by a jury for the first-degree
murder of his wife, in violation of Code § 18.2-32; use of a
firearm in commission of that offense in violation of Code
§ 18.2-53.1; two counts of attempted first-degree murder in
violation of Code §§ 18.2-32 and 18.2-26; two counts of use of a
firearm in commission of those offenses; aggravated malicious
wounding of Alice Harris in violation of Code § 18.2-51.2; use
of a firearm in commission of that offense; and malicious
discharge of a firearm at an occupied dwelling in violation of
Code § 18.2-279. He was sentenced on these convictions to serve
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
a total of 93 years in prison, and final judgment was entered on
July 20, 1998. He appeals these convictions on the ground that
the trial court abused its discretion in ruling that the
unredacted videotape of his post-arrest interview with the
police was inadmissible. We disagree and affirm his
convictions.
FACTS
We review the evidence in the light most favorable to the
Commonwealth, the party prevailing below, giving it all
reasonable inferences fairly deducible therefrom. See Taylor v.
Commonwealth, 31 Va. App. 54, 64, 521 S.E.2d 293, 298 (1999).
Gary and his wife, Cynthia Gary, separated in late November,
1997 after almost twenty years of marriage, a period which was
punctuated by Cynthia's separation from her husband six or seven
times, followed by reconciliations. On the last occasion of the
couple's separation, Cynthia removed her belongings to the home
of her mother, Mabel Cunningham, located two doors from the
marital home. Cynthia's brother, Calvin Cunningham, also
resided at the mother's home. Neither Mabel nor Calvin
Cunningham got along well with Gary due to a 1995 confrontation,
and a peace bond against Gary had been issued at Mabel's
instance barring him from her property. She also would not
permit him to telephone her home. Gary blamed Mabel and Calvin
for the difficulties he had with his wife, and frequently spoke
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in derogation of them. With reference to Calvin, he stated that
he "could kill that son-of-a-bitch."
On the day of the incident giving rise to the charges
underlying Gary's convictions, a confrontation and argument took
place between Gary's daughter, Mary Tanner, and Cynthia. The
confrontation came on the heels of several incidents in which
Cynthia rebuffed Gary's attempts to persuade her to return to
the marital home.
Overhearing the confrontation between his wife and
daughter, Gary became upset, threw his hands up over his head,
and went into his house, emerging seconds later with a 12-gauge
pump action shotgun loaded with four powerful magnum shotgun
slug shells. He pointed the gun at Cynthia and fired, killing
her. Mabel and Calvin Cunningham stood nearby, and when they
saw Gary shoot Cynthia they ran back into their home. Gary left
his porch, from which he had fired the gun, walked past his wife
lying on the sidewalk and down the walk to his mother-in-law's
home, and there fired three more shots, two of which penetrated
the front door and struck Alice Harris, Cynthia's sister, in the
hip.
After his arrest, Gary was interviewed at police
headquarters by Detective Ray Williams, during which Gary made
various admissions, including the admission that he had
retrieved the shotgun from its location under the sofa in his
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home and that he shot his wife. A videotape of the interview
was made by the police.
At the trial on the charges emanating from this incident,
Detective Williams testified to portions of Gary's confession.
The Commonwealth did not seek to introduce the videotape, and no
reference was made to it during the Commonwealth's
case-in-chief. However, during cross-examination of Williams,
defense counsel referred to the videotape of the interview. The
prosecutor objected to the reference on the ground of hearsay,
noting that the videotape contained crying and self-serving
statements. The court permitted defense counsel to ask Williams
about Gary's emotional state, but denied admission of the entire
tape unless the exculpatory and self-serving portions were
redacted.
ANALYSIS
Gary's claim on appeal that the court erred by refusing to
admit the unredacted videotape of his interview with police is
barred from review, because the issue was not properly preserved
in the trial court.
Rule 5A:18 provides that "[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
[this Court] to attain the ends of justice." The rule serves
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"'to protect the trial court from appeals based on undisclosed
grounds, to prevent the setting of traps on appeal, to enable
the trial judge to rule intelligently, and to avoid unnecessary
reversals and mistrials.'" Jimenez v. Commonwealth, 241 Va.
244, 248-49, 402 S.E.2d 678, 680 (1991) (quoting Fisher v.
Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52 (1988)). When
an objection is sustained and evidence is rejected, the
proponent of the evidence must make a proffer of the excluded
evidence to enable the appellate court to review the claimed
error under the required harmless error analysis. See Brown v.
Commonwealth, 246 Va. 460, 465, 437 S.E.2d 563, 565 (1993)
(citation omitted). In the absence of the required proffer, the
assigned error will not be considered on appeal. See Williams
v. Harrison, 255 Va. 272, 277, 497 S.E.2d 467, 471 (1998)
(citation omitted).
In the case before us, Gary states no objection to the
court's ultimate rulings. 1 Furthermore, he agreed that he would
1
When the trial court instructed defense counsel that it
would permit only a redacted version of the videotape to be
introduced, the following colloquy occurred:
[DEFENSE COUNSEL]: I can't understand why
the court wants me to redact. I can do it
at lunch. I think that the entire statement
[comes in]. . . . [W]e can't simply divorce
the statements from his bodily reaction and
body language . . . .
THE COURT: I think you can ask him all
about that. But as far as your case, do
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redact the videotape during lunch. See Batts v. Commonwealth,
30 Va. App. 1, 11, 515 S.E.2d 307, 312 (1999) ("[A] defendant,
having agreed upon the action taken by the trial court, should
not be allowed to assume an inconsistent position. No litigant,
even a defendant in a criminal case, will be permitted to
approbate and reprobate -- to invite error . . . and then to
take advantage of the situation created by his own wrong."
(citations omitted)). Finally, Gary failed to offer the
videotape and made no record of the evidence he was ultimately
precluded from presenting. Absent a complete record, the trial
court's decision must be affirmed. See White v. Morano, 249 Va.
27, 30, 452 S.E.2d 856, 858 (1995) (citing Woods v. R. D. Hunt &
Son, Inc., 207 Va. 281, 287, 148 S.E.2d 779, 783 (1966)).
Furthermore, we find no basis for concluding that the ends
of justice require this Court to review the claimed error. See
Atkins v. Commonwealth, 257 Va. 160, 175-76, 510 S.E.2d 445, 455
(1999); Blaylock v. Commonwealth, 26 Va. App. 579, 593-94, 496
S.E.2d 97, 104 (1998); cf. Pierce v. Commonwealth, 2 Va. App.
what you want to do with the tape; but if
you start to put on your case, you're going
to have the same problem. You know, it's
exculpatory information that's . . .
inadmissible . . . the jury doesn't know
that he's been video taped . . . . So . . .
you know what the law is. You can do
whatever you need to do.
[DEFENSE COUNSEL]: Yes, sir.
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383, 388-91, 345 S.E.2d 1, 3-5 (1986) (holding that a portion of
a confession irrelevant to the charged offense need not be
introduced into evidence).
For the foregoing reasons, we affirm the judgment of the
trial court.
Affirmed.
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