Harry Joseph McNair v. Commonwealth of Virginia ( 2001 )

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
- 2 -
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.
- 9 -