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MARCH 13, 2001

Record No. 0694-00-4

Present: Chief Judge Fitzpatrick, Judges Willis
and Clements

Argued at Alexandria, Virginia





John J. McGrath, Jr., Judge


(Neil E. Motter, on brief), for appellant.
Appellant submitting on brief.

(Mark L. Earley, Attorney General; Richard B.
Smith, Senior Assistant Attorney General, on brief), for
appellee. Appellee submitting on brief.

Zachary Wyatt (appellant) was convicted in a
bench trial of attempting to commit animate object sexual
penetration, in violation of Code ?? 18.2-67.2 and
18.2-67.5, and of assault and battery, in violation of Code
? 18.2-57.
[2] On appeal he
contends the trial court erred in refusing to allow him to
recross-examine the victim. We disagree and affirm his
convictions, subject to remand to correct a clerical error.


Under familiar principles of appellate review,
we examine the evidence in the light most favorable to the
Commonwealth, the prevailing party below, granting to that
evidence all reasonable inferences fairly deducible therefrom. See
Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d
677, 678 (1997). So viewed, the evidence established that Jeffrey
Carver (Carver) was called as a witness by the prosecution. After
direct examination, appellant cross-examined Carver and the
Commonwealth’s Attorney conducted a re-direct examination. After
the re-direct, the following colloquy took place between the
court and appellant’s counsel:

THE COURT: All right, you may step down, sir.

MR. SHANKS: I’ve got a couple more questions,
Your Honor, unless you are going to deny me my right to
cross-examine on this.

THE COURT: You have cross-examined him, haven’t

MR. SHANKS: I think, Mr. Hennessy had redirect.
I can ask questions in response to Mr. Hennessy’s.

THE COURT: No. He is released.

I will note your exception.

MR. SHANKS: Your Honor, may I please state my
objection, for the record, and the reason for it?

THE COURT: Go ahead.

MR. SHANKS: I will call this witness as my own
witness. I don’t have a summons issued for him. We are relying on
Mr. Hennessy’s witness summons.

THE COURT: You can bring him back. He won’t

MR. SHANKS: Your Honor–

THE COURT: Mr. Hennessy, will you make certain
that he doesn’t leave?

MR. HENNESSY: Done, sir.

THE COURT: All right. Good.

MR. SHANKS: For the record, though, I would
like to state that, after Mr. Hennessy’s redirect, I am entitled
to recross on the specific areas that he went into, some of which
were new.

And to deny the Defendant the opportunity to
cross-examine witnesses that the Commonwealth presented against
him denies him a fundamental constitutional right. And unless I
am abusing my opportunity to cross-examine the witness, then that
[sic] an absolute right.

THE COURT: All right. Your exception–

MR. SHANKS: And I am not trying to argue with
the Court, but I don’t believe my attempted cross–

THE COURT: I don’t think anything new was
raised in redirect examination. So I don’t see any purpose to be
served, or any need for recross-examination.

MR. SHANKS: If I can point to a specific issue.
Mr. Hennessy raised, for the first time, in redirect, about his
faulty memory. And I believe I would be entitled to recross on
just whether or not that is self-serving statement, or even a
rehearsed statement, by the Commonwealth and the witness, or

he, in fact, has a perfectly good memory.

THE COURT: All right. Your objection is noted.
Who is your next witness, Mr. Hennessy?


The sole issue raised in this appeal is whether
the trial court erred in failing to allow appellant to
recross-examine Carver. It is well established in Virginia that
"[o]rdinarily a party cannot, as a matter of right,
recross-examine a witness." Atlantic & Danville Ry.
Co. v. Reiger
, 95 Va. 418, 424, 28 S.E. 590, 592 (1897); see
1 Charles E. Friend, The Law of Evidence in Virginia
? 3-14, at 98 (4th ed. 1993). "Where a witness has
been examined, cross-examined, and re-examined . . .
the examination of the witness ought ordinarily to be considered
as closed." Id. Only if a new matter is brought out
upon the re-examination should an opportunity "be given to
the opposite party to interrogate the witness as to the new
matter." Id. "Were it otherwise, it is obvious
that it would lead to great abuses, in harassing witnesses and
protracting trials." Id.

In the instant case, appellant contends that he
was entitled to recross-examine Carver because the Commonwealth
first addressed the issue of Carver’s faulty memory on re-direct
examination. We note that the record belies this contention.
Carvers’ "faulty memory" was covered initially on
direct examination in response to the Commonwealth’s question of
whether the appellant or Mr. Moneymaker said anything. Carver
responded, "Huh-uh. Not that I know of, no. Just screaming.
They might have been saying something, but I can’t recall
right now
." (Emphasis added.)

Furthermore, appellant made no proffer of the
questions he intended to ask or the answers he expected to elicit
on recross. See Williams v. Harrison, 255 Va. 272,
277, 497 S.E.2d 467, 471 (1998); see also Spencer v.
, 238 Va. 563, 570, 385 S.E.2d 850, 854 (1989).
Appellant’s desire to test Carver to see if the statement was a
"self-serving statement, or even a rehearsed statement, by
the Commonwealth and the witness, or whether he, in fact, has a
perfectly good memory" is not a sufficient proffer of the
testimony to be elicited. Because appellant failed to make such a
proffer, we are unable to determine whether the trial court erred
and, if so, whether any prejudice resulted. Therefore, we will
not consider this issue on appeal. See id.
Accordingly, we affirm his convictions.



[1] Pursuant to Code
? 17.1-413, this opinion is not designated for publication.

[2] The transcript of the trial court’s findings indicates
that appellant was convicted of CR99F00159, attempted animate
object sexual penetration, and CR99M00161, assault and battery,
and not guilty of CR99F00160, attempted forcible sodomy. The
order dated December 21, 1999 and signed February 28, 2000 also
lists that appellant was convicted of attempted animate object
sexual penetration and assault and battery. However, the
sentencing order dated February 28, 2000 indicates in error that
appellant was convicted of attempted forcible sodomy
(CR99F00160), the charge for which he was found not guilty, and
assault and battery. Therefore, we remand the matter to the trial
court for the sole purpose of correcting the clerical errors in
the trial court’s sentencing order. See Tatum v.
, 17 Va. App. 585, 592, 440 S.E.2d 133, 138