¶1with whom JUSTICE LACY joins, dissenting.
¶2The majority opinion erodes the well-established principle that it is the duty of counsel to present the appellate court with a record sufficient to permit review of errors assigned on appeal. In effect, the majority imposes a duty upon the trial court to remind counsel to make a proffer after evidence has been excluded.
¶3After Brown’s counsel noted his objection to the trial court’s evidentiary ruling, he was required to proffer the substance of the anticipated testimony. Whittaker v. Commonwealth, 217 Va. 966, 968-69, 234 S.E.2d 79, 81 (1977); Scott v. Commonwealth, 191 Va. 73, 78-79, 60 S.E.2d 14, 16 (1950); Owens v. Commonwealth, 147 Va. 624, 630-31, 136 S.E. 765, 767 (1927). However, he made no attempt to do so following the trial court’s ruling that this type of evidence was inadmissible for purposes of impeaching the witness.
¶4The trial court did not refuse to allow counsel to make a proffer. Rather, when counsel failed to make a proffer and apparently had nothing more to say on the subject, the trial court simply stated, “All right, move on.” This statement by the trial court does not constitute a refusal to allow a proffer. The majority’s strained interpretation to the contrary creates confusion as to who bears the ultimate responsibility to complete the record for appeal. A standard that requires the trial court to remind counsel to make a proffer suggests a retreat from our long-established rule placing responsibility for the record on counsel.
¶5Since the record before us does not contain the substance of Daniel Sydow’s anticipated testimony, and since the substance of that testimony is necessary for review of the error assigned, I would affirm the trial court’s judgment.