COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Elder and Fitzpatrick 

Argued at Richmond, Virginia 

GILL FREDERICK LIVINGSTON 

 OPINION BY 

v. Record No. 2061-94-2 JUDGE JOHANNA L. FITZPATRICK 

 FEBRUARY 13, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 J. W. Harman, Jr. (Harman and Harman, P.C., 

on brief), for appellant. 

 Richard H. Rizk, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Leah A. Darron, Assistant Attorney General, 

on brief), for appellee. 

 Gill F. Livingston (appellant) was convicted in a jury trial 

of possession of marijuana in violation of Code § 18.2-250.1. On 

appeal, he argues that the trial court erred in: (1) denying his 

motion to suppress the drugs seized from his home because the 

warrant to search his home was issued based upon information 

provided by his wife; and (2) refusing to impanel a new jury for 

sentencing when the Commonwealth's attorney made an improper 

comment during closing argument. For the reasons that follow, we 

affirm the trial court. 

 BACKGROUND

 Appellant and his wife, Susan Livingston, separated in 1992. 

 On March 4, 1994, Mrs. Livingston initiated contact with Officer 

Brian C. Smith (Smith) of the Chesterfield Police Department and 

informed him that she saw marijuana and cocaine in the marital 
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residence, where appellant was living. As a result of this 

information, Officer Smith brought Mrs. Livingston before a 

magistrate who issued a search warrant for appellant's home based 

upon her observations. Officer Smith executed the warrant and 

found loose marijuana, cocaine residue, and drug paraphernalia. 

Appellant admitted that he owned the drugs. Appellant was 

charged with misdemeanor possession of marijuana in violation of 

Code § 18.2-250.1 and felony cocaine possession in violation of 

Code § 18.2-250. Before trial, appellant moved to suppress the 

drugs, arguing that the search warrant violated the marital 

privilege of Code § 19.2-271.2 because it was based upon Mrs. 

Livingston's testimony. The trial court denied the motion. 

 In a bifurcated jury trial on October 18, 1994, appellant 

was convicted of the misdemeanor marijuana charge, but was 

acquitted of the felony cocaine charge. Before the sentencing 

phase of the trial, the Commonwealth attempted to introduce 

appellant's prior drug conviction. Appellant objected, arguing 

that his prior criminal record was only admissible for sentencing 

purposes in a felony case. The trial court sustained his 

objection. In closing argument on sentencing, however, the 

Commonwealth's attorney asked for the maximum punishment and 

referred to appellant as an "admitted drug dealer." Appellant 

objected, and the trial court immediately instructed the jury to 

disregard the statement. After the jury retired to deliberate, 

appellant asked the court to impanel a new jury for sentencing 
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and argued: "When the Commonwealth interjected a convicted drug 

dealer into this, they got through the back door what they 

couldn't get through the front." Appellant did not request a 

mistrial or any relief other than a new sentencing jury. The 

trial judge denied the motion and stated: "I don't think [the 

Commonwealth's attorney] deliberately did that, so I've 

instructed the jury to disregard it." The jury sentenced 

appellant to the maximum punishment for possession of marijuana--

thirty days in jail and a $500 fine. 

 MARITAL PRIVILEGE

 Appellant argues that the trial court erred in denying his 

motion to suppress the drugs seized from his residence. He 

contends that the search warrant, based on his wife's 

observations, was issued in contravention of the marital 

privilege protection of Code § 19.2-271.2. The issue of whether 

the marital privilege extends to information provided by a spouse 

to a magistrate is one of first impression in the Commonwealth. 

 "On appeal, the burden is on appellant to show, considering 

the evidence in the light most favorable to the Commonwealth, 

that the denial of the motion to suppress constituted reversible 

error." Arnold v. Commonwealth, 17 Va. App. 313, 317, 437 S.E.2d 

235, 238 (1993). "Code § 19.2-271.1 provides that husbands and 

wives are competent witnesses to testify for or against each 

other in criminal cases except as otherwise provided [in Code 

§ 19.2-271.2]." Brown v. Commonwealth, 223 Va. 601, 606, 292 
 4 

S.E.2d 319, 322 (1982). Code § 19.2-271.2 provides as follows: 

 In criminal cases husband and wife shall 

be allowed, and, subject to the rules of 

evidence governing other witnesses and 

subject to the exception stated in 

 § 8.01-398, may be compelled to testify in 

behalf of each other, but neither shall be 

compelled, nor, without the consent of the 

other, allowed, to be called as a witness 

against the other, except (i) in the case of 

a prosecution for an offense committed by one 

against the other or against a minor child of 

either, (ii) in any case where either is 

charged with forgery of the name of the other 

or uttering or attempting to utter a writing 

bearing the allegedly forged signature of the 

other or (iii) in any proceeding relating to 

a violation of the laws pertaining to 

criminal sexual assault (§§ 18.2-61 through 

18.2-67.10), crimes against nature 

(§18.2-361) involving a minor as a victim and 

provided the defendant and the victim are not 

married to each other, incest (§ 18.2-366), 

or abuse of children (§§ 18.2-370 through 

18.2-371). The failure of either husband or 

wife to testify, however, shall create no 

presumption against the accused, nor be the 

subject of any comment before the court or 

jury by any attorney. 

 In the prosecution for a criminal 

offense as set forth in (i), (ii) or (iii) 

above, each shall be a competent witness 

except as to privileged communications. 

(Emphasis added.) See Creech v. Commonwealth, 242 Va. 385, 386, 

410 S.E.2d 650, 651 (1991). "The privilege of an accused to 

prevent his spouse from testifying against him is determined at 

the time of trial and depends upon the couple being validly 

married at that time." Stewart v. Commonwealth, 219 Va. 887, 

891, 252 S.E.2d 329, 332 (1979) (emphasis added). The 

Commonwealth's attorney has "'the burden of first obtaining the 
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consent of the accused husband before it will be allowed to call 

the wife as a witness against him.'" Brown v. Commonwealth, 208 

Va. 512, 516, 158 S.E.2d 663, 667 (1968) (quoting Wilson v. 

Commonwealth, 157 Va. 962, 968, 162 S.E. 15, 16 (1932)). 

 In determining whether the marital privilege of Code 

§ 19.2-271.2 applies to information provided in a police 

investigation, we must first determine the scope of the 

legislature's directive that the privilege applies only in a 

"criminal case." To do so, we must "view the entire body of 

legislation and the statutory scheme to determine the 'true 

intention of each part.' In construing statutes, courts should 

give the fullest possible effect to the legislative intent 

embodied in the entire statutory enactment." Virginia Real 

Estate Bd. v. Clay, 9 Va. App. 152, 157, 384 S.E.2d 622, 625 

(1989) (citation omitted), appeal dismissed, 398 S.E.2d 78 (Va. 

1990). "'Words in a statute are to be construed according to 

their ordinary meaning, given the context in which they are 

used.'" City of Virginia Beach v. Board of Sup'rs of Mecklenburg 

County, 246 Va. 233, 236, 435 S.E.2d 382, 384 (1993) (quoting 

Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 

(1982)). 

 The Supreme Court of Virginia, in addressing this specific 

statute, held that "'[t]estimonial exclusionary rules and 

privileges,' which impair the right of the public to have all 

relevant evidence introduced in the fact-finding process, should 
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be strictly construed." Brown, 223 Va. at 606, 292 S.E.2d at 322 

(quoting Trammel v. United States, 445 U.S. 40, 50 (1980)). 

"Code § 19.2-271.1 should be given a reasonable construction. It 

is not a penal statute that must be construed strictly against 

the Commonwealth." Brown, 223 Va. at 606, 292 S.E.2d at 322. 

The marital privilege of Code § 19.2-271.2 prevents spousal 

testimony against an accused only "[i]n criminal cases." 

(Emphasis added.) Whether pretrial investigative information or 

testimony given by one spouse against the other is included in 

the prohibition of Code § 19.2-271.2 is the determinative issue 

in the instant case. 

 The context of the phrase "criminal cases" indicates that 

the legislature intended for the marital privilege of Code 

§ 19.2-271.2 to apply in an adversarial trial proceeding. Code 

§ 19.2-271.2 lists several exceptions to the general rule that an 

accused's spouse may not be called as a witness against him 

without his consent. These exceptions use the terms 

"prosecution," "case," and "proceeding" to describe situations in 

which an accused's spouse may testify against him. By using 

these terms interchangeably, the legislature thus defined 

"criminal cases" as "prosecutions" and "proceedings" and did not 

intend to include criminal investigation. Additionally, Code 

§ 19.2-271.2 provides that "[t]he failure of either husband or 

wife to testify . . . shall create no presumption against the 

accused, nor be the subject of any comment before the court or 
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jury by any attorney." (Emphasis added.) This language clearly 

contemplates an adversarial proceeding such as a preliminary 

hearing or trial, not pretrial criminal investigation by the 

police. Furthermore, case law interpreting the marital privilege 

of Code § 19.2-271.2 has dealt only with a trial. See, e.g., 

Creech, 242 Va. at 386, 410 S.E.2d at 651 (trial); Stewart, 219 

Va. at 891, 252 S.E.2d at 332 (trial); Jenkins v. Commonwealth, 

219 Va. 764, 767, 250 S.E.2d 763, 765 (1979) (trial). 

 Although no Virginia case specifically defines "criminal 

case," we hold that the plain meaning of Code § 19.2-271.2 is 

that the marital privilege contained therein applies only during 

an adversarial proceeding such as a preliminary hearing or trial. 

 At the time Mrs. Livingston provided information to Officer 

Smith and the magistrate for the search warrant, only a criminal 

investigation had been initiated, not a "criminal case." The 

"criminal case" contemplated by Code § 19.2-271.2 would encompass 

only potential testimony of Mrs. Livingston at the trial on the 

misdemeanor marijuana possession charge and at the preliminary 

hearing and trial on the felony cocaine charge. Thus, in the 

instant case, the trial court did not err in denying appellant's 

motion to suppress the drugs seized from his home. 

CLOSING ARGUMENT BY COMMONWEALTH'S ATTORNEY

 Appellant next argues that the trial court erred in denying 

his motion to impanel a new jury for sentencing after the 

Commonwealth's attorney referred to him in closing argument as an 
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"admitted drug dealer." We disagree. 

 Code § 19.2-295.1 requires a bifurcated trial in felony 

cases, in which the same jury determines the guilt and punishment 

of a defendant in separate proceedings. Although appellant was 

not convicted of the felony of cocaine possession in this case, 

he was tried according to the bifurcated trial statute, and a 

separate sentencing proceeding was held.1 Appellant did not 

request a mistrial or other appropriate relief, and impanelling a 

new jury was not a proper remedy. 

 "Even if the argument were to be considered improper or 

irrelevant, it was cured by the trial court's cautionary 

instruction . . . ." Hernandez v. Commonwealth, 15 Va. App. 626, 

636, 426 S.E.2d 137, 143 (1993). "A judgment will not be 

reversed for the improper admission of evidence that a court 

subsequently directs a jury to disregard because juries are 

presumed to follow prompt, explicit, and curative instructions." 

Beavers v. Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411, 420 

(1993), cert. denied, 114 S. Ct. 171 (1993). In the instant 

case, although the Commonwealth's attorney referred to a fact not 

in evidence during closing argument, the trial judge immediately 

issued a broad cautionary instruction. Appellant failed to show 

that the Commonwealth's attorney's improper comment prejudiced 

the jury against appellant or that the jury disregarded the 

 

 1Appellant raised no objection to the use of the bifurcated 

procedure on the misdemeanor charge. 
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court's instruction. Thus, we hold that the trial judge did not 

err in refusing to impanel a new jury for sentencing purposes. 

 Accordingly, the decision of the trial court is affirmed. 

 Affirmed.