PRESENT: All the Justices 

SIMON VAUGHN MURPHY 

v. Record No. 080852 OPINION BY 

JUSTICE BARBARA MILANO KEENAN 

 February 27, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal of a defendant’s conviction for possession 

of marijuana with the intent to distribute, we consider whether 

Code § 18.2-262 affords transactional immunity to a witness 

whose testimony is voluntary, rather than compelled. 

 The facts in this case are not in dispute. In March 2005, 

Simon Vaughn Murphy stopped his vehicle at the Chesapeake Bay 

Bridge Tunnel toll plaza in Northampton County. At the plaza, 

Virginia State Trooper C.L. Murphy (the trooper) smelled 

marijuana in the vehicle and ordered Murphy to “pull over.” 

 Upon conducting a search of Murphy’s vehicle, the trooper 

found between 15 and 16 pounds of marijuana. Murphy admitted 

that he was paid $2,000 to transport the marijuana. Murphy and 

his passenger, Omar Dickson, were placed under arrest and 

charged with possession with the intent to distribute more than 

five pounds of marijuana, in violation of Code § 18.2-248.1, and 

with transporting more than five pounds of marijuana into the 

Commonwealth, in violation of Code § 18.2-248.01. 
 Murphy later reached an oral agreement with the 

Commonwealth under which he agreed to plead guilty to the charge 

of possession with the intent to distribute and to testify when 

called by the Commonwealth at Dickson’s preliminary hearing and 

trial. In exchange, the Commonwealth agreed to seek a nolle 

prosequi of the transportation charge. 

 In accordance with these terms, Murphy testified at 

Dickson’s preliminary hearing. However, Murphy later filed a 

motion in the circuit court to dismiss the entire indictment 

pending against him, including the possession with intent to 

distribute charge. Murphy argued that he was entitled to 

transactional immunity under Code § 18.2-262 because he had 

testified at Dickson’s preliminary hearing. That section 

provides in relevant part: 

No person shall be excused from testifying . . . for the 

Commonwealth as to any offense alleged to have been 

committed by another under this article or under the Drug 

Control Act (§ 54.1-3400 et seq.) by reason of his 

testimony . . . tending to incriminate himself, but the 

testimony given . . . by such person on behalf of the 

Commonwealth when called for by the trial judge or court 

trying the case, or by the attorney for the Commonwealth, 

or when summoned by the Commonwealth and sworn as a witness 

by the court or the clerk and sent before the grand jury, 

shall be in no case used against him nor shall he be 

prosecuted as to the offense as to which he testifies. Any 

person who refuses to testify . . . shall be guilty of a 

Class 2 misdemeanor. 

Code § 18.2-262. 

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 The circuit court denied Murphy’s motion. The Commonwealth 

and Murphy later entered into a written plea agreement pursuant 

to Code § 19.2-254. In accordance with that agreement, Murphy 

entered a conditional plea of guilty to the charge of possession 

with intent to distribute more than five pounds of marijuana, 

preserving his right to appeal the circuit court’s holding 

rejecting his immunity claim. Following Murphy’s plea, the 

circuit court entered an order of nolle prosequi on the 

transportation charge and sentenced Murphy for the possession 

with intent to distribute conviction to a term of three years’ 

imprisonment with all but nine months suspended. Murphy 

appealed his conviction. 

 The Court of Appeals affirmed the circuit court’s judgment, 

holding that Murphy implicitly waived any transactional immunity 

afforded by Code § 18.2-262 by voluntarily testifying with the 

understanding that the Commonwealth would withdraw one of the 

charges against him. Murphy v. Commonwealth, 51 Va. App. 535, 

543-45, 659 S.E.2d 538, 542 (2008). The Court further held that 

Code § 18.2-262 does not require that a witness’ testimony be 

“compelled” in order for the statutory immunity provisions to 

apply. Id. at 540, 659 S.E.2d at 540. We awarded Murphy an 

appeal, and the Commonwealth assigned cross-error to the Court 

of Appeals’ judgment. 

3
 Murphy contends that Code § 18.2-262 automatically provides 

transactional immunity to a witness who testifies under the 

circumstances specified in the statute. He maintains that this 

statutory protection is not limited to situations in which a 

witness’ testimony is compelled, but is afforded whenever the 

Commonwealth procures testimony from a witness concerning 

criminal activity in which the witness was engaged. Murphy 

argues that once a witness protected by the statute testifies, 

the immunity protections of the statute are activated and any 

later waiver of that immunity must be made knowingly and 

voluntarily. He asserts that the Court of Appeals erred in 

failing to hold that he did not make such a knowing and 

voluntary waiver, and in determining that he implicitly waived 

his immunity rights afforded under Code § 18.2-262. 

 The Commonwealth assigns as cross-error the Court of 

Appeals’ holding that the immunity provisions of Code § 18.2-262 

are not limited to instances in which a witness’ testimony is 

compelled. The Commonwealth argues that the immunity provisions 

of Code § 18.2-262 are implicated only when a witness’ testimony 

is compelled and that, therefore, Murphy did not receive 

immunity under the statute because his testimony was purely 

voluntary. Alternatively, the Commonwealth contends that by 

entering into the plea agreement, Murphy implicitly waived any 

statutory immunity that might have attached. 

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 In reviewing these arguments, we first observe that neither 

Murphy nor the Commonwealth relies on the existence of an 

enforceable plea agreement entered under Rule 3A:8 or a separate 

immunity agreement executed by the parties. Instead, both 

parties rely on the language of Code § 18.2-262 and argue their 

respective positions based on differing interpretations of the 

statute. Thus, we focus our analysis directly on the 

substantive provisions of the statute. 

 We begin by addressing the Commonwealth’s assignment of 

cross-error because that assignment determines the outcome of 

this appeal. The interpretation of Code § 18.2-262 presents a 

pure question of law, which we review de novo on appeal. See

Young v. Commonwealth, 273 Va. 528, 533, 643 S.E.2d 491, 493 

(2007); Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 

96, 104, 639 S.E.2d 174, 178 (2007); Washington v. Commonwealth, 

272 Va. 449, 455, 634 S.E.2d 310, 313 (2006). 

 We determine the meaning of the statute by examining its 

express language. Washington, 272 Va. at 454, 634 S.E.2d at 

313; Tucker v. Commonwealth, 268 Va. 490, 493, 604 S.E.2d 66, 68 

(2004); Alger v. Commonwealth, 267 Va. 255, 259, 590 S.E.2d 563, 

565 (2004). We consider that language in its entirety, rather 

than by isolating particular words or phrases. Young, 273 Va. 

at 533, 643 S.E.2d at 493; Carpitcher v. Commonwealth, 273 Va. 

335, 345, 641 S.E.2d 486, 492 (2007); Cummings v. Fulghum, 261 

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Va. 73, 77, 540 S.E.2d 494, 496 (2001). When the language of a 

statute is unambiguous, we are bound by the plain meaning of 

that language and may not assign the words a different 

construction. Young, 273 Va. at 533, 643 S.E.2d at 493; Gunn v. 

Commonwealth, 272 Va. 580, 587, 637 S.E.2d 324, 327 (2006); 

Tucker, 268 Va. at 493, 604 S.E.2d at 68; Commonwealth v. Diaz, 

266 Va. 260, 265, 585 S.E.2d 552, 554 (2003). 

 Applying these principles, we conclude that the language of 

Code § 18.2-262 is unambiguous and grants immunity only to 

witnesses whose testimony is compelled. Testimony is compelled 

if a witness is subjected to coercion or deception that impairs 

the witness’ voluntary choice and prevents his testimony from 

being an exercise of free will. See United States v. Escandar, 

465 F.2d 438, 442 (5th Cir. 1972); see also Connecticut v. 

Barrett, 479 U.S. 523, 527-28 (1987). Conversely, a witness’ 

testimony is not compelled when the testimony results from the 

exercise of choice or free will, and is not constrained by any 

interference. Escandar, 465 F.2d at 442; see United States v. 

Smith, 452 F.3d 323, 337 (4th Cir. 2006). 

 As relevant to this case, Code § 18.2-262 addresses the 

testimony of witnesses “called for . . . by the attorney for the 

Commonwealth” to testify regarding certain drug-related 

“offense[s] alleged to have been committed by another.” Code 

§ 18.2-262. The statute provides that “[n]o person shall be 

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excused from testifying . . . by reason of his testimony . . . 

tending to incriminate himself.” Id. Further, this section 

permits the Commonwealth to procure a witness’ testimony by 

offering to the witness a grant of immunity. Id. If the 

witness nonetheless refuses to testify, he is “guilty of a Class 

2 misdemeanor.” Id.

 These provisions, when considered together, plainly do not 

apply to testimony that is voluntarily given. To “excuse” a 

person is to “free from an obligation or duty” otherwise imposed 

on that person. Webster’s Third New International Dictionary

794 (1993). Thus, under Code § 18.2-262, a witness will not be 

freed from an obligation or duty to testify by invoking his 

privilege against self-incrimination. In requiring that any 

person called by the Commonwealth testify regarding certain 

drug-related offenses, and in including a criminal penalty for 

persons who refuse to testify after being provided immunity 

under the statute, the statutory language manifests a clear 

intent to limit its scope to compelled testimony. 

 This conclusion is further supported when the statutory 

language is considered in the context of constitutional 

protections afforded compelled testimony. The United States 

Constitution requires that a statute authorizing the compelled 

testimony of a witness grant to that witness immunity from 

prosecution that is coextensive with the scope of the Fifth 

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Amendment privilege against self-incrimination. See United 

States v. Hubbell, 530 U.S. 27, 38 (2000); Kastigar v. United 

States, 406 U.S. 441, 449, 453 (1972); Gosling v. Commonwealth, 

14 Va. App. 158, 163-64, 415 S.E.2d 870, 873 (1992); 

Commonwealth v. Sluss, 14 Va. App. 601, 604, 419 S.E.2d 263, 

264-65 (1992). In accordance with this constitutional 

requirement, Code § 18.2-262 extends two types of immunity to a 

witness whose testimony is compelled. 

 The first type of immunity, commonly known as “use” 

immunity, is reflected in the statutory language that the 

witness’ testimony “shall in no case be used against him.” See

Code § 18.2-262; Newton v. Commonwealth, 29 Va. App. 433, 457, 

512 S.E.2d 846, 857 (1999); Caldwell v. Commonwealth, 8 Va. App. 

86, 88, 379 S.E.2d 368, 369 (1989). The “use” immunity granted 

by Code § 18.2-262 prevents a witness’ compelled testimony from 

being used against him in any criminal prosecution of that 

witness. Newton, 29 Va. App. at 457, 512 S.E.2d at 857; 

Gosling, 14 Va. App. at 164, 415 S.E.2d at 873; Caldwell, 8 Va. 

App. at 88-89, 379 S.E.2d at 369-70. 

 The second type of immunity, commonly known as 

“transactional” immunity, is provided in the statutory language 

that the witness shall not be prosecuted for “the offense as to 

which he testifies.” See Code § 18.2-262; Newton, 29 Va. App. 

at 457, 512 S.E.2d at 857; Caldwell, 8 Va. App. at 88, 379 

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S.E.2d at 369. This “transactional” immunity granted by Code 

§ 18.2-262 protects a witness from being prosecuted for the 

specified drug-related offenses referenced in the statute about 

which the witness testifies.* Newton, 29 Va. App. at 457, 512 

S.E.2d at 857; Gosling, 14 Va. App. at 164, 415 S.E.2d at 873; 

Caldwell, 8 Va. App. at 88-89, 379 S.E.2d at 369-70. 

 These provisions of Code § 18.2-262, which authorize 

compelled testimony from certain witnesses and in return grant 

those witnesses the described immunity, are fully coextensive in 

protection of a defendant's self-incrimination rights. Thus, 

Code § 18.2-262 complies with the holding in Kastigar, providing 

the specified immunity to a witness whose compelled testimony 

tends to incriminate him. See Kastigar, 406 U.S. at 449, 453. 

In view of these coextensive statutory provisions, which are 

plainly stated in the full text of the statute, we hold that the 

immunity protections of Code § 18.2-262 apply only to witnesses 

whose testimony is compelled. 

 In the present case, Murphy’s testimony was voluntarily 

given in return for the Commonwealth’s oral agreement to dismiss 

the pending transportation of marijuana charge, which would have 

resulted in a mandatory minimum sentence of three years’ 

imprisonment. Because Murphy’s testimony against Dickson was 

 * We observe that Code § 18.2-262, in providing both use and 

transactional immunity, exceeds the requirements of Kastigar. 

See 406 U.S. at 453.

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purely voluntary, rather than compelled, we reject Murphy’s 

claim that he was entitled to dismissal of the possession with 

intent to distribute charge under the immunity provisions of 

Code § 18.2-262. Further, given our conclusion that Murphy’s 

testimony was purely voluntary, we do not reach the issue 

whether a witness must specifically invoke his Fifth Amendment 

privilege against self-incrimination before his testimony may be 

deemed compelled within the meaning of Code § 18.2-262. 

 Based on our holding, we conclude that the Court of 

Appeals’ judgment should be affirmed on the ground of crosserror assigned by the Commonwealth. We do not address Murphy’s 

assignments of error invoking the immunity provisions of Code 

§ 18.2-262, in light of our conclusion that the statutory grant 

of immunity is limited to compelled testimony, and that Murphy’s 

testimony was voluntarily given. Accordingly, for the reasons 

stated above, we will sustain the Commonwealth’s assignment of 

cross-error, and will affirm the Court of Appeals’ judgment. 

Affirmed.

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