COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Overton 

Argued at Norfolk, Virginia 

CLYDE L. CAFFEE 

 MEMORANDUM OPINION* BY 

v. Record No. 2500-97-1 JUDGE JAMES W. BENTON, JR. 

 MARCH 2, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Alan E. Rosenblatt, Judge 

 Keith Loren Kimball for appellant. 

 John H. McLees, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication.

 A jury convicted Clyde L. Caffee of two offenses of murder, 

malicious wounding, and three offenses of using a firearm in the 

commission of the three felonies. On this appeal, Caffee 

contends the trial judge impermissibly forced him to surrender 

one constitutional right to assert another when the trial judge 

permitted the Commonwealth to use Caffee's pretrial testimony as 

evidence against Caffee at trial. Because Caffee did not assert 

that objection at trial, we hold that Rule 5A:18 bars 

consideration of that issue on appeal. 

 I. 

 A grand jury indicted Caffee on two charges of murder, 

malicious wounding, and use of a firearm in the commission of the 

three felonies. Two weeks prior to trial, Caffee's 
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court-appointed attorney sought to withdraw from his 

representation of Caffee. At a hearing on the motion, Caffee's 

attorney informed the judge that a difficulty existed because 

Caffee "does not want to go with our planned defense which was to 

be self-defense." Caffee's attorney stated that he and Caffee 

were "in extreme disagreement" and that he believed "Caffee's 

best defense and only defense" to the indictments was selfdefense. When Caffee's attorney stated that Caffee "would . . . 

like to address the court," the judge administered an oath to 

Caffee and asked Caffee to speak. Caffee asked the judge to 

appoint another attorney to represent him and confirmed that he 

disagreed with the attorney on his defense strategy. As 

pertinent to this appeal, Caffee said the following in support of 

his request: 

 I did not commit this crime. [My attorney] 

advised me that the best thing to go with is 

self-defense at the time, which I told my 

[attorney] that I did not commit this crime, 

did not shoot and kill those three young 

[men]. 

 Judge, pleading to self-defense is just 

like saying I did it. That's why I am trying 

to get a point to him. If I come in here 

saying self-defense, I admitted that I shot 

and killed them . . . which, sir, I did not 

do. That's why I want to go with not guilty 

to all the charges, sir. 

 The assistant Commonwealth's attorney opposed the motion to 

withdraw and to appoint a new attorney for Caffee. In his 

argument, the assistant Commonwealth's attorney stated "I don't 
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understand how there's any defense in the case except for 

self-defense." The judge denied the motion to withdraw. 

 Two weeks later, a different judge presided at Caffee's jury 

trial. The Commonwealth's evidence at trial proved that three 

weeks before the shooting incident, Willie Wiggins, Gregory 

Wiggins, Derrick Wiggins and their friend John Brooks had fought 

Caffee and Caffee's nephew at a nightclub. All the participants 

in the fight knew each other. When the fighting escalated, the 

nightclub's security guards sprayed everyone with Mace and forced 

them to leave. Brooks and Gregory Wiggins testified that they 

heard gunshots as they left the parking lot. 

 On July 6, 1996, at 1:00 a.m., Caffee again encountered the 

four men at a house where alcohol was sold illegally. The 

Commonwealth's first witness, Gregory Wiggins, testified that 

Caffee deliberately "bumped" Derrick Wiggins. Later, when 

Gregory Wiggins exited the house, he observed Caffee arguing with 

Derrick Wiggins. He testified that he saw Caffee draw a gun, 

that he observed "fire" coming from Caffee's direction, and that 

he saw Derrick Wiggins fall to the ground. When he yelled to 

Willie Wiggins, who was standing nearby, to run away, Caffee shot 

Willie Wiggins. Caffee then shot and wounded Gregory Wiggins. 

Willie Wiggins and Derrick Wiggins were killed. Gregory Wiggins 

testified that he and the two dead men were unarmed. 

 When Caffee's attorney cross-examined Gregory Wiggins, he 

sought leave to question Wiggins in depth concerning convictions 

for assault that were proved on direct examination and other 
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unadjudicated acts of violence. He informed the judge that those 

matters were relevant to Caffee's theory of self-defense. The 

Commonwealth objected to any examination of Wiggins concerning 

unadjudicated acts of violence. Ruling that Caffee had not 

presented evidence of self-defense, the trial judge declined to 

permit Caffee's attorney to examine Wiggins concerning other acts 

of violence. 

 Reginald Wiggins, who was related to the three shooting 

victims, testified that Caffee said he was carrying a gun when he 

entered the house on July 6. After Caffee "bumped" the shoulder 

of Derrick Wiggins, an argument and a fistfight ensued outside 

the house. Reginald Wiggins testified that Caffee "pulled a gun 

out of his pants and [shot] my cousin, Derrick, in the chest." 

Reginald Wiggins also testified that when Willie Wiggins ran, 

Caffee shot Willie Wiggins in the back and then shot Gregory 

Wiggins in the back. 

 The Commonwealth's evidence also proved that both Caffee and 

Willie Wiggins had particles of gunshot primer residue on their 

right hands. Caffee's attorney established through the testimony 

of the Commonwealth's forensic expert that primer residue could 

result from several circumstances, including handling a weapon. 

In his cross-examinations of Gregory Wiggins, John Brooks and 

Reginald Wiggins, Caffee's attorney sought to establish that the 

Wiggins group had been the aggressors in the June fight and again 

in the July encounter. 

 Near the end of its case-in-chief, the Commonwealth offered 
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as evidence the statements Caffee made at the pretrial hearing 

when his attorney sought to withdraw. The Commonwealth argued 

that the statement was admissible as a party admission. Caffee's 

attorney objected on the following three grounds: (1) that the 

evidence was overly prejudicial because Caffee would not be able 

to tell the jury the full context in which the testimony was 

given, (2) that the testimony was inadmissible to impeach Caffee 

because Caffee had not then testified, and (3) that Caffee had 

yet to present any evidence of self-defense to be rebutted by the 

testimony. Citing Alatishe v. Commonwealth, 12 Va. App. 376, 404 

S.E.2d 81 (1991), the Commonwealth responded that the statement 

was admissible as a party admission and proved Caffee's guilty 

conscience. 

 The trial judge ruled that the testimony was admissible as a 

party admission. After the judge explained the nature of the 

transcript to the jury, a detective read to the jury the 

transcript of Caffee's pretrial testimony. 

 When the Commonwealth concluded its case-in-chief, Caffee 

presented witnesses in his defense. Caffee's cousin testified 

that he attempted to talk to all parties prior to the shooting 

incident to calm the situation. He also urged Caffee to leave 

the premises. Caffee told him that the Wiggins' group was 

harassing him and that he was tired of it. Caffee's cousin 

testified that he saw Derrick and Willie Wiggins strike Caffee, 

and then heard shots fired rapidly. He testified that he did not 

see who fired the shots. 
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 Another witness for the defense testified that when she 

arrived at the house at 1:50 a.m., Caffee was near his car. 

Gregory Wiggins and several other men were following Caffee and 

profanely threatening to fight him. After she heard Caffee say 

"I'm not fighting," the men began beating him. She then heard 

about six rapid shots and later saw one of the Wiggins brothers 

shooting at Caffee's car as it drove away. Caffee did not 

testify. 

 The jury convicted Caffee on all charges. 

 II. 

 Relying upon Simmons v. United States, 390 U.S. 377 (1968), 

Caffee argues for the first time on appeal that his pretrial 

testimony was inadmissible at trial because he did not waive his 

Fifth Amendment privilege against self-incrimination when he 

sought to exercise his Sixth Amendment right to be represented by 

counsel. The Commonwealth contends that this issue is barred by 

Rule 5A:18 because Caffee did not specify this objection at 

trial. We agree that this issue is barred by Rule 5A:18. 

 We have consistently ruled that "[w]e will not consider a 

question raised for the first time on appeal, Rule 5A:18, even a 

constitutional question." Singleton v. Commonwealth, 19 Va. App. 

728, 735, 453 S.E.2d 921, 926 (1995) (en banc). See also

Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405 S.E.2d 438, 

441 (1991). 

 "[T]he primary purpose of the contemporaneous 

objection rule is to advise the trial judge 

of the action complained of so that [the 
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trial judge] can consider the issue 

intelligently and, if necessary, take 

corrective action to avoid unnecessary 

appeals, reversals, and mistrials." 

Consistent with this purpose, we have held 

that objections must be stated with 

specificity and that a general objection made 

"for the record" is insufficient. 

Hogan v. Commonwealth, 5 Va. App. 36, 45, 360 S.E.2d 371, 376 

(1987) (citations omitted). 

 When the issue raised on appeal is not the same issue raised 

in the trial court, the party has "failed . . . to preserve the 

issue for appeal." Marshall v. Commonwealth, 26 Va. App. 627, 

637, 496 S.E.2d 120, 125 (1998). See also United States v. 

Branker, 418 F.2d 378, 381 (2d Cir. 1969) (a general objection at 

trial to the admission of evidence is insufficient to preserve 

for appeal the issue whether the admission into evidence of 

pretrial testimony violates the rule of Simmons). At trial, 

Caffee's counsel argued three matters in support of his 

objection. None of the arguments addressed the matter he now 

raises on appeal. 

 "To invoke the ends of justice exception to Rule 5A:18, the 

record must 'affirmatively show[] that a miscarriage of justice 

has occurred, not . . . merely . . . that a miscarriage might

have occurred.'" Marshall, 26 Va. App. at 636, 496 S.E.2d at 125 

(citation omitted). Upon our review of the record we cannot say 

that this is such a case. The testimony that was admitted was 

but a minor piece of the evidence that overwhelmingly proved 

beyond a reasonable doubt that Caffee committed the offenses. 
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For these reasons, we affirm the convictions. 

 Affirmed.