Tuesday 14th October, 2003.
Shakeva Quarleat Frazier, Appellant, against Record No. 2512-01-3 Circuit Court No. CR01-1219 Commonwealth of Virginia, Appellee.
Upon a Rehearing En Banc Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank, Humphreys, Clements, Felton and Kelsey S. Jane Chittom, Appellate Defe nder (Public Defe nder Commission, on brief), for appellant. Eugene Murphy, Assistant Attorn ey General (Jerry W. Kilgore, Attorney General; H. E lizabeth Shaffer, Assist ant Attorney General, on brief), for appellee.
By opinion issued April 29, 2003, a panel of this Court reversed the conviction of Shakeva Quarleat Frazier for aiding and abetting a failure to appear in court and remanded the matter for further proceedings. See Frazier v. Commonwealth , 40 Va. App. 350, 579 S.E.2d 628 (2003). Thereafter, we stayed the mandate of that decision and gr anted the Commonwealth's petition for rehearing en banc

. Upon rehearing en banc , the judgment of the tria l court is affirmed without opinion by an evenly divided Court. Accordingly, the opinion previouslyrendered by a panel of this Court on April 29, 2003 is withdrawn, and the mandate entered on that date is vacated. The appellant shall pay to the Commonwealth of Virginia thirty dollars damages. Chief Judge Fitzpatrick, Judges Bumgardner, Frank, Felto n and Kelsey vote d to affirm the judgment of the trial court.-2- Judges Benton, Elder, Annunziata, Humphreys and Clements voted to reve rse the judgment of the trial court. The Commonwealth shall recover of the appellant the costs in this Court, which costs shall include a total fee of $925 for serv ices rendered by the Public Defende r on this appeal, in addition to counsel's necessary direct out-of-pocket expenses, and the costs in the trial court. This order shall be published and certified to the trial court. Costs due the Commonwealth by appellant in Court of Appeals of Virginia: Public Defender $925.00 plus costs and expenses A Copy,
Teste: Cynthia L. McCoy, Clerk By: Deputy Clerk-3- COURT OF APPEALS OF VIRGINIA

Present: Chief Ju dge Fitzpatrick, Judge Elder and Senior Judge Coleman Argued at Salem, Virginia

SHAKEVA QUARLEAT FRAZIER OPINION BY v. Record No. 2512-01-3 JUDGE LARRY G. ELDER APRIL 29, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Joseph W. Mila m, Jr., Judge S. Jane Chittom, Appellate Defender (Public Defender Commission, on briefs), for appellant. H. Elizabeth Shaffer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Shakeva Quarleat Frazier (appellant) appeals from her bench trial conviction for aiding and abetting a failure to appear in co urt in violation of Code § 19.2-128(B) . On appeal, she contends the trial court's admission of her testimony from the previous trial of her boyfriend violated Code § 19.2-270. We hold the prior testimony was inadmissible against appell ant under Code § 19.2-270 because it was not "a statement . . . made when [she was] examined as a witness in [her] own behalf." Thus, we reverse and remand.
I. BACKGROUND On June 5, 2000, Ampazzio Warren was tried by a juryfor three felonies, possession of cocaine with intent to distribute, possession of a firearm while in possession of cocaine, and possession of a concealed weapon, second offense. While the jury was deliberating in the gui lt phase of the trial, Warren left the courthouse and failed to return.-4- Warren was subsequently arrested in Burlington, North Carolina . On September 8, 2000, he was tried on a charge of failure to appear based on his flight from the June 5, 2000 trial. Warren entered a plea of not guilty. Appellant appear ed at that proceeding and testif ied on Warren's behalf. Appellant, through counsel, claimed to have been subpoe naed on Warren's behalf, and the Commonwealth "assum[ed]" "for the purposes of [the subsequentproceedings against appellant]" "that she was." Appellant testified that Warren was her boyfriend and that she was pregnant with his child both at the time of his June 5, 2000 trial and the time of the September 8, 2000 trial. Appellant testified that while the jury was deliberati ng, she spoke to Warren in the hall and told him the following: I didn't think he was havin' a fair trial given to him . . . , and I was just real upset, and . . . I spoke with him in pr ivate, and I told [him] I was scared, and 'dat I didn't want him to stay here. I wanted him to leave with me, and I told him that if he didn't[,] "I'll kill myself and our child" that I'm carryin'. Appellant admitted that while Warren was a fugitive, he "was staying down in Burlington with [her] and [her] father." Appellant said she was "concerned about [her] boyfriend and the father of this child[] going to prison" and admitted "[she] knew it was wr ong for [Warren] to leave Court." The following exchange then took place: [PROSECUTOR:] And you encouraged him to do it anyway, didn't you? [APPELLANT:] Yes sir, and that's what I came to Court for today . . . to accept that responsibility and whatever punishment seems fit for it . . . that I knew I'd done wrong, and I made a lot of wrong decisions. It affected [Warren], me, his aunt, my father . . . a lot of people, also. [PROSECUTOR:] Well, you . . . do you have any comprehension that you have just admitted to committing a felony? [APPELLANT:] Yes sir. In November 2000, appellant was indicted for aidi ng and abetting Warren's failure to appear. On July 17, 2001, she was tried for that offense. The pa rties agreed on the relevant factual and procedural background. The Commonwealth's only substantive evid ence of appellant's acts of aiding and abetting-5- was appellant's testimony from Warren's trial on the ch arge of failure to appe ar. Appellant argued that the provisions of Code § 19.2-270 rende red that prior testimony inadmissible. The trial court framed the issue as "whether or not the defendant, Ms. Frazier, was examined as a witness in her own behalf at Mr. Warren's trial" and ruled as follows: [T]he transcript not only provides evidence that Ms. Frazier directly involved herself in Mr. Warren's deci sion to leave the courtroom, but it also provides evidence of a strong relationship. . . . [I]n [Thornton v. Commonwealth, 22 Va. App. 2, 467 S.E.2d 820 (1996)], . . . it was brothers, I think . . . . In this case, it's a situation where we have a boyfriend and girlfriend relationship, but more than that, we have a situation where the defendant, Miss Frazier, was carrying Mr. Warren's child. So I think [Thornton] does apply . . . and I think [Thornton ] says that . . . circumstances such as the relationship and additional circumstances concerning whether or not the person was compelled to testify at the request of the Common wealth, are issues [with which] the Court needs to concern itself. Here, it's no question, just as in [Thornton], that Ms. Frazier and Mr. Warren had a jo int interest in th e prior case. . . . [S]o in this case, . . . I think the exception in 19.2-270 applies, because I think that she felt that she had an inte rest in that prior case, . . . and that she was testifying, in esse nce, not only in Mr. Warren's behalf, but also in her own behalf. The trial court then found appellant guilty of the charged offense, and appellant noted this appeal.
II.
ANALYSIS Code § 19.2-270 provides as follows: In a criminal prosecution, other than fo r perjury, or in an action on a penal statute, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination, in a criminal or civil action, unless such statement was made when examined as a witness in his own behalf. At issue in this case is the meaning of the phrase, "when examined as a w itness in his own behalf." The statute originally contained no such language, providing only that, "'In a criminal prosecution other than for perjury, or an action on a pe nal statute, evidence shall not be given against the accused of any statement made by him as a w itness upon a legal examination.'" Thaniel v. Commonwealth, 132 Va. 795, 801-02, 111 S.E. 259, 261 (1922) (quoting Code of 1873, c. 195, § 22,-6- which it listed as "subsequently am ended and now appearing as sect ion 4781"). The General Assembly added the final clause of the statute to reve rse the holding in Kirby v. Commonwealth, 77 Va. 681 (1883). See Thaniel , 132 Va. at 802, 111 S.E. at 261. Kirby involved two trials, w ith the accused testifying onl y in the first one. Kirby , 77 Va. at 689-90. At the second trial, Kirby offered testimony fr om two witnesses that was at odds with his own testimony in the first trial. Id. at 690. The tria l court allowed the Commonw ealth to introduce Kirby's testimony from the first trial to s how the conflict, but the Supreme C ourt, based on the language of the statute, held that the admission was error. Id. "[Th at] decision was in conformity with the terms of the statute . . . then in force; and it was doubtless to m eet the effect of that d ecision that the statute was subsequently amended by adding the words, 'unless such statement was made when examined as a witness in his own behalf.'" Thaniel, 132 Va. at 802, 111 S.E. at 261. The Supreme Court has subsequently held that the person testifying in the prior proceeding need not have been a party to that proceeding in order fo r the testimony to have been given "when [the person was] examined as a witness in his own behalf." Hansel v. Commonwealth, 118 Va. 803, 88 S.E. 166 (1916). In Hansel, the accused was charged with forg ing and uttering an option contract for the sale of land. Id. at 807, 88 S.E. at 166. A codefendant was ch arged with aiding and abetting the accused in the forgery. Id. Before Hansel and the codefendant were criminally ch arged, the codefendant filed a civil action to recover commissions due under the contract . Thornton, 22 Va. App. at 8, 467 S.E.2d at 823. Hansel was not a party to the civil suit but testified as a witness for the codefe ndant and was entitled to receive one-third of the commissions sought in th e civil suit. Hansel, 118 Va. at 808, 88 S.E. at 166. In the subsequent criminal proceeding, the trial court admitted Hansel's testimony from the civil suit. Id. at 808-09, 88 S.E. at 167. The Supreme C ourt affirmed, holding "it is sufficient to say that though Hansel was called as a witness for the [c odefendant in the civil suit,] [Hansel and the codefendant] had a joint interest in th e recovery. So that in point of fact he was 'examined as a witness in his own behalf.'" Id. at 809, 88 S.E. at 167. Thus, Hansel established that a non-party who testified-7- as a witness in a prior proceeding and had a joint financial interest in that pr oceeding gave that prior testimony "as a witness in his own be half" for purposes of admitting that testimony into evidence against him in a subsequent criminal proceeding. More recently, we have recognized that the joint interest motivati ng the witness' testimony in the prior proceeding need not have been limited to a fi nancial interest. Thornton, 22 Va. App. at 9-10, 467 S.E.2d at 823-24; Boney v. Commonwealth, 16 Va . App. 638, 641-42, 432 S.E.2d 7, 9 (1993) (holding that if codefendant were forced to testify, he would have been "' examined as a witness in his own behalf'" because codefendant "was in custody on char ges arising out of the same incident" for which Boney was being prosecuted). Boney's in terest was to avoid criminal prosecution. In Thornton, for example, Thornton and his brother were charged with possessing and distributing heroin. 22 Va. App. at 4, 467 S.E.2d at 821. Thornton's brother was tried first, and Thornton was subpoenaed to testify. Id. Against th e advice of his own attorn ey, Thornton informed the trial court "he understood the consequences of his actions" and testified that he alone possessed and distributed the drugs. Id. We held Thornton's testimony in his brother's trial was admissible in his own trial. Id. at 10, 467 S.E.2d at 824. We noted that "whether a person has b een 'examined as a witness in his own behalf' may depend, in part, upon circumstances of the prior legal examination," "includ[ing] whether the person has been charged criminally when giving the first test imony or whether the proceeding in which the prior testimony was given was one that was adversarial to the person." Id. at 8, 467 S.E.2d at 823 (citing Thaniel, 132 Va. at 800, 803, 111 S.E. at 260, 261, in which Court held that Thaniel's exculpatory testimony at inquest, given when he was under subpoena and had not been charged with a crime, was admissible in subsequent criminal proceeding only for impeachment purposes). We reasoned as follows: The evidence in this case prove d that Thornton and his brother were arrested and charged with identi cal offenses arising out of the same transaction. Although not a party to his brother's earlier criminal trial,-8- Thornton had an interest in the outcome comparable to the joint interest discussed in Boney. The Commonwealth's case against the brothers arose from the same transaction and rested on the same set of facts. The resolution of factual and le gal issues in one case had the potential to affect the issues in the other case. Thus , we conclude that Thornton had a personal interest in the outco me of his brother's trial. Moreover, Thornton also had a familial interest in the outcome of his brother's prosecution. An acquittal of his brother or a lessening of the punishment that his brother received would have been a favorable result for him and his brother. Thornton t ook responsibility for the crime at his brother's trial and sought to exonerate his brother. His testimony was not compelled. Indeed, he freely testif ied after receiving and rejecting his counsel's advice. As a consequence, we hold that Thornton's testimony at his brother's trial constituted statements that he made "when examined as a witness in his own behalf." Code § 19.2-270. Thus, Thornton was not "entitled to any protecti on under the statute" wh en the prosecutor sought to use his testimony against him. Boney, 16 Va. App. at 642, 432 S.E.2d at 10. Id. at 10, 467 S.E.2d at 824. Here, the trial court's ruling admitting appellant's prior testimony was based primarily on its finding of "a strong relationship" between appellant and Warren because she was pregnant with his child. We recognize the signifi cance of such a relationship. 1 Nevertheless, the existence of such a relationship, standing alone, is insufficient to permit a finding that appellant was "examined as a witness in [her] own behalf." Had the Commonwealth, rather than Warren, called Frazier as a witness at his previous trial and had the Commonwealth elicited the same evidence which incriminated not only Warren but also herself, there can be little doubt that she would not have been testifying "as a witness in her own behalf." The fact that Warren compelle d her to give this testimony rather than the Commonwealth does not render the testimony substantively favorab le or on "her own behalf." Appellant, like Thornton did for his brother, took th e stand and claimed some responsibility for Warren's

1 The legislature has recognized this significance in other contexts. See Code § 16.1-228 (recognizing intensity of relationship that may result from such status by defining "Family or household member" to include "any individual who has a child in common with the person, whether or not the person and that individual have been married or have resided together at any time" for purposes of juvenile and domestic relations district court's jurisdiction"); Code § 18.2-57.2 (imposing heightened penalties for repeated assault and battery against a "family or household member" as defined in Code § 16.1-228).-9- failure to appear. However, in Thornton, the defendant and his brother had both actually been charged with identical offenses and the defendant was re presented by counsel, with whom he had consulted before deciding to testify. In appellant's cas e, by contrast, only Warren had been charged when appellant took the stand. Further, although appell ant said she knew her testimony admitting her actions could result in her being prosecute d, no evidence established that she had consulted with an attorney prior to testifying. Finally, appellant's compelled te stimony did not tend to exculpate Warren or herself and was, at most, a mitigating factor explaining why Warren fled the jurisdiction mid-trial. Thus, the holding in Thornton is distinguishable. Citing Hansel, the Commonwealth argues that appe llant also had a signifi cant financial interest in the outcome of Warren's trial for failure to appear . We hold that any financial interest appellant may have had also was insufficient to permit a finding that she testified "as a witness in [her] own behalf." In Hansel, the defendant's financial interest in the pr ior proceeding was a contractual right to one-third of any award received as a result of that prior proceeding. 118 Va. at 808, 88 S.E. at 166. Here, by contrast, any right of support appe llant's unborn child might have afte r its birth was owed to the child rather than to appellant. S ee, e.g., Rodriguez v. Rodriguez , 1 Va. App. 87, 91, 334 S.E.2d 595, 597 (1985) ("Child support is not a property right of the custodial parent . . . ."). In the absence of marriage, appellant herself had no right of support from Warren under Virginia law. See Kelderhaus v. Kelderhaus, 21 Va. App. 721, 725, 467 S.E.2d 303, 305 ( 1996) ("Virginia does not recognize domestic common-law marriages . . . ."). T hus, any financial benefit appellant might receive if appellant avoided incarceration was a mere expectati on rather than a contractual or statutory right. We hold such an expectation was insufficient to render her prior testimony admissible against her under Code § 19.2-270. As we have recognized previously, Code § 19.2-270 benefits both the witness-in-jeopardy and the accused by immunizing the witness. Benefit to the witness from use of immunity is manifest. The benefit to the accused lies in taking aw ay the obstacle to confrontation posed by the witness' continued assertion of the fifth-10- amendment privilege. A third, and e qually important, benefit accrues to the truthfinding process. Cunningham v. Commonwealth, 2 Va. App. 358, 363, 344 S.E.2d 389, 391 (1986). While extending the decisions in Thornton and Hansel to uphold the admission of appellant's prior testimony would benefit the truth-finding process in th is particular case, such an extension of Thornton and Hansel will inhibit the ability of other defendants to obtain truthful testimony from witn esses in future cases if those witnesses perceive that the protecti ons of Code § 19.2-270 are illusory or have been eviscerated. We are unwilling to further extend the exceptions to Code § 19.2-270 to include any witness who knows the defendant and gives testimony at the defendant's trial. Thus, we hold that when appellant testified at Warren's trial for failing to appear and admitted thatWarren fled the jurisdiction in the middle of his earlier trial for drug and firearms charges, albeit upon appellant's encouragement and threats of harm to herself and her unborn child, appellant did not give that testimony "as a witness in [her] own behalf." For these reasons, we reverse a ppellant's conviction and remand fo r further proceedings if the Commonwealth be so advised. Reversed and remanded.-11- Fitzpatrick, C.J., dissenting. Based on the reasoning in Hansel v. Comm onwealth, 118 Va. 803, 88 S.E. 166 (1916), and Thornton v. Commonwealth, 22 Va. App. 2, 467 S. E.2d 820 (1996), I would affirm the trial court's ruling. Therefore, I respectfully dissent. The trial court ruled that, at Ampazzio Warren' s trial for failing to appear, appellant "was testifying, in essence, no t only in Mr. Warren's behalf, but also in her own behalf." Appellant's testimony established that Warren was her boyfriend and that, at both the time she encouraged him to flee the jurisdiction and at the time she testified at his resulting trial for failing to appear, she was pregnant with his child. Cf. Code § 16.1-228 (recognizing inte nsity of relationship that may result from such status by defining "Family or household memb er" to include "any indi vidual who has a child in common with the person, whether or not the person and that individual have been married or have resided together at any time" for purposes of j uvenile and domestic relations district court's jurisdiction"); Code § 18.2-57.2 (impos ing heightened penalties for repe ated assault and battery against a "family or household member" as defined in Code § 16.1-228); Bennett v. Dep't of Soc. Servs., 22 Va. App. 684, 691-92, 472 S.E.2d 668, 672 (1996) (discussing dutyof parents to provide support for minor child). Appellant admitted she encouraged Warren to flee his trial for drug and weapons offenses on June 5, 2000, because she did not want "[her] boyfrie nd and the father of this child[] going to prison." A reasonable inference is that her feelings were the same when she testified at Warren's trial of September 8, 2000, for failing to appear and that sh e hoped to help him avoid incarceration for that offense or at least to lessen his punishment. T hus, although the facts are no t identical, the evidence supports the trial court's conclusion that appellant had the type of personal, financial and familial interests set out in Hansel and Thornton and, thus, that her testimony fr om Warren's trial for failing to appear was admissible in her subsequent trial for aiding and abetting that offense. Although no charges were pending against appellant when she testified in Warren's trial for failing to appear and no evidence established thatappellant obtained lega l advice before giving-12- self-incriminating testimony at Warren's trial, nothi ng in the case law holds that such advice is a prerequisite to the admissibility of such te stimony in a subsequent proceeding. See Thornton , 22 Va. App. at 8, 467 S.E.2d at 823 (noting that resolution of admissibility issue "may depend, in part, upon circumstances of the prior legal examin ation"); id. (noting that, in Hansel , prior testimony in civil suit was given before filing of criminal charges against Hansel). We merely recogni zed, in reciting the facts in Thornton, that the accused ha d received such advice. Id. at 4, 467 S.E.2d at 821. Further, appellant clearly contemplated that the institution of a criminal prosecution against her was likely to result from her testimony in Warren's tria l for failing to appear. She expressly testified that the reason she "came to Court" for that proceeding was "to accept . . . respon sibility" for encouraging Warren to flee "and whatever punishment seems fit for it." When asked by the prosecutor, "[D]o you have any comprehension that you have just adm itted to committing a felony?" appellant responded, "Yes sir." Thus, despite the fact that appellant had not yet been charge d with aiding and abetting Warren's flight, she expressly recognized the possibility that charges for aiding and abetting might be forthcoming. Although Code § 19.2-270 is designed to "benefit[] both the witness-in-je opardy and the accused by immunizing the witness," we have recognized that "[a] third, and equally important benefit, accrues to the truthfinding process. " Cunningham v. Commonwealth, 2 Va. App. 358, 363, 344 S.E.2d 389, 391 (1986). As the legislature acknow ledged in amending the statute af ter Kirby v. Commonwealth, 77 Va. 681 (1883), and as this Court and the Supreme Court have acknowledged in interpreting the amended language, applying the statute to imm unize (a) a defendant on retrial or (b ) a witness with strong ties to a defendant, on whose behalf he has testified, so that both the witn ess and the defendant may avoid liability for a particular crime, would subvert rather than protect the truth-finding process. Because I believe the evidence supports a finding th at appellant testified "as a witness in [her] own behalf" at Warren's trial for failing to appear , I would hold the trial court's admission of that-13- testimony in appellant's subsequent trial for aiding and abetting Warren's offense was not error. Thus, I would affirm appellant's convi ction and respectfully dissent.