COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

LARRY ALANZA THORNTON 

 OPINION BY 

v. Record No. 1168-94-2 JUDGE JAMES W. BENTON, JR. 

 MARCH 12, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert L. Harris, Sr., Judge 

 J. Kelly Haley for appellant. 

 Kathleen B. Martin, Assistant Attorney 

 General (James S. Gilmore, III, Attorney 

 General, on brief), for appellee. 

 On March 16th, 1994, a jury convicted Larry Alanza Thornton 

of possession of heroin and distribution of heroin. Thornton 

contends that the trial judge violated Code § 19.2-270 when he 

admitted evidence of incriminating testimony that Thornton 

previously had given at his brother's trial on related charges.1

 For the reasons that follow, we affirm the convictions. 

 I. 

 The evidence at trial proved that an undercover police 

officer approached Thornton at a street corner known by the 

 

 1Code § 19.2-270 provides as follows: 

 In a criminal prosecution, other than for 

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. 
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police as a place for drug trafficking. The officer asked 

Thornton if he had heroin. Thornton took the officer to a store 

where Thornton's brother was standing. As they approached, 

Thornton called to his brother and asked the officer for the 

money. Thornton's brother joined them, reached into his pocket, 

and handed an envelope to Thornton. Thornton gave the envelope 

to the officer. The officer observed that the envelope was 

consistent with packaged heroin, approved the purchase, and drove 

away. While driving away, the officer transmitted a description 

of the two men to other officers. The officers arrested Thornton 

and his brother and charged them with possession of heroin and 

distribution of heroin. 

 Thornton received a subpoena to testify as a witness for his 

brother, who was the first to be tried. Against the advice of 

his own counsel, Thornton voluntarily testified as a witness at 

his brother's trial. After informing the trial judge that he 

understood the consequences of his actions, Thornton testified 

that when the officer approached him he had heroin in his pocket 

and sold that heroin to the officer. He also testified that he 

called to his brother only because he did not want to be alone 

with the officer. Thornton further testified that he had been 

selling drugs for about twenty years and that his brother did not 

sell drugs. 

 Prior to his own trial, Thornton filed a motion in limine to 

bar the Commonwealth from introducing into evidence at his trial 
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the testimony he gave at his brother's trial. Thornton argued 

that Code § 19.2-270 provided him with immunity against the use 

of his prior testimony. In response, the Commonwealth argued 

that the questions of admissibility and immunity in drug 

prosecutions are governed exclusively by Code § 18.2-262 and, 

further, that Thornton could not in any event claim immunity 

because he had testified in his own behalf.2

 Stating that Code § 

19.2-270 was not intended to allow a defendant to give selfincriminating testimony to exonerate a co-defendant and then hide 

behind the immunity statute in his own subsequent trial, the 

trial judge denied the motion. At Thornton's trial, the 

Commonwealth offered as evidence the transcript of Thornton's 

testimony at his brother's trial. Thornton was convicted and 

appeals the trial judge's ruling. 

 2In pertinent part Code § 18.2-262 states as follows: 

 No person shall be excused from testifying or 

from producing books, papers, correspondence, 

memoranda or other records 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 or 

other evidence tending to incriminate himself, 

but the testimony given and evidence so 

produced 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. 

 II. 

 Initially, the Commonwealth contends that Code § 19.2-270 
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does not apply to the case. The Commonwealth argues that 
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Thornton was prosecuted for a drug offense and, therefore, Code 

§ 18.2-262 is the exclusive provision that confers immunity. We 

do not agree. Neither statute precludes the operation of the 

other. Although the statutes offer different types of immunity, 

see Caldwell v. Commonwealth, 8 Va. App. 86, 88, 379 S.E.2d 368, 

369 (1989)(Code § 18.2-262 offers transactional and use 

immunity); Gosling v. Commonwealth, 14 Va. App. 158, 164, 415 

S.E.2d 870, 873 (1992)(Code § 19.2-270 offers only use immunity), 

neither statute precludes, in an appropriate case, a witness from 

claiming immunity. We hold that Code § 18.2-262 does not 

preclude Thornton from claiming protection under Code § 19.2-270. 

 III. 

 The Commonwealth also argues that Code § 19.2-270 does not 

apply to Thornton because he testified in his own behalf at his 

brother's trial. In parsing the wording of Code § 19.2-270, we 

conclude that many of its provisions are applicable to Thornton's 

situation. Thornton's trial was "a criminal prosecution, other 

than for perjury." Id. Thornton, sought to bar "evidence . . . 

given against [him,] the accused [,] of any statement made by him 

as a witness upon legal examination, in a criminal . . . action." 

Id. The controlling issue in this case is whether Thornton was 

"examined as a witness in his own behalf" at his brother's trial. 

Id. If he was, his testimony could be used against him. 

 The predecessor to Code § 19.2-270 was chapter 195, section 

22 of the Code of Virginia of 1873. It provided the following: 

 In a criminal prosecution other than for 
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perjury, or 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. 

 The Supreme Court applied that statute in Kirby v. 

Commonwealth, 77 Va. 681 (1883), when Kirby, who had been charged 

with malicious shooting with the intent to kill, was tried twice. 

Id. at 682. In the first of two trials, Kirby testified as a 

witness in his own defense. After a new trial was ordered, Kirby 

did not testify at the second trial. A third party was allowed 

to testify, however, that statements made by Kirby at the first 

trial conflicted with the testimony of two of his witnesses at 

the second trial. Id. at 690. 

 The Court held that although Kirby had testified in his own 

behalf at the first trial, his testimony was given as a witness 

upon a legal examination "in a criminal prosecution other than 

for perjury." Id. at 690 (quoting Code 1873, ch. 195, § 22). 

Therefore, the Court held that Kirby's testimony from the first 

trial was improperly admitted and reversed the judgment. Id. 

 "[T]o meet the effect of [Kirby]" the General Assembly 

amended the statute by adding the words, "'unless such statement 

was made when examined as a witness in his own behalf.'" Thaniel 

v. Commonwealth, 132 Va. 795, 802, 111 S.E. 259, 261 (1922). 

When the Supreme Court decided Mullins v. Commonwealth, 113 Va. 

787, 75 S.E. 193 (1912), the amended statute was in effect. 

During Mullins' murder trial, the judge permitted a witness "to 

testify to a statement made by [Mullins] in his examination at 
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the inquest before the coroner's jury." Id. at 792, 75 S.E. at 

196. Citing the amendment, the Supreme Court reversed the trial 

judge's ruling and held that "the evidence in question was 

forbidden by the [amended statute]." Id. The Court did not 

further explain the basis for its holding. 

 In Thaniel, the Supreme Court revisited the issue in a 

slightly different context. Thaniel, who was being tried for 

murder, had also previously testified at a coroner's inquest. 

The Court elaborated upon the circumstances relating to Thaniel's 

testimony at the coroner's inquest: 

 On the day after the homicide the coroner 

held an inquest at which [Thaniel] testified 

as a witness. While the record is not 

entirely clear upon the point, we shall 

assume, in order to give [Thaniel] the full 

benefit of his contention, that he was duly 

summoned and that he did not voluntarily 

offer himself as a witness. He was not under 

arrest at that time, nor, so far as the 

record shows, had he been charged with the 

crime. Upon this assumption and under these 

circumstances, even though his testimony at 

the coroner's inquest may have tended to 

exculpate him, he cannot be regarded as 

having been there in the capacity of a 

witness in his own behalf. 

Thaniel, 132 Va. at 800, 111 S.E. at 260 (citations omitted). 

 Unlike Mullins, where the Commonwealth used Mullins' prior 

testimony as evidence in its case-in-chief, in Thaniel the 

Commonwealth used Thaniel's prior testimony to cross-examine 

Thaniel. The Supreme Court found this difference significant and 

stated the following: 

 In the Mullins Case, the former statements 

of the accused which the court said were 
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improperly admitted had not been made as a 

witness in his own behalf, but at a coroner's 

inquest, and were testified to by a third 

party as a witness in chief for the 

Commonwealth. The case would, therefore, be 

in point here as authority for the accused 

but for the fact that there is (contrary to 

his contention) a clear distinction between a 

case in which the Commonwealth undertakes to 

prove by evidence in chief statements made by 

an accused person upon a former legal 

examination (not as a witness for himself), 

and a case in which the Commonwealth merely 

seeks to bring out, or to lay the foundation 

for bringing out, such statement by crossexamination of the prisoner himself when he 

takes the stand in his own behalf. 

Thaniel, 132 Va. at 803, 111 S.E. at 261 (emphasis added). 

 Although Thaniel was ultimately decided upon principles not 

applicable to the case before us, we cite the above passages from 

Thaniel because they appear to suggest that whether a person has 

been "examined as a witness in his own behalf" may depend, in 

part, upon circumstances of the prior legal examination. Thaniel

suggests that these circumstances would include whether the 

person has been charged criminally when giving the first 

testimony or whether the proceeding in which the prior testimony 

was given was one that was adversarial to the person. 

 The circumstances in Hansel v. Commonwealth, 118 Va. 803, 88 

S.E. 166 (1916) are instructive in deciding Thornton's case. 

Hansel was charged with feloniously forging and uttering an 

option contract for the sale of land. Id. at 807, 88 S.E. at 

166. A co-defendant was charged with aiding and abetting Hansel 

in the commission of the forgery. Id. at 807, 88 S.E. at 166. 
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The evidence proved that before Hansel was criminally charged, 

the co-defendant filed a civil action on the option contract for 

recovery of commissions. Hansel, who was not a party to that 

civil suit, testified as a witness for the co-defendant. 118 Va. 

at 804, 88 S.E. at 166. 

 In the later criminal prosecution against Hansel, the trial 

judge allowed the Commonwealth to prove the testimony that Hansel 

gave in the civil action. Although the civil action was brought 

in the name of the co-defendant and Hansel was not a party to the 

civil action, Hansel was to receive one-third of the commission 

resulting from the civil suit. Id. at 808, 88 S.E. at 166. In 

approving the use in the criminal prosecution of Hansel's 

testimony from the civil case, the Supreme Court held as follows: 

 With respect to this objection, it is 

sufficient to say that though Hansel was 

called as a witness [in the civil case] for 

the . . . [co-defendant], they had a joint 

interest in the recovery. So that in point 

of fact he was "examined as a witness in his 

own behalf." 

118 Va. at 809, 88 S.E. at 167. 

 In Boney v. Commonwealth, 16 Va. App. 638, 642, 432 S.E.2d 

7, 9-10 (1993), we considered whether Code § 19.2-270 allowed a 

judge to compel testimony from a co-defendant who refused to 

testify at Boney's trial. Although the decision focused 

primarily on the effect of the co-defendant's invocation of the 

Fifth Amendment, we considered the scope of Code § 19.2-270. 

Relying on Hansel, we noted that if the co-defendant had 
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testified, he would have been "'examined as a witness in his own 

behalf' because he and Boney had a 'joint interest' in the events 

that were the focus of the litigation." Boney, 16 Va. App. at 

641-42, 432 S.E.2d at 9 (citation omitted). We concluded that 

the co-defendant had a "joint interest" with Boney because the 

co-defendant "was in custody on charges arising out of the same 

incident" for which Boney was being prosecuted. Boney, 16 Va. 

App. at 641, 432 S.E.2d at 9. 

 Thornton argues that a witness could only have testified in 

his own behalf, as explained in Hansel, if the witness had an 

interest in the actual recovery to be gained from the prior 

proceeding. 118 Va. at 809, 88 S.E. at 167. We agree that 

Hansel's testimony at the civil trial had the potential to 

increase the chance that he would receive one-third of the 

commission. Thus, he testified for his own financial benefit. 

Nonetheless, we do not read Hansel to limit the testifying 

witness' interest solely to an actual recovery that might result 

from the proceeding. Rather, Hansel identifies a favorable 

recovery as a sufficient interest that the testifying witness may 

have. 

 The evidence in this case proved that Thornton and his 

brother were arrested and charged with identical offenses arising 

out of the same transaction. Although not a party to his 

brother's earlier criminal trial, Thornton had an interest in the 

outcome comparable to the joint interest discussed in Boney. The 
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Commonwealth's case against the brothers arose from the same 

transaction and rested on the same set of facts. The resolution 

of factual and legal 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 outcome 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 took responsibility for the crime at his 

brother's trial and sought to exonerate his brother. His 

testimony was not compelled. Indeed, he freely testified 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 protection under the 

statute" when the prosecutor sought to use his testimony against 

him. Boney, 16 Va. App. at 642, 432 S.E.2d at 10. Applying the 

express wording of Code § 19.2-270 that withholds immunity where 

the witness testified "when examined as a witness in his own 

behalf," we hold that the trial judge properly allowed Thornton's 

prior testimony. Therefore, we affirm the convictions. 

 Affirmed.