COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Elder 

Argued by teleconference 

PAUL ED NEWTON 

 OPINION BY 

v. Record No. 1695-97-3 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 APRIL 6, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LEE COUNTY 

William C. Fugate, Judge 

 Timothy W. McAfee for appellant. 

 (Mark L. Earley, Attorney General; John H. 

McLees, Jr., Assistant Attorney General; 

Ruth Morken McKeaney, Assistant Attorney 

General, on brief), for appellee. 

 Paul Ed Newton (appellant) was convicted in a jury trial of 

two counts of distribution of cocaine in violation of Code 

§ 18.2-248(C). On appeal, appellant argues that the trial court 

erred in: (1) requiring him to divulge privileged information 

to the Commonwealth; (2) allowing improper impeachment evidence 

regarding one of appellant's witnesses; (3) permitting two 

officers to give opinion testimony; (4) admitting into evidence 

tape-recorded conversations between appellant and the informant; 

(5) allowing the Commonwealth to introduce evidence of 

appellant's prior criminal conduct; (6) allowing improper lay 

opinion testimony about appellant's guilt; (7) incorrectly 

instructing the jury as to the informant's immunity from 
prosecution; and (8) making an improper comment to the jury 

foreperson during deliberations. For the reasons that follow, 

we affirm the convictions. 

I. BACKGROUND 

 Appellant was charged with selling cocaine to Terry Harber 

(Harber) on July 9 and July 15, 1996. The Commonwealth's case 

was based primarily upon the testimony of Harber, who was acting 

as an informant for Brian Shoemaker, a Lee County Deputy Sheriff 

assigned to a multi-jurisdiction "Drug Task Force." Harber made 

"controlled buys" of cocaine from appellant while wearing a body 

wire, which transmitted Harber's conversations to nearby police 

officers. These radio transmissions were recorded and played 

for the jury. At trial, appellant contended that Harber was an 

unreliable informant and that the alleged sales of cocaine had 

never occurred. 

II. PRIVILEGED INFORMATION 

 Prior to trial, appellant filed various motions for 

discovery and submitted proposed orders to the Commonwealth's 

Attorney for endorsement. Although the trial court did not 

enter a formal discovery order, it made several rulings during 

the discovery hearings. At no time prior to trial did the 

Commonwealth request reciprocal discovery pursuant to Rule 

3A:11(c). 

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 During a recess while voir dire of the jury panel was in 

progress, the Commonwealth's Attorney learned that appellant's 

counsel had interviewed Terry Harber. This pretrial interview 

(the Harber statement) was recorded, a transcript of the 

interview was prepared, and Harber signed an affidavit regarding 

his statements made in the interview.1 The Commonwealth 

requested the trial court to order disclosure of these 

materials. Appellant argued that: (1) the Harber statement was 

not discoverable under Rule 3A:11; (2) the Commonwealth had no 

right to information developed by the defendant in anticipation 

of trial; and (3) he intended to use the materials only if 

necessary to impeach Harber's direct testimony. 

 

 1The parties dispute the occurrence of the events that led 

to Harber's interview. 

 The Commonwealth's Attorney alleged that appellant's 

counsel called Harber to ask about certain details of the 

controlled buys involving appellant. At some point after the 

telephone conversation, an individual named Dale Kempton 

contacted Harber and "applied some pressure on the informant to 

change his story and say he didn't remember." Thereafter, 

Kempton brought Harber to counsel's office where he was 

interviewed on tape, and Harber was asked to sign the affidavit. 

Although he was reluctant to do so, Harber eventually signed the 

document. 

 According to appellant's counsel, he called Harber to 

inquire about the controlled buys. Harber allegedly told 

counsel that appellant should plead guilty because "it'll save 

me from having to go to testify." Sometime thereafter, Harber 

appeared in counsel's office because he had some information 

that was "going to be of benefit to [appellant]." Counsel taped 

the conversation because he did not want to be a witness if the 

information later turned out to be useful. Harber left the 

office and later returned to review the tape. At that point, an 

affidavit was prepared and signed by Harber. 

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 Over appellant's objection, the trial court ordered that 

copies of the tape, transcript, and affidavit be provided to the 

Commonwealth's Attorney. The trial judge ruled: 

 I don't think there's anything wrong 

with you talking with the witness, but if 

the witness has made a statement to you, 

independent of what has been given to you 

and different from what he has testified to, 

or different from what he has advised the 

Commonwealth Attorney, I think that yes, I 

think the Commonwealth Attorney would be 

entitled to see what that is. 

Appellant complied with the court's ruling while maintaining his 

objection. After the jury selection process concluded, the 

trial court granted the Commonwealth's motion to adjourn until 

the next morning so the Commonwealth could review the disclosed 

material. 

 On appeal, we decide whether Code § 19.2-268.1--which 

addresses impeachment of witnesses and allows "the court at any 

time during the trial to require the production" of "previous 

statements made by [a witness] in writing or reduced into 

writing"--provides authority for a trial court to order the 

disclosure of otherwise non-discoverable material. The parties 

agree that the Harber statement was not discoverable by the 

Commonwealth under the discovery provisions of Rule 3A:11.2 

 

 2The Commonwealth's right to discovery is governed by Rule 

3A:11(c). That subsection provides that if the court grants 

discovery to the accused, then upon motion the Commonwealth is 

entitled to the following: (1) written reports of autopsy 

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However, the parties dispute the application of Code 

§ 19.2-268.1. 

 The Commonwealth contends that while advance disclosure of 

the Harber statement was not mandated under Rule 3A:11, Code 

§ 19.2-268.1 gave the trial court the discretion to require the 

production of the tape and affidavit for inspection. Under the 

circumstances of the instant case, we hold that the trial judge 

erred in requiring appellant to disclose the materials prior to 

their use or proposed use for impeachment purposes. 

 Code § 19.2-268.1 specifically addresses the contradiction 

of witnesses by use of prior inconsistent writings and provides: 

 A witness in a criminal case may be 

cross-examined as to previous statements 

made by him in writing or reduced into 

writing, relative to the subject matter of 

the proceeding, without such writing being 

shown to him; but if it is intended to 

contradict such witness by the writing, his

attention must, before such contradictory 

proof can be given, be called to the 

particular occasion on which the writing is 

supposed to have been made, and he may be 

 

examinations, ballistic tests, fingerprint, blood, urine and 

breath analysis, and other scientific evidence that the accused 

intends to offer into evidence at trial; (2) a statement 

indicating whether the accused intends to introduce evidence of 

an alibi; and (3) if the accused intends to rely upon the 

defense of insanity or feeblemindedness, written reports of 

physical or mental examinations of the accused. There is no 

other provision for discovery by the Commonwealth in a criminal 

matter. 

 Here, counsel for appellant contemplated using the Harber 

statement during the cross-examination of the witness and this 

prior inconsistent writing is not covered by Rule 3A:11(c). 

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asked if he did not make a writing of the 

purport of the one to be offered to 

contradict him, and if he denies making it, 

or does not admit its execution, it shall 

then be shown to him, and if he admits its 

genuineness, he shall be allowed to make his 

own explanation of it; but it shall be 

competent for the court at any time during 

the trial to require the production of the 

writing for its inspection, and the court 

may thereupon make such use of it for the 

purpose of the trial as it may think best. 

(Emphasis added). The last provision of the statute grants the 

trial court broad latitude in ordering the production of a 

witness' statement when the statement is used for impeachment 

purposes. However, in the context of this case, the provision 

does not allow for pretrial discovery or pre-impeachment use. 

 Code § 19.2-268.1 was not intended by the legislature to be 

used as an alternate method of discovery. To the contrary, it 

was specifically placed in Chapter 16 of Title 19.2 entitled, 

Evidence and Witnesses. "While not part of the code section, in 

the strictest sense, the caption may be considered in construing 

the statute, as it is 'valuable and indicative of legislative 

intent.'" Bell v. Commonwealth, 21 Va. App. 693, 701, 467 

S.E.2d 289, 293 (1996) (quoting Krummert v. Commonwealth, 186 

Va. 581, 584, 43 S.E.2d 831, 832 (1947)). Furthermore, the code 

section is entitled, Contradiction by prior inconsistent 

writing, and in construing the statute, we shall look to its 

title. "A title may be read in an attempt to ascertain an act's 

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purpose, though it is no part of the act itself." Hawkins v. 

Commonwealth, 255 Va. 261, 269, 497 S.E.2d 839, 842 (1998). 

 Considering the chapter caption and title of the statute, 

we conclude that the authority granted in Code § 19.2-268.1 was 

not intended to supplement the discovery provisions of Rule 

3A:11. Rather, it was intended to be used as an evidentiary 

rule by the trial court to order the production, inspection and 

use of a written statement once a witness has been 

cross-examined about the existence or contents of a prior 

statement. Indeed, we have consistently applied Code 

§ 19.2-268.1 only to cases involving the impeachment of a 

witness. For example, in Smith v. Commonwealth, 19 Va. App. 

594, 453 S.E.2d 572 (1995), we held that the trial court did not 

abuse its discretion in admitting a written stipulation of facts 

to impeach the trial testimony of Williams, the defendant's 

primary witness. Addressing the proper use of prior 

inconsistent written statements, we wrote: 

We see no reason why the signed stipulation 

of facts that accompanied Williams's plea 

should be viewed as anything other than 

Williams's admission to the events that 

transpired during the consummated drug sale. 

 Importantly, the trial court is 

permitted to "make such use of [the writing] 

for the purpose of the trial as it may think 

best." The record demonstrates that the 

stipulation of facts was submitted in 

compliance with Code § 19.2-268.1. After 

the stipulation's submission, appellant's 

counsel had the opportunity to elicit 

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Williams's version of the facts. 

Thereafter, it was within the province of 

the jury to determine Williams's veracity. 

Id. at 597, 453 S.E.2d at 574 (citations omitted) (emphasis 

added). Accordingly, we concluded in Smith that "the 

stipulation's introduction for impeachment purposes was not an 

abuse of discretion." Id. at 598, 453 S.E.2d at 575. See also

Spruill v. Commonwealth, 221 Va. 475, 485, 271 S.E.2d 419, 425 

(1980) (finding that the trial court did not abuse its 

discretion in denying defendant's request under Code 

§ 19.2-268.1 to introduce a medical report where there was 

"nothing contradictory or inconsistent" in the proffered 

report). 

 In Edwards v. Commonwealth, 19 Va. App. 568, 454 S.E.2d 1 

(1995), we again considered the application of Code § 19.2-268.1 

where the defendant attempted to impeach the Commonwealth's 

witnesses by questioning them about prior statements made at a 

preliminary hearing. The Commonwealth argued that the statute 

applied and the defendant was required to use a transcript when 

attempting to impeach the two witnesses. See id. at 570, 454 

S.E.2d at 2. Although we held that Code § 19.2-268.1 did not 

apply in that case, our analysis was based upon evidentiary 

rules of impeachment. 

 The court erred in requiring a 

transcript as the only means of impeaching a 

witness based on inconsistent statements 

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made at an earlier hearing. Although laying 

a foundation prior to the introduction of 

impeachment evidence is a separate and 

necessary step in the impeachment process, 

it is not contingent on the existence of a 

transcript. While using a transcript, if 

available, is the preferable means of laying 

an impeachment foundation, it is not the 

only means. This rule also applies once the 

initial foundation has been laid. If a 

witness denies or is unable to recall a 

prior statement, a party may impeach him by 

introducing other evidence, such as another 

witness who heard the inconsistent 

statement. If a transcript is available, 

the court may require its production 

pursuant to the mandate of Code § 19.2-268.1 

even if there are other means of 

impeachment. 

Id. at 571-72, 454 S.E.2d at 2-3 (second emphasis added). See

also Smith v. Commonwealth, 15 Va. App. 507, 511, 425 S.E.2d 95, 

98 (1992) ("If a witness gives testimony that is inconsistent 

with a prior statement, or testifies that he does not recall 

making the prior statement, a sufficient foundation for 

impeachment has been laid, and opposing counsel may 

cross-examine the witness as to the inconsistency. In addition, 

all inconsistent portions of that prior written statement are 

admissible for impeachment purposes."). 

 The case law is well settled as to the proper use of 

written statements under Code § 19.2-268.1. That provision 

applies only to the evidentiary rule of impeachment during trial 

and provides no authority to order a defendant to disclose a 

witness' written statement prior to trial. In the instant case, 

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the trial court ordered appellant to disclose the tape, 

transcript and affidavit of Harber before opening statements, 

which allowed the Commonwealth an additional day to review the 

materials. This requirement was tantamount to ordering the 

defendant to provide discovery materials that under Rule 3A:11 

would not have been discoverable. 

 Moreover, while the Commonwealth requested disclosure of 

the Harber statement pursuant to Code § 19.2-268.1, it appears 

from the record that the trial court based its decision solely 

on discovery rules. The trial judge stated: 

 Well I've made certain rulings, here, 

that I have directed that the Commonwealth 

Attorney make available to defense counsel 

materials and so forth, and I don't think 

this trial is a one-way deal, I think we 

need to go down the middle of the road. For 

that reason I suppose [defense counsel] is 

allowed to listen to any and all tapes which 

the Commonwealth may have, which the 

Commonwealth is going to rely upon, and then 

at the last minute you, as defense counsel, 

have come up with something different. I 

don't think the Commonwealth Attorney should 

have to wait in anticipation as to whether 

it's going to be used or not used. I take 

it's going to be used and she should be 

entitled to see what it is. 

 Nevertheless, the Commonwealth argues that because 

appellant indicated that the Harber statement might be used for 

impeachment purposes during trial, the trial court properly 

exercised its authority under Code § 19.2-268.1 in requiring 

production of the written materials at an earlier time. 

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However, as the statute mandates, there is a proper method for 

impeachment by prior inconsistent writings. As we stated in 

Scott v. Commonwealth, 7 Va. App. 252, 372 S.E.2d 771 (1988), 

cert. denied, 490 U.S. 1095 (1989), 

Code § 19.2-268.1, in plain language, 

permits the cross-examination of a witness 

in a criminal case based on a prior written 

statement by the witness. This statute 

provides that if the witness denies making 

the prior statement, it shall then be shown 

to him and if he admits its genuineness, he 

shall be allowed to make his own explanation 

of it. 

Id. at 258, 372 S.E.2d at 775. 

 In the instant case, the Commonwealth put the cart before 

the horse. Appellant indicated that, if necessary, he would use 

the interview materials to impeach Harber. However, when the 

Commonwealth's request was made during voir dire of the jury, 

appellant could only speculate as to the substance of Harber's 

direct testimony. Indeed, the trial judge recognized that the 

statement was useful for impeachment purposes only if the 

witness provided inconsistent testimony on direct examination.3 

 

 3The trial judge stated: 

I don't know what this particular 

witness is going to testify to, but I don't 

think anybody should be put in the position 

where they're unmindful, or have some idea 

of what the evidence is going to be. What 

he told you may be a correct statement of 

facts, what he has previously said or done, 

and you taped it, you've gotten it, and I 

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If, during the cross-examination of Harber, appellant attempted 

to impeach the witness, then Code § 19.2-268.1 would have 

allowed the trial court to "require the production of the 

writing for its inspection" and "thereupon make such use of it 

for the purpose of the trial as it may think best." Code 

§ 19.2-268.1; see also Edwards, 19 Va. App. at 571, 454 S.E.2d 

at 2 ("After the foundation is laid, '[t]he witness may then 

usually be impeached by the introduction of evidence to prove 

that the prior inconsistent statement was in fact made.' Such 

evidence includes the testimony of another witness who heard the 

prior inconsistent statement, or the transcript of a prior 

hearing. If the prior statement was 'in writing or reduced to 

writing,' such as in the form of a transcript, the court may 

require the party to produce the writing." (citations omitted) 

(emphasis added)). Accordingly, we hold the trial court erred 

in ordering disclosure of the Harber statement prior to the 

proper foundation for its use and as a substitute for pretrial 

discovery. 

 However, our inquiry does not end there. We must decide 

whether the error requires reversal. Our determination of 

 

think the Commonwealth is entitled to see 

what it is, and that is my ruling on the 

matter. 

(Emphasis added). 

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whether the error is harmless is guided by familiar principles. 

Non-constitutional error "is harmless '[w]hen it plainly appears

from the record and the evidence given at the trial that the 

parties have had a fair trial on the merits and substantial 

justice has been reached.'" Lavinder v. Commonwealth, 12 Va. 

App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting 

Code § 8.01-678) (emphasis added in Lavinder). To determine 

whether an error is harmless, the Court "must review the record 

and the evidence and evaluate the effect the error may have had 

on how the finder of fact resolved the contested issues." Id.

at 1007, 407 S.E.2d at 912. "An error does not affect a verdict 

if a reviewing court can conclude, without usurping the jury's 

fact finding function, that, had the error not occurred, the 

verdict would have been the same." Id. at 1005, 407 S.E.2d at 

911. 

 Applying the standard articulated in Lavinder, we conclude 

that the error was harmless. While the trial court erroneously 

ordered disclosure of the Harber statement, it plainly appears 

from the evidence that appellant received "a fair trial on the 

merits and substantial justice has been reached." Lavinder, 12 

Va. App. at 1005, 407 S.E.2d at 911. Moreover, we cannot unring 

the bell and restore the status quo. The statement has been 

disclosed to the Commonwealth and on retrial it would be 

available for their use. 

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 Furthermore, the record affirmatively establishes that the 

verdict was not affected by the trial court's error. Although 

the Commonwealth was granted access to the Harber materials at 

the conclusion of voir dire, the course of trial proceeded as if 

the tape, transcript and affidavit had not been disclosed to the 

Commonwealth's Attorney. Indeed, the Commonwealth limited its 

direct examination of Harber to his prior criminal record, the 

grant of immunity for testifying and the circumstances involving 

the controlled buys from appellant. The Commonwealth also 

played for the jury the tape-recorded conversations between 

appellant and Harber. The record clearly establishes that the 

Harber materials were not used to bolster Harber's credibility 

on direct examination. 

 It was not until the cross-examination of Harber that the 

jury learned about the existence and contents of his 

tape-recorded interview. Counsel attempted to impeach Harber's 

trial testimony that identified appellant as the individual 

involved in the controlled buys. Only at that point did he use 

the pretrial statement Harber had given to defense counsel, in 

which Harber stated he could not remember who sold him the 

drugs. On redirect, Harber testified that the April 1998 

statement was untrue and that he was "pressured" into making it. 

 In summary, we conclude that the trial court erred in 

ordering pretrial disclosure of the Harber statement because it 

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was not discoverable under Rule 3A:11 nor was it properly 

produced under Code § 19.2-268.1. However, we conclude that 

this error was harmless because this information would have 

ultimately been provided to the Commonwealth and its use would 

have been the same. The course of the trial did not change, and 

it plainly appears from the record that appellant received a 

fair trial. See Lavinder, 12 Va. App. at 1005, 407 S.E.2d at 

911. 

III. IMPEACHMENT OF KEMPTON 

 Appellant called as a witness Dale Kempton, a longtime 

acquaintance of appellant and Harber. Appellant attempted to 

contradict Harber's testimony that he was "pressured" into 

making the statement at defense counsel's office and later into 

signing an affidavit memorializing it. During cross-examination 

of Kempton, the Commonwealth attempted to impeach him with 

evidence of prior drug use, a misdemeanor conviction for 

distribution of marijuana, and an assault and battery and 

malicious wounding charge, neither of which resulted in 

conviction. Over appellant's objection, the trial court allowed 

the testimony into evidence. Appellant contends on appeal that 

the Commonwealth's method of impeaching Dale Kempton was 

improper. We agree. 

 On cross-examination by the Commonwealth, Kempton was asked 

whether he had a history of drug abuse. The witness stated, 

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"No." Over appellant's objection, the trial court allowed the 

Commonwealth to question whether Kempton had previously been 

convicted of misdemeanor distribution of marijuana. We hold the 

trial court erred in allowing this line of questioning. 

 "Where the purpose of the inquiry is to impeach a witness' 

veracity, cross-examination concerning a witness' prior 

convictions is limited to prior felony convictions and 

convictions for misdemeanors involving moral turpitude." Scott 

v. Commonwealth, 25 Va. App. 36, 41, 486 S.E.2d 120, 122 (1997) 

(emphasis added) (citing Johnson v. Commonwealth, 224 Va. 525, 

528, 298 S.E.2d 99, 101 (1982); Chrisman v. Commonwealth, 3 Va. 

App. 89, 93-100, 348 S.E.2d 399, 401-05 (1986)). Misdemeanor 

crimes of moral turpitude are limited to those crimes involving 

lying, cheating and stealing, including making a false statement 

and petit larceny. See Chrisman, 3 Va. App. at 99, 348 S.E.2d 

at 404. See also Charles E. Friend, The Law of Evidence in 

Virginia § 5-12(a) (4th ed. 1993). However, the misdemeanor 

crime of distribution of marijuana is not considered a crime of 

moral turpitude and, therefore, is not an appropriate form of 

impeachment.4 Accordingly, the trial court erred in allowing 

 

 4The Commonwealth mistakenly relies on Johnson, 224 Va. 525, 

298 S.E.2d 99, for the proposition that the distribution of 

drugs is a crime of moral turpitude. In Johnson, the Supreme 

Court wrote: 

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inquiry into whether Kempton had been convicted of misdemeanor 

distribution of marijuana. 

 The trial court also erred in allowing the Commonwealth's 

Attorney to question Kempton about unadjudicated offenses of 

assault and battery and malicious wounding. 

 It is well settled in Virginia that a 

litigant's right to impeach the credibility 

of adverse witnesses by showing their 

participation in criminal conduct has been 

confined to questions about a conviction for 

a felony, perjury, and a misdemeanor 

involving moral turpitude. This limitation 

upon a defendant's impeachment rights is a 

reasonably necessary measure to restrict the 

scope of a criminal trial. . . . [A]dmission 

of unadjudicated crimes for purposes of 

 

[Defendant's] prior convictions involved 

grand larceny, statutory burglary, 

distribution of drugs, and possession of 

drugs with intent to distribute. Not only 

were they crimes of moral turpitude, but 

their nature was so similar to the crime 

about which he testified that the jury might 

have concluded, if the offenses had been 

named, that he was especially susceptible to 

the hope of favor if he cooperated or to the 

fear of severe punishment as an habitual 

criminal if he did not. 

Id. at 529, 298 S.E.2d at 101-02 (emphasis added). 

 While the Court indicated that the enumerated felonies may 

involve moral turpitude, it is clear from the language of 

Johnson that it was pure dictum. The Court was not formally 

addressing whether the crime of misdemeanor distribution of 

drugs is a crime of moral turpitude, i.e., one involving lying, 

cheating or stealing, but rather was discussing prior felonies 

of the defendant in that case. Thus, Johnson does not provide 

authoritative support for the proposition argued by the 

Commonwealth. 

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general impeachment of a witness would "lead 

to confusion in directing the jury's 

attention to collateral matters and away 

from the issues in the case." 

Ramdass v. Commonwealth, 246 Va. 413, 423, 437 S.E.2d 566, 572 

(1993) (emphasis added) (quoting Clark v. Commonwealth, 202 Va. 

787, 790, 120 S.E.2d 270, 273 (1961)). 

 In the present case, the trial court erred by allowing the 

Commonwealth to question Kempton about the unadjudicated charges 

of assault and battery and malicious wounding. Kempton had not 

been tried on these offenses and, absent a felony conviction on 

the charges, they were inadmissible for impeachment purposes. 

See Banks v. Commonwealth, 16 Va. App. 959, 963, 434 S.E.2d 681, 

683 (1993) (holding that evidence of specific acts of misconduct 

is generally not admissible to impeach a witness' credibility). 

 Although we conclude that the Commonwealth's method of 

impeaching Kempton was improper, we hold that this error was 

also harmless. While originally not limiting this line of 

questioning, the trial court later directed the jury "to 

disregard any statements [Kempton] made about the misdemeanor 

conviction." The jury is presumed to have followed that 

curative instruction. See LeVasseur v. Commonwealth, 225 Va. 

564, 589, 304 S.E.2d 644, 657 (1983), cert. denied, 464 U.S. 

1063 (1984). Moreover, based upon our review of the record, we 

cannot say as a matter of law that the evidence of Kempton's 

- 18 -
unadjudicated offenses affected the verdict. To the contrary, 

the evidence established that appellant sold drugs to Harber on 

July 9 and July 15, 1996. Radio transmissions of these 

"controlled buys" of cocaine were recorded and played for the 

jury. The Commonwealth presented sufficient evidence of 

appellant's guilt apart from the questions Kempton was asked on 

cross-examination. 

 IV. TESTIMONY OF GIVENS AND STALLARD 

 Special Agent Robert Givens, one of the officers who 

arranged and supervised Harber's controlled buys from appellant, 

testified on direct examination about the methods of using 

informants in drug cases. Givens explained at length how a 

"typical" informant is recruited and used in "controlled buys." 

Over appellant's objection, Givens was allowed to testify that 

informants are usually threatened or harassed by members of the 

drug community and that informants typically buy from 

individuals whom they have known and from whom they have 

purchased in the past. 

 On cross-examination, appellant's counsel asked Givens 

numerous questions regarding the typical informant, including 

the following: "Would you agree that a typical informant is 

someone that can't be trusted?" On redirect, Givens indicated 

that he had worked with a much worse confidential informant than 

Harber and had been satisfied with that informant's results. 

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 Richard Stallard of the Big Stone Gap Police Department was 

also involved in the investigation of appellant. Stallard, 

working in an undercover capacity, drove Harber to the bar where 

Harber purchased cocaine from appellant. Over appellant's 

objection, Stallard testified that it is "typical" for cocaine 

purchases to be short on quantity.5

 Appellant contends that the trial court erred in allowing 

into evidence the opinion testimony of Givens and Stallard, as 

the prejudice outweighed any probative value. Specifically, he 

argues that it was improper to allow the witnesses to testify 

about the "typical" informant and the "typical" drug purchase. 

Having solicited evidence of the same character on 

cross-examination, appellant is precluded from claiming that it 

was error for the Commonwealth to have introduced evidence of 

the same nature. See Hubbard v. Commonwealth, 243 Va. 1, 9, 413 

S.E.2d 875, 879 (1992). "The Rule is that 'where an accused 

unsuccessfully objects to evidence which he considers improper 

and then on his own behalf introduces evidence of the same 

character, he thereby waives his objection, and we cannot 

reverse for the alleged error.'" Id. (quoting Saunders v. 

Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 (1970)). 

 

 5Officer Brian Shoemaker of the Lee County Sheriff's 

Department also testified that it is "typical" that the purchase 

weight is short. 

- 20 -
 This is precisely what occurred here. Appellant attempted 

on cross-examination to expand what a "typical informant" might 

do and to discredit the "typical informant" by asking Givens 

about a person's "typical" misdeeds and the difficulties 

officers might encounter working with him or her. Furthermore, 

appellant sought to impeach Harber by identifying him as "a 

typical informant." We hold that appellant's line of 

questioning on cross-examination affirmatively waived any 

objection to the allegedly improper opinion testimony of the 

officers. Cf. Robinson v. Commonwealth, 207 Va. 66, 68, 147 

S.E.2d 730, 732 (1966) ("[T]he testimony was elicited . . . 

during cross-examination by the defendant and he, therefore, can 

have no ground for complaint."). 

V. BODY-WIRE TRANSMISSIONS 

 Appellant next contends the trial court erred in admitting 

into evidence the tape-recorded conversations between appellant 

and Harber. The evidence established that Officer Stallard 

installed a wire transmitter on Harber to monitor the controlled 

buy on July 9, 1996. When Harber testified on direct 

examination and described his first drug transaction with 

appellant, the trial court allowed the Commonwealth to play the 

tape recording for the jury. 

 On appeal, appellant contends that the use of the body-wire 

transmitter violated the Federal Communications Act, 47 U.S.C. 

- 21 -
§ 301, and various provisions of Chapter 6 of the Virginia Code, 

entitled Interception of Wire, Electronic or Oral 

Communications. Accordingly, he argues, the tape-recorded 

evidence should have been excluded. We disagree. 

 Under the exclusionary rule, "evidence obtained in 

violation of the Fourth Amendment cannot be used in a criminal 

proceeding against the victim of the illegal search and 

seizure." United States v. Calandra, 414 U.S. 338, 347 (1974). 

The rule's primary purpose is "to deter future unlawful police 

conduct and thereby effectuate the guarantee of the Fourth 

Amendment against unreasonable searches and seizures." Id. In 

Virginia, the rule does not apply for mere statutory violations. 

See Horne v. Commonwealth, 230 Va. 512, 518-19, 339 S.E.2d 186, 

191 (1986); Webber v. Commonwealth, 26 Va. App. 549, 561, 496 

S.E.2d 83, 88 (1998); Alatishe v. Commonwealth, 12 Va. App. 376, 

379, 404 S.E.2d 81, 83 (1991). 

While violations of state procedural 

statutes are viewed with disfavor, . . . 

neither the Virginia Supreme Court nor the 

legislature has adopted an exclusionary rule 

for such violations [ ] . . . where no 

deprivation of the defendant's 

constitutional rights occurred. 

[H]istorically, searches or seizures made 

contrary to provisions contained in Virginia 

statutes provide no right of suppression 

unless the statute supplies that right. 

Spivey v. Commonwealth, 23 Va. App. 715, 723-24, 479 S.E.2d 543, 

547 (1997) (quotations omitted). 

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 In the instant case, appellant does not allege that his 

constitutional rights were violated by the law enforcement 

agency's use of the body-wire transmitter. Even assuming that 

either a state or federal statutory violation occurred, which we 

do not decide, absent an express provision by the legislature 

that such evidence should be suppressed, the trial court did not 

err in admitting the tape-recorded conversations between 

appellant and Harber. See United States v. Oriakhi, 57 F.3d 

1290, 1295 n.1 (4th Cir.), cert. denied, 516 U.S. 952 (1995) 

(noting that "it is not clear that the exclusionary rule would 

apply to a statutory violation if the searches were 

constitutionally permissible."); United States v. Jones, 13 F.3d 

100, 103 (4th Cir. 1993) ("[W]e do not think in any event that 

the appropriate remedy for [the violation of the statute] in 

this case would be suppression of the evidence obtained or 

reversal of the conviction."); Lovelace v. Commonwealth, 27 Va. 

App. 575, 585, 500 S.E.2d 267, 272 (1998) (holding that 

"violation of the statute would not require suppression of 

evidence obtained in contravention of its terms, absent express 

provision to the contrary by the legislature"). 

VI. APPELLANT'S PRIOR CRIMINAL CONDUCT 

 We reject appellant's argument that the trial court erred 

in admitting evidence of appellant's prior drug-related 

activity. While proof of "other crimes" is inadmissible to show 

- 23 -
a defendant's criminal disposition, such evidence is admissible 

"if it tends to prove any relevant element of the offense 

charged." Guill v. Commonwealth, 255 Va. 134, 138, 495 S.E.2d 

489, 491 (1998) (emphasis in original). "'Such evidence is 

permissive in cases where the motive, intent, or knowledge of 

the accused is involved, or where the evidence is connected with

or leads up to the offense for which the accused is on trial.'" 

Pavlick v. Commonwealth, 27 Va. App. 219, 226, 497 S.E.2d 920, 

923 (1998) (en banc) (emphasis added) (quoting Kirkpatrick v.

Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970)). In 

addressing the admissibility of "other crimes" evidence, the 

court must also balance the probative value of the evidence of 

the other offenses and determine whether it exceeds the 

prejudice to the accused. See Guill, 255 Va. at 139, 495 S.E.2d 

at 491-92. 

 In the instant case, Harber testified that on July 9, 1996, 

the police gave him $165 for the first controlled buy to 

purchase a gram of cocaine from appellant for $140. When the 

parties met, appellant claimed Harber owed him $20 for a 

previous purchase. In describing the second controlled buy, 

Harber testified that four other individuals were present when 

appellant pulled out two bags of cocaine, cut the contents of 

them into four portions and sold one portion to Harber. 

- 24 -
 Harber's testimony that appellant insisted Harber owed 

money to appellant for a previous drug purchase and that other 

individuals were present at the second controlled buy to make 

drug purchases constituted evidence "connected with" the 

offenses for which appellant was tried. As the Supreme Court 

stated in Scott v. Commonwealth, 228 Va. 519, 323 S.E.2d 572 

(1984), 

 [w]here a course of criminal conduct is 

continuous and interwoven, consisting of a 

series of related crimes, the perpetrator 

has no right to have the evidence 

"sanitized" so as to deny the jury knowledge 

of all but the immediate crime for which he 

is on trial. The fact-finder is entitled to 

all of the relevant and connected facts, 

including those which followed the 

commission of the crime on trial, as well as 

those which preceded it; even though they 

may show the defendant guilty of other 

offenses. 

Id. at 526-27, 323 S.E.2d at 577 (citations omitted). Thus, the 

probative value of the circumstances underlying the two 

controlled buys outweighed any incidental prejudice to appellant 

in the form of evidence that appellant may have been involved in 

other drug distributions. 

VII. OPINION TESTIMONY 

 Appellant next argues that "the trial court improperly 

allowed Harber to testify that [appellant] should plead guilty." 

A review of the trial transcript indicates that during the 

direct examination of Harber, the Commonwealth made no reference 

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to Harber's opinion of appellant's guilt or innocence. However, 

on cross-examination, appellant's counsel asked Harber the 

following question: "Is it fair to say that you don't think 

that Mr. Newton should go to prison for something that you're 

not even sure he did, is that right?" On redirect, the 

Commonwealth's Attorney questioned Harber about the 

tape-recorded conversation he had with appellant's counsel. 

Q. Was there or was there not a discussion 

about the circumstances of the buys? 

 A. Yes. 

Q. Can you tell me whether or not you 

remember the details of the buy at that 

time? 

 A. Yes. 

* * * * * * * 

Q. What opinion did you express at that 

time to [appellant's counsel] about whether 

or not the defendant was guilty or innocent? 

* * * * * * * 

A. My exact reply, and this I can recall, 

was that I think the best thing that he 

could do was just plead guilty, because he 

would probably get less time, because if 

they found him guilty, they were going to 

try to put him away. 

Over appellant's objection, the trial court allowed this 

testimony into evidence. 

 Because appellant opened the door to this line of 

questioning, the trial court did not err in overruling 

appellant's objection to Harber's opinion testimony. See

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Satcher v. Commonwealth, 244 Va. 220, 252, 421 S.E.2d 821, 840 

(1992) (allowing the Commonwealth to present contradictory 

testimony because the defense "opened the door"); see also Kirk 

v. Commonwealth, 21 Va. App. 291, 298, 464 S.E.2d 162, 165-66 

(1995) ("Justice does not require exclusion of evidence that is 

probative of the central issue on trial and that the accused 

himself chooses to interject."). 

VIII. JURY INSTRUCTIONS 

 Appellant next contends the trial court improperly 

instructed the jury. We disagree. A reviewing court's 

responsibility in reviewing jury instructions is "to see that 

the law has been clearly stated and that the instructions cover 

all issues which the evidence fairly raises." Darnell v. 

Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988). 

 During cross-examination of Harber, appellant's counsel 

established that Harber had used illegal drugs on numerous 

occasions in the past. Counsel also questioned Harber about 

immunity from prosecution for these past drug offenses. At that 

time, the Commonwealth's Attorney argued that the law did not 

grant Harber immunity for all offenses he mentioned on 

cross-examination and that the trial court should so inform the 

jury. The trial judge agreed and at the conclusion of the 

evidence the trial court granted the Commonwealth's Instruction 

No. 11, which read: 

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 The Court instructs the jury that the 

only offenses which Terry Harber is entitled 

to be immune from prosecution are the drug 

offenses for which Paul Ed Newton is being 

prosecuted. Terry Harber is not entitled to 

immunity for any other drug offenses which 

he may have testified to on 

cross-examination. 

 We reject appellant's argument that this instruction 

improperly advised the jury of the law. To the contrary, 

Instruction No. 11 correctly and clearly stated the law 

regarding Harber's immunity from prosecution, as codified in 

Code § 18.2-262. That section provides in pertinent part that 

"the testimony given and evidence so produced by such person on 

behalf of the Commonwealth . . . shall be in no case used 

against him nor shall he be prosecuted as to the offense as to 

which he testifies."6 

 

 6The full text of Code § 18.2-262 provides: 

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 

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This statute creates two types of immunity. 

The first type is so-called "use" immunity, 

which applies to all crimes, and stems from 

the clause, "shall be in no case used 

against him." The second type is immunity 

from prosecution, or so called 

"transactional" immunity, which applies only 

to "the offense as to which he testifies." 

Use immunity prevents a witness's compelled 

testimony from being used in any way in a 

criminal prosecution of the witness, while 

transactional immunity prevents a witness 

from being prosecuted for the offense about 

which he testifies. 

Caldwell v. Commonwealth, 8 Va. App. 86, 88-89, 379 S.E.2d 368, 

369-70 (1989) (citations omitted). 

 In the instant case, Harber was not compelled by the 

Commonwealth to testify about any other drug offenses he may 

have committed on previous occasions. Instead, this evidence 

was established during appellant's cross-examination of Harber. 

As we noted in Caldwell, "[i]t is illogical to conclude that the 

General Assembly intended to provide immunity for any crime 

about which a person may at any time testify even if he was not 

compelled to do so." Id. at 89, 379 S.E.2d at 370. 

 By delineating the offenses for which Harber was entitled 

to be immune from prosecution, Instruction No. 11 addressed the 

 

prosecuted as to the offense as to which he 

testifies. Any person who refuses to 

testify or produce books, papers, 

correspondence, memoranda or other records, 

shall be guilty of a Class 2 misdemeanor. 

(Emphasis added). 

- 29 -
extent of his transactional immunity. Under Code § 18.2-262, it 

is clear that Harber was entitled to immunity from prosecution 

only on the drug offenses for which appellant was charged and 

for which Harber testified at the Commonwealth's request. 

Accordingly, we hold that the trial court did not err in 

granting the instruction. 

 The second instruction objected to by appellant was 

Instruction No. 13, which read: 

The Court instructs the jury that a report 

of analysis duly attested by the person 

performing such analysis or examination in 

any laboratory operated by the Division of 

Forensic Science shall be prima facie 

evidence as to the custody of the material 

described therein from the time such 

material is received by an authorized agent 

of such laboratory until such material is 

released subsequent to such analysis or 

examination. 

Appellant contends this instruction "singled out for emphasis 

one part of the evidence." We disagree. 

 "When a trial judge instructs the jury in the law, he or 

she may not 'single out for emphasis a part of the evidence 

tending to establish a particular fact.'" Terry v. 

Commonwealth, 5 Va. App. 167, 170, 360 S.E.2d 880, 882 (1987) 

(quoting Woods v. Commonwealth, 171 Va. 543, 548, 199 S.E. 465, 

467 (1938)). "On the other hand, instructions should relate to 

the specific evidence of the case; abstract propositions of law 

do little to help and much to much mystify a jury." Id. at 

- 30 -
170-71, 360 S.E.2d at 882 (citing Gordon v. Director General, 

128 Va. 426, 433, 104 S.E. 796, 798 (1920)). 

 Here, the Commonwealth presented testimony through lab 

technicians to show that the powder appellant sold Harber was 

cocaine. On cross-examination, appellant's counsel questioned 

one of the lab technicians about other individuals in the lab 

who handled the cocaine but who were not present to testify. 

Appellant's counsel questioned another lab technician about who 

might have had access to the cocaine when it was in his drawer 

at the lab. 

 While Instruction No. 13 referred to certain evidence, it 

did not suggest that specific evidence compelled any particular 

finding and it did not comment upon specific facts proven in the 

case. Rather, the instruction informed the jury of the correct 

law regarding the chain of custody of evidence submitted to the 

Division of Forensic Science. The jury was free to draw all 

reasonable inferences from the evidence without any undue 

suggestion in the jury instruction as to the conclusion. See

id. at 171, 360 S.E.2d at 882. Therefore, we hold that 

Instruction No. 13 did not impermissibly highlight a portion of 

the evidence. 

IX. TRIAL JUDGE'S COMMENTS TO JURY FOREPERSON 

 During trial, appellant elicited testimony from various 

Drug Task Force members that appellant had previously provided 

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information about problems in the Lee County Sheriff's Office. 

This information was contained in a written debrief. Appellant 

attempted to show that he was targeted by the Lee County 

Sheriff's Office in retaliation for his statements in the 

debrief. Although the Commonwealth's Attorney attempted to 

introduce the entire debrief, the trial court held that other 

information in the written statement was not relevant to the 

instant charges and that the information was too prejudicial to 

appellant. Thus, the debrief was not admitted as evidence. 

 During jury deliberations, the jury foreperson asked the 

court for a copy of the written debrief. The trial judge 

responded, "If you don't mind, tell them that I overruled 

allowing the introduction of the debrief because I thought it 

would be too prejudicial to the defendant, and it's not 

available." The juror returned to the jury room and at that 

time, appellant objected and moved for a mistrial, which was 

denied by the trial court. 

 We do not reach the merits of appellant's argument because 

the issue is barred by Rule 5A:18. The holding in Quesinberry 

v. Commonwealth, 241 Va. 364, 402 S.E.2d 218, cert. denied, 502 

U.S. 834 (1991), is dispositive. Addressing a similar scenario, 

the Supreme Court wrote: 

 After the jury had retired to 

deliberate and fix punishment, the jury 

returned and requested that the court define 

- 32 -
the following words which appeared in some 

of the jury instructions: culpable, moral 

turpitude, quantitatively, and 

qualitatively. The court, without objection 

from counsel, read the definitions to the 

jury. After the jury had returned to the 

jury room to continue its deliberations, 

Quesinberry then objected to the definitions 

given by the court. Quesinberry failed to 

preserve his objection because he did not 

object timely and his argument is 

procedurally barred. 

Id. at 380, 402 S.E.2d at 228. 

 In the instant case, the trial court, without a 

contemporaneous objection from counsel, told the jury foreperson 

that the written debrief was not entered into evidence because 

of its prejudicial nature. It was not until after the 

foreperson returned to the jury room to continue deliberations 

that counsel then objected to the trial court's statement. 

Appellant failed to preserve his objection because he did not 

object timely. See Rule 5A:18. 

 For the foregoing reasons, we find no reversible error and 

affirm appellant's convictions. 

 Affirmed. 

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