COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick 

Argued by Teleconferencing 

WALTER S. JONES 

v. Record No. 1719-94-3 MEMORANDUM OPINION* BY 

 JUDGE JOHANNA L. FITZPATRICK 

COMMONWEALTH OF VIRGINIA FEBRUARY 13, 1996 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

William N. Alexander, II, Judge 

 J. Patterson Rogers, 3rd, for appellant. 

 Robert H. Anderson, III, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Walter S. Jones (appellant) was convicted in a jury trial of 

malicious wounding, maliciously shooting into an occupied 

dwelling, and using a firearm in the commission of malicious 

wounding. On appeal, he argues that the trial court erred in 

finding that his exercise of the marital privilege under Code 

§ 19.2-271.2 rendered his wife an unavailable witness whose prior 

recorded testimony was admissible under the prior testimony 

exception to the hearsay rule. For the reasons that follow, we 

affirm the trial court. 

 In February 1994, appellant and his wife, Ronetta Jones, 

separated. Appellant's third cousin, Michael Chaney (Chaney), 

helped Mrs. Jones move. On March 6, 1994, Mrs. Jones and Chaney 

spent the evening together and returned to Chaney's house. They 

 

 *Pursuant to Code § 17.116.010 this opinion is not 

designated for publication. 
 2 

were sitting in Mrs. Jones' father's car in the driveway when 

appellant arrived. Appellant fired a gun out of the driver's 

side window of his car and hit Chaney's front door. Chaney got 

out of the car and began running towards his house. Appellant 

fired five to six shots, and one struck Chaney in the back and 

became lodged in his lung. Chaney was able to reach his house 

and hid there. Appellant pulled Mrs. Jones out of the car by her 

hair, beat her, and fired more shots. Chaney's brother called 

the police, and the police apprehended appellant near Chaney's 

house. 

 Appellant was indicted on charges of malicious wounding, 

maliciously shooting into an occupied dwelling, and use of a 

firearm in the commission of malicious wounding. He was also 

charged with misdemeanor assault and battery against his wife 

arising out of this incident and convicted in the juvenile and 

domestic relations district court. Mrs. Jones testified against 

appellant in the misdemeanor assault trial, and appellant called 

her as a witness at the preliminary hearing on the charges 

involving Chaney. Her preliminary hearing testimony was 

recorded. 

 During the trial on the charges involving Chaney, the 

Commonwealth requested permission to call Mrs. Jones as a 

witness. Appellant objected, asserting the marital privilege of 

Code § 19.2-271.2. The trial court held that appellant did not 

waive his marital privilege by having called wife as a witness at 
 3 

the preliminary hearing. However, the court ruled that 

appellant's assertion of the marital privilege rendered Mrs. 

Jones an unavailable witness and that her prior recorded 

testimony was admissible under the prior testimony exception to 

the hearsay rule. Appellant then withdrew his assertion of the 

marital privilege, and the following colloquy occurred between 

his attorney and the trial judge: 

 MR. ROGERS: Mr. Jones has instructed me to 

inform the Court that he will withdraw his 

marital privilege with regard to her 

testimony, but it is being done so as a 

result of the Court's ruling with regard to 

her testimony at the preliminary hearing and 

its admissibility. For the purposes of 

appeal we wish to note that he is not 

asserting marital privilege at this point 

because of the fact that I would not, or no 

one actually on his behalf, otherwise would 

be permitted to cross examine the witness, if 

only her testimony as recorded at the 

preliminary hearing would be introduced. 

 THE COURT: Alright, you are withdrawing . . . 

 MR. ROGERS: We are withdrawing the objection

. . . 

 THE COURT: . . . your objection to Mrs. Jones 

testifying . . . 

 MR. ROGERS: Yes. 

 THE COURT: . . . in this case? 

 MR. ROGERS: Yes, because of the fact that . . . 

 THE COURT: I understand, because I've 

already ruled that the testimony at the 

preliminary hearing will be admissible. 

 MR. ROGERS: Yes sir, and this is the only 

way that he could get cross examination. 
 4 

(Emphasis added.) The Commonwealth called Mrs. Jones as a 

witness, and appellant cross-examined her. Appellant was 

convicted in a jury trial of all three charges involving Chaney 

and sentenced to fourteen years in the penitentiary. 

 "No ruling of the trial court . . . will be considered as a 

basis for reversal unless the objection was stated together with 

the grounds therefor at the time of the ruling, except for good 

cause shown or . . . to attain the ends of justice." Rule 5A:18. 

 By withdrawing his objection to the Commonwealth calling his 

wife as a witness, appellant waived his marital privilege and 

failed to preserve for appeal the arguments raised in his brief.1

 Moreover, this record reflects no reason to invoke the good 

cause or ends of justice exceptions to Rule 5A:18. 

 Accordingly, the decision of the trial court is affirmed. 

 Affirmed. 

 

 1Because appellant failed to preserve his arguments for 

appeal, we do not address the following issues: (1) whether the 

marital privilege barred Mrs. Jones from testifying at the trial 

on the charges involving Chaney; (2) whether appellant waived his 

marital privilege by calling his wife as a witness at the 

preliminary hearing; or (3) whether Mrs. Jones was an unavailable 

witness whose prior recorded testimony was admissible under the 

prior testimony exception to the hearsay rule.