PRESENT: All the Justices
SIMON VAUGHN MURPHY
v. Record No. 080852 OPINION BY
JUSTICE BARBARA MILANO KEENAN
February 27, 2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal of a defendant’s conviction for possession
of marijuana with the intent to distribute, we consider whether
Code § 18.2-262 affords transactional immunity to a witness
whose testimony is voluntary, rather than compelled.
The facts in this case are not in dispute. In March 2005,
Simon Vaughn Murphy stopped his vehicle at the Chesapeake Bay
Bridge Tunnel toll plaza in Northampton County. At the plaza,
Virginia State Trooper C.L. Murphy (the trooper) smelled
marijuana in the vehicle and ordered Murphy to “pull over.”
Upon conducting a search of Murphy’s vehicle, the trooper
found between 15 and 16 pounds of marijuana. Murphy admitted
that he was paid $2,000 to transport the marijuana. Murphy and
his passenger, Omar Dickson, were placed under arrest and
charged with possession with the intent to distribute more than
five pounds of marijuana, in violation of Code § 18.2-248.1, and
with transporting more than five pounds of marijuana into the
Commonwealth, in violation of Code § 18.2-248.01.
Murphy later reached an oral agreement with the
Commonwealth under which he agreed to plead guilty to the charge
of possession with the intent to distribute and to testify when
called by the Commonwealth at Dickson’s preliminary hearing and
trial. In exchange, the Commonwealth agreed to seek a nolle
prosequi of the transportation charge.
In accordance with these terms, Murphy testified at
Dickson’s preliminary hearing. However, Murphy later filed a
motion in the circuit court to dismiss the entire indictment
pending against him, including the possession with intent to
distribute charge. Murphy argued that he was entitled to
transactional immunity under Code § 18.2-262 because he had
testified at Dickson’s preliminary hearing. That section
provides in relevant part:
No person shall be excused from testifying . . . 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 . . . tending to incriminate himself, but the
testimony given . . . 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. Any
person who refuses to testify . . . shall be guilty of a
Class 2 misdemeanor.
Code § 18.2-262.
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The circuit court denied Murphy’s motion. The Commonwealth
and Murphy later entered into a written plea agreement pursuant
to Code § 19.2-254. In accordance with that agreement, Murphy
entered a conditional plea of guilty to the charge of possession
with intent to distribute more than five pounds of marijuana,
preserving his right to appeal the circuit court’s holding
rejecting his immunity claim. Following Murphy’s plea, the
circuit court entered an order of nolle prosequi on the
transportation charge and sentenced Murphy for the possession
with intent to distribute conviction to a term of three years’
imprisonment with all but nine months suspended. Murphy
appealed his conviction.
The Court of Appeals affirmed the circuit court’s judgment,
holding that Murphy implicitly waived any transactional immunity
afforded by Code § 18.2-262 by voluntarily testifying with the
understanding that the Commonwealth would withdraw one of the
charges against him. Murphy v. Commonwealth, 51 Va. App. 535,
543-45, 659 S.E.2d 538, 542 (2008). The Court further held that
Code § 18.2-262 does not require that a witness’ testimony be
“compelled” in order for the statutory immunity provisions to
apply. Id. at 540, 659 S.E.2d at 540. We awarded Murphy an
appeal, and the Commonwealth assigned cross-error to the Court
of Appeals’ judgment.
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Murphy contends that Code § 18.2-262 automatically provides
transactional immunity to a witness who testifies under the
circumstances specified in the statute. He maintains that this
statutory protection is not limited to situations in which a
witness’ testimony is compelled, but is afforded whenever the
Commonwealth procures testimony from a witness concerning
criminal activity in which the witness was engaged. Murphy
argues that once a witness protected by the statute testifies,
the immunity protections of the statute are activated and any
later waiver of that immunity must be made knowingly and
voluntarily. He asserts that the Court of Appeals erred in
failing to hold that he did not make such a knowing and
voluntary waiver, and in determining that he implicitly waived
his immunity rights afforded under Code § 18.2-262.
The Commonwealth assigns as cross-error the Court of
Appeals’ holding that the immunity provisions of Code § 18.2-262
are not limited to instances in which a witness’ testimony is
compelled. The Commonwealth argues that the immunity provisions
of Code § 18.2-262 are implicated only when a witness’ testimony
is compelled and that, therefore, Murphy did not receive
immunity under the statute because his testimony was purely
voluntary. Alternatively, the Commonwealth contends that by
entering into the plea agreement, Murphy implicitly waived any
statutory immunity that might have attached.
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In reviewing these arguments, we first observe that neither
Murphy nor the Commonwealth relies on the existence of an
enforceable plea agreement entered under Rule 3A:8 or a separate
immunity agreement executed by the parties. Instead, both
parties rely on the language of Code § 18.2-262 and argue their
respective positions based on differing interpretations of the
statute. Thus, we focus our analysis directly on the
substantive provisions of the statute.
We begin by addressing the Commonwealth’s assignment of
cross-error because that assignment determines the outcome of
this appeal. The interpretation of Code § 18.2-262 presents a
pure question of law, which we review de novo on appeal. See
Young v. Commonwealth, 273 Va. 528, 533, 643 S.E.2d 491, 493
(2007); Conyers v. Martial Arts World of Richmond, Inc., 273 Va.
96, 104, 639 S.E.2d 174, 178 (2007); Washington v. Commonwealth,
272 Va. 449, 455, 634 S.E.2d 310, 313 (2006).
We determine the meaning of the statute by examining its
express language. Washington, 272 Va. at 454, 634 S.E.2d at
313; Tucker v. Commonwealth, 268 Va. 490, 493, 604 S.E.2d 66, 68
(2004); Alger v. Commonwealth, 267 Va. 255, 259, 590 S.E.2d 563,
565 (2004). We consider that language in its entirety, rather
than by isolating particular words or phrases. Young, 273 Va.
at 533, 643 S.E.2d at 493; Carpitcher v. Commonwealth, 273 Va.
335, 345, 641 S.E.2d 486, 492 (2007); Cummings v. Fulghum, 261
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Va. 73, 77, 540 S.E.2d 494, 496 (2001). When the language of a
statute is unambiguous, we are bound by the plain meaning of
that language and may not assign the words a different
construction. Young, 273 Va. at 533, 643 S.E.2d at 493; Gunn v.
Commonwealth, 272 Va. 580, 587, 637 S.E.2d 324, 327 (2006);
Tucker, 268 Va. at 493, 604 S.E.2d at 68; Commonwealth v. Diaz,
266 Va. 260, 265, 585 S.E.2d 552, 554 (2003).
Applying these principles, we conclude that the language of
Code § 18.2-262 is unambiguous and grants immunity only to
witnesses whose testimony is compelled. Testimony is compelled
if a witness is subjected to coercion or deception that impairs
the witness’ voluntary choice and prevents his testimony from
being an exercise of free will. See United States v. Escandar,
465 F.2d 438, 442 (5th Cir. 1972); see also Connecticut v.
Barrett, 479 U.S. 523, 527-28 (1987). Conversely, a witness’
testimony is not compelled when the testimony results from the
exercise of choice or free will, and is not constrained by any
interference. Escandar, 465 F.2d at 442; see United States v.
Smith, 452 F.3d 323, 337 (4th Cir. 2006).
As relevant to this case, Code § 18.2-262 addresses the
testimony of witnesses “called for . . . by the attorney for the
Commonwealth” to testify regarding certain drug-related
“offense[s] alleged to have been committed by another.” Code
§ 18.2-262. The statute provides that “[n]o person shall be
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excused from testifying . . . by reason of his testimony . . .
tending to incriminate himself.” Id. Further, this section
permits the Commonwealth to procure a witness’ testimony by
offering to the witness a grant of immunity. Id. If the
witness nonetheless refuses to testify, he is “guilty of a Class
2 misdemeanor.” Id.
These provisions, when considered together, plainly do not
apply to testimony that is voluntarily given. To “excuse” a
person is to “free from an obligation or duty” otherwise imposed
on that person. Webster’s Third New International Dictionary
794 (1993). Thus, under Code § 18.2-262, a witness will not be
freed from an obligation or duty to testify by invoking his
privilege against self-incrimination. In requiring that any
person called by the Commonwealth testify regarding certain
drug-related offenses, and in including a criminal penalty for
persons who refuse to testify after being provided immunity
under the statute, the statutory language manifests a clear
intent to limit its scope to compelled testimony.
This conclusion is further supported when the statutory
language is considered in the context of constitutional
protections afforded compelled testimony. The United States
Constitution requires that a statute authorizing the compelled
testimony of a witness grant to that witness immunity from
prosecution that is coextensive with the scope of the Fifth
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Amendment privilege against self-incrimination. See United
States v. Hubbell, 530 U.S. 27, 38 (2000); Kastigar v. United
States, 406 U.S. 441, 449, 453 (1972); Gosling v. Commonwealth,
14 Va. App. 158, 163-64, 415 S.E.2d 870, 873 (1992);
Commonwealth v. Sluss, 14 Va. App. 601, 604, 419 S.E.2d 263,
264-65 (1992). In accordance with this constitutional
requirement, Code § 18.2-262 extends two types of immunity to a
witness whose testimony is compelled.
The first type of immunity, commonly known as “use”
immunity, is reflected in the statutory language that the
witness’ testimony “shall in no case be used against him.” See
Code § 18.2-262; Newton v. Commonwealth, 29 Va. App. 433, 457,
512 S.E.2d 846, 857 (1999); Caldwell v. Commonwealth, 8 Va. App.
86, 88, 379 S.E.2d 368, 369 (1989). The “use” immunity granted
by Code § 18.2-262 prevents a witness’ compelled testimony from
being used against him in any criminal prosecution of that
witness. Newton, 29 Va. App. at 457, 512 S.E.2d at 857;
Gosling, 14 Va. App. at 164, 415 S.E.2d at 873; Caldwell, 8 Va.
App. at 88-89, 379 S.E.2d at 369-70.
The second type of immunity, commonly known as
“transactional” immunity, is provided in the statutory language
that the witness shall not be prosecuted for “the offense as to
which he testifies.” See Code § 18.2-262; Newton, 29 Va. App.
at 457, 512 S.E.2d at 857; Caldwell, 8 Va. App. at 88, 379
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S.E.2d at 369. This “transactional” immunity granted by Code
§ 18.2-262 protects a witness from being prosecuted for the
specified drug-related offenses referenced in the statute about
which the witness testifies. * Newton, 29 Va. App. at 457, 512
S.E.2d at 857; Gosling, 14 Va. App. at 164, 415 S.E.2d at 873;
Caldwell, 8 Va. App. at 88-89, 379 S.E.2d at 369-70.
These provisions of Code § 18.2-262, which authorize
compelled testimony from certain witnesses and in return grant
those witnesses the described immunity, are fully coextensive in
protection of a defendant's self-incrimination rights. Thus,
Code § 18.2-262 complies with the holding in Kastigar, providing
the specified immunity to a witness whose compelled testimony
tends to incriminate him. See Kastigar, 406 U.S. at 449, 453.
In view of these coextensive statutory provisions, which are
plainly stated in the full text of the statute, we hold that the
immunity protections of Code § 18.2-262 apply only to witnesses
whose testimony is compelled.
In the present case, Murphy’s testimony was voluntarily
given in return for the Commonwealth’s oral agreement to dismiss
the pending transportation of marijuana charge, which would have
resulted in a mandatory minimum sentence of three years’
imprisonment. Because Murphy’s testimony against Dickson was
*
We observe that Code § 18.2-262, in providing both use and
transactional immunity, exceeds the requirements of Kastigar.
See 406 U.S. at 453.
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purely voluntary, rather than compelled, we reject Murphy’s
claim that he was entitled to dismissal of the possession with
intent to distribute charge under the immunity provisions of
Code § 18.2-262. Further, given our conclusion that Murphy’s
testimony was purely voluntary, we do not reach the issue
whether a witness must specifically invoke his Fifth Amendment
privilege against self-incrimination before his testimony may be
deemed compelled within the meaning of Code § 18.2-262.
Based on our holding, we conclude that the Court of
Appeals’ judgment should be affirmed on the ground of cross-
error assigned by the Commonwealth. We do not address Murphy’s
assignments of error invoking the immunity provisions of Code
§ 18.2-262, in light of our conclusion that the statutory grant
of immunity is limited to compelled testimony, and that Murphy’s
testimony was voluntarily given. Accordingly, for the reasons
stated above, we will sustain the Commonwealth’s assignment of
cross-error, and will affirm the Court of Appeals’ judgment.
Affirmed.
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