Newton v. Commonwealth

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.

1
The 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

2
The 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

3
The 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

4
The 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

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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)).

5
Officer Brian Shoemaker of the Lee County Sheriff's
Department also testified that it is "typical" that the purchase
weight is short.

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 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.

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§ 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

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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.

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 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

6
The 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).

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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

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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

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 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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