concurring.
I concur in the decision affirming the conviction; however, I disagree with the conclusion in Part I of the majority opinion that no error was committed in connection with the testimony of the wit*367ness Clements. I believe that there was clear error. Nevertheless, under the circumstances of this case the error was harmless and does not compel reversal.
At the outset I believe that it is important to emphasize the precise issues raised by Cunningham in this appeal. We are not called upon to decide whether Cunningham was deprived of his Fifth or Sixth Amendment rights. Although the question presented is whether Cunningham was denied the right to a fair trial by the conduct of the prosecutor and the trial judge when the prosecutor was permitted to examine Clements after Clements invoked the Fifth Amendment and refused to testify, Cunningham frames his argument to assert error of an evidentiary nature and no specific constitutional violation is raised. See Namet v. United States, 373 U.S. 179, 185 (1963).
The record demonstrates that the Assistant Commonwealth’s Attorney called Clements to testify as a witness during the Commonwealth’s case-in-chief with the knowledge that Clements intended to invoke the Fifth Amendment privilege against self-incrimination and with the knowledge that Clements intended improperly to invoke that privilege. Clements responded to a question of the Assistant Commonwealth’s Attorney on direct examination as follows:
Q: Isn’t it true, Sir, have you told me and your lawyer as well that the reason you are not testifying is because you are scared of his brother, not because you are afraid of incriminating yourself?
A: Yes.
Under the appropriate circumstances the Commonwealth may be justified in putting a person on the stand to testify in order to determine whether, in fact, the witness will refuse to testify by invoking the Fifth Amendment privilege. See United States v. Gernie, 252 F.2d 664, 669 (2d Cir.), cert. denied, 356 U.S. 968 (1958). The Fifth Amendment privilege against self-incrimination is a personal privilege of the testifying witness and not the defendant who is being tried but is not testifying. Rogers v. United States, 340 U.S. 367, 371 (1951). Based on the record before us, *368however, I can discern no justification for the Commonwealth’s failure to advise the trial judge prior to calling Clements as a witness that Clements intended to invoke the Fifth Amendment testimonial privilege, and to seek the court’s ruling on the issue whether Clements was entitled to assert the privilege under the circumstances presented. Had the trial judge been so advised, he would have had an opportunity to make appropriate inquiry of Clements and his counsel outside the presence of the jury concerning Clements’ basis for invoking the privilege. See State v. Armstrong, 6 Ariz. App. 139, 430 P.2d 718 (1967).
Instead, the Commonwealth called Clements to testify, knowing that he would assert the Fifth Amendment privilege, and requested the opportunity to cross-examine him as a hostile witness. The trial judge refused the request and the Commonwealth over Cunningham’s objection proceeded to place its theory of the case before the jury:
Q: Were you out on Baker Street School playground on April 12, 1984?
A: I plead the Fifth Amendment.
Q: Did you shoot Horace Monroe?
A: I don’t understand. I plead the Fifth.
Q: Isn’t it true, sir, that you, in fact, saw the shooting of Horace Monroe?
A: I plead the Fifth. I would rather not talk.
* * *
Q: Isn’t it true, sir, have you told me and your lawyer as well that the reason you are not testifying is because you are scared of his brother, not because you are afraid of incriminating yourself?
A: Yes.
*369* * *
Q: Did you and James Rome and this man, were you all involved in that shooting?
A: I plead the Fifth.
* * *
Q: Isn’t it true that you and James Rome and this man were all together, and he said he was going to go over and rob the little old man coming over the bridge; isn’t that true?
MR. KAESTNER: Objection. Leading.
THE COURT: Well, just leave it that way. Is that true?
THE WITNESS: I plead the Fifth.
Q: Isn’t it true that after this man shot him all three of you ran?
MR. KAESTNER: Objection. Leading.
Q: Is that true?
THE COURT: Well, don’t say that. You can ask him did you run with the other two people. I think that calls for a yes or no answer.
Q: Didn’t you and James Rome run off after this man was shot?
A: I plead the Fifth.
The trial judge then refused the Commonwealth’s request at the conclusion of the direct examination of Clements to compel Clements to testify. The Commonwealth made the request because “[h]e is invoking his Fifth Amendment privilege not because he shot him but because he is afraid.” During cross-examination, defense counsel’s request to the court to compel Clements to testify was joined by the Commonwealth and similarly was refused by the trial court.
*370I believe that the trial court erred in allowing the Commonwealth to continue to question Clements for the purpose of suggesting the prosecutor’s theory of the case to the jury after Clements had invoked the privilege. See Saunders v. United States, 373 F.2d 735 (9th Cir. 1967); State v. Dinsio, 176 Ohio St. 460, 200 N.E.2d 467 (1964). Clements’ assertion of the privilege might have led the jury to draw an improper inference of Cunningham’s guilt because Clements, who was involved with Cunningham that day, was refusing to testify. See United States v. Coppola, 479 F.2d 1153, 1160 (10th Cir. 1973).
When Clements repeatedly invoked the Fifth Amendment privilege and, certainly, at the time Clements gave his reason for invoking the privilege, the trial court erred in not making inquiry, out of the presence of the jury and before allowing further questioning, in order to determine whether to compel Clements to testify or whether to take other measures. See People v. Poma, 96 Mich. App. 726, 294 N.W.2d 221 (1980).
At the conclusion of the cross-examination of Clements, the trial judge indicated that he would consider Clements’ claim of privilege at a later time in camera. It was only after the Commonwealth and the defense had presented evidence and prior to the submission of the case to the jury that the trial judge called Clements to the stand and granted him immunity on the basis of Code § 19.2-270. The record does not reflect that the Commonwealth made a request for immunity. Nevertheless, as stated in the majority opinion, the Commonwealth without objection conducted further direct examination of Clements and the defense conducted a thorough cross-examination.
I would affirm the conviction despite what I perceive to be errors in the presentation of Clements’ testimony because under the circumstances of this case any impermissible inferences that the jury may have drawn from Clements’ repeated assertion of the privilege during his initial examination also could have been drawn from Clements’ testimony following the grant of immunity. Moreover, the error as cured did not lend “critical weight” to the Commonwealth’s case. See State v. Black, 291 N.W.2d 208, 213 (Minn. 1980); Burkley v. United States, 373 A.2d 878, 880 (D.C. 1977).