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COURT OF APPEALS OF VIRGINIA
Present:    Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
LARRY ALANZA THORNTON
                                                                   OPINION BY
v.    Record No.  1168-94-2                                        JUDGE JAMES W. BENTON, JR.
MARCH  12,  1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert L. Harris, Sr., Judge
J. Kelly Haley for appellant.
Kathleen B. Martin, Assistant Attorney
General  (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On March  16th,  1994, a jury convicted Larry Alanza Thornton
of possession of heroin and distribution of heroin.    Thornton
contends that the trial judge violated Code  §  19.2-270 when he
admitted evidence of incriminating testimony that Thornton
previously had given at his brother's trial on related charges.1
For the reasons that follow, we affirm the convictions.
I.
The evidence at trial proved that an undercover police
officer approached Thornton at a street corner known by the
1Code  §  19.2-270 provides as follows:
In a criminal prosecution, other than for
perjury, or in an action on a penal statute,
evidence shall not be given against the
accused of any statement made by him as a
witness upon a legal examination, in a
criminal or civil action, unless such
statement was made when examined as a witness
in his own behalf.




police as a place for drug trafficking.    The officer asked
Thornton if he had heroin.    Thornton took the officer to a store
where Thornton's brother was standing.    As they approached,
Thornton called to his brother and asked the officer for the
money.    Thornton's brother joined them, reached into his pocket,
and handed an envelope to Thornton.    Thornton gave the envelope
to the officer.    The officer observed that the envelope was
consistent with packaged heroin, approved the purchase, and drove
away.    While driving away, the officer transmitted a description
of the two men to other officers.    The officers arrested Thornton
and his brother and charged them with possession of heroin and
distribution of heroin.
Thornton received a subpoena to testify as a witness for his
brother, who was the first to be tried.    Against the advice of
his own counsel, Thornton voluntarily testified as a witness at
his brother's trial.    After informing the trial judge that he
understood the consequences of his actions, Thornton testified
that when the officer approached him he had heroin in his pocket
and sold that heroin to the officer.    He also testified that he
called to his brother only because he did not want to be alone
with the officer.    Thornton further testified that he had been
selling drugs for about twenty years and that his brother did not
sell drugs.
Prior to his own trial, Thornton filed a motion in limine to
bar the Commonwealth from introducing into evidence at his trial
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the testimony he gave at his brother's trial.    Thornton argued
that Code  §  19.2-270 provided him with immunity against the use
of his prior testimony.    In response, the Commonwealth argued
that the questions of admissibility and immunity in drug
prosecutions are governed exclusively by Code  §  18.2-262 and,
further, that Thornton could not in any event claim immunity
because he had testified in his own behalf.2    Stating that Code  §
19.2-270 was not intended to allow a defendant to give self-
incriminating testimony to exonerate a co-defendant and then hide
behind the immunity statute in his own subsequent trial, the
trial judge denied the motion.    At Thornton's trial, the
Commonwealth offered as evidence the transcript of Thornton's
testimony at his brother's trial.    Thornton was convicted and
appeals the trial judge's ruling.
II.
Initially, the Commonwealth contends that Code  §  19.2-270
2In pertinent part Code  §  18.2-262 states as follows:
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 prosecuted as
to the offense as to which he testifies.
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does not apply to the case.    The Commonwealth argues that
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Thornton was prosecuted for a drug offense and, therefore, Code
§  18.2-262 is the exclusive provision that confers immunity.    We
do not agree.    Neither statute precludes the operation of the
other. Although the statutes offer different types of immunity,
see Caldwell v. Commonwealth,  8 Va. App.  86,  88,  379 S.E.2d  368,
369  (1989)(Code  §  18.2-262 offers transactional and use
immunity); Gosling v. Commonwealth,  14 Va. App.  158,  164,  415
S.E.2d  870,  873  (1992)(Code  §  19.2-270 offers only use immunity),
neither statute precludes, in an appropriate case, a witness from
claiming immunity.    We hold that Code  §  18.2-262 does not
preclude Thornton from claiming protection under Code  §  19.2-270.
III.
The Commonwealth also argues that Code  §  19.2-270 does not
apply to Thornton because he testified in his own behalf at his
brother's trial.    In parsing the wording of Code  §  19.2-270, we
conclude that many of its provisions are applicable to Thornton's
situation.    Thornton's trial was "a criminal prosecution, other
than for perjury."    Id.    Thornton, sought to bar "evidence  .  .  .
given against  [him,] the accused  [,] of any statement made by him
as a witness upon legal examination, in a criminal  .  .  . action."
Id.    The controlling issue in this case is whether Thornton was
"examined as a witness in his own behalf" at his brother's trial.
Id.    If he was, his testimony could be used against him.
The predecessor to Code  §  19.2-270 was chapter  195, section
22 of the Code of Virginia of  1873.    It provided the following:
In a criminal prosecution other than for
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perjury, or an action on a penal statute,
evidence shall not be given against the
accused of any statement made by him as a
witness upon a legal examination.
The Supreme Court applied that statute in Kirby v.
Commonwealth,  77 Va.  681  (1883), when Kirby, who had been charged
with malicious shooting with the intent to kill, was tried twice.
Id. at  682.    In the first of two trials, Kirby testified as a
witness in his own defense.    After a new trial was ordered, Kirby
did not testify at the second trial.    A third party was allowed
to testify, however, that statements made by Kirby at the first
trial conflicted with the testimony of two of his witnesses at
the second trial.    Id. at  690.
The Court held that although Kirby had testified in his own
behalf at the first trial, his testimony was given as a witness
upon a legal examination "in a criminal prosecution other than
for perjury."    Id. at  690  (quoting Code  1873, ch.  195,  §  22).
Therefore, the Court held that Kirby's testimony from the first
trial was improperly admitted and reversed the judgment.    Id.
"[T]o meet the effect of  [Kirby]" the General Assembly
amended the statute by adding the words, "'unless such statement
was made when examined as a witness in his own behalf.'"    Thaniel
v. Commonwealth,  132 Va.  795,  802,  111 S.E.  259,  261  (1922).
When the Supreme Court decided Mullins v. Commonwealth,  113 Va.
787,  75 S.E.  193  (1912), the amended statute was in effect.
During Mullins' murder trial, the judge permitted a witness "to
testify to a statement made by  [Mullins] in his examination at
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the inquest before the coroner's jury."    Id. at  792,  75 S.E. at
196.    Citing the amendment, the Supreme Court reversed the trial
judge's ruling and held that "the evidence in question was
forbidden by the  [amended statute]."    Id.    The Court did not
further explain the basis for its holding.
In Thaniel, the Supreme Court revisited the issue in a
slightly different context.    Thaniel, who was being tried for
murder, had also previously testified at a coroner's inquest.
The Court elaborated upon the circumstances relating to Thaniel's
testimony at the coroner's inquest:
On the day after the homicide the coroner
held an inquest at which  [Thaniel] testified
as a witness.    While the record is not
entirely clear upon the point, we shall
assume, in order to give  [Thaniel] the full
benefit of his contention, that he was duly
summoned and that he did not voluntarily
offer himself as a witness.    He was not under
arrest at that time, nor, so far as the
record shows, had he been charged with the
crime.    Upon this assumption and under these
circumstances, even though his testimony at
the coroner's inquest may have tended to
exculpate him, he cannot be regarded as
having been there in the capacity of a
witness in his own behalf.
Thaniel,  132 Va. at  800,  111 S.E. at  260  (citations omitted).
Unlike Mullins, where the Commonwealth used Mullins' prior
testimony as evidence in its case-in-chief, in Thaniel the
Commonwealth used Thaniel's prior testimony to cross-examine
Thaniel.    The Supreme Court found this difference significant and
stated the following:
In the Mullins Case, the former statements
of the accused which the court said were
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improperly admitted had not been made as a
witness in his own behalf, but at a coroner's
inquest, and were testified to by a third
party as a witness in chief for the
Commonwealth.    The case would, therefore, be
in point here as authority for the accused
but for the fact that there is  (contrary to
his contention) a clear distinction between a
case in which the Commonwealth undertakes to
prove by evidence in chief statements made by
an accused person upon a former legal
examination  (not as a witness for himself),
and a case in which the Commonwealth merely
seeks to bring out, or to lay the foundation
for bringing out, such statement by cross-
examination of the prisoner himself when he
takes the stand in his own behalf.
Thaniel,  132 Va. at  803,  111 S.E. at  261  (emphasis added).
Although Thaniel was ultimately decided upon principles not
applicable to the case before us, we cite the above passages from
Thaniel because they appear to suggest that whether a person has
been "examined as a witness in his own behalf" may depend, in
part, upon circumstances of the prior legal examination.    Thaniel
suggests that these circumstances would include whether the
person has been charged criminally when giving the first
testimony or whether the proceeding in which the prior testimony
was given was one that was adversarial to the person.
The circumstances in Hansel v. Commonwealth,  118 Va.  803,  88
S.E.  166  (1916) are instructive in deciding Thornton's case.
Hansel was charged with feloniously forging and uttering an
option contract for the sale of land.    Id. at  807,  88 S.E. at
166.    A co-defendant was charged with aiding and abetting Hansel
in the commission of the forgery.    Id. at  807,  88 S.E. at  166.
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The evidence proved that before Hansel was criminally charged,
the co-defendant filed a civil action on the option contract for
recovery of commissions.    Hansel, who was not a party to that
civil suit, testified as a witness for the co-defendant.                 118 Va.
at  804,  88 S.E. at  166.
In the later criminal prosecution against Hansel, the trial
judge allowed the Commonwealth to prove the testimony that Hansel
gave in the civil action.    Although the civil action was brought
in the name of the co-defendant and Hansel was not a party to the
civil action, Hansel was to receive one-third of the commission
resulting from the civil suit.    Id. at  808,  88 S.E. at  166.    In
approving the use in the criminal prosecution of Hansel's
testimony from the civil case, the Supreme Court held as follows:
With respect to this objection, it is
sufficient to say that though Hansel was
called as a witness  [in the civil case] for
the  .  .  .  [co-defendant], they had a joint
interest in the recovery.    So that in point
of fact he was "examined as a witness in his
own behalf."
118 Va. at  809,  88 S.E. at  167.
In Boney v. Commonwealth,  16 Va. App.  638,  642,  432 S.E.2d
7,  9-10  (1993), we considered whether Code  §  19.2-270 allowed a
judge to compel testimony from a co-defendant who refused to
testify at Boney's trial.    Although the decision focused
primarily on the effect of the co-defendant's invocation of the
Fifth Amendment, we considered the scope of Code  §  19.2-270.
Relying on Hansel, we noted that if the co-defendant had
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testified, he would have been "'examined as a witness in his own
behalf' because he and Boney had a 'joint interest' in the events
that were the focus of the litigation."    Boney,  16 Va. App. at
641-42,  432 S.E.2d at  9  (citation omitted).    We concluded that
the co-defendant had a "joint interest" with Boney because the
co-defendant "was in custody on charges arising out of the same
incident" for which Boney was being prosecuted.    Boney,  16 Va.
App. at  641,  432 S.E.2d at  9.
Thornton argues that a witness could only have testified in
his own behalf, as explained in Hansel, if the witness had an
interest in the actual recovery to be gained from the prior
proceeding.                                                           118 Va. at  809,  88 S.E. at  167.    We agree that
Hansel's testimony at the civil trial had the potential to
increase the chance that he would receive one-third of the
commission.    Thus, he testified for his own financial benefit.
Nonetheless, we do not read Hansel to limit the testifying
witness' interest solely to an actual recovery that might result
from the proceeding.    Rather, Hansel identifies a favorable
recovery as a sufficient interest that the testifying witness may
have.
The evidence in this case proved that Thornton and his
brother were arrested and charged with identical offenses arising
out of the same transaction.    Although not a party to his
brother's earlier criminal trial, Thornton had an interest in the
outcome comparable to the joint interest discussed in Boney.    The
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Commonwealth's case against the brothers arose from the same
transaction and rested on the same set of facts.    The resolution
of factual and legal issues in one case had the potential to
affect the issues in the other case.    Thus, we conclude that
Thornton had a personal interest in the outcome of his brother's
trial.
Moreover, Thornton also had a familial interest in the
outcome of his brother's prosecution.    An acquittal of his
brother or a lessening of the punishment that his brother
received would have been a favorable result for him and his
brother.    Thornton took responsibility for the crime at his
brother's trial and sought to exonerate his brother.    His
testimony was not compelled.    Indeed, he freely testified after
receiving and rejecting his counsel's advice.
As a consequence, we hold that Thornton's testimony at his
brother's trial constituted statements that he made "when
examined as a witness in his own behalf."    Code  §  19.2-270.
Thus, Thornton was not "entitled to any protection under the
statute" when the prosecutor sought to use his testimony against
him.    Boney,  16 Va. App. at  642,  432 S.E.2d at  10.    Applying the
express wording of Code  §  19.2-270 that withholds immunity where
the witness testified "when examined as a witness in his own
behalf," we hold that the trial judge properly allowed Thornton's
prior testimony.    Therefore, we affirm the convictions.
Affirmed.
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