                  COURT OF APPEALS OF VIRGINIA


Present: Judges Barrow, Koontz and Elder
Argued at Richmond, Virginia


JUANNITO H. EDWARDS,
  S/K/A JUANITTO H. EDWARDS
                                               OPINION BY
v.         Record No. 1942-93-1         JUDGE BERNARD G. BARROW *
                                              JUNE 6, 1995
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF YORK COUNTY
                 Fred W. Bateman, Judge Designate

          Karen M. Vannan (Buxton, Lasris & Vannan, P.C.,
          on brief), for appellant.

          Michael T. Judge, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     This criminal appeal challenges the admissibility of the

testimony of the defendant's former wife concerning several

statements the defendant made to her and items she found among

the defendant's belongings during their marriage.   We hold that

the wife's testimony was not privileged under Code § 8.01-398

because it did not concern "any communication privately made"
                                             1
between the defendant and his former wife.
     *
      Judge Bernard G. Barrow participated in the hearing and
decision of this case and prepared the opinion prior to his
death.
     1
      We are not barred by Rule 5A:18 from considering the issues
raised by the defendant on appeal because the defendant's
objections were sufficiently preserved by his motion in limine,
objections at trial, and the trial court's assurance that defense
counsel "would not have to continue to make the same objection on
each and every one of the witnesses" because he had "made one
general objection which will follow him through the trial so long
as he wishes that to be the case."
     The defendant was charged with first degree murder,

abduction, robbery, and use of a firearm in connection with the

death of a man who disappeared while demonstrating his Mercedes

automobile which he was offering for sale.    In response to a

classified ad for the sale of the automobile, the victim's wife

received a telephone call from a person who identified himself as

J.C. Jiles and expressed interest in the car.    The victim and his

wife met "Jiles," a light-skinned black man wearing a long, black

tweed coat, a yellow shirt and a red tie at the Omni Hotel at

7:00 p.m.   The victim's wife testified at trial that the

defendant was the person who had introduced himself as Jiles.

After a test-drive, the defendant indicated that he would call

the following day.   Upon receiving a call from "Jiles" the next

day, the victim left home to go to the Omni, carrying a wallet

with a few credit cards and a small amount of money.    He

disappeared and his body was found a week later, shot in the

chest.   Two weeks later, the Mercedes was found.   The victim's

wallet was never recovered.
     The defendant was married at the time of the offense, but

divorced by the time of the trial.     Before trial, the court

denied the defendant's motion to exclude the wife's testimony

pursuant to Code §§ 19.2-271.2 and 8.01-398.    She testified that

her husband was "looking for automobiles" and that he went to

test-drive a "Mercedes, with an older couple" around 7:00 p.m.

one evening during the same time period that the defendant met




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the victim and the victim's wife.    When he left that evening, he

was wearing a pale yellow shirt, teal sweater vest, red tie, and

a long, black tweed trench coat with leather lapels.

        She further testified that the following evening, a friend

of the defendant's came to her home and took her to the Omni,

where she saw the car the defendant had been driving when she had

last seen him.    The defendant was not there, so the friend

instructed the wife to page him.    When the defendant called back,

he told his wife to meet him and pick him up at a relative's

house in Richmond.    The defendant's aunt and uncle were expecting

the wife, but the defendant was not there when she arrived.

While waiting for her husband, the defendant's wife drove the

uncle to a convenience store, and on her return, she saw the

defendant driving a Mercedes with the license number FAV-725.

She returned to the house and went to bed.    The defendant arrived

around 2:30 a.m., and the couple left at 4:00 a.m.    In the car on

the way home, the wife heard a radio report about a missing man

and a missing car with the license plate number she had seen on

the Mercedes the defendant had been driving.
        Finally, the defendant's former wife testified that on a

later evening, the defendant came home wearing his black coat and

went upstairs for some time and returned, no longer wearing the

coat.    When the wife went upstairs alone later and looked in his

belongings, she found a wallet containing the victim's driver's

license and Price Club card.    She did not tell the defendant she




                                 - 3 -
had found them, and when she looked for the wallet the next day,

she did not find it.   The former wife testified that, because of

her fear of the defendant, she did not contact the police until

she saw a reenactment of the crime on "America's Most Wanted."

     The defendant appeals the trial court's admission of the

wife's testimony describing the defendant's attire on the evening

of the victim's disappearance, his interest in purchasing a

Mercedes and his plan to test-drive a Mercedes with an older

couple, his instruction to her over the phone to meet him at a

relative's house, and her discovery of a wallet containing the

victim's driver's license and Price Club card among the

defendant's belongings.   We hold that the wife's testimony was

properly admitted.   The first three of these events, although

communications between spouses, did not express or imply by their

nature that they were intended to be "secret or confidential."

The wife's discovery of the wallet was not a communication by the

defendant to his wife.
     "[N]either husband nor wife shall, without the consent of

the other, be examined in any action as to any communication

privately made by one to the other while married, . . . nor

reveal in testimony after the marriage relation ceases any such

communication made while the marriage subsisted."   Code

§ 8.01-398(A).   Such communications include "all information or

knowledge privately imparted and made known by one spouse to the

other by virtue of and in consequence of the marital relation




                               - 4 -
through conduct, acts, signs, and spoken or written words."

Menefee v. Commonwealth, 189 Va. 900, 912, 55 S.E.2d 9, 15

(1949).

     The purpose of the privilege is to preserve the "continued

tranquility, integrity and confidence" of the marital relation,

shielded and protected by the "inviolate veil of the marital

sanctuary."   Id.    Thus, it does not shield any and every

communication or act, regardless of its nature, but "only

communications of a confidential nature," that is, "of a secret

nature between husband and wife."         Id. at 907, 55 S.E.2d at 13

(quoting Thomas v. First National Bank of Danville, 166 Va. 497,

511, 186 S.E. 77, 83 (1936).      Accord Stewart v. Commonwealth, 219

Va. 887, 893, 252 S.E.2d 329, 333 (1979) (noting that the

predecessor to Code § 8.01-398 shields confidential

communications).

     Thus, admissibility depends "upon the nature of the

communication . . . whether it was intended to be secret or

confidential."      Thomas, 166 Va. at 511, 186 S.E. at 83.    One

indicator of whether a communication was made in confidence is

whether its content is disclosed to a third party.         See id.

     The wife's description of the defendant's clothing, which he

displayed in public when he left the home, was not a confidential

communication.   We find no objective indicia of confidential

intent.   Further, it is reasonable to infer that clothing worn in




                                  - 5 -
public was not intended to be kept private or confidential. 2

Therefore, the wife's testimony about the defendant's attire on

the evening of the offense was properly admitted.

     The wife's testimony about the defendant's interest in

purchasing a Mercedes and his intent to test-drive a Mercedes

with an older couple was also not the sort of communication a

spouse would reasonably consider "of a secret nature between

husband and wife."   The information was not conveyed with an

expression of confidentiality, nor did its content imply that it

should be kept confidential.   In fact, the defendant not only

expressed his intent to the victim and his wife, but also

arranged to meet them in a public place, further supporting a

finding that this communication was not a marital "secret."

Protecting such a communication is not necessary to preserve the

"continued tranquility, integrity and confidence" of the marital

relation.
     The defendant's wife testified that the defendant instructed

her over the phone to meet him at his relative's house.   We do

not consider such a communication "secret."    Here again, we find

no objective indicia of confidential intent.   If anything, the

defendant's actions indicate the opposite, since he instructed

her to meet him at a place where other people would be present to

witness the meeting.   Therefore, the testimony was properly
     2
      We are not establishing a per se rule about attire. Some
acts, such as cross-dressing, or wearing bloody clothing, might
be considered confidential communications.



                               - 6 -
admitted.

     Finally, when the wife testified that she looked through the

defendant's belongings, which he had deposited in their bedroom

outside of her presence, and found a wallet containing the

victim's driver's license and Price Club card, she was not

describing a communication.    While a spouse's conduct may convey

information to the other spouse and would, therefore, be

privileged under Code § 8.01-398, see Menefee, 189 Va. at 912, 55

S.E.2d at 15, a spouse's conduct which does not convey

information to the other spouse is not privileged.    Osborne v.

Commonwealth, 214 Va. 691, 692, 204 S.E.2d 289, 290 (1974)

(wife's testimony that husband had beaten her and daughter not

privileged).   The former wife's discovery of the contents of the

wallet conveyed information to her, as did the fact that she

discovered it among the defendant's belongings.   However, the

defendant's conduct -- leaving the wallet among his belongings --

was not observed by the former wife and did not convey

information to her.   Thus, the conduct was not a "communication

privately made."

     For these reasons, Code § 8.01-398 does not prohibit the

former wife's testimony, and the trial court correctly allowed

her to testify concerning these events.   We, therefore, affirm

the judgments of conviction.

                                                         Affirmed.




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