Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, S.J.

SHAKEVA QUARLEAT FRAZIER
                                              OPINION BY
v.   Record No. 032615             SENIOR JUSTICE HARRY L. CARRICO
                                          September 17, 2004
COMMONWEALTH OF VIRGINIA

               FROM THE COURT OF APPEALS OF VIRGINIA

                              Background

      In a bench trial, Shakeva Quarleat Frazier was convicted

under an indictment charging her with feloniously aiding and

abetting Ampazzio Walleti Warren in his failure to appear in

court on a felony offense in violation of Code § 19.2-128(B).*

Frazier, who was Warren’s girlfriend, was sentenced to a term of

two years in the penitentiary, with the two years suspended on

condition that she serve six months in jail.

      A divided panel of the Court of Appeals reversed Frazier’s

conviction by published opinion.    Frazier v. Commonwealth, 40

Va. App. 350, 579 S.E.2d 628 (2003).       Upon an en banc rehearing,

the conviction was affirmed in a published order, by an equally

divided court. Frazier v. Commonwealth, 41 Va. App. 595, 595,

587 S.E.2d 362, 362 (2003).    We awarded Frazier this appeal.

Finding that Frazier’s conviction was without error, we will

affirm the judgment of the Court of Appeals.

      *
       Code § 19.2-128(B) provides in pertinent part that "[a]ny
person . . . charged with a felony offense . . . who willfully
fails to appear before any court as required shall be guilty of
a Class 6 felony."
     The record shows that on June 5, 2000, Warren was on trial

before a jury in the Circuit Court of the City of Danville on

three felony indictments charging possession of cocaine with

intent to distribute, possession of a firearm while possessing

cocaine, and possession of a concealed weapon, second offense.

Warren left the courthouse when the jury retired to deliberate,

and, when the jury returned, he “failed to appear.”   Two police

officers “searched the courtroom, outside area . . . everywhere,

and couldn’t find him.”

     Warren was later arrested in Burlington, North Carolina,

where he was “staying . . . with [Frazier] and [her] father.”

He was returned to Virginia and, on September 8, 2000, was tried

in the Circuit Court of the City of Danville on a charge of

failing to appear, based upon his flight from his June 5, 2000

trial.   In response to a subpoena obtained by Warren’s counsel,

Frazier appeared as a witness in his behalf.

     Frazier testified that she was pregnant with Warren’s child

at the time of his drug/weapons trial on June 5, 2000, and his

failure-to-appear trial on September 8, 2000.   At some point in

the drug/weapons trial, Frazier overheard three jurors “speakin’

about [Warren’s] case.”   Then, while the jury was deliberating,

Frazier talked to Warren in “the hall.”   She was “real upset”

and “concerned about [her] boyfriend and the father of [her]

child . . . going to prison.”   She told Warren that she “didn’t


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think he was havin’ a fair trial,” that she “wanted him to leave

with [her],” and that “if he didn’t ‘[she would] kill [herself]

and [the] child’ [she was] carryin’.”

     While on the witness stand, Frazier stated that she “knew

it was wrong for [Warren] to leave Court” and that she

“encouraged him to do it anyway.”   She said she had come to

Warren’s trial ready to accept responsibility for what she had

done and “whatever punishment seems fit for it.”

     Prior to her own trial, Frazier moved to exclude the

testimony she had given at Warren’s trial on the ground such

admission would violate Code § 19.2-270.   That section provides

in pertinent part as follows:

     In a criminal prosecution, other than for perjury, . . .
     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.

     The trial court denied Frazier’s motion to exclude, finding

that, at Warren’s trial, Frazier “was testifying, in essence,

not only in Mr. Warren’s behalf, but also in her own behalf.”

Based upon that testimony, the trial court convicted Frazier of

aiding and abetting Warren’s failure to appear in court as

required.

                           Discussion




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     On appeal, the sole question for decision is whether the

trial court’s admission into evidence of Frazier’s earlier

testimony violated Code § 19.2-270.    Frazier emphasizes that,

under the statute, the prior testimony of an accused is

inadmissible against her unless it was given when testifying as

a witness in her own behalf.    Frazier maintains that when she

was a witness at Warren’s trial for his failure to appear, she

testified in his behalf, not in her own behalf.   Hence, Frazier

concludes, her earlier testimony was inadmissible at her trial

for aiding and abetting.

     Frazier acknowledges that in Hansel v. Commonwealth, 118

Va. 803, 88 S.E. 166 (1916), this Court recognized an exception

to the statutory bar provided by Code § 19.2-270.   There, Hansel

allegedly forged an option contract for the sale of land under

which the sellers agreed to pay Robinett, a broker, a commission

of ten percent for selling the land.   Robinett assigned one-

third of the commission to Hansel.    In an action later brought

in Robinett’s name against the sellers to collect the

commission, Hansel testified as a witness in behalf of Robinett.

Then, in Hansel’s trial for forgery and uttering a forged

instrument, the trial court admitted into evidence a

stenographic report of the testimony Hansel had given in the

action for commissions.    Hansel objected to the admission on the

ground it was “contrary to section 3901 of the Code.”   Id. at


                                  4
809, 88 S.E. at 167.   In identical language, section 3901 is now

Code § 19.2-270.   This Court held in Hansel:

           With respect to this objection, it is sufficient to
      say that though Hansel was called as a witness for the
      plaintiff, Robinett, they had a joint interest in the
      recovery. So that in point of fact he was “examined as a
      witness in his own behalf.”

Id.

      Frazier argues that the exception noted in Hansel is

applicable only when the accused has a joint financial interest

with the party for whom she has testified at the earlier trial.

No such interest existed between her and Warren, Frazier

insists.   She says that “being pregnant is not a condition that

creates a legally recognized interest on the part of the

expectant mother”; that “Virginia does not recognize [a] common

law marriage contracted within Virginia, . . . thus the

relationship between Frazier and Warren would not create any

legally recognized duty of Warren toward Frazier”; and that the

“right of child support belongs to the child, not to its

mother.”

      While the facts in Hansel differ somewhat from the factual

situation here, we disagree with Frazier’s argument that the

exception to Code § 19.2-270 noted in Hansel may be applied only

when there is present the precise type of financial interest

that was involved in that earlier decision.     The two cases do

not differ in principle, and nothing said in the Hansel opinion


                                 5
limits application of the exception as Frazier would have it

limited.

     We are of opinion that the exception should also be applied

when, as here, there exists between the parties interests of a

personal, familial, and financial nature and the issue is

whether the accused was testifying in her own behalf at an

earlier trial.   There can be no doubt that a personal and

familial interest existed between Frazier and Warren.   They were

girlfriend and boyfriend and she was carrying his child, both

when she urged him to flee from his drug/weapons trial and when

she testified at his trial for failure to appear.

     The General Assembly has addressed the personal and

familial nature of this sort of relationship.   In Code § 16.1-

228, the term    “ ‘[f]amily or household member,’ ” when used in

the chapter relating to juvenile and domestic relations district

courts, includes “(v) any individual who has a child in common

with [another] person, whether or not the person and that

individual have been married or have resided together at any

time.”   See also Code §§ 18.2-57.2(D) and 18.2-60.3(F) (in

prosecutions for domestic assault and battery and for stalking,

the term "family or household member" shall have the same

meaning as provided in Code § 16.1-228).

     Neither can there be any doubt that a financial interest

existed between Frazier and Warren.   The General Assembly has


                                  6
addressed the financial aspect of the situation in which these

parties found themselves.   Code § 20-61 provides that “any

parent who deserts or willfully neglects or refuses or fails to

provide for the support and maintenance of his or her child

under the age of eighteen years of age . . . shall be guilty of

a misdemeanor.”   (Emphasis added.)

     We are further of opinion that the personal, familial, and

financial relationship existing between Frazier and Warren is

sufficient to serve as a predicate for finding that an earlier

statement was made in her own behalf as well as in behalf of

another member of that relationship.   As noted supra, the trial

court found that when Frazier testified at Warren’s failure-to-

appear trial, she “was testifying, in essence, not only in Mr.

Warren’s behalf, but also in her own behalf.”   The evidence

supports the trial court’s finding.

     Regarding the personal and familial aspect of the Frazier-

Warren relationship, Frazier testified at her own trial that she

encouraged Warren to flee during his drug/weapons trial because

she was concerned about her boyfriend and the father of her

child going to prison.   It is reasonable to infer that she had

the same concern when she testified at Warren’s failure-to-

appear trial and that her purpose was the same − to keep her

boyfriend out of prison not only for his sake but also for the




                                 7
benefit of herself and her child.    Frazier just took an unlawful

course in the way she addressed her concern.

     On the financial side of the picture, Frazier had cause to

be concerned about the support of her child.   While she may be

correct in saying that the relationship between her and Warren

would “not create any legally recognized duty of Warren toward

Frazier,” Warren certainly would owe the child the duty of

support, and Frazier had the right to expect Warren would

perform that duty if not incarcerated.   On the other hand, were

Warren incarcerated, the burden of support would fall upon her.

But, again, Frazier chose an illegal method of addressing her

concern.

     Although Frazier says her testimony at Warren’s failure-to-

appear trial was in his behalf alone, her concerns were of such

importance to her that she threatened to kill herself and the

child she was carrying if Warren did not flee with her.   Under

the circumstances of this case, it would be unrealistic to say

that Frazier was not testifying in her own behalf as well as

Warren’s when she served as a witness at his trial for failing

to appear.

     But, Frazier argues, she should not be considered as having

testified in her own behalf at Warren’s trial because she was

compelled to testify in response to the subpoena obtained by

Warren’s counsel.   However, whether she appeared voluntarily or


                                 8
in response to a subpoena is irrelevant to the question whether

she testified in her own behalf.       Moreover, in her testimony,

she disavowed any notion of compulsion when she stated that

“what [she] came to Court for today [was] to accept . . .

responsibility” for encouraging Warren “to leave Court.”

     Frazier also argues that, at the time she testified at

Warren’s trial, there were no charges pending against her

and she had not been advised of the possible consequences

of giving self-incriminating testimony.      However, she does

not cite nor are we aware of any authority requiring that

she should have been given such advice as a prerequisite to

the admissibility of her prior testimony.      Furthermore,

while on the witness stand, she admitted that she knew “it

was wrong for [Warren] to leave Court,” yet she “encouraged

him to do it anyway.”

     For the reasons assigned, we will affirm the judgment of

the Court of Appeals.

                                                              Affirmed.




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