                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia


MAYS WILSON TATE, JR.
                                           MEMORANDUM OPINION * BY
v.   Record No. 3017-97-2               JUDGE JERE M. H. WILLIS, JR.
                                                MARCH 30, 1999
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY
                     Timothy J. Hauler, Judge

          Michael J. Brickhill (Michael J. Brickhill,
          P.C., on brief), for appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     On appeal from his conviction for three counts of

second-degree murder, in violation of Code § 18.2-32; one count

of breaking and entering, in violation of Code § 18.2-91; and

one count of grand larceny, in violation of Code § 18.2-95, Mays

Wilson Tate, Jr., contends that the trial court erred in

striking his testimony.     We disagree and affirm the judgment of

the trial court.

     "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences deducible therefrom."     Martin v. Commonwealth, 4 Va.

App. 438, 443, 358 S.E.2d 415, 418 (1987).


     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
        On May 31, 1992, police were called to the home of Roberta

Stinson, where they found the bodies of Clarence Stinson, Gloria

Stinson, and Roberta Stinson, all three of whom had been shot to

death.    Tate, Clarence Stinson's grandson by marriage, was

arrested and charged with the murders.       Tate's first trial

resulted in a conviction, which was reversed on appeal.      His

first retrial resulted in a mistrial.    The present appeal arises

out of his second retrial.    Upon motion in limine, the trial

court ruled that in the presentation of evidence, no mention

should be made of the prior two trials.

        At trial, Tate elected to testify.    Before allowing him to

take the stand, the trial court informed him that by testifying,

he would subject himself to cross-examination by the

Commonwealth's Attorney.    Tate acknowledged that he understood

this.    He proceeded to testify that he was innocent, that he had

twice before been put on trial, and that this third trial was

simply harassment on the part of the Commonwealth.

        Upon concluding his direct testimony, Tate stated that he

would testify no further.    Being told by his attorney that the

Commonwealth's Attorney would cross-examine him, Tate replied

that the Commonwealth's Attorney could "cross-examine all he

wants."    The trial court asked the Commonwealth's Attorney

whether he wished to cross-examine Tate.      The Commonwealth's

Attorney replied that he would like a few minutes to think about


                                 - 2 -
it and then added that he "might not need . . . to ask" Tate any

questions.       The trial court sent the jury from the courtroom and

took a recess.

     During the recess, the trial court warned Tate repeatedly

that it would strike his testimony if he refused to submit to

cross-examination.        It directed defense counsel to advise Tate

of this consequence of his refusal.          The following dialogue took

place:

             THE COURT: . . . Mr. Snook, I would ask
             that you talk to your client about the
             Commonwealth's right of cross examination.
             . . . If Mr. Tate refuses cross examination
             his testimony may be stricken from the
             record.

             *        *       *      *        *      *      *

             THE COURT: First of all, I have to advise
             you of the fact that by taking the witness
             stand that you have given up your Fifth
             Amendment rights against self-incrimination
             and that the law does require that you
             answer questions upon cross examination by
             the Attorney for the Commonwealth. And I've
             got to ask you on the record, will you, in
             fact, submit yourself to cross examination
             by the Attorney for the Commonwealth?

             DEFENDANT:     No.

             THE COURT:     All right sir.

                         If you refuse to do that then as
             the trial judge I will be duty bound upon
             motion be the Attorney for the Commonwealth
             to advise the jury that your testimony that
             has been given on the stand today would not
             be properly considered by them as evidence
             in this case. I would be required to tell
             them that they must disregard all elements

                                    - 3 -
          of your testimony and that they may not
          consider any aspect of your testimony with
          regard to any issue that's put before them
          for a decision. Do you understand that?

          DEFENDANT:   Yeah.

          *      *      *      *       *     *      *

          THE COURT: May I then ask you again, will
          you consent to cross examination by the
          Attorney for the Commonwealth?

          DEFENDANT:   No.

          THE COURT: [to counsel] . . . Would you
          please advise him again of the ramifications
          of striking his evidence from this trial.
          . . . [B]ut I would like at least to afford
          you the opportunity to explain that to him
          one last time. . . .

          *      *      *       *      *      *        *

          THE COURT:   All right.

                      Mr. Tate, may I ask you again,
          will you consent to cross examination by the
          Attorney for the Commonwealth?

          DEFENDANT:   No.

          THE COURT:   You will not.

                      And do you fully understand,
          sir, that I . . . will be required to advise
          the jury to disregard all testimony that you
          have given in this case?

          DEFENDANT:   Yes.

     Tate persisted in his refusal to submit to

cross-examination and refused to resume the witness stand.   The

trial court denied the Commonwealth's motion for a mistrial and

its motion to find Tate in contempt for violating the rule in


                               - 4 -
limine.   On its own motion, the trial court struck Tate's

testimony, without permitting the parties to state objections

and noted the parties' exceptions to its rulings.   It reconvened

the trial and instructed the jury to disregard Tate's testimony.

     The Commonwealth first argues that by failing to state a

specific objection to the trial court's ruling striking his

testimony, Tate failed to preserve that issue for appeal.      See

Rule 5A:18.   However, by ruling on its own motion and noting

counsel's exception without affording counsel the opportunity to

specify an objection, the trial court itself satisfied the

requirement of Rule 5A:18 and preserved the issue for appeal.

The purpose of Rule 5A:18 is to insure that the trial court is

aware of the parties' positions and that it not be led

unadvisedly into error.   See Martin v. Commonwealth, 13 Va. App.

524, 530, 414 S.E.2d 401, 404 (1992).   By noting the exception

of counsel without affording counsel the opportunity to state

their grounds for objection, the trial court acknowledged those

grounds and itself satisfied the requirement of the rule.

     Tate first contends that he did not, in fact, refuse to

submit to cross-examination.   He notes that the Commonwealth's

Attorney stated that he "might not need to ask questions" and,

in fact, did not ask any questions.    Thus, Tate argues, he

refused to answer no questions.   We do not find this argument

persuasive.   Code § 19.2-268 states, in relevant part:


                               - 5 -
           In any case of felony or misdemeanor, the
           accused may be sworn and examined in his own
           behalf, and if so sworn and examined, he
           shall be deemed to have waived his privilege
           of not giving evidence against himself, and
           shall be subject to cross-examination as any
           other witness . . . .

This statute required Tate to resume the witness stand and to

submit himself to cross-examination.   His dialogue with the

trial court during the recess made it plain that he refused to

do so.   The trial court was not required to go through a

fruitless charade simply to demonstrate a situation that had

plainly developed.   The record is clear that Tate refused to

submit to cross-examination by the Commonwealth's Attorney and

that he was fully on notice that striking his testimony would be

the remedy for his refusal.

     "[W]hen the accused voluntarily takes the stand he loses

his character as a party, becomes a mere witness, and may be

examined as fully as any other witness."   Smith v. Commonwealth,

182 Va. 585, 598, 30 S.E.2d 26, 31 (1944) (citation omitted).

           Where a witness, after his testimony in
           chief, refuses completely to submit to
           cross-examination, [the] right of
           confrontation is violated and the witness's
           direct testimony should be stricken. . . .
           Whether the direct testimony should be
           stricken as violative of the confrontation
           clause is within the discretion of the trial
           court . . . .

Nichols v. Commonwealth, 6 Va. App. 426, 430, 369 S.E.2d 218,

220 (1988).


                               - 6 -
     Striking Tate's testimony was a proper remedy under the

facts of this case.   His refusal to submit to cross-examination

frustrated the Commonwealth's ability "to test the credibility

of the witness and the truthfulness of his earlier testimony."

United States v. Curry, 993 F.2d 43, 45 (4th Cir. 1993)

(citation omitted).   The trial court warned Tate that his

testimony would be stricken, ordered Tate's counsel to advise

him of this, and took pains to ensure Tate's understanding of

his rights and responsibilities.   The trial court did not err in

ordering Tate's testimony stricken.    Accordingly, the judgment

of the trial court is affirmed.

                                                    Affirmed.




                               - 7 -
Elder, J., dissenting.

     I concur in the majority's holding that Rule 5A:18 does not

bar our consideration of this appeal.   However, for the reasons

that follow, I would hold that the trial court abused its

discretion in striking appellant's testimony following his

refusal to submit to cross-examination.   Therefore, I

respectfully dissent from this portion of the majority opinion.

     As the majority discusses, Code § 19.2-268 provides, in

relevant part,

          [i]n any case of felony or misdemeanor, the
          accused may be sworn and examined in his own
          behalf, and if so sworn and examined, he
          shall be deemed to have waived his privilege
          of not giving evidence against himself, and
          shall be subject to cross-examination as any
          other witness . . . .

The Virginia Supreme Court has held that an earlier version of

this statute "should be liberally construed in favor of the

accused, so as to give him the fullest right to testify in his

own behalf, and that this right should not be any further

impaired than the language of the statute necessarily requires."

Enoch v. Commonwealth, 141 Va. 411, 431, 126 S.E. 222, 228

(1925).

     Code § 19.2-268, however, is not the only legal rule

relevant to the outcome of this appeal.   As appellant has argued

to this Court, the United States Constitution provides a

criminal defendant with the right to testify in his own behalf.


                              - 8 -
See Rock v. Arkansas, 483 U.S. 44, 51, 107 S. Ct. 2704, 2708, 97

L. Ed. 2d 37 (1987).      "The right to testify on one's own behalf

at a criminal trial has sources in several provisions of the

Constitution."      Id.   The Fourteenth Amendment's due process

provisions "include a right to be heard and to offer testimony."

See id. at 51, 107 S. Ct. at 2709 (citing In re Oliver, 333 U.S.

257, 273, 68 S. Ct. 499, 507, 92 L. Ed. 2d 682 (1948)).      The

Sixth Amendment's Compulsory Process Clause, "which grants a

defendant the right to call 'witnesses in his favor,'" also

provides such a right, for "the most important witness for the

defense in many criminal cases is the defendant himself."          Id.

at 52, 107 S. Ct. at 2709 (quoting Washington v. Texas, 388 U.S.

14, 17-19, 87 S. Ct. 1920, 1922-23, 18 L. Ed. 2d 1019 (1967)).

Finally, "[t]he opportunity to testify is . . . a necessary

corollary to the Fifth Amendment's guarantee against compelled

testimony."   Id.    Under the Fifth Amendment, "'an accused is

guaranteed the right "to remain silent unless he chooses to

speak in the unfettered exercise of his own will." . . . The

choice of whether to testify in one's own defense . . . is an

exercise of the constitutional privilege.'"       Id. at 53, 107

S. Ct. at 2710 (citations omitted).

     The right of a criminal defendant to present relevant

testimony, even his own, "is not without limitation.      The right

'may, in appropriate cases, bow to accommodate other legitimate


                                   - 9 -
interests in the criminal trial process.'"     Id. at 55-56, 107

S. Ct. at 2711 (quoting Chambers v. Mississippi, 410 U.S. 284,

295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297 (1973)) (footnote

omitted).   For example, "[t]he Constitution does not give a

defendant a right to testify without subjecting himself to

cross-examination which might tend to incriminate him."     See

Williams v. Borg, 139 F.3d 737, 740 (9th Cir. 1998).    Similarly,

a defendant's noncompliance with a state's evidentiary rules may

provide the basis for imposing restrictions on his right to

testify.    See, e.g., Cox v. Wyrick, 873 F.2d 200, 202 (8th Cir.

1989) (upholding exclusion of defendant's testimony on alibi

defense based on finding that defendant "willfully failed to

respond to the State's discovery requests").    Any restrictions

on a defendant's right to testify "may not be arbitrary or

disproportionate to the purposes they are designed to serve.       In

applying its evidentiary rules a State must evaluate whether the

interests served by a rule justify the limitation imposed on the

defendant's constitutional right to testify."     Rock, 483 U.S. at

55-56, 107 S. Ct. at 2711.   Under appropriate circumstances, a

trial court properly may strike the testimony of an accused who

refuses to submit to cross-examination.    See, e.g., Williams,

139 F.2d at 740-43 (upholding trial court's striking of

defendant's testimony on prosecutor's motion where defendant

refused, on cross-examination, to answer questions about prior


                               - 10 -
convictions); see also Nichols v. Commonwealth, 6 Va. App. 426,

430, 369 S.E.2d 218, 220 (1988) (noting that, in determining

whether to exclude uncooperative witness' direct testimony as

violative of confrontation clause, trial court should consider

"factors such as the motive of the witness, the materiality of

the answer, and the effectiveness of the cross-examination").

     The Third Circuit Court of Appeals has interpreted the

Supreme Court's holding in Rock to set out a three-part test for

determining whether the right of a criminal defendant to present

testimony has been violated.   See, e.g., Government of the

Virgin Islands v. Mills, 956 F.2d 443, 446 (3d Cir. 1992)

(applying test to evaluate exclusion of testimony of defense

witness under defendant's Sixth Amendment right to compulsory

process).   To establish a violation, a defendant must prove

"[f]irst, that he was deprived of the opportunity to present

evidence in his favor; second, that the excluded testimony would

have been material and favorable to his defense; and third, that

the deprivation was arbitrary and disproportionate to any

legitimate evidentiary or procedural purpose."   Id.

     Applying this test to the facts of this case, I would hold

that the trial court abused its discretion.   In striking

appellant's direct testimony that he was innocent of the charged

offenses and "[had not] killed anybody," the court satisfied the

first two prongs of the test--it deprived appellant of the


                               - 11 -
opportunity to present evidence that, if believed, would have

been material and favorable to the defense.    I also would hold

that the trial court's action was arbitrary and disproportionate

to any legitimate evidentiary or procedural purpose, thereby

satisfying the third prong of the test.

        The trial court struck appellant's testimony because

appellant refused to submit to cross-examination.    Under

appropriate circumstances, such a refusal could satisfy the

test.     See, e.g., Williams, 139 F.2d at 740-43; see also

Nichols, 6 Va. App. at 430, 369 S.E.2d at 220.     Here, however,

appellant testified about his prior convictions on direct

examination, and the Commonwealth's Attorney stated specifically

that "there might not be anything I need to ask [appellant]."

The record contains no indication that the Commonwealth's

Attorney subsequently expressed a desire to cross-examine

appellant and, therefore, no indication of what testimony any

such cross-examination, if it had been sought, would have been

designed to elicit.    Had the Commonwealth's Attorney thereafter

moved to strike appellant's testimony based on appellant's

continuing refusal to submit to cross-examination, such a motion

could have provided the inference that the Commonwealth's

Attorney did, in fact, desire to cross-examine appellant.      Here,

however, the Commonwealth's Attorney made no such motion, and

the trial court struck appellant's testimony sua sponte.


                                - 12 -
Therefore, given the absence of evidence that the Commonwealth

desired to cross-examine appellant and the absence of evidence

that any such examination would have sought to elicit material

testimony, I would hold that the trial court's action in

restricting appellant's right to testify was arbitrary and

constituted an abuse of discretion.

     For these reasons, I respectfully dissent from the

majority's affirmance of appellant's convictions.




                             - 13 -
