                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia


HUGH KEVIN WOODDELL
                                           MEMORANDUM OPINION * BY
v.   Record No. 2241-00-3              JUDGE RUDOLPH BUMGARDNER, III
                                                MARCH 5, 2002
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF BATH COUNTY
                     Duncan M. Byrd, Jr., Judge

            Marvin D. Miller for appellant.

            Susan M. Harris, Assistant Attorney General
            (Randolph A. Beales, Attorney General, on
            brief), for appellee.


     A jury convicted Hugh Kevin Wooddell of discharging a

firearm into an occupied building and possessing a firearm after

being convicted of a felony.    On appeal, he contends the trial

court erred in permitting a witness to remain in the courtroom

during trial and the Commonwealth failed to provide exculpatory

evidence.    For the following reasons, we affirm.

     Andrea Rockett was home with her daughter and boyfriend,

Russell Drew Chesnut, when the defendant arrived around

midnight.    Rockett met the defendant at the back door and

observed him exit his truck, take a drink of beer, and grab two



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
bags.    The defendant came onto the porch, pulled out a rifle,

and fired it before entering the house.

        Rockett testified the defendant walked down the hallway and

fired another shot as Chesnut approached.    The defendant said,

"I come here to kill you, Rusty" and fired a third shot.

Rockett slammed the door to the bedroom, ran out the back door

with her daughter, and called 911 from her mother's house.

        Chesnut was in the living room when he heard a gunshot from

the rear of the house.    He stepped into the hallway and came

face to face with the defendant who said, "Get out of my face."

Chesnut asked, "Kevin, what is wrong with you?"    The defendant

replied, "I come here to kill you, Rusty," and fired a shot that

just missed Chesnut's head.    Chesnut jumped back and tried to

convince the defendant to drop the gun.    The defendant fired

another shot.    Chesnut knocked the defendant to the ground and

ran to Rockett's mother's house.

        The defendant testified that when he entered the house,

Chesnut pointed a gun at him and told him to leave.    The

defendant walked up to Chesnut and said, "You ain't man enough

to use it."    They struggled over the gun, and it fired.    The

defendant admitted he had three or four prior felony

convictions.

        Before trial, the defendant moved to exclude Chesnut from

the courtroom.    The defendant objected to Chesnut



                                 - 2 -
          staying in the courtroom . . . because . . .
          that section of the code says that the Court
          can do it unless his staying in the
          courtroom would prejudice the trial or the
          defendant . . . . I think the sole purpose
          for him to remain in the courtroom is to
          hear Ms. Rockett's testimony so that their
          testimony is similar.
               . . . I think that the defendant will
          be prejudiced, simply by Mr. Chesnut being
          able to hear Ms. Rockett's testimony and
          then testifying.

From this argument, and the Commonwealth's referral to "2985.01

[sic] of the code section," it is implicit that the parties were

referring to Code § 19.2-265.01. 1

     The trial court denied the defendant's motion and permitted

Chesnut to remain in the courtroom during Rockett's testimony.

Noting that "victim's rights . . . [have] been in the forefront

for the past few years," the trial judge ruled that the "victim

ought to be allowed to stay in the room unless . . . [his

presence] will 'substantially' impair the defendant's right to a

fair trial.   And I don't see any evidence that that would be the

case."

     On appeal, the defendant contends the trial court erred in

failing to exclude Chesnut from the courtroom pursuant to Code


     1
       At the time of the defendant's trial, Code § 19.2-265.01,
entitled "Victims, certain members of the family and support
persons not to be excluded," provided in relevant part that
"[d]uring the trial of every criminal case . . . any victim as
defined in § 19.2-11.01 may remain in the courtroom and shall
not be excluded unless the court determines, in its discretion,
the presence of the victim would substantially impair the
conduct of a fair trial." (Emphasis indicates word deleted
during 2000 amendment).

                               - 3 -
§ 19.2-265.1. 2   He argues the statute requires the exclusion of

all witnesses, including victim witnesses, and that the victims'

rights statute, Code § 19.2-265.01, is inapplicable.    This

argument is different from, and actually conflicts with, the

argument he raised at trial:    that Chesnut should be excluded

under Code § 19.2-265.01, the victims' rights statute, because

his presence would impair the trial.    Nothing in the defendant's

argument at trial indicated that he thought the general statute,

Code § 19.2-265.1, controlled rather than the specific statute,

Code § 19.2-265.01, dealing with victims.

     "[T]hough taking the same general position as in the trial

court, an appellant may not rely on reasons which could have

been but were not raised for the benefit of the lower court."

West Alexandria Prop., Inc. v. First Virginia Mort., 221 Va.

134, 138, 267 S.E.2d 149, 151 (1980) (citations omitted).      We

will not consider an argument on appeal which was not presented

to the trial court.    Rule 5A:18; Buck v. Commonwealth, 247 Va.

449, 452-53, 443 S.E.2d 414, 416 (1994) (issue not preserved

where defendant gave different reason to support Batson claim on

brief than at trial).    Accordingly, this issue is procedurally

barred.


     2
       Code § 19.2-265.1, entitled "Exclusion of witnesses,"
provides in pertinent part that "[i]n the trial of every
criminal case, the court . . . shall upon the motion of either
[party] . . . require the exclusion of every witness to be
called . . . ."


                                - 4 -
     Next, the defendant contends the Commonwealth failed to

provide exculpatory evidence and violated the Rules of

Professional Conduct.   At his sentencing hearing, the defendant

requested a continuance in order to obtain evidence from

California regarding the possibility that Chesnut was "on parole

and absconded from California."    Defense counsel argued this

information could have affected Chesnut's credibility at trial. 3

The Commonwealth objected because the allegations were based on

hearsay, the jury was aware Chesnut was a felon, and a possible

parole violation would not have been admissible.

     At the hearing on the defendant's motion for a new trial,

the trial court permitted defense counsel to proffer that

Chesnut was convicted of selling methamphetamine on December 23,

1998 and that, as of January 16, 1999, he "was on suspended

status of parole, which means that he had violated his parole,

and he was a fugitive" from California.

     The thrust of the defendant's argument is that Chesnut

violated parole and the Commonwealth violated Brady v. Maryland,

373 U.S. 83 (1963), by not revealing this.   The jury was aware

Chesnut was a convicted felon.    No evidence presented or

proffered substantiates the defendant's allegation that Chesnut

violated parole.   The trial court did not accept the defendant's

contention that a factual basis existed to support his motion.


     3
       The defendant was acquitted of the attempted murder of
Chesnut and the related firearm offense.

                                 - 5 -
     Moreover, Chesnut's fugitive status, if proven, would not

have been admissible.   Ramdass v. Commonwealth, 246 Va. 413,

423, 437 S.E.2d 566, 572 (1993) (unadjudicated offenses are

inadmissible to impeach a witness), vacated on other grounds and

remanded, 512 U.S. 1217 (1994), aff'd after remand, 530 U.S. 156

(2000); Newton v. Commonwealth, 29 Va. App. 433, 449-50, 512

S.E.2d 846, 854, cert. denied, 528 U.S. 1025 (1999) (same).

Evidence that is not admissible at trial cannot violate Brady

because there is no "reasonable probability" that its disclosure

would have affected the trial.     Wood v. Bartholomew, 516 U.S. 1,

5-6 (1995) (no Brady violation for failure to disclose polygraph

tests which are inadmissible under state law).

     Accordingly, the defendant's convictions are affirmed.

                                                           Affirmed.




                                 - 6 -
Benton, J., dissenting.

     After the jury was sworn, the prosecutor made a motion to

exclude witnesses, but asked that Russell Chesnut be allowed to

stay in the courtroom.    Hugh Wooddell's attorney responded, "I

have an objection to that, your Honor, I'd like to put on the

record."   Before considering the objection, the trial judge

informed the witnesses as follows:

           The Court is invoking a normal procedure
           that requires that the witnesses be excluded
           except when they are testifying, and the
           purpose of that rule is so one person's
           testimony won't affect the testimony of
           another. And so, while you are excluded, I
           would admonish you not to discuss your
           testimony among yourselves until after the
           case is over. So if you will go outside the
           courtroom, we will call you when we need to
           hear from you. Mr. Chesnut can stay at this
           point.

     When the judge finished instructing the jury, the judge

invited Wooddell's attorney "to put something on record with

respect to the Commonwealth's motion to allow the victim --."

Wooddell's attorney then addressed the statute concerning

victims so as to inform the judge that Chesnut should be

excluded under it.   He argued as follows:

              I want to object to this victim staying
           in the courtroom, simply because, Judge,
           that section of the code says that the Court
           can do it unless his staying in the
           courtroom would prejudice the trial or the
           defendant in some case. There are only two
           -– three witnesses as to what happened that
           day: Mr. Chesnut, Ms. Rockett, and Mr.
           Wooddell. This is not a case where Mr.
           Chesnut was wounded, or seriously hurt, or

                                - 7 -
          was the victim of a rape, as that section of
          statute is used mostly, and I think the sole
          purpose for him to remain in the courtroom
          is to hear Ms. Rockett's testimony so that
          their testimony is similar.

             I did record the preliminary hearing and
          their testimony was not exactly the same.
          And I think that the defendant will be
          prejudiced, simply by Mr. Chesnut being able
          to hear Ms. Rockett's testimony and then
          testifying.

     In support of his request that the judge not exclude

Chesnut from the courtroom, the prosecutor responded as follows:

             Judge, I think under 2985.01 [sic] of the
          code section, the only reason for keeping
          Mr. Chesnut out is, as I read items in the
          code, is if it would cause some kind of a
          disruption in the courtroom. But
          clearly--that's a fairly new statute, and it
          is clearly aimed to allow victims of serious
          crime to be present during the testimony.
          Now, I agree if there should be altercation
          there -– something that causes a
          disturbance, perhaps, he should be excluded,
          but there is no indication of that, and he
          will not cause a disruption. I think he's a
          victim under that statute. That's exactly
          what it is designed to allow. So often we
          have our victims in these cases who are just
          stuck off in a room, and they don't know
          what is going on, and they are the reason
          that we're here in the first place.

The trial judge then overruled Wooddell's objection.

     On appeal, Wooddell argues that the trial judge erred in

refusing to exclude Chesnut as required by Code § 19.2-265.1.

The Commonwealth contends, however, that Wooddell failed to

preserve this objection because at trial he only addressed Code

§ 19.2-265.01.   I would hold that Wooddell's attorney



                               - 8 -
sufficiently objected to the trial judge's refusal to exclude

Chesnut from the courtroom, that his appeal of this issue is not

barred by Rule 5A:18, and that the trial judge erred in

overruling Wooddell's objection.

     "The purpose of the contemporaneous objection rule embodied

in Rule 5A:18 is to inform the trial judge of the action

complained of in order to give the judge the opportunity to

consider the issue and to take timely corrective action, if

warranted, in order to avoid unnecessary appeals, reversals and

mistrials."   Robinson v. Commonwealth, 13 Va. App. 574, 576, 413

S.E.2d 885, 886 (1992).   The objection made by Wooddell's

attorney was sufficient to raise the issue whether Chesnut's

testimony should have been excluded under either Code

§ 19.2-265.1 or Code § 19.2-265.01.     The matter of excluding

witnesses under Code § 19.2-265.1 was initially raised by the

prosecutor's motion to exclude all the witnesses except Chesnut.

Wooddell's attorney objected.   Moreover, the record clearly

reflects that the trial judge understood what was at issue and

the long standing rule embodied in Code § 19.2-265.1 because he

informed the witnesses about the "normal procedure" of excluding

witnesses from the courtroom.   When the trial judge asked

Wooddell's attorney to state his objection for the record

regarding the presence of the "victim" in the courtroom,

Wooddell's attorney properly responded and argued why Chesnut

also should have been excluded under Code § 19.2-265.01.     I

                                - 9 -
would hold that, based on the statements in the record, it is

apparent that the judge considered both statutes and refused to

exclude Chesnut from the courtroom.

     Since at least 1960, Virginia has had statutes requiring

exclusion of witnesses in both civil and criminal cases upon

motion of counsel.     Cf. e.g. Code § 8-211.1 (repealed 1977) ("In

the trial of every case, civil or criminal, the Court . . .

shall upon the motion of any party, require the exclusion of

every witness whose presence is not necessary to the

proceeding.").   The current statute contains the following

mandatory directive:

               In the trial of every criminal case,
          the court, whether a court of record or a
          court not of record, may upon its own motion
          and shall upon the motion of either the
          attorney for the Commonwealth or any
          defendant, require the exclusion of every
          witness to be called including, but not
          limited to, police officers or other
          investigators; however, each defendant who
          is an individual and one officer or agent of
          each defendant which is a corporation or
          association shall be exempt from the rule of
          this section as a matter of right.

Code § 19.2-265.1 (emphasis added).      Moreover, the Supreme Court

has held that the statute makes "a defendant's right [to exclude

witnesses] absolute."     Johnson v. Commonwealth, 217 Va. 682,

683, 232 S.E.2d 741, 742 (1977).    Today, a motion to exclude

witnesses is so routine and commonplace that to require

recitation of the statute is to elevate form over substance.



                                - 10 -
Wooddell's attorney clearly objected to the prosecutor's motion

not to exclude Chesnut, the Commonwealth's witness.

     It was the trial judge who initially raised the matter of

Chesnut being a "victim" and invited a discussion on that issue.

In pertinent part, Code § 19.2-265.01 provides as follows:

              During the trial of every criminal case
           and in all court proceedings attendant to
           trial, whether before, during or after
           trial, . . . at which attendance by the
           defendant is permitted, whether in a circuit
           or district court, any victim as defined in
           [Code] § 19.2-11.01 may remain in the
           courtroom and shall not be excluded unless
           the court determines, in its discretion, the
           presence of the victim would impair the
           conduct of a fair trial.

I would hold, as Wooddell contends, that the language of Code

§ 19.2-265.1 is more specific than the general language of Code

§ 19.2-265.01 and, therefore, overrides it.   Code § 19.2-265.1

concerns criminal trials and specifically addresses "the

exclusion of every witness."   (Emphasis added.)    The plain

language of Code § 19.2-265.1 provides an exemption as a matter

of right only for criminal defendants.   The General Assembly

could have easily inserted an exemption for victims had they

intended victims to remain in the courtroom as a matter of

right.   Furthermore, we must apply the rule of lenity and

resolve in favor of the defendant any ambiguity that exists

between Code § 19.2-265.1 and Code § 19.2-265.01.     Ansell v.

Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979).       See

also Richardson v. Commonwealth, 25 Va. App. 491, 496, 489

                               - 11 -
S.E.2d 697, 700 (1997) (en banc) (citing Bell v. United States,

349 U.S. 81, 83 (1955)).   Thus, I would hold that Code

§ 19.2-265.1 trumps Code § 19.2-265.01.

     Even assuming, for purposes of discussion, that Code

§ 19.2-265.1 does not, I would hold that the trial judge erred

in refusing to exclude Chesnut under Code § 19.2-265.01.

Wooddell's allegation of inconsistent testimony at the

preliminary hearing was unrebutted and sufficient to establish

that Chesnut's presence "would impair the conduct of a fair

trial."   Code § 19.2-265.01.   By overruling Wooddell's

objection, the trial judge permitted Chesnut to remain in the

courtroom and hear Andrea Rockett's testimony before Chesnut

testified.   Because this conviction was based on the jury's

assessment of the credibility of the witnesses, I would hold

that the trial judge's failure to exclude Chesnut during

Rockett's testimony allowed Chesnut to conform his testimony and

impaired Wooddell's right to a fair trial.

     For these reasons, I would reverse the convictions and

remand for a new trial.    See Johnson, 217 Va. at 683, 232 S.E.2d

at 742; Martin v. Commonwealth, 217 Va. 847, 848, 234 S.E.2d 62,

63 (1977).




                                - 12 -
