                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia


MERRY CHRISTINE PEASE
                                                 OPINION BY
v.           Record No. 2086-95-3          JUDGE NELSON T. OVERTON
                                               MARCH 18, 1997
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF WISE COUNTY
                         J. Robert Stump, Judge
             Robert M. Galumbeck; Gerald L. Gray (Dudley,
             Galumbeck & Simmons; Gerald L. Gray Law Firm,
             on brief), for appellant.

             Monica S. McElyea, Assistant Attorney General
             (James S. Gilmore, III, Attorney General, on
             brief), for appellee.



        Merry Christine Pease was convicted by a jury of second

degree murder and the use of a firearm in the commission of

murder.    She appeals, contending that (1) the Commonwealth’s

Attorney improperly appeared before the grand jury; (2) the trial

court erred in admitting an intercepted communication; and (3)

the trial court erred in granting a jury instruction on the

effects of suicide on insurance policies.    For the reasons stated

below, we reverse the convictions.

        Pease’s first assignment of error concerns the activities of

Timothy McAfee, the Commonwealth’s Attorney, before the grand

jury.    In the fourth day of the trial, Mr. McAfee attempted to

impeach a witness for the defense by asking her about her

testimony at the grand jury.    When asked how he knew about her

previous testimony, Mr. McAfee responded that he had been present
before the grand jury. He explained to the court:
          I anticipated and spoke with the grand jury
          about the reason she was subpoenaed. They
          asked that I be present and ask the
          questions. Because I anticipated that [the
          witness] would in fact tell that story
          different today under oath than she did under
          oath [then] and asked that Special Agent
          Parker be permitted to be present when she
          testified. I spoke with the grand jury
          foreman about that and was permitted to have
          Mr. Parker present so that I wouldn’t have to
          testify. Agent Parker could.


     Code § 19.2-201 provides that “no attorney for the

Commonwealth shall go before any grand jury except when duly

sworn to testify as a witness, but he may advise the foreman of a

regular grand jury or any member or members thereof in relation

to the discharge of their duties.”    A Commonwealth’s Attorney may

advise the grand jury on a legal issue and the law in regard to

the various indictments that they are considering, but he may not

specifically refer to the indictment against the accused.     See

Hall v. Commonwealth, 143 Va. 554, 560, 130 S.E. 416, 418 (1925);

see also Vihko v. Commonwealth, 10 Va. App. 498, 505, 393 S.E.2d

413, 418 (1990).   He is not permitted, “by his presence or

otherwise, to influence them in reaching a conclusion during

their deliberations.”    Hall, 143 Va. at 560, 130 S.E. at 418.     We

acknowledge, as the Commonwealth would urge, that “[t]he mere

presence of the attorney for the Commonwealth in the grand jury

room does not invalidate an indictment found at the time, if

. . . it satisfactorily appears that the accused was not

prejudiced thereby.”    Mr. McAfee’s conduct in this case, however,



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goes beyond “mere presence.”

     Mr. McAfee apparently initiated contact with the grand jury

about this witness, who was the defendant’s personal friend.     He

informed them that he thought she would not be truthful.    He

actually examined the witness for the grand jury.   This behavior

well surpasses that which the Code permits.

     Dismissal of the indictment for a nonconstitutional error

“is appropriate only ‘if it is established that the violation

substantially influenced the grand jury’s decision to indict,’ or

if there is ‘grave doubt’ that the decision to indict was free

from the substantial influence of such violations.”   Bank of Nova

Scotia v. United States, 487 U.S. 250, 256 (1988) (quoting United

States v. Mechanik, 475 U.S. 66, 78 (1986) (O’Connor, J.,

concurring)).   Upon reviewing the record, we can come to no other

conclusion but that Mr. McAfee substantially influenced the grand

jury in reaching an indictment to the prejudice of the defendant.

We therefore quash the indictment and remand to the trial court
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for such further action as the Commonwealth may deem advisable.
     Pease also argues that a telephone conversation between her

and a friend was improperly admitted.   In light of our decision

to quash the indictment, we are not compelled to address this

issue.

     1
      While a conviction by a petit jury may render harmless
certain errors in the charging decision, see Mechanik, 475 U.S.
at 73, the error in this case was significant enough to justify
quashing the indictment.



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     Pease’s third assignment of error will not be considered

because the objection raised at trial differed from that raised

on appeal.

     Accordingly, the convictions are reversed, the indictment

quashed, and the case is remanded.

                                        Reversed and remanded.




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