                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Bumgardner and Frank
Argued at Chesapeake, Virginia


ANTHONY HARRIS
                                         MEMORANDUM OPINION * BY
v.   Record No. 0394-01-1                 JUDGE RICHARD S. BRAY
                                             FEBRUARY 5, 2002
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Johnny E. Morrison, Judge

          Charles B. Lustig (Brenda C. Spry, Deputy
          Public Defender, on brief), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


     Anthony Harris (defendant) was convicted in a bench trial of

possession of cocaine, a violation of Code § 18.2-250.   On appeal,

defendant contends the prosecutor erroneously referenced, during

closing argument, his failure to testify at trial.   Finding no

error, we affirm the conviction.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

     On September 9, 2000, at approximately 6:15 p.m., Portsmouth

Police Officer K.L. Johnson, Jr., while on routine patrol,


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
"observed [defendant] cut in between the breezeway" at an

apartment building.    Johnson approached defendant and, after an

innocuous exchange between the men, asked defendant "if he had any

weapons or narcotics on him."   Defendant responded, "no," and

consented to a pat-down of his person, which revealed "a glass

tube smoking device" in defendant's "right front pants pocket."

Defendant then "stated that the pants were not his" but "belonged

to his brother."

     Aware "through [his] training and experience [that the

smoking device was] used for the consumption of crack cocaine,"

Johnson arrested defendant and a subsequent chemical analysis

confirmed residue of the drug on the glass pipe, resulting in the

subject prosecution.

     During argument on defendant's motion to dismiss at the

conclusion of the related bench trial, the prosecutor, alluding

to defendant's statements at the scene of arrest, asserted

defendant was then "making up a story . . . to avoid having to

accept the fact that he has been busted by Officer Johnson in

possession of a crack pipe that has cocaine residue in

it[,] . . . a convenient story that he tells Officer Johnson

that these are not my pants."    The prosecutor then added

rhetorically, "Whose pants are they?    Did he tell you whose

pants they were?"

     Defendant's counsel immediately objected, characterizing the

argument as an improper comment upon defendant's failure to

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testify. 1   In response, the prosecutor explained the remarks

referenced "what [defendant] and . . . Officer Johnson said" in

the exchange between the two, argument defense counsel conceded

would have been "permissible."    Without ruling on defendant's

objection, the court then expressed an understanding that the

Commonwealth had not intended to reference defendant's "rights

. . . to remain silent and not testify" and proceeded to find him

guilty of the instant offense.

     On appeal, defendant pursues his contention the Commonwealth

improperly referenced his failure to testify.    Relying upon Code

§ 19.2-268 and the well established "general rule" that "any

comment . . . referring to the defendant's election not to testify

is a violation of his rights against self-incrimination as

guaranteed by the Fifth Amendment of the United States

Constitution," defendant urges us to reverse the conviction.

Johnson v. Commonwealth, 236 Va. 48, 50, 372 S.E.2d 134, 136

(1988) (citing Griffin v. California, 380 U.S. 609, 615 (1965);

Va. Const. art. I, § 8).

                  In determining whether a remark falls
             within the boundary of the prohibition that
             a prosecutor shall not make an adverse
             comment before the jury on a defendant's
             failure to testify, the test is whether, in
             the circumstances of the particular case,
             "the language used was manifestly intended
             or was of such character that the jury would



     1
       Defendant made no related motion for a mistrial or other
relief.

                                 - 3 -
          naturally and necessarily take it to be a
          comment on the failure of the accused to
          testify."

Hines v. Commonwealth, 217 Va. 905, 907, 234 S.E.2d 262, 263

(1977) (quoting Knowles v. United States, 224 F.2d 168, 170 (10th

Cir. 1955)); Winston v. Commonwealth, 12 Va. App. 363, 370, 404

S.E.2d 239, 243 (1991).

     Here, the prosecutor explained that the argument in issue

related to "the dialogue between [defense counsel] and Officer

Johnson," not defendant's failure to testify, and the record

clearly reflects the court considered the remarks as intended.

See Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157

(1981) (judge "uniquely suited . . . to disregard potentially

prejudicial comments . . .").   Defendant correctly conceded such

argument would have been "permissible."

     Under such circumstances, we find the remarks were neither

intended nor considered as comment upon defendant's failure to

testify and, therefore, free of constitutional implications.

     Accordingly, we affirm the conviction.

                                                    Affirmed.




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