                   COURT OF APPEALS OF VIRGINIA


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


JOHN JOSEPH WARMOUTH
                                               OPINION BY
v.   Record No. 2863-97-2             JUDGE JERE M. H. WILLIS, JR.
                                              APRIL 13, 1999
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF POWHATAN COUNTY
                     Thomas V. Warren, Judge

          Michael Morchower; Anthony G. Spencer
          (Morchower, Luxton & Whaley, on briefs), for
          appellant.

          Daniel J. Munroe, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     On appeal from his convictions of aggravated malicious

wounding, in violation of Code § 18.2-51, and statutory burglary

while armed with a deadly weapon, in violation of Code § 18.2-90,

John Joseph Warmouth contends that the trial court erred:   (1) in

admitting the Commonwealth’s expert testimony on palm print

identification, (2) in disallowing Warmouth’s expert testimony

opposing the Commonwealth’s palm print comparison testimony, (3)

in admitting testimony that Warmouth had cut a neighbor’s

telephone line soon after the incident, (4) in admitting evidence

that the victim’s jewelry and mementos had been damaged several

months earlier, (5) in admitting testimony from a telephone

company repairman that the victim’s telephone line had been cut by
someone who knew the exact line configuration, (6) in admitting

testimony that Warmouth had told friends where the spare key to

the house was kept, (7) in holding the evidence sufficient to

support Warmouth’s convictions, (8) in abusing its discretion by

denying defense counsel access to defense witnesses before they

testified, and (9) in failing to order a mistrial following

improper argument by the Commonwealth’s Attorney.     For the reasons

set forth herein, we reverse and remand for a new trial, if the

Commonwealth be so advised.1

                              I.   BACKGROUND

        “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).

        Mary Ann Worsham and John Joseph Warmouth were divorced in

1995.       During their subsequent tumultuous relationship, Warmouth

slammed his hand through a glass door when Worsham informed him

she planned to date while they were separated, threatened

Worsham with a gun, and told her “if I don’t like what’s going

on . . . in the future, I’ll kill you and whoever you’re with.”

In January 1996, Worsham discovered some of her jewelry was

broken, some was missing, and a photograph of her and Warmouth


        1
       Because we reverse and remand for evidentiary reasons, we
do not address the sufficiency of the evidence.



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had been smashed.   In April 1996, Worsham called the police to

force Warmouth to leave her house.

     On July 23, 1996, Worsham put her children to bed, locked

the doors, and retired to sleep.     Sometime later, she was

brutally beaten in her bed, rendering her comatose and causing

her permanent injury.    She remembers nothing about the incident

or her attacker.

     When investigating the crime scene, the police observed

that the telephone line serving an extension to Worsham’s

bedroom had been cut.    This line had been installed by Warmouth.

A bloody handprint impression was found on Worsham’s bed sheet.

There was no evidence of forced entry.     Warmouth retained a key

to the house, and he knew that a spare key was hidden in a “fake

rock” near the front door.     No other physical evidence suggested

the identity of the attacker.

     During questioning by police, Warmouth became agitated when

told that Worsham would soon be able to answer questions.

                        II.   EVIDENTIARY ISSUES

     A.   Robert Hallett’s Testimony

     The Commonwealth called as a witness Robert Hallett, a

forensic scientist, who testified as an expert in the field of

impression comparison.    Over Warmouth’s objection, Hallett

testified that he had compared the bloody handprint found on

Worsham’s bed sheet with a known handprint taken from Warmouth



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and had found them similar.    He described his comparison of the

prints, identifying numerous points of similarity.    He testified

that the similarity between the prints did not identify Warmouth

as the person whose handprint was on the bed sheet, but merely

established that the print could have been made by Warmouth’s

hand.    He testified that Ms. Worsham’s hand could not have left

the print.

        Warmouth challenged Hallett’s qualifications and the

reliability of impression comparison.    He argued that Hallett’s

conclusions were not sufficiently specific to have probative

value.

        The trial court made a proper threshold determination of

Hallett’s qualifications in his discipline and as to the

reliability of impression comparison.    The record supports its

determination that both were sufficient.     See Spencer v.

Commonwealth, 238 Va. 295, 313, 384 S.E.2d 785, 796 (1989),

cert. denied, 110 S. Ct. 1171 (1990).

        Although Hallett’s determinations did not identify Warmouth

specifically as the person whose handprint was on the bed sheet,

by identifying similarity between that print and Warmouth’s, and

by excluding Ms. Worsham as a person who could have left the

print, Hallett’s conclusions addressed and shed light upon the

identification of the depositor of the print.    His conclusions

fell into the same category as footprint, fiber, and substance



                                 - 4 -
analysis.    Information that sheds light upon an issue at trial

is relevant.     See Cash v. Commonwealth, 5 Va. App. 506, 510, 364

S.E.2d 769, 771 (1988).    The trial court did not err in

admitting Hallett’s testimony into evidence.

     B.     Robert Hazen’s Testimony

     Hazen identified himself as an expert in fingerprint

identification but not as an expert in impression comparison.

He did not refute Hallett’s findings that the handprint on the

bed sheet was similar to Warmouth’s handprint and that Worsham

could be excluded as the maker of the print, because he had not

himself analyzed the impressions.      Warmouth sought to have Hazen

testify that impression comparison was scientifically unsound

and unreliable.    The trial court rejected that testimony.       We

find no error in that ruling.    Hazen was not qualified as an

expert in the field of impression comparison and, thus, could

not render an expert opinion in that discipline.     Furthermore,

the scientific reliability of impression comparison related to

the admissibility of Hallett’s testimony.     The trial court had

already considered that question and had ruled on it.       See

Spencer, 238 Va. at 313, 384 S.E.2d at 796.

     C.     Testimony of Wendy and Joseph Hodges

     Over Warmouth’s objection, Wendy and Joseph Hodges

testified that on the night of August 5, 1996, about two weeks

after the attack on Ms. Worsham, Warmouth came to their home,



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saying that his vehicle had broken down and he needed

assistance.    Mr. Hodges went to get dressed.    When he returned

to the door, Warmouth was gone.    Shortly thereafter, Mr. and

Mrs. Hodges found that their telephone line had been cut.

     Warmouth contends that the Hodges’ testimony was irrelevant

and highly prejudicial.    We agree.     While the incident described

by the Hodges supported the inference that Warmouth had cut

their telephone line, the evidence established no connection

between this incident and the attack on Ms. Worsham.      The trial

court erred in admitting the Hodges’ testimony.

     D.     Broken Picture Frame and Missing Jewelry

     Over Warmouth’s objection, Ms. Worsham testified that, in

January 1996, she returned home to discover that a picture

frame, enclosing a picture of herself and Warmouth, had been

shattered, some of her jewelry was damaged, and several pieces

of jewelry that Warmouth had given her were missing.      Not only

was this incident remote in time, but no evidence linked it to

Warmouth.    Thus, this evidence was irrelevant and should not

have been admitted.

     E.     Gene Bradbury’s Testimony

     Gene Bradbury, a telephone repairman employed by Bell

Atlantic, testified that only a person with prior knowledge of

Ms. Worsham’s house wiring could have known which wire to cut in

order to disable the telephone service to her bedroom.      Warmouth



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had installed the extension.     Bradbury’s testimony was probative

as to whether Warmouth cut the wire and, therefore, was properly

admitted.

     F.     Matthew Bennett’s Testimony

     Gordon Batterson, testifying as a witness for Warmouth,

denied telling Matthew Bennett that Warmouth had told him where

the spare key to Ms. Worsham’s house was hidden.     Bennett,

called as a rebuttal witness by the Commonwealth, testified that

the conversation occurred.     This was purely rebuttal testimony,

responsive to an issue injected by Warmouth, and was properly

admitted.    Warmouth sought no limiting instruction.

                  III.   COUNSEL’S ACCESS TO WITNESSES

     At the commencement of the trial, on Warmouth’s motion, the

trial court ordered the witnesses sequestered.     The trial court

instructed the Commonwealth’s witnesses as follows:

             I do not want you to discuss anything at all
             with any of the three attorneys involved in
             the case. From here on, you are off limits
             to the attorneys.

The trial court instructed the defense witnesses as follows:

             Do not discuss the case at all in any way
             with the attorneys involved in the case.

Warmouth did not object to those instructions.

     After the trial began, two defense witnesses, Robert Hazen

and Lawrence Farmer, arrived at the courthouse from out of town.

Citing its sequestration ruling, the trial court refused to



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allow defense counsel to talk with these witnesses.   Warmouth

contends that this ruling violated his Sixth Amendment right to

assistance of counsel.

               The purpose of excluding the witnesses
          from the courtroom is . . . to deprive a
          later witness of the opportunity of shaping
          his testimony to correspond to that of an
          earlier one. Wigmore on Evidence, 3d Ed.,
          Vol. VI, Sec. 1838, p. 352. While usually
          all persons come within the rule of
          exclusion, the authorities agree that the
          court, in the exercise of its sound judicial
          discretion, may make exceptions thereto. In
          the absence of a showing that there has been
          an abuse of such discretion, or that the
          accused was prejudiced thereby, such ruling
          will not be reversed on appeal.

Huddleston v. Commonwealth, 191 Va. 400, 405, 61 S.E.2d 276, 279

(1950).

               Orders excluding witnesses during the
          taking of testimony play an important part
          in our system of justice and should be
          enforced. However, if their enforcement is
          to work justice and not injustice, care must
          be taken by the trial courts and by counsel
          to insure that those orders are plainly
          announced and that their effect is made
          clear to all [parties involved].

Jury v. Commonwealth, 10 Va. App. 718, 722, 395 S.E.2d 213, 216

(1990).

     The trial court ordered the sequestration of witnesses on

Warmouth’s motion.   While its admonition against communication

between counsel and the witnesses went beyond the safeguards

necessary to effect the sequestration rule, Warmouth did not




                               - 8 -
object.    Those admonitions were plainly stated.    In seeking

permission to speak with the witnesses, Warmouth’s counsel

offered no explanation as to why he had not conferred with the

witnesses earlier, as to why he needed to confer with them

during trial, or as to what prejudice, if any, would be caused

Warmouth’s defense by denying him access to the witnesses.        No

such explanation or showing of prejudice appears from the

record.

     Witness preparation is a vital part of counsel’s assistance

to the defendant.    “[A]n accused has the unqualified right to

‘call for evidence in his favor.’       This includes the right to

prepare for trial which, in turn, includes the right to

interview material witnesses and ascertain the truth.”       Bobo v.

Commonwealth, 187 Va. 774, 779, 48 S.E.2d 213, 215 (1948)

(decided under Section 8, Article I of the Virginia

Constitution, which affords protections identical to the Sixth

Amendment of the United States Constitution).

     The exercise of sound judicial discretion requires that an

accused be afforded a reasonable opportunity to prepare and

present his case.    Upon a showing of proper cause, this

principle requires a trial court, with proper admonition, to

afford counsel access to witnesses who have not yet begun to

testify.    However, in the absence of a showing of proper cause

or of prejudice that would result from a denial of access, we



                                - 9 -
find no reversible error in the trial court’s denial of access

in this case.

     Warmouth argues that the denial of access to the witnesses

impaired his counsel’s ability to represent him effectively and

was thus a denial of his Sixth Amendment right to counsel.

                [In] determining whether counsel’s
           legal assistance to his client was so
           inadequate that it effectively deprived the
           client of the protections guaranteed by the
           Sixth Amendment . . . the “benchmark . . .
           must be whether counsel’s conduct so
           undermined the proper functioning of the
           adversarial process that the trial cannot be
           relied on as having produced a just result.”
           More specifically, a defendant must show
           “that counsel’s performance was deficient”
           and that “the deficient performance
           prejudiced the defense.”

Perry v. Leeke, 488 U.S. 272, 279 (1989) (citations omitted).

The record reflects no prejudice resulting to Warmouth’s defense

from the denial of his counsel’s access to the witnesses.

Warmouth’s ability to call the witnesses was not lost.    He did,

in fact, present them.   The record discloses no area of inquiry

that was foreclosed and contains no suggestion that defense

counsel was hindered in his ability to examine the witnesses

fully.

     IV.   CLOSING STATEMENTS MADE BY COMMONWEALTH’S ATTORNEY

     In his closing argument, counsel for the Commonwealth

stated, in part:




                              - 10 -
             That’s what he is hired to [sic] for by the
             defendant to do, to do a masterful job, and
             he did. And the Commonwealth compliments
             him. And the masterful job he is designed
             to do and is hired to do is to try to throw
             as many red herrings at you to confuse you,
             to drag things out, to make thing appear
             differently than they really are. He really
             doesn’t want you to concentrate –

Warmouth contends that these remarks about defense counsel were

improper.    However, his objection to these remarks was

sustained.    He requested no further relief in the form of a

curative instruction or a mistrial.      Thus, he has preserved no

issue for us to consider.    Because the question may arise on

remand, we note that this argument was improper.     It did not

address the issues of the case.    On remand, counsel should

refrain from such remarks and should address only the elements

and issues of the case.

     For the reasons stated, we reverse the convictions and

remand the case for a new trial consistent with this opinion, if

the Commonwealth be so advised.

     The judgment of the trial court is reversed and remanded.

                                            Reversed and remanded.




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