                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia


LARRY ALANZA THORNTON
                                                 OPINION BY
v.   Record No. 1168-94-2                JUDGE JAMES W. BENTON, JR.
                                               MARCH 12, 1996
COMMONWEALTH OF VIRGINIA

             FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert L. Harris, Sr., Judge

              J. Kelly Haley for appellant.
              Kathleen B. Martin, Assistant Attorney
              General (James S. Gilmore, III, Attorney
              General, on brief), for appellee.



         On March 16th, 1994, a jury convicted Larry Alanza Thornton

of possession of heroin and distribution of heroin.       Thornton

contends that the trial judge violated Code § 19.2-270 when he

admitted evidence of incriminating testimony that Thornton

previously had given at his brother's trial on related charges. 1

 For the reasons that follow, we affirm the convictions.

                                    I.

         The evidence at trial proved that an undercover police

officer approached Thornton at a street corner known by the

     1
      Code § 19.2-270 provides as follows:

              In a criminal prosecution, other than for
              perjury, or in an action on a penal statute,
              evidence shall not be given against the
              accused of any statement made by him as a
              witness upon a legal examination, in a
              criminal or civil action, unless such
              statement was made when examined as a witness
              in his own behalf.
police as a place for drug trafficking.     The officer asked

Thornton if he had heroin.    Thornton took the officer to a store

where Thornton's brother was standing.     As they approached,

Thornton called to his brother and asked the officer for the

money.    Thornton's brother joined them, reached into his pocket,

and handed an envelope to Thornton.      Thornton gave the envelope

to the officer.    The officer observed that the envelope was

consistent with packaged heroin, approved the purchase, and drove

away.    While driving away, the officer transmitted a description

of the two men to other officers.    The officers arrested Thornton

and his brother and charged them with possession of heroin and

distribution of heroin.
        Thornton received a subpoena to testify as a witness for his

brother, who was the first to be tried.     Against the advice of

his own counsel, Thornton voluntarily testified as a witness at

his brother's trial.    After informing the trial judge that he

understood the consequences of his actions, Thornton testified

that when the officer approached him he had heroin in his pocket

and sold that heroin to the officer.     He also testified that he

called to his brother only because he did not want to be alone

with the officer.    Thornton further testified that he had been

selling drugs for about twenty years and that his brother did not

sell drugs.

        Prior to his own trial, Thornton filed a motion in limine to

bar the Commonwealth from introducing into evidence at his trial




                                 - 2 -
the testimony he gave at his brother's trial.      Thornton argued

that Code § 19.2-270 provided him with immunity against the use

of his prior testimony.     In response, the Commonwealth argued

that the questions of admissibility and immunity in drug

prosecutions are governed exclusively by Code § 18.2-262 and,

further, that Thornton could not in any event claim immunity

because he had testified in his own behalf. 2     Stating that Code §

19.2-270 was not intended to allow a defendant to give self-

incriminating testimony to exonerate a co-defendant and then hide

behind the immunity statute in his own subsequent trial, the

trial judge denied the motion.     At Thornton's trial, the

Commonwealth offered as evidence the transcript of Thornton's

testimony at his brother's trial.       Thornton was convicted and

appeals the trial judge's ruling.
                                  II.

        Initially, the Commonwealth contends that Code § 19.2-270
    2
     In pertinent part Code § 18.2-262 states as follows:

             No person shall be excused from testifying or
             from producing books, papers, correspondence,
             memoranda or other records for the
             Commonwealth as to any offense alleged to have
             been committed by another under this article
             or under the Drug Control Act        (§ 54.1-
             3400 et seq.) by reason of his testimony or
             other evidence tending to incriminate himself,
             but the testimony given and evidence so
             produced by such person on behalf of the
             Commonwealth when called for by the trial
             judge or court trying the case, or by the
             attorney for the Commonwealth, or when
             summoned by the Commonwealth and sworn as a
             witness by the court or the clerk and sent
             before the grand jury, shall be in no case
             used against him nor shall he be prosecuted as
             to the offense as to which he testifies.
                                 - 3 -
does not apply to the case.   The Commonwealth argues that




                               - 4 -
Thornton was prosecuted for a drug offense and, therefore, Code

§ 18.2-262 is the exclusive provision that confers immunity.     We

do not agree.   Neither statute precludes the operation of the

other. Although the statutes offer different types of immunity,

see Caldwell v. Commonwealth, 8 Va. App. 86, 88, 379 S.E.2d 368,

369 (1989)(Code § 18.2-262 offers transactional and use

immunity); Gosling v. Commonwealth, 14 Va. App. 158, 164, 415

S.E.2d 870, 873 (1992)(Code § 19.2-270 offers only use immunity),

neither statute precludes, in an appropriate case, a witness from

claiming immunity.   We hold that Code § 18.2-262 does not

preclude Thornton from claiming protection under Code § 19.2-270.
                                 III.

       The Commonwealth also argues that Code § 19.2-270 does not

apply to Thornton because he testified in his own behalf at his

brother's trial.   In parsing the wording of Code § 19.2-270, we

conclude that many of its provisions are applicable to Thornton's

situation.   Thornton's trial was "a criminal prosecution, other

than for perjury."    Id.   Thornton, sought to bar "evidence . . .

given against [him,] the accused [,] of any statement made by him

as a witness upon legal examination, in a criminal . . . action."

 Id.   The controlling issue in this case is whether Thornton was

"examined as a witness in his own behalf" at his brother's trial.

 Id.   If he was, his testimony could be used against him.

       The predecessor to Code § 19.2-270 was chapter 195, section

22 of the Code of Virginia of 1873. It provided the following:
          In a criminal prosecution other than for


                                 - 5 -
          perjury, or an   action on a penal statute,
          evidence shall   not be given against the
          accused of any   statement made by him as a
          witness upon a   legal examination.


     The Supreme Court applied that statute in Kirby v.

Commonwealth, 77 Va. 681 (1883), when Kirby, who had been charged

with malicious shooting with the intent to kill, was tried twice.

 Id. at 682.    In the first of two trials, Kirby testified as a

witness in his own defense.   After a new trial was ordered, Kirby

did not testify at the second trial.       A third party was allowed

to testify, however, that statements made by Kirby at the first

trial conflicted with the testimony of two of his witnesses at

the second trial.    Id. at 690.

     The Court held that although Kirby had testified in his own

behalf at the first trial, his testimony was given as a witness

upon a legal examination "in a criminal prosecution other than

for perjury."    Id. at 690 (quoting Code 1873, ch. 195, § 22).

Therefore, the Court held that Kirby's testimony from the first

trial was improperly admitted and reversed the judgment.       Id.

     "[T]o meet the effect of [Kirby]" the General Assembly
amended the statute by adding the words, "'unless such statement

was made when examined as a witness in his own behalf.'"       Thaniel

v. Commonwealth, 132 Va. 795, 802, 111 S.E. 259, 261 (1922).

When the Supreme Court decided Mullins v. Commonwealth, 113 Va.

787, 75 S.E. 193 (1912), the amended statute was in effect.

During Mullins' murder trial, the judge permitted a witness "to

testify to a statement made by [Mullins] in his examination at



                                   - 6 -
the inquest before the coroner's jury."       Id. at 792, 75 S.E. at

196.   Citing the amendment, the Supreme Court reversed the trial

judge's ruling and held that "the evidence in question was

forbidden by the [amended statute]."    Id.    The Court did not

further explain the basis for its holding.

       In Thaniel, the Supreme Court revisited the issue in a

slightly different context.   Thaniel, who was being tried for

murder, had also previously testified at a coroner's inquest.

The Court elaborated upon the circumstances relating to Thaniel's

testimony at the coroner's inquest:
             On the day after the homicide the coroner
          held an inquest at which [Thaniel] testified
          as a witness. While the record is not
          entirely clear upon the point, we shall
          assume, in order to give [Thaniel] the full
          benefit of his contention, that he was duly
          summoned and that he did not voluntarily
          offer himself as a witness. He was not under
          arrest at that time, nor, so far as the
          record shows, had he been charged with the
          crime. Upon this assumption and under these
          circumstances, even though his testimony at
          the coroner's inquest may have tended to
          exculpate him, he cannot be regarded as
          having been there in the capacity of a
          witness in his own behalf.

Thaniel, 132 Va. at 800, 111 S.E. at 260 (citations omitted).

       Unlike Mullins, where the Commonwealth used Mullins' prior

testimony as evidence in its case-in-chief, in Thaniel the

Commonwealth used Thaniel's prior testimony to cross-examine

Thaniel.   The Supreme Court found this difference significant and

stated the following:
             In the Mullins Case, the former statements
          of the accused which the court said were



                                - 7 -
            improperly admitted had not been made as a
            witness in his own behalf, but at a coroner's
            inquest, and were testified to by a third
            party as a witness in chief for the
            Commonwealth. The case would, therefore, be
            in point here as authority for the accused
            but for the fact that there is (contrary to
            his contention) a clear distinction between a
            case in which the Commonwealth undertakes to
            prove by evidence in chief statements made by
            an accused person upon a former legal
            examination (not as a witness for himself),
            and a case in which the Commonwealth merely
            seeks to bring out, or to lay the foundation
            for bringing out, such statement by cross-
            examination of the prisoner himself when he
            takes the stand in his own behalf.

Thaniel, 132 Va. at 803, 111 S.E. at 261 (emphasis added).

       Although Thaniel was ultimately decided upon principles not

applicable to the case before us, we cite the above passages from

Thaniel because they appear to suggest that whether a person has

been "examined as a witness in his own behalf" may depend, in

part, upon circumstances of the prior legal examination.       Thaniel

suggests that these circumstances would include whether the

person has been charged criminally when giving the first

testimony or whether the proceeding in which the prior testimony

was given was one that was adversarial to the person.

       The circumstances in Hansel v. Commonwealth, 118 Va. 803, 88
S.E. 166 (1916) are instructive in deciding Thornton's case.

Hansel was charged with feloniously forging and uttering an

option contract for the sale of land.       Id. at 807, 88 S.E. at

166.   A co-defendant was charged with aiding and abetting Hansel

in the commission of the forgery.       Id. at 807, 88 S.E. at 166.




                                - 8 -
The evidence proved that before Hansel was criminally charged,

the co-defendant filed a civil action on the option contract for

recovery of commissions.    Hansel, who was not a party to that

civil suit, testified as a witness for the co-defendant.    118 Va.

at 804, 88 S.E. at 166.

     In the later criminal prosecution against Hansel, the trial

judge allowed the Commonwealth to prove the testimony that Hansel

gave in the civil action.   Although the civil action was brought

in the name of the co-defendant and Hansel was not a party to the

civil action, Hansel was to receive one-third of the commission

resulting from the civil suit.     Id. at 808, 88 S.E. at 166.    In

approving the use in the criminal prosecution of Hansel's

testimony from the civil case, the Supreme Court held as follows:
             With respect to this objection, it is
          sufficient to say that though Hansel was
          called as a witness [in the civil case] for
          the . . . [co-defendant], they had a joint
          interest in the recovery. So that in point
          of fact he was "examined as a witness in his
          own behalf."


118 Va. at 809, 88 S.E. at 167.

     In Boney v. Commonwealth, 16 Va. App. 638, 642, 432 S.E.2d
7, 9-10 (1993), we considered whether Code § 19.2-270 allowed a

judge to compel testimony from a co-defendant who refused to

testify at Boney's trial.   Although the decision focused

primarily on the effect of the co-defendant's invocation of the

Fifth Amendment, we considered the scope of Code § 19.2-270.

Relying on Hansel, we noted that if the co-defendant had




                                 - 9 -
testified, he would have been "'examined as a witness in his own

behalf' because he and Boney had a 'joint interest' in the events

that were the focus of the litigation."     Boney, 16 Va. App. at

641-42, 432 S.E.2d at 9 (citation omitted).      We concluded that

the co-defendant had a "joint interest" with Boney because the

co-defendant "was in custody on charges arising out of the same

incident" for which Boney was being prosecuted.      Boney, 16 Va.

App. at 641, 432 S.E.2d at 9.
        Thornton argues that a witness could only have testified in

his own behalf, as explained in Hansel, if the witness had an

interest in the actual recovery to be gained from the prior

proceeding.    118 Va. at 809, 88 S.E. at 167.   We agree that

Hansel's testimony at the civil trial had the potential to

increase the chance that he would receive one-third of the

commission.    Thus, he testified for his own financial benefit.

Nonetheless, we do not read Hansel to limit the testifying

witness' interest solely to an actual recovery that might result

from the proceeding.    Rather, Hansel identifies a favorable
recovery as a sufficient interest that the testifying witness may

have.

        The evidence in this case proved that Thornton and his

brother were arrested and charged with identical offenses arising

out of the same transaction.    Although not a party to his

brother's earlier criminal trial, Thornton had an interest in the

outcome comparable to the joint interest discussed in Boney.         The




                                - 10 -
Commonwealth's case against the brothers arose from the same

transaction and rested on the same set of facts.    The resolution

of factual and legal issues in one case had the potential to

affect the issues in the other case.     Thus, we conclude that

Thornton had a personal interest in the outcome of his brother's

trial.

       Moreover, Thornton also had a familial interest in the

outcome of his brother's prosecution.    An acquittal of his

brother or a lessening of the punishment that his brother

received would have been a favorable result for him and his

brother.    Thornton took responsibility for the crime at his

brother's trial and sought to exonerate his brother.       His

testimony was not compelled.    Indeed, he freely testified after

receiving and rejecting his counsel's advice.
       As a consequence, we hold that Thornton's testimony at his

brother's trial constituted statements that he made "when

examined as a witness in his own behalf."    Code § 19.2-270.

Thus, Thornton was not "entitled to any protection under the

statute" when the prosecutor sought to use his testimony against

him.     Boney, 16 Va. App. at 642, 432 S.E.2d at 10.    Applying the

express wording of Code § 19.2-270 that withholds immunity where

the witness testified "when examined as a witness in his own

behalf," we hold that the trial judge properly allowed Thornton's

prior testimony.    Therefore, we affirm the convictions.

                                                        Affirmed.




                                - 11 -
