                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia


CLYDE L. CAFFEE
                                           MEMORANDUM OPINION * BY
v.   Record No. 2500-97-1                JUDGE JAMES W. BENTON, JR.
                                                MARCH 2, 1999
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    Alan E. Rosenblatt, Judge

          Keith Loren Kimball for appellant.

          John H. McLees, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     A jury convicted Clyde L. Caffee of two offenses of murder,

malicious wounding, and three offenses of using a firearm in the

commission of the three felonies.    On this appeal, Caffee

contends the trial judge impermissibly forced him to surrender

one constitutional right to assert another when the trial judge

permitted the Commonwealth to use Caffee's pretrial testimony as

evidence against Caffee at trial.    Because Caffee did not assert

that objection at trial, we hold that Rule 5A:18 bars

consideration of that issue on appeal.

                                I.

     A grand jury indicted Caffee on two charges of murder,

malicious wounding, and use of a firearm in the commission of the

three felonies.   Two weeks prior to trial, Caffee's

     *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
court-appointed attorney sought to withdraw from his

representation of Caffee.   At a hearing on the motion, Caffee's

attorney informed the judge that a difficulty existed because

Caffee "does not want to go with our planned defense which was to

be self-defense."   Caffee's attorney stated that he and Caffee

were "in extreme disagreement" and that he believed "Caffee's

best defense and only defense" to the indictments was self-

defense.   When Caffee's attorney stated that Caffee "would . . .

like to address the court," the judge administered an oath to

Caffee and asked Caffee to speak.   Caffee asked the judge to

appoint another attorney to represent him and confirmed that he

disagreed with the attorney on his defense strategy.   As

pertinent to this appeal, Caffee said the following in support of

his request:

           I did not commit this crime. [My attorney]
           advised me that the best thing to go with is
           self-defense at the time, which I told my
           [attorney] that I did not commit this crime,
           did not shoot and kill those three young
           [men].

              Judge, pleading to self-defense is just
           like saying I did it. That's why I am trying
           to get a point to him. If I come in here
           saying self-defense, I admitted that I shot
           and killed them . . . which, sir, I did not
           do. That's why I want to go with not guilty
           to all the charges, sir.
     The assistant Commonwealth's attorney opposed the motion to

withdraw and to appoint a new attorney for Caffee.   In his

argument, the assistant Commonwealth's attorney stated "I don't




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understand how there's any defense in the case except for

self-defense."    The judge denied the motion to withdraw.

     Two weeks later, a different judge presided at Caffee's jury

trial.   The Commonwealth's evidence at trial proved that three

weeks before the shooting incident, Willie Wiggins, Gregory

Wiggins, Derrick Wiggins and their friend John Brooks had fought

Caffee and Caffee's nephew at a nightclub.   All the participants

in the fight knew each other.   When the fighting escalated, the

nightclub's security guards sprayed everyone with Mace and forced

them to leave.    Brooks and Gregory Wiggins testified that they

heard gunshots as they left the parking lot.

     On July 6, 1996, at 1:00 a.m., Caffee again encountered the

four men at a house where alcohol was sold illegally.   The

Commonwealth's first witness, Gregory Wiggins, testified that

Caffee deliberately "bumped" Derrick Wiggins.   Later, when

Gregory Wiggins exited the house, he observed Caffee arguing with

Derrick Wiggins.   He testified that he saw Caffee draw a gun,

that he observed "fire" coming from Caffee's direction, and that

he saw Derrick Wiggins fall to the ground.   When he yelled to

Willie Wiggins, who was standing nearby, to run away, Caffee shot

Willie Wiggins.    Caffee then shot and wounded Gregory Wiggins.

Willie Wiggins and Derrick Wiggins were killed.   Gregory Wiggins

testified that he and the two dead men were unarmed.
     When Caffee's attorney cross-examined Gregory Wiggins, he

sought leave to question Wiggins in depth concerning convictions

for assault that were proved on direct examination and other



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unadjudicated acts of violence.   He informed the judge that those

matters were relevant to Caffee's theory of self-defense.   The

Commonwealth objected to any examination of Wiggins concerning

unadjudicated acts of violence.   Ruling that Caffee had not

presented evidence of self-defense, the trial judge declined to

permit Caffee's attorney to examine Wiggins concerning other acts

of violence.

     Reginald Wiggins, who was related to the three shooting

victims, testified that Caffee said he was carrying a gun when he

entered the house on July 6.   After Caffee "bumped" the shoulder

of Derrick Wiggins, an argument and a fistfight ensued outside

the house.   Reginald Wiggins testified that Caffee "pulled a gun

out of his pants and [shot] my cousin, Derrick, in the chest."

Reginald Wiggins also testified that when Willie Wiggins ran,

Caffee shot Willie Wiggins in the back and then shot Gregory

Wiggins in the back.

     The Commonwealth's evidence also proved that both Caffee and

Willie Wiggins had particles of gunshot primer residue on their

right hands.   Caffee's attorney established through the testimony

of the Commonwealth's forensic expert that primer residue could

result from several circumstances, including handling a weapon.

In his cross-examinations of Gregory Wiggins, John Brooks and

Reginald Wiggins, Caffee's attorney sought to establish that the

Wiggins group had been the aggressors in the June fight and again

in the July encounter.
     Near the end of its case-in-chief, the Commonwealth offered



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as evidence the statements Caffee made at the pretrial hearing

when his attorney sought to withdraw.    The Commonwealth argued

that the statement was admissible as a party admission.    Caffee's

attorney objected on the following three grounds:    (1) that the

evidence was overly prejudicial because Caffee would not be able

to tell the jury the full context in which the testimony was

given, (2) that the testimony was inadmissible to impeach Caffee

because Caffee had not then testified, and (3) that Caffee had

yet to present any evidence of self-defense to be rebutted by the

testimony.    Citing Alatishe v. Commonwealth, 12 Va. App. 376, 404

S.E.2d 81 (1991), the Commonwealth responded that the statement

was admissible as a party admission and proved Caffee's guilty

conscience.

     The trial judge ruled that the testimony was admissible as a

party admission.   After the judge explained the nature of the

transcript to the jury, a detective read to the jury the

transcript of Caffee's pretrial testimony.

     When the Commonwealth concluded its case-in-chief, Caffee

presented witnesses in his defense.     Caffee's cousin testified

that he attempted to talk to all parties prior to the shooting

incident to calm the situation.   He also urged Caffee to leave

the premises.   Caffee told him that the Wiggins' group was

harassing him and that he was tired of it.    Caffee's cousin

testified that he saw Derrick and Willie Wiggins strike Caffee,

and then heard shots fired rapidly.     He testified that he did not

see who fired the shots.



                                - 5 -
     Another witness for the defense testified that when she

arrived at the house at 1:50 a.m., Caffee was near his car.

Gregory Wiggins and several other men were following Caffee and

profanely threatening to fight him.    After she heard Caffee say

"I'm not fighting," the men began beating him.    She then heard

about six rapid shots and later saw one of the Wiggins brothers

shooting at Caffee's car as it drove away.   Caffee did not

testify.

     The jury convicted Caffee on all charges.

                                II.

     Relying upon Simmons v. United States, 390 U.S. 377 (1968),

Caffee argues for the first time on appeal that his pretrial

testimony was inadmissible at trial because he did not waive his

Fifth Amendment privilege against self-incrimination when he

sought to exercise his Sixth Amendment right to be represented by

counsel.   The Commonwealth contends that this issue is barred by

Rule 5A:18 because Caffee did not specify this objection at

trial.   We agree that this issue is barred by Rule 5A:18.

     We have consistently ruled that "[w]e will not consider a

question raised for the first time on appeal, Rule 5A:18, even a

constitutional question."   Singleton v. Commonwealth, 19 Va. App.

728, 735, 453 S.E.2d 921, 926 (1995) (en banc).    See also

Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405 S.E.2d 438,

441 (1991).

           "[T]he primary purpose of the contemporaneous
           objection rule is to advise the trial judge
           of the action complained of so that [the



                               - 6 -
             trial judge] can consider the issue
             intelligently and, if necessary, take
             corrective action to avoid unnecessary
             appeals, reversals, and mistrials."
             Consistent with this purpose, we have held
             that objections must be stated with
             specificity and that a general objection made
             "for the record" is insufficient.

Hogan v. Commonwealth, 5 Va. App. 36, 45, 360 S.E.2d 371, 376

(1987) (citations omitted).

     When the issue raised on appeal is not the same issue raised

in the trial court, the party has "failed . . . to preserve the

issue for appeal."     Marshall v. Commonwealth, 26 Va. App. 627,

637, 496 S.E.2d 120, 125 (1998).     See also United States v.

Branker, 418 F.2d 378, 381 (2d Cir. 1969) (a general objection at

trial to the admission of evidence is insufficient to preserve

for appeal the issue whether the admission into evidence of

pretrial testimony violates the rule of Simmons).     At trial,

Caffee's counsel argued three matters in support of his

objection.    None of the arguments addressed the matter he now

raises on appeal.

     "To invoke the ends of justice exception to Rule 5A:18, the

record must 'affirmatively show[] that a miscarriage of justice

has occurred, not . . . merely . . . that a miscarriage might
have occurred.'"     Marshall, 26 Va. App. at 636, 496 S.E.2d at 125

(citation omitted).    Upon our review of the record we cannot say

that this is such a case.    The testimony that was admitted was

but a minor piece of the evidence that overwhelmingly proved

beyond a reasonable doubt that Caffee committed the offenses.




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For these reasons, we affirm the convictions.

                                                Affirmed.




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