                     COURT OF APPEALS OF VIRGINIA

Present: Judges Koontz, Elder and Fitzpatrick
Argued at Salem, Virginia

RICHARD SHANE VIA

v.       Record No. 0609-94-3            MEMORANDUM OPINION * BY
                                     JUDGE LAWRENCE L. KOONTZ, JR.
COMMONWEALTH OF VIRGINIA,                    AUGUST 1, 1995


              FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
                      George E. Honts, III, Judge

             Stephen R. Wills (William L. Heartwell, III;
             William L. Heartwell, III, P.C., on briefs), for
             appellant.
             H. Elizabeth Shaffer, Assistant Attorney General
             (James S. Gilmore, III, Attorney General, on
             brief), for appellee.



     Richard Shane Via (Via) appeals his convictions for breaking

and entering and grand larceny pursuant to Code §§ 18.2-91 and

18.2-95, respectively.    Via asserts that the trial court erred in

denying two motions to suppress evidence, in denying a motion for

mistrial and in denying a motion to dismiss the indictments.      For

the following reasons, we affirm Via's convictions.

     We restate only the facts relevant to our holding.     Via

moved to suppress inculpatory letters he had written to Trudy

Crowe (Crowe) on the ground that they were obtained in violation

of the Fourth Amendment guarantee against unreasonable searches

and seizures.    Via contends that Crowe was coerced into

surrendering the letters to police.    Assuming, without deciding,

that Crowe did not voluntarily surrender the letters, we hold
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that Via has no standing to challenge their admission against him

in a criminal trial.

     "A person who is aggrieved by an illegal search and seizure

only through the introduction of damaging evidence secured by a

search of a third person's premises or property has not had any

of his Fourth Amendment rights infringed."     Rakas v. Illinois,

439 U.S. 128, 135 (1978).   In order to challenge the

admissibility of evidence, the accused must establish "that he

himself was the victim of an invasion of privacy."      Jones v.

United States, 362 U.S. 257, 261 (1960).     Since Via failed at

trial to establish any invasion of his own privacy, the ruling of

the trial court denying the motion to suppress is affirmed.

     Via further contends that the letters should have been

excluded because they contained little probative value and were

extremely prejudicial.   In the letters, Via instructed Crowe to

testify that the property allegedly taken in the larceny was in

fact hers.   He also urged her to "bust out into tears" under

cross-examination.   These instructions evince an intent to suborn

perjury.   Therefore, the letters were probative of Via's guilty

state of mind and his criminal agency in the burglary.      United

States v. Hughes, 716 F.2d 234, 240-41 (4th Cir. 1983); see also

McMillan v. Commonwealth, 188 Va. 429, 432-33, 50 S.E.2d 428, 430

(1948).

     Via asserts that any probative value in the letters is

outweighed by unfair prejudice they created.    He contends that

the jurors could infer from the content of the letters that he

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was in jail when he wrote them and also that he held a general

contempt for authority.   While these are both prejudicial aspects

of the letters, "[t]he responsibility for balancing the competing

considerations of probative value and prejudice rests in the

sound discretion of the trial court.    The exercise of that

discretion will not be disturbed in the absence of a clear

abuse."   Spencer v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609,

617, cert. denied, 498 U.S. 998 (1990).     Here, the trial court

properly determined that the probative value of the letters

exceeded any potential harm that might have arisen out of the

inferences that they were written from jail or that Via was

contemptuous of authority.
     Via next contends that the trial court erred in denying his

motion for a mistrial for prosecutorial misconduct.    During

closing argument, defense counsel attacked the credibility of a

prosecution witness named Patricia Stanley.    Mrs. Stanley

immediately left the courtroom in tears.    In his closing

argument, the Commonwealth's Attorney made reference to Mrs.

Stanley's reaction.   Defense counsel objected, stating that Mrs.

Stanley's conduct was not a part of the trial record.    The

prosecutor withdrew this statement, and the court issued a

curative instruction to the jury.     The Commonwealth's Attorney

then said, "The point is, ladies and gentlemen, Patricia Stanley

wasn't given an opportunity to respond to any such accusations,

she was sitting right here on her oath . . . ."    Defense counsel

again objected and moved for a mistrial.    The motion was denied.
                                -3-
     Via contends that the trial court should have issued another

curative instruction after the second statement because the jury

may have misinterpreted it as again referring to the off-record

actions of the witness.   This is a matter properly left in the

sound discretion of the trial court:
     When a motion for mistrial is made, based upon an
     allegedly prejudicial event, the trial court must make
     an initial factual determination, in the light of all
     the circumstances of the case, whether the defendant's
     rights are so "indelibly prejudiced" as to necessitate
     a new trial. Unless we can say as a matter of law that
     this determination was wrong, it will not be disturbed
     on appeal.


LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657

(1983), cert. denied, 464 U.S. 1063 (1984).

     The Commonwealth's Attorney's first statement was withdrawn,

and the court issued a proper curative instruction to the jury.

The jury is presumed to have followed the instruction.   Id.    The

next statement referred only to the fact that Mrs. Stanley had

not been confronted with the allegation of perjury while she was

on the witness stand, when she could have responded.   Such a

reference is permissible during closing argument.   Therefore, we

cannot say that as a matter of law the trial court's

determination on the issue of indelible prejudice was wrong.

     Finally, Via contends that the trial court erred in denying

his motion to dismiss the indictments.   At the pretrial hearing,

Via alleged that police misconduct interfered with his Sixth

Amendment right to effective assistance of counsel and his due

process right to call his own witnesses.

                                -4-
     Originally, Via intended to call Crowe as a defense witness

at trial.   On January 25, 1994, two police detectives visited

Crowe, and she made a recorded statement inculpating Via.

Defense counsel then visited Crowe and told her that he could no

longer call her as a witness because she had lied to him.    At the

pretrial hearing, defense counsel testified that the following

morning he was informed by police that a complaint had been filed

against him for threatening and harassing Crowe.    The officer

told him that he would be charged with trespassing if he

attempted to visit Crowe and that he was permitted to speak with

her only through a third party.    Crowe testified that she made no

complaint against defense counsel and that he did not threaten or

harass her.   Defense counsel did contact Ms. Crowe through a

third party and subsequently contacted her directly.    Finally,

Via did call her as a witness for the defense, and she testified

on his behalf.
     The police conduct at issue was apparently designed to

intimidate defense counsel and was, therefore, improper.

However, Via offered no evidence that his counsel's performance

was deficient or that the police conduct actually prejudiced his

defense.    Absent a showing of prejudice at trial, no remedial

action by the trial court was required. 1   Via and his counsel had
     1
       We do not address whether dismissal would have been the
appropriate remedy had appellant suffered prejudice. However,
we do not agree with appellant's position that Taylor v.
Commonwealth, 4 Va. App. 45, 47, 354 S.E. 2d. 74, 76 (1987),
mandates that dismissal is the only remedy for prejudice in such
circumstances.


                                  -5-
other avenues of redress for the police misconduct.

     Via also claimed the police misconduct interfered with his

right to call his own witnesses, a fundamental element of due

process.    Jenkins v. Commonwealth, 244 Va. 445, 459, 423 S.E.2d.

360, 369 (1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1862

(1993).    The record indicates that he recalled Crowe to testify

on his behalf and that she did so.     The record further indicates

that counsel interviewed Crowe on several occasions after the

police misconduct occurred.   Via's ability to prepare and call

his own witnesses was not impaired by the improper conduct of the

police in this case.   Accordingly, the trial court properly

denied his motion for dismissal.
     For these reasons, we affirm Via's convictions.

                                                     Affirmed.




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