                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia


BEVERLY ANN MONROE

v.        Record No. 2604-92-2              MEMORANDUM OPINION *
                                        BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA                        MAY 2, 1995


            FROM THE CIRCUIT COURT OF POWHATAN COUNTY
                     Thomas V. Warren, Judge
          Peter D. Greenspun (Gary Moliken; Thomas Peter Mann;
          Peter D. Greenspun & Associates, P.C., on briefs),
          for appellant.

          John H. McLees, Jr., Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on brief),
          for appellee.



     Beverly Ann Monroe was convicted in a jury trial of first-

degree murder and use of a firearm in the commission of a felony.

 She was sentenced to twenty years in the penitentiary for the

murder and two years for the firearm conviction.

     She raises five issues on appeal.    She contends that the

trial court erred by:    (1) failing to suppress her involuntary

statements to a police officer, (2) advising the jury that her

statements were voluntary, (3) admitting her statements taken in

violation of her Sixth Amendment right to counsel, (4) allowing

testimony of a witness to be admitted in evidence in violation of

Brady v. Maryland, 373 U.S. 83 (1963), and (5) denying her

motions to strike the evidence and to set aside the jury
     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
verdicts.    For the following reasons, we affirm the judgments of

the trial court.

        On the morning of March 5, 1992, Roger de la Burde, was

found dead in his home on his estate in Powhatan County.      He died

from a single gunshot wound to the head, inflicted by a large

caliber handgun, which was found beside de la Burde's hand.       The

estimated time of his death was 10:35 p.m. on March 4, 1992.

        Beverly Monroe, the appellant, had known de la Burde for

thirteen years.    She had been his lover for eleven years.   During

the investigation of de la Burde's death, it first appeared to

the authorities, based upon Monroe's words and actions, that when

she had arrived at de la Burde's home on the morning that he was

found dead, she had no prior knowledge that de la Burde might be

dead.    However, on March 26, Monroe told a Virginia State Police

investigator that she remembered being at de la Burde's home on

the night he died and falling asleep opposite where de la Burde

was resting on a sofa.    She told the officer she remembered being

suddenly awakened by a loud noise.      Finding de la Burde dead on

the sofa, she said she left the house in shock.
        On June 3, while meeting with the same investigator, she

recanted her earlier statement about being with de la Burde when

he died and said she thought her recollections were a dream.

Later, Monroe signed a written statement in which she again

acknowledged that she was present at de la Burde's home when she

heard a loud noise, awoke, and found de la Burde dead.



                                  -2-
                               I.

     Monroe first contends that the trial court erred by

admitting the various statements that she made to the police

investigator on March 26 and June 3 because the statements were

involuntary.

     At trial, Monroe filed the following motion to suppress the

statements:
             This day came the Defendant, Beverly A.
          Monroe, by counsel, and moved the Court to
          suppress any and all statements that she made
          to State Police Investigator David Riley on
          the grounds that she was not advised of her
          constitutional rights at a time when the
          investigation had focused on her and the case
          was in the accusatory stage, which was
          contrary to the mandates of Miranda v.
          Arizona, 304 U.S. 436 (1966), the Fifth and
          Fourteenth Amendments of the Constitution of
          the United States as well as Article I,
          Section 8 of the constitution of the
          Commonwealth of Virginia.


     After the verdicts, Monroe moved to set aside the jury's

verdicts, which motion stated:
             1. That the Court improperly overruled
          the Motion to Suppress filed by the Defendant
          and admitted the statement of Ms. Monroe
          taken on June 3, 1992 when the investigation
          was clearly in the accusatory stage and the
          Defendant considered herself in custody and
          at which time she was not advised of her
          constitutional rights by Investigator David
          Riley.


     At trial when Monroe's statements were presented into

evidence, she again objected on the same ground set forth in the

written motions, which was that she was not informed of her

constitutional rights to counsel and to refuse to answer

                               -3-
questions during a custodial interrogation.

     Rule 5A:18 requires that objections to a trial court's

action or ruling be made with specificity in order to preserve an

issue for appeal.   Campbell v. Commonwealth, 12 Va. App. 476,

489, 405 S.E.2d 1, 2 (1991).   A trial court must be alerted to

the precise "issue" to which a party objects.    See Neal v.

Commonwealth, 15 Va. App. 416, 422-23, 425 S.E.2d 521, 524-25

(1992).   The objecting party has a duty "to state the grounds of

his objection so that the judge may understand the precise

question or questions he is called upon to decide.   The judge is

not required to search for objections which counsel have not

discovered, or which they are not willing to disclose."      Jackson

v. Chesapeake & Ohio Ry. Co., 179 Va. 642, 651, 20 S.E.2d 489,

492-93 (1942); Simmons v. Commonwealth, 6 Va. App. 445, 450, 371

S.E.2d 7, 10 (1988).

     At trial, Beverly Monroe's motions and objections to the

statements were based solely upon the ground that the statements

were obtained during a custodial interrogation without being

apprised of her Miranda rights.    Now, for the first time on

appeal, she argues that the statements were factually

involuntary.   Whether an individual is in custody for the

purposes of Miranda is a distinct and separate issue from whether

a statement is made voluntarily.    Because Monroe did not raise at

trial the issue whether the statements were voluntary, we will

not consider that question on appeal.   Whether Monroe's statement



                                  -4-
was the "product of an essentially free and unconstrained

choice," that is, whether it was voluntary, was not raised.    The

trial judge did not consider or rule upon that issue.    Without

the issue having been raised, the Commonwealth had no reason or

opportunity to develop the evidence on that question.    Thus, Rule

5A:18 precludes consideration of the issue of voluntariness of

the statement.   No good cause exists, nor do the ends of justice

require that we address the question on appeal.     See Mounce v.
Commonwealth, 4 Va. App. 433, 435-36, 357 S.E.2d 742, 744 (1987).

                                II.

     The appellant next contends that the court improperly told

the jury that her statements to the police officer were

voluntary, rather than allowing the jury to consider and make

that determination.   At trial, Monroe objected to the admission

into evidence of a statement, which was written by Detective

David M. Riley allegedly recounting Monroe's verbal account to

him, and signed by the appellant.     The objections were that the

detective was "testifying in narrative form," that his testimony

and the statement were hearsay, and the signed document was not a

"statement" from the accused. The following exchange took place:
          MR. JANUS: I think the objection should be
     partially overruled on the representation she gave a
     written statement.

          I submit to the Court she did not give a written
     statement.

          THE COURT: Call it what you want, I am going to
     let it come in. I think it's a statement, apparently
     one that he wrote and she initialed or something.


                                -5-
          MR. JANUS: Yes, sir, he wrote it out asked her to
     sign it. Told her.

          THE COURT: We will have it before the jury and
     they can call it what they would like. One written by
     him, initialed by her or whether it is by her.

                   *   *    *    *     *    *   *

          THE COURT: I don't think there is any reason to
     go further without the jury being here. I understand
     what the proffer is, and all the proffer has been to
     all these things outlined to her, and she responded.

          I think it's a statement, voluntary statement.      I
     have already ruled on that. It's admissible.
           I want the witness to proceed.


     The appellant contends that the trial judge's comment, "I

think it's a statement, voluntary statement," improperly

instructed the jury that they were required to find that Monroe's

statement was voluntary.   The appellant did not, however, object

to the trial court's remarks.   One purpose of the contemporaneous

objection rule is to enable trial courts to correct errors that

may occur during trial.    See Mounce, 4 Va. App at 436, 357 S.E.2d

at 744.   Although the appellant objected to the introduction of

the statement into evidence, she did not object to the trial

judge's comment.

     On appeal, we consider only those issues for which a

contemporaneous objection is made, except for good cause shown or

when necessary to avoid a miscarriage of justice.   Rule 5A:18;

Knight v. Commonwealth, 18 Va. App. 207, 216, 443 S.E.2d 165, 170

(1994).   Because the appellant did not object to the trial

judge's comment, and because no good cause exists to consider the

                                 -6-
issue, nor must we do so to attain the ends of justice, we are

procedurally barred from reviewing whether the comment was

proper.

                               III.

     Monroe next contends that she was denied her Sixth Amendment

right to counsel.   She asserts that during the June 3 meeting

with Investigator Riley, the Commonwealth had moved beyond the

investigatory stage because the Commonwealth's attorney had made

the decision to indict her although no formal charges had been

lodged.
     On June 3, 1992, Officer Riley arranged to meet with Beverly

Monroe at a park.   Investigator Riley told her that the

Commonwealth's attorney was going to indict her.   During this

meeting, Monroe gave the officer the statement which she contends

should have been suppressed because she contends it was made when

she was entitled to and denied counsel.

     A defendant's Sixth Amendment right to counsel does not

attach until a prosecution is commenced "by way of formal charge,

preliminary hearing, indictment, information or arraignment."

Tipton v. Commonwealth, 18 Va. App. 832, 835, 447 S.E.2d 539, 541

(1994) (quoting Brewer v. Williams, 430 U.S. 387, 398 (1977)).     A

police officer arranging to meet with a suspect and informing the

suspect that she will be indicted on a future date does not

commence a criminal prosecution.   Therefore, because no formal

prosecutorial proceeding had been initiated, no Sixth Amendment



                                -7-
right to counsel existed.

                                IV.

     Monroe next contends that the trial judge erred by admitting

into evidence the testimony of Zelma Smith, who testified that

Monroe had contacted her ten months before de la Burde's death to

inquire how Monroe could obtain an unregistered firearm.    The

appellant contends that the testimony of Zelma Smith was

irrelevant and prejudicial and improperly admitted.    We disagree.
     Evidence must be relevant to be admissible.     Hughes v.

Commonwealth, 16 Va. App. 576, 602, 431 S.E.2d 906, 922 (1993)

(Coleman, J., concurring and dissenting) (aff'd en banc, 18 Va.

App. 510, 446 S.E.2d 451 (1994)).     In order to be relevant,

evidence must tend to prove a material fact or element of the

charged offense.   Johnson v. Commonwealth, 2 Va. App. 598, 601,

347 S.E.2d 163, 165 (1986).   Every fact, however remote or

insignificant, that tends to establish the probability or

improbability of a fact in issue is admissible.     Epperly v.
Commonwealth, 224 Va. 214, 230, 294 S.E.2d 882, 891 (1982).

Evidence which is relevant is admissible unless its prejudicial

effect outweighs its probative value.     Wilkins v. Commonwealth,

18 Va. App. 293, 298, 443 S.E.2d 440, 443 (1994) (en banc).       The

decision of a trial court balancing probative value of evidence

against its prejudicial tendency will not be disturbed on appeal

absent a clear abuse of discretion.     Ferrell v. Commonwealth, 11

Va. App. 380, 390, 399 S.E.2d 614, 620 (1990).


                                -8-
     Zelma Smith's testimony proved that within a time period

relatively close to when Roger de la Burde was murdered, and at a

time when Monroe had a reason or motive for wanting to do him

harm, she inquired from a relative stranger how and where she

could obtain an untraceable handgun.    The evidence was relevant

because it showed that Monroe had a desire and had made an effort

to obtain a firearm for some purpose.   The fact that Monroe

sought to obtain a deadly weapon that could not be traced to her

was relevant to prove that she attempted to obtain the means to

inflict death or serious bodily harm to another at a time when

she had a reason or motive for wanting to do so.   The fact that

she was present at the time of de la Burde's death and had given

false and conflicting accounts of what occurred tends to enhance

the relevance of the evidence.   The trial court did not abuse its

discretion by admitting the testimony of Zelma Smith that Monroe

attempted to purchase an untraceable, concealable handgun within

ten months of Roger de la Burde's murder.
     Monroe next contends that Zelma Smith's testimony should

have been excluded because the Commonwealth failed to disclose

during discovery, in violation of Brady v. Maryland, 373 U.S. 83

(1963), the terms of a bargain between the Commonwealth and

Smith, a convicted felon, that she would not be prosecuted for

possessing a firearm.

     No general constitutional right to discovery exists in a

criminal case.   Weatherford v. Bunsey, 429 U.S. 545, 555 (1977).



                                 -9-
However, the Commonwealth has a duty to assure that justice is

served in prosecuting every criminal case, and in furtherance of

that duty, the Commonwealth must disclose to a defendant

exculpatory evidence which it has.      Brady, 373 U.S. at 87.    A

criminal prosecution is not a debate or an academic exercise, and

the state cannot withhold evidence that tends to exculpate or is

favorable to an accused.   Id.

     "Bias as a form of impeachment is considered exculpatory and

falls within the Brady requirement to disclose."      United States

v. Bagley, 473 U.S. 667, 676 (1985).     An agreement between a

witness and the prosecuting authorities shows a relationship that

has the potential for bias; therefore, proof of the terms of an

agreement between a witness and the Commonwealth is admissible

for that purpose.   Moreno v. Commonwealth, 10 Va. App. 408, 415,

392 S.E.2d 836, 842 (1990).

     Nevertheless, where there has been a failure to disclose

discoverable evidence, an appellant must affirmatively show how

he or she was prejudiced by the Commonwealth's failure to

disclose exculpatory evidence before the violation is reversible

error.   Stotler v. Commonwealth, 2 Va. App. 481, 484, 346 S.E.2d

39, 40-41 (1986).
             Late disclosure does not take on
          constitutional proportions unless an accused
          is prejudiced by the discovery violations
          depriving him of a fair trial. So long as
          exculpatory evidence is obtained in time that
          it can be used effectively by the defendant,
          and there is no showing that an accused has
          been prejudiced, there is no due process
          violation. It is the defendant's ability to


                                 -10-
             utilize the evidence at trial, and not the
             timing of the disclosure, that is
             determinative of prejudice.


Moreno, 10 Va. App. at 417, 392 S.E.2d at 842.     See Davis v.

Commonwealth, 230 Va. 201, 204-05, 335 S.E.2d 375, 377-78 (1985).

     Beverly Monroe has made no showing as to how she was

prejudiced by the late disclosure at trial during Zelma Smith's

testimony of the fact that Zelma Smith had an agreement with the

Commonwealth that she would not be prosecuted for possessing a

firearm as a convicted felon.    After the prosecutor elicited from

Smith the fact that she had an agreement with the Commonwealth

and the details thereof, the appellant did not object to Zelma

Smith's testimony.    Insofar as the record indicates, Beverly

Monroe was able to utilize the exculpatory evidence elicited by

the Commonwealth concerning the terms of the agreement and the

fact that Smith was a convicted felon for the purposes of

impeachment, the same as had the evidence been produced during

discovery.     See Robinson v. Commonwealth, 231 Va. 142, 152, 341

S.E.2d 159, 165 (1986).    We do not condone discovery violations,

and when they occur, trial courts should impose appropriate

sanctions even when the violation does not require that evidence

be suppressed.    However, nothing in the record leads us to

conclude that had the defense known earlier that Smith would be a

witness and known the terms of the agreement, the defense could

have used that evidence more effectively or meaningfully.

Accordingly, the record does not show that Monroe was prejudiced


                                 -11-
by the Commonwealth's failure to timely disclose the exculpatory

evidence.




                              -12-
                                  V.

        Monroe contends that the evidence is insufficient as a

matter of law to support her convictions.    When reviewing the

sufficiency of the evidence, an appeals court discards all

evidence of the accused in conflict with the credible evidence of

the Commonwealth and regards as true all credible evidence

favorable to the Commonwealth, according to it all reasonable

inferences that may be drawn therefrom.     Parks v. Commonwealth,

221 Va. 492, 498, 270 S.E.2d 755, 759 (1980), cert. denied, 450
U.S. 1029 (1981).    The evidence is sufficient for the jury to

have concluded beyond a reasonable doubt that Roger de la Burde

was murdered and that Beverly Monroe was the murderer.

        The jury necessarily found that de la Burde's death was a

homicide and not a suicide.    Forensic experts testified that when

the handgun was fired, the muzzle of the gun was near, but not

touching, the far upper corner of de la Burde's forehead, so that

the bullet travelled in a downward trajectory.    The medical

examiner testified that the wound was located in a place uncommon

for a self-inflicted suicide shot and that, due to the location

of the wound and the position of how the gun would have been

fired, most likely, de la Burde did not fire the weapon.

According to evidence of de la Burde's usual sleeping position,

his body was in the position as though he were sleeping when he

died.

        Other evidence showed that de la Burde was excited about the


                                 -13-
possibility of fathering a child, that he was anxious to pursue a

real estate deal, and that he was arranging detailed meetings and

plans to take place in the days and weeks after he died.    From

the evidence, the fact finder could conclude that de la Burde had

no reason or inclination to commit suicide and that his death was

a homicide, not a suicide.

     The evidence also supported the jury's finding that Beverly

Monroe was the criminal agent who killed de la Burde.   Monroe had

been intimately involved with de la Burde for eleven years before

his death.   She recently had discovered that de la Burde was

having an affair with a younger woman.   De la Burde, who had made

known his desire to have a male child, had drawn up a "baby

agreement," which he had discussed with the "other" woman who was

to have his son.   Monroe discovered the existence of the

agreement.   Ten months before de la Burde's murder, Monroe had

attempted to obtain an unregistered, concealable handgun.
     Monroe admitted being at de la Burde's house at the time of

his death, but claimed she was asleep and awoke only upon hearing

the noise of the gun.   She had given false and conflicting

statements about having been there when de la Burde was killed.

Monroe knew where de la Burde kept his handgun, the same gun with

which he was shot.   She knew de la Burde had been considering

making a new will.   On the day that the grounds keeper found de

la Burde's body, Monroe had appeared at de la Burde's home

indicating to the grounds keeper that she could not get de la



                               -14-
Burde to answer his door and could not gain entry to the house.

Monroe told the grounds keeper that she had been unable to

telephone de la Burde from the stable because the door was

locked, but he testified that the door was never locked.    The

evidence also showed that Monroe had a key to de la Burde's

house.   The Commonwealth proved beyond a reasonable doubt that

the circumstances of time, place, motive, means, opportunity, and

conduct concurred in linking Beverly Monroe to the crime.     See
Potts v. Commonwealth, 12 Va. App. 1093, 1097, 408 S.E.2d 256,

258 (1991).   The evidence is sufficient to support the

appellant's convictions.

     We affirm the appellant's convictions.

                                                           Affirmed.




                               -15-
