Caldwell v. Com.

• Decision Date: 18 April 1989
• Docket Number: No. 0708-87-3,0708-87-3
• Parties: John Ansel CALDWELL, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 368

379 S.E.2d 368

8 Va.App. 86

John Ansel CALDWELL, Jr. v. COMMONWEALTH of Virginia.

Record No. 0708-87-3.

Court of Appeals of Virginia.

April 18, 1989.

Robert E. Wick, Bristol (Gordon Widenhouse, on brief), for appellant.

David A. Rosenberg, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BARROW and MOON, JJ.

BARROW, Judge.

In this appeal we conclude that the immunity from prosecution provided under Code § 18.2-262 applies only to offenses arising under Title 18.2, Chapter 7, Article 1 or the Drug Control Act, but not to the offenses of breaking and entering or grand larceny. We also decide that the trial court did not err in sentencing the defendant to a greater term of imprisonment than that given to his two co-defendants.

There is no dispute as to the facts leading up to the arrest. The defendant discovered a storage facility filled with marijuana. He and two co-defendants broke into the facility and removed the marijuana to a co-defendant's house as part of a plan to sell the marijuana. When the police arrested the defendant, he gave them his full cooperation. He testified against his two co-defendants at preliminary hearings in Washington County and in the City of Bristol about the discovery of the marijuana, breaking and entering the storage facility, and the grand larceny of the marijuana. At the time when the defendant agreed to cooperate, the Commonwealth's attorney made no specific promises to him, but merely told him that the prosecution "would consider his case properly under [its] general policies for nol-prossed."

Initially, the defendant was charged with possession of marijuana with intent to distribute, as well as the two non-drug offenses for which he was convicted. However, prior to trial, the trial court granted the Commonwealth's motion to nolle prosequi the charge of possession of marijuana with intent to distribute. The trial court denied the defendant's motion to dismiss the remaining charges. As the basis for his motion to dismiss, the defendant argued that he was immune from prosecution under Code § 18.2-262 because of his earlier testimony concerning these offenses. He was later convicted of breaking and entering and grand larceny.

The defendant argues that Code § 18.2-262 provides immunity from prosecution for non-drug offenses where a drug offense is also involved in the transaction about which the defendant testifies. Code § 18.2-262 provides in part that: "... the testimony given ... shall be in no case used against [the person testifying] nor shall he be prosecuted as to the offense as to which he testifies." ¹ This statute creates two types of immunity. The first type is so-called "use" immunity, which applies to all crimes, and stems from the clause, "shall be in no case used against him." The second type is immunity from prosecution, or so called "transactional" immunity, which applies only to "the offense as to which he testifies." Use immunity prevents a witness's compelled testimony from being used in any way in a criminal prosecution of the witness, while transactional immunity prevents a witness from being prosecuted for the offense about which he testifies. In re Kilgo, 484 F.2d 1215, 1220 (4th Cir.1973).

The defendant's testimony was not introduced in the trial against him and the defendant does not assert any claim to use immunity. He asserts, instead, that he was entitled to transactional immunity and cannot be prosecuted for any of the offenses about which he testified.

In our opinion, Code § 18.2-262 does not extend transactional immunity to non-drug offenses. While the statute extends use immunity to all prosecutions against a witness, the statute provides transactional immunity only "as to the offense as to which he testifies." The word "offense" as used in this context does not refer to any offense to which he may have at any time testified. It refers only to the offense or offenses for which he was compelled to testify under the terms of the statute. Thus, the word "offense" refers to the earlier language in the statute describing the offense for which he was compelled to testify. This includes "any offense alleged to have been committed by another under this article or under the Drug Control Act (§§ 54.1-3400-3472)." It is illogical to conclude that the General Assembly intended to provide immunity for any crime about which a person may at any time testify even if he was not compelled to do so.

The defendant could not have been compelled under Code § 18.2-262 to testify about the offenses of breaking and entering and grand larceny. These offenses are contained in Article 2 (Burglary and Related Offenses) and Article 3 (Larceny and Receiving Stolen Goods) of Chapter 5, Title 18.2. They are not part of Article 1 (Drugs) of Chapter 7, Title 18.2, in which Code § 18.2-262 is contained and to which it refers. Additionally, they are not contained in the Drug Control Act (§§ 54.1-3400 -3472). The defendant was not and could not have been compelled to testify about the breaking and entering and the grand larceny offenses. He, therefore, gained no...