Pease v. Com., 2086-95-3

• Decision Date: 18 March 1997
• Docket Number: No. 2086-95-3,2086-95-3
• Citation: 24 Va.App. 397,482 S.E.2d 851
• Parties: Merry Christine PEASE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 851

482 S.E.2d 851

24 Va.App. 397

Merry Christine PEASE v. COMMONWEALTH of Virginia.

Record No. 2086-95-3.

Court of Appeals of Virginia Salem.

March 18, 1997.

Robert M. Galumbeck, Tazewell; Gerald L. Gray, Clintwood (Dudley, Galumbeck & Simmons; Gerald L. Gray Law Firm, on brief), for appellant.

Monica S. McElyea, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: MOON, C.J., and COLEMAN and OVERTON, JJ.

OVERTON, Judge.

Merry Christine Pease was convicted by a jury of second degree murder and the use of a firearm in the commission of murder. She appeals, contending that (1) the Commonwealth's Attorney improperly appeared before the grand jury; (2) the trial court erred in admitting an intercepted communication; and (3) the trial court erred in granting a jury instruction on the effects of suicide on insurance policies. For the reasons stated below, we reverse the convictions.

Pease's first assignment of error concerns the activities of Timothy McAfee, the Commonwealth's Attorney, before the grand jury. In the fourth day of the trial, Mr. McAfee attempted to impeach a witness for the defense by asking her about her testimony at the grand jury. When asked how he knew about her previous testimony, Mr. McAfee responded that he had been present before the grand jury. He explained to the court:

I anticipated and spoke with the grand jury about the reason she was subpoenaed. They asked that I be present and ask the questions. Because I anticipated that [the witness] would in fact tell that story different today under oath than she did under oath [then] and asked that Special Agent Parker be permitted to be present when she testified. I spoke with the grand jury foreman about that and was permitted to have Mr. Parker present so that I wouldn't have to testify. Agent Parker could.

Code § 19.2-201 provides that "no attorney for the Commonwealth shall go before any grand jury except when duly sworn to testify as a witness, but he may advise the foreman of a regular grand jury or any member or members thereof in relation to the discharge of their duties." A Commonwealth's Attorney may advise the grand jury on a legal issue and the law in regard to the various indictments that they are considering, but he may not specifically refer to the indictment against the accused. See Hall v. Commonwealth, 143 Va. 554, 560, 130 S.E. 416, 418 (1925); see also Vihko v. Commonwealth, 10 Va.App. 498, 505, 393 S.E.2d 413, 418 (1990). He is not permitted, "by his presence or otherwise, to influence them in reaching a conclusion during their deliberations." Hall, 143 Va. at 560, 130 S.E. at 418. We acknowledge, as the Commonwealth would urge, that "[t]he mere presence of the attorney for the Commonwealth in the grand jury room does not invalidate an indictment found at the time, if ... it satisfactorily appears that the accused was not prejudiced thereby." Mr. McAfee's conduct in this case, however, goes beyond "mere presence."

Mr. McAfee apparently initiated contact with the grand jury about this witness, who was the defendant's personal friend. He informed them that he thought she would not be truthful. He actually examined...