Present: Chief Judge Moon, Judges Elder and Fitzpatrick
Argued at Richmond, Virginia

v. Record No. 2061-94-2 JUDGE JOHANNA L. FITZPATRICK
FEBRUARY 13, 1996

William R. Shelton, Judge

J. W. Harman, Jr. (Harman and Harman, P.C.,
on brief), for appellant.

Richard H. Rizk, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Leah A. Darron, Assistant Attorney General,
on brief), for appellee.

Gill F. Livingston (appellant) was convicted in a jury trial
of possession of marijuana in violation of Code ? 18.2-250.1. On
appeal, he argues that the trial court erred in: (1) denying his
motion to suppress the drugs seized from his home because the
warrant to search his home was issued based upon information
provided by his wife; and (2) refusing to impanel a new jury for
sentencing when the Commonwealth’s attorney made an improper
comment during closing argument. For the reasons that follow, we
affirm the trial court.
Appellant and his wife, Susan Livingston, separated in 1992.
On March 4, 1994, Mrs. Livingston initiated contact with Officer
Brian C. Smith (Smith) of the Chesterfield Police Department and
informed him that she saw marijuana and cocaine in the marital

residence, where appellant was living. As a result of this
information, Officer Smith brought Mrs. Livingston before a
magistrate who issued a search warrant for appellant’s home based
upon her observations. Officer Smith executed the warrant and
found loose marijuana, cocaine residue, and drug paraphernalia.
Appellant admitted that he owned the drugs. Appellant was
charged with misdemeanor possession of marijuana in violation of
Code ? 18.2-250.1 and felony cocaine possession in violation of
Code ? 18.2-250. Before trial, appellant moved to suppress the
drugs, arguing that the search warrant violated the marital
privilege of Code ? 19.2-271.2 because it was based upon Mrs.
Livingston’s testimony. The trial court denied the motion.
In a bifurcated jury trial on October 18, 1994, appellant
was convicted of the misdemeanor marijuana charge, but was
acquitted of the felony cocaine charge. Before the sentencing
phase of the trial, the Commonwealth attempted to introduce
appellant’s prior drug conviction. Appellant objected, arguing
that his prior criminal record was only admissible for sentencing
purposes in a felony case. The trial court sustained his
objection. In closing argument on sentencing, however, the
Commonwealth’s attorney asked for the maximum punishment and
referred to appellant as an “admitted drug dealer.” Appellant
objected, and the trial court immediately instructed the jury to
disregard the statement. After the jury retired to deliberate,
appellant asked the court to impanel a new jury for sentencing

and argued: “When the Commonwealth interjected a convicted drug
dealer into this, they got through the back door what they
couldn’t get through the front.” Appellant did not request a
mistrial or any relief other than a new sentencing jury. The
trial judge denied the motion and stated: “I don’t think [the
Commonwealth’s attorney] deliberately did that, so I’ve
instructed the jury to disregard it.” The jury sentenced
appellant to the maximum punishment for possession of marijuana–
thirty days in jail and a $500 fine.
Appellant argues that the trial court erred in denying his
motion to suppress the drugs seized from his residence. He
contends that the search warrant, based on his wife’s
observations, was issued in contravention of the marital
privilege protection of Code ? 19.2-271.2. The issue of whether
the marital privilege extends to information provided by a spouse
to a magistrate is one of first impression in the Commonwealth.
“On appeal, the burden is on appellant to show, considering
the evidence in the light most favorable to the Commonwealth,
that the denial of the motion to suppress constituted reversible
error.” Arnold v. Commonwealth, 17 Va. App. 313, 317, 437 S.E.2d
235, 238 (1993). “Code ? 19.2-271.1 provides that husbands and
wives are competent witnesses to testify for or against each
other in criminal cases except as otherwise provided [in Code
? 19.2-271.2].” Brown v. Commonwealth, 223 Va. 601, 606, 292

S.E.2d 319, 322 (1982). Code ? 19.2-271.2 provides as follows:
In criminal cases husband and wife shall
be allowed, and, subject to the rules of
evidence governing other witnesses and
subject to the exception stated in
? 8.01-398, may be compelled to testify in
behalf of each other, but neither shall be
compelled, nor, without the consent of the
other, allowed, to be called as a witness
against the other, except (i) in the case of
a prosecution for an offense committed by one
against the other or against a minor child of
either, (ii) in any case where either is
charged with forgery of the name of the other
or uttering or attempting to utter a writing
bearing the allegedly forged signature of the
other or (iii) in any proceeding relating to
a violation of the laws pertaining to
criminal sexual assault (?? 18.2-61 through
18.2-67.10), crimes against nature
(?18.2-361) involving a minor as a victim and
provided the defendant and the victim are not
married to each other, incest (? 18.2-366),
or abuse of children (?? 18.2-370 through
18.2-371). The failure of either husband or
wife to testify, however, shall create no
presumption against the accused, nor be the
subject of any comment before the court or
jury by any attorney.

In the prosecution for a criminal
offense as set forth in (i), (ii) or (iii)
above, each shall be a competent witness
except as to privileged communications.

(Emphasis added.) See Creech v. Commonwealth, 242 Va. 385, 386,
410 S.E.2d 650, 651 (1991). “The privilege of an accused to
prevent his spouse from testifying against him is determined at
the time of trial and depends upon the couple being validly
married at that time.” Stewart v. Commonwealth, 219 Va. 887,
891, 252 S.E.2d 329, 332 (1979) (emphasis added). The
Commonwealth’s attorney has “‘the burden of first obtaining the

consent of the accused husband before it will be allowed to call
the wife as a witness against him.'” Brown v. Commonwealth, 208
Va. 512, 516, 158 S.E.2d 663, 667 (1968) (quoting Wilson v.
Commonwealth, 157 Va. 962, 968, 162 S.E. 15, 16 (1932)).
In determining whether the marital privilege of Code
? 19.2-271.2 applies to information provided in a police
investigation, we must first determine the scope of the
legislature’s directive that the privilege applies only in a
“criminal case.” To do so, we must “view the entire body of
legislation and the statutory scheme to determine the ‘true
intention of each part.’ In construing statutes, courts should
give the fullest possible effect to the legislative intent
embodied in the entire statutory enactment.” Virginia Real
Estate Bd. v. Clay, 9 Va. App. 152, 157, 384 S.E.2d 622, 625
(1989) (citation omitted), appeal dismissed, 398 S.E.2d 78 (Va.
1990). “‘Words in a statute are to be construed according to
their ordinary meaning, given the context in which they are
used.'” City of Virginia Beach v. Board of Sup’rs of Mecklenburg
County, 246 Va. 233, 236, 435 S.E.2d 382, 384 (1993) (quoting
Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350
The Supreme Court of Virginia, in addressing this specific
statute, held that “‘[t]estimonial exclusionary rules and
privileges,’ which impair the right of the public to have all
relevant evidence introduced in the fact-finding process, should

be strictly construed.” Brown, 223 Va. at 606, 292 S.E.2d at 322
(quoting Trammel v. United States, 445 U.S. 40, 50 (1980)).
“Code ? 19.2-271.1 should be given a reasonable construction. It
is not a penal statute that must be construed strictly against
the Commonwealth.” Brown, 223 Va. at 606, 292 S.E.2d at 322.
The marital privilege of Code ? 19.2-271.2 prevents spousal
testimony against an accused only “[i]n criminal cases.”
(Emphasis added.) Whether pretrial investigative information or
testimony given by one spouse against the other is included in
the prohibition of Code ? 19.2-271.2 is the determinative issue
in the instant case.
The context of the phrase “criminal cases” indicates that
the legislature intended for the marital privilege of Code
? 19.2-271.2 to apply in an adversarial trial proceeding. Code
? 19.2-271.2 lists several exceptions to the general rule that an
accused’s spouse may not be called as a witness against him
without his consent. These exceptions use the terms
“prosecution,” “case,” and “proceeding” to describe situations in
which an accused’s spouse may testify against him. By using
these terms interchangeably, the legislature thus defined
“criminal cases” as “prosecutions” and “proceedings” and did not
intend to include criminal investigation. Additionally, Code
? 19.2-271.2 provides that “[t]he failure of either husband or
wife to testify . . . shall create no presumption against the
accused, nor be the subject of any comment before the court or

jury by any attorney.” (Emphasis added.) This language clearly
contemplates an adversarial proceeding such as a preliminary
hearing or trial, not pretrial criminal investigation by the
police. Furthermore, case law interpreting the marital privilege
of Code ? 19.2-271.2 has dealt only with a trial. See, e.g.,
Creech, 242 Va. at 386, 410 S.E.2d at 651 (trial); Stewart, 219
Va. at 891, 252 S.E.2d at 332 (trial); Jenkins v. Commonwealth,
219 Va. 764, 767, 250 S.E.2d 763, 765 (1979) (trial).
Although no Virginia case specifically defines “criminal
case,” we hold that the plain meaning of Code ? 19.2-271.2 is
that the marital privilege contained therein applies only during
an adversarial proceeding such as a preliminary hearing or trial.
At the time Mrs. Livingston provided information to Officer
Smith and the magistrate for the search warrant, only a criminal
investigation had been initiated, not a “criminal case.” The
“criminal case” contemplated by Code ? 19.2-271.2 would encompass
only potential testimony of Mrs. Livingston at the trial on the
misdemeanor marijuana possession charge and at the preliminary
hearing and trial on the felony cocaine charge. Thus, in the
instant case, the trial court did not err in denying appellant’s
motion to suppress the drugs seized from his home.
Appellant next argues that the trial court erred in denying
his motion to impanel a new jury for sentencing after the
Commonwealth’s attorney referred to him in closing argument as an

“admitted drug dealer.” We disagree.
Code ? 19.2-295.1 requires a bifurcated trial in felony
cases, in which the same jury determines the guilt and punishment
of a defendant in separate proceedings. Although appellant was
not convicted of the felony of cocaine possession in this case,
he was tried according to the bifurcated trial statute, and a
separate sentencing proceeding was held.1 Appellant did not
request a mistrial or other appropriate relief, and impanelling a
new jury was not a proper remedy.
“Even if the argument were to be considered improper or
irrelevant, it was cured by the trial court’s cautionary
instruction . . . .” Hernandez v. Commonwealth, 15 Va. App. 626,
636, 426 S.E.2d 137, 143 (1993). “A judgment will not be
reversed for the improper admission of evidence that a court
subsequently directs a jury to disregard because juries are
presumed to follow prompt, explicit, and curative instructions.”
Beavers v. Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411, 420
(1993), cert. denied, 114 S. Ct. 171 (1993). In the instant
case, although the Commonwealth’s attorney referred to a fact not
in evidence during closing argument, the trial judge immediately
issued a broad cautionary instruction. Appellant failed to show
that the Commonwealth’s attorney’s improper comment prejudiced
the jury against appellant or that the jury disregarded the

1Appellant raised no objection to the use of the bifurcated
procedure on the misdemeanor charge.

court’s instruction. Thus, we hold that the trial judge did not
err in refusing to impanel a new jury for sentencing purposes.
Accordingly, the decision of the trial court is affirmed.