Merry Christine Pease v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia
MERRY CHRISTINE PEASE
OPINION BY
v. Record No. 2086-95-3 JUDGE NELSON T. OVERTON
MARCH 18, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WISE COUNTY
J. Robert Stump, Judge
Robert M. Galumbeck; Gerald L. Gray (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.
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,
2
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 the witness for the grand jury. This behavior
well surpasses that which the Code permits.
Dismissal of the indictment for a nonconstitutional error
“is appropriate only ‘if it is established that the violation
substantially influenced the grand jury’s decision to indict,’ or
if there is ‘grave doubt’ that the decision to indict was free
from the substantial influence of such violations.” Bank of Nova
Scotia v. United States, 487 U.S. 250, 256 (1988) (quoting United
States v. Mechanik, 475 U.S. 66, 78 (1986) (O’Connor, J.,
concurring)). Upon reviewing the record, we can come to no other
conclusion but that Mr. McAfee substantially influenced the grand
jury in reaching an indictment to the prejudice of the defendant.
We therefore quash the indictment and remand to the trial court
1
for such further action as the Commonwealth may deem advisable.
Pease also argues that a telephone conversation between her
and a friend was improperly admitted. In light of our decision
to quash the indictment, we are not compelled to address this
issue.
1
While a conviction by a petit jury may render harmless
certain errors in the charging decision, see Mechanik, 475 U.S.
at 73, the error in this case was significant enough to justify
quashing the indictment.
3
Pease’s third assignment of error will not be considered
because the objection raised at trial differed from that raised
on appeal.
Accordingly, the convictions are reversed, the indictment
quashed, and the case is remanded.
Reversed and remanded.
4