Pulley v. Commonwealth
In Pulley v. Commonwealth, 31 Va. App. 600, 525 S.E.2d 51 (2000), the Court concluded that the defendant's right to due process was not compromised by Investigator Thompson's mere mention on the witness stand that the defendant had once invoked his right to counsel.
The gratuitous comment was not responsive to the question posed to Thompson by the prosecution, and the defendant's prompt mistrial motion avoided any inquiry into the subject.
The defendant, thereafter, opted to forego an instruction that the jury ignore the remark, and the prosecutor made no related argument to the jury or otherwise exploited the issue.
Thus, the words, though improperly spoken by the witness, were not "used" against the defendant in any respect . . . . Moreover, the trial court promptly acted to scrupulously safeguard the defendant's due process rights. Under such circumstances, the trial court correctly found no Doyle violation. Id. at 605, 525 S.E.2d at 54.