COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia
JANNIE BRANT
OPINION BY
v. Record No. 1691-98-2 JUDGE ROBERT P. FRANK
APRIL 25, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
Timothy J. Hauler, Judge
William B. Bray (Perry & Bray, on brief), for
appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Jannie Brant (appellant) appeals her convictions of armed
robbery and conspiracy to commit robbery after a bench trial on
December 9, 1997. On appeal, she contends the trial court erred
in: 1) admitting hearsay statements of alleged accomplices,
Mandel Coleman and Algie Harris, 2) limiting her
cross-examination of prosecution witness Charles Mason, and 3)
restricting her testimony about statements made by alleged
co-conspirators during the alleged conspiracy. We agree with
appellant that the trial court erred in admitting into evidence
the hearsay statements of the alleged accomplices but find that
she did not properly preserve the second and third issues. We,
therefore, reverse and remand for further proceedings if the
Commonwealth be so advised.
I. BACKGROUND
On June 10, 1997, a McDonald's restaurant in Colonial
Heights was robbed by two men. One man had a pistol, and the
other had a shotgun. The two men pointed their guns at the
restaurant shift manager, threatened to shoot him, and grabbed a
portion of the night deposit money before leaving the
restaurant.
Officer Earley of the Colonial Heights Police Department
testified that he identified appellant as a suspect in the
robbery. Before questioning her at the police station, he
advised her of her Miranda rights and she signed a waiver form.
Officer Earley testified that appellant denied driving the
robbers to the McDonald's restaurant. After Earley told
appellant she was videotaped in the Golden Corral parking lot
next to the McDonald's with three men in her car, she admitted
she drove three men to the Golden Corral parking lot on the
night of the robbery. She identified two of the men as Charles
Mason and Algie Harris. She did not know the name of the third
man. He was later identified as Mandel Coleman.
Appellant told Earley that Algie Harris and Mandel Coleman
exited the car after she drove into the Golden Corral parking
lot. She did not know where they went. As she started to drive
out of the Golden Corral parking lot, Mason told her they needed
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to go back to pick up Harris and Coleman. She made a loop
around the shopping center where the restaurants were located
and drove back to the Golden Corral parking lot. The two men
got into the car. She said she saw Coleman with a bookbag but
was unaware of what had happened. She told Earley that she did
not see a shotgun in the car but did see what appeared to be a
pistol in Coleman's waistband when she took him to Petersburg
later that evening.
Officer Earley also testified about statements made by
Mandel Coleman:
[PROSECUTOR]: Okay. At some point in time,
did you ask him about any participation of
Jannie Brant, the defendant here in this
case in that incident?
[OFFICER]: Yes, I did.
[PROSECUTOR]: When you made that inquire
[sic] of him, had you already advised him
that he was a suspect in the charge also?
[OFFICER]: Yes.
[PROSECUTOR]: And what did you ask him
about her and what did she tell you -- what
did he tell you?
[OFFICER]: He advised me that Jannie –- he
rode up there with Algie.
[DEFENSE COUNSEL]: Objection, Your Honor,
we have hearsay.
THE COURT: Do we have a Brewton [sic]
violation here?
[PROSECUTOR]: Your Honor, actually, we
don't. What we have here is a case that
falls under Randolph versus the Commonwealth
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and Chanaler versus the Commonwealth. The
Courts in this jurisdiction have set out
exceptions to the hearsay rule and this
falls exactly, squarely in that exception.
The Commonwealth must first show that it was
a statement made against the person making
the statements [sic] penal interests;
therefore, making it a reliable statement.
We must also show that he is unavailable to
the Commonwealth and we have done that
exactly as the case law has described. The
person making that statement is charged and
still waiting trial and as such is
unavailable to the Commonwealth as a
witness. I have the case for the Court, if
you like to see it.
[DEFENSE COUNSEL]: Your Honor, I believe
they need to have him come in, if they're
going to prove unavailability, and put him
on the stand and have him say, "No, I take
the Fifth," or "I refuse to testify."
[PROSECUTOR]: Your Honor, the case law
specifically addresses that question,
Randolph and Chandler, which Randolph
addresses the issue of using those
statements in a joint trial. Chandler
addresses the issue of using them in
separate trials. The Court specifically
said the Commonwealth is not required to do
that.
THE COURT: Mr. Paul, do you have any
comment you want to put on the record?
[DEFENSE COUNSEL]: Your Honor, they haven't
pulled in Mr. Coleman. We don't know if he
is available or not. He is a co-conspirator
or alleged co-conspirator and is charged
with these crimes. Also, the –- at the time
he made his statement, you know, we don't
know what -- you, what was going on, what
was said to him or anything else.
Certainly, no one had a chance to.
Basically, they're offering this hearsay
that can't be cross-examined, can't be
looked at in any way. They're offering it
for the truth of the matter. They're not
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offering it for any other reason and I think
it's inappropriate.
THE COURT: All right. The defense
objection is overruled. The Court finds
specifically pursuant to Randolph versus
Commonwealth, 24 VA Appellate 345, that this
co-actor, co-conspirator is reasonably
unavailable to testify due to his Fifth
Amendment rights; that there was a statement
apparently admissible against him that was
rendered and the Court will find that that
statement may be properly presented during
the course of this trial. Defense exception
to the Court's ruling is noted for the
record.
[DEFENSE COUNSEL]: Thank you, Your Honor.
Officer Earley then testified that Coleman admitted that he
robbed the restaurant with Algie Harris. Coleman told Earley
that appellant drove him, Algie Harris, and Charles Mason to the
Golden Corral parking lot. After the robbery, appellant drove
the men back to Petersburg, and Harris gave her some of the
money taken during the robbery.
Officer Earley also testified as to his conversation with
Algie Harris. Appellant noted her objection for the reasons
stated in her objection to the hearsay testimony regarding
Coleman's statements. The court overruled the objection and
permitted Earley to testify.
Officer Earley stated that Algie Harris told him that
Harris, Coleman, and appellant discussed robbing the restaurant
prior to the event. Appellant drove Harris, Coleman, and Mason
to the Golden Corral parking lot. She drove them back to
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Petersburg after he and Coleman robbed the restaurant. Harris
told Officer Earley that Coleman paid appellant from the robbery
proceeds. Officer Earley recovered the shotgun from Harris'
residence.
Charles Mason, the front seat passenger in appellant's
vehicle, testified at trial. He stated that appellant, Harris,
and Coleman planned the robbery at a laundromat before going to
the McDonald's restaurant, and appellant directed Harris to
bring a gun. He testified that appellant drove Harris and
Coleman to the McDonald's and was given money after the robbery.
During cross-examination, defense counsel attempted to impeach
Mason.
[DEFENSE COUNSEL]: Okay. Have you ever
been charged with a felony?
[PROSECUTOR]: Objection. It's improper.
[DEFENSE COUNSEL]: Have you ever been
convicted of a felony?
[PROSECUTOR]: Objection, Your Honor, he's
juvenile. Case of Alaska versus United
States, it's prohibited from asking juvenile
that question.
THE COURT: Mr. Paul?
[DEFENSE COUNSEL]: I can't cite the case
law, Your Honor, but I think that we have
credibility issues here. Just because he's
a juvenile, now we're going to embrace him
and say, yes, he gets these special
protections and we can't attack his
credibility.
[PROSECUTOR]: I didn't make the rule,
Judge, I'm just telling you that's what the
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case says. It could perhaps be phrased a
different way.
THE COURT: Rephrase your question.
[DEFENSE COUNSEL]: Have you ever been
investigated for a crime that's considered a
felony?
[PROSECUTOR]: Objection, Your Honor.
THE COURT: Well, that's objectionable.
Sustained.
[DEFENSE COUNSEL]: Let me rephrase it. If
I had the case, it'd be easier.
[DEFENSE COUNSEL]: Are you currently –- how
old are you right now?
MASON: Sixteen.
[DEFENSE COUNSEL]: Sixteen. Okay. Have
you –- are you currently under any
supervision?
[PROSECUTOR]: Objection, Your Honor.
THE COURT: Sustained.
Appellant testified at trial. On direct examination she
testified as follows:
[DEFENSE COUNSEL]: What I'd like you to do
is tell the Court your first contact with
Algie Harris and Mandel Coleman on the date
of June 10th.
[APPELLANT]: Well, my first contact with
them was in China Kitchen, a Chinese
restaurant. And it was Johnny and Joe and
Charlie, Mandel Coleman or Nafece was not
present.
[DEFENSE COUNSEL]: Okay. Johnny is the
same person as Algie?
[APPELLANT]: Yes.
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[DEFENSE COUNSEL]: Okay. So you met them
there and what did you all talk about?
[APPELLANT]: He asked me could I give them
a ride later on that night to go to Golden
Corral.
[DEFENSE COUNSEL]: And what did you tell
him?
[APPELLANT]: Yes, but he had to give me
some gas money.
[DEFENSE COUNSEL]: What was his response?
[APPELLANT]: He said okay.
[PROSECUTOR]: I'm sorry, Your Honor. I
have an objection at this point. These are
out-of-court statements offered for the
truth of the matter.
[DEFENSE COUNSEL]: It's a conversation,
Your Honor, that she's in the middle of. It
is relevant to the fact that the
Commonwealth has come in and has said, "Hey,
they talked to Detective Earley and they're
under interrogation and we're taking all
their statements in," and now they're saying
–--
THE COURT: Yeah, but those were statements
against interest. This is not a statement
against interest. Those individuals could
be called for that testimony.
[DEFENSE COUNSEL]: Fair enough.
THE COURT: They've got Fifth Amendment
rights, but their Fifth Amendment rights
don't exclude them to testify in this
matter.
[DEFENSE COUNSEL]: Okay.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Okay, Your Honor.
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II. HEARSAY STATEMENTS
Appellant contends the trial court erred in permitting
Officer Earley to testify as to the statements of Mandel Coleman
and Algie Harris. We agree.
The trial court permitted introduction of the hearsay
testimony from Officer Earley because the two declarants, Harris
and Coleman, were unavailable to testify. The trial court ruled
that under Randolph v. Commonwealth, 24 Va. App. 345, 482 S.E.2d
101 (1997), Harris and Coleman were unavailable to testify by
virtue of the Fifth Amendment to the United States Constitution.
Randolph involved the admissibility of a hearsay statement by a
co-conspirator where the defendant and the co-conspirator were
tried jointly at the same trial. See Randolph, 24 Va. App. at
351, 482 S.E.2d at 103-04. We held that the Commonwealth was
not required to call the co-conspirator as a witness to
establish unavailability because the co-conspirator could not be
compelled to testify as a codefendant in the joint trial. See
id. at 356, 482 S.E.2d at 106.
We hold that the trial court erred in its application of
Randolph. In this case, the alleged co-conspirators were not
tried jointly with appellant. There was no evidence of their
unavailability. Therefore, the rule from Randolph is
inapplicable in this case, and the trial court erred in ruling
that Harris and Coleman were unavailable.
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The Commonwealth argues in its brief that, assuming error
on the part of the trial court, appellant waived her objection
to the introduction of Officer Earley's testimony regarding the
statements made by Harris and Coleman because on
cross-examination she questioned the officer about the statement
made by Mason. The Commonwealth argues that because appellant
introduced evidence of a like nature she waived her objection,
and, therefore, any error by the trial court was harmless. We
disagree.
An objection to previously introduced
testimony is not waived by "the mere
cross-examination of a witness or the
introduction of rebuttal evidence, either or
both." Snead v. Commonwealth, 138 Va. 787,
801, 121 S.E. 82, 86 (1924); Culbertson v.
Commonwealth, 137 Va. 752, 757, 119 S.E. 87,
88 (1923). A waiver does not result until
the party objecting to the introduction of
evidence actually introduces, on his own
behalf, evidence that is similar to that to
which the objection applies. Id.
McGill v. Commonwealth, 10 Va. App. 237, 244, 391 S.E.2d 597,
601 (1990).
In this case, appellant questioned Officer Earley on
cross-examination about the statement Mason made to Earley.
Mason also testified at trial. We hold that Earley's testimony
about Mason's statement was not a waiver of the objectionable
testimony regarding statements made by Harris and Coleman.
The Commonwealth also argues that any error committed by
the trial court was harmless. We disagree. Appellant argued at
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trial that she was unable to cross-examine the hearsay
declarants, Harris and Coleman, because their statements came
into evidence through the testimony of Officer Earley.
Appellant's argument at trial preserved the constitutional issue
of right to cross-examination under the Sixth Amendment to the
United States Constitution.
"'[B]efore a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt;' otherwise the conviction
under review must be set aside." Lilly v. Commonwealth, 258 Va.
548, 551, 523 S.E.2d 208, 209 (1999) (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)). "This standard requires a
determination of 'whether there is a reasonable possibility that
the evidence complained of might have contributed to the
conviction.'" Id. (quoting Chapman, 386 U.S. at 23).
In making that determination, the reviewing
court is to consider a host of factors,
including the importance of the tainted
evidence in the prosecution's case, whether
that evidence was cumulative, the presence
or absence of evidence corroborating or
contradicting the tainted evidence on
material points, and the overall strength of
the prosecution's case.
Id. (citations omitted).
We believe that this case is squarely on point with Lilly.
In Lilly, the Supreme Court of Virginia held that the
inadmissible statement of one co-conspirator was the only
evidence that corroborated the other co-conspirator's in-court
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testimony that the defendant was the triggerman in the murder.
See id. at 552-53, 523 S.E.2d at 209. The Court wrote:
[H]ere the issue is not the credibility of
the witness, but rather the potential for
harm caused by the erroneous admission of
evidence which tends to support the jury's
credibility determination. In that context
we must presume that such evidence had the
potential to influence the jury into
accepting the properly admitted evidence as
more credible and, thus, to taint the jury's
determination of the facts.
Id. at 553, 523 S.E.2d at 210.
In this case, Mason's testimony clearly implicates
appellant in planning the robbery of the McDonald's restaurant.
The only evidence that corroborates Mason's testimony about
appellant's participation in the robbery is the hearsay
statements of Harris and Coleman. In the absence of the hearsay
statements, Mason's testimony is supported only by evidence that
appellant drove the men to the restaurant. We assume that the
jury weighed Mason's credibility in light of the corroborating
hearsay evidence. Therefore, we cannot declare beyond a
reasonable doubt that the admission of the hearsay testimony was
harmless. We reverse appellant's convictions and remand for
further proceedings if the Commonwealth be so advised.
III. CROSS-EXAMINATION OF MASON AND APPELLANT'S HEARSAY
Appellant contends that the trial court erred in limiting
her cross-examination of Charles Mason and in restricting her
testimony detailing statements made by the co-conspirators. We
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find that appellant did not properly preserve these issues for
appellate review.
"When testimony is delivered but
excluded upon objection, an appellate court
has a record of the content and purport of
the testimony upon which to determine the
propriety of the trial court's ruling; when
testimony is rejected before it is
delivered, an appellate court has no basis
for adjudication unless the record reflects
a proper proffer."
Whittaker v. Commonwealth, 217 Va. 966, 968-69, 234 S.E.2d 79,
81 (1977) (quoting Jackson's Case, 98 Va. 845, 846-47, 36 S.E.
487, 488 (1900)). "The requirement for proffer of testimony is
to assure that the record will be complete." Wyche v.
Commonwealth, 218 Va. 839, 843, 241 S.E.2d 772, 775 (1978).
Appellant did not proffer the testimony of Mason regarding
whether he was previously convicted of a felony 1 and did not
proffer her own testimony regarding the statements of the
co-conspirators. We, therefore, have "no basis for
adjudication" and affirm the ruling of the trial court on these
issues.
1
Even had appellant properly proffered the testimony
regarding Mason's previous conviction of a felony, her
cross-examination of Mason would have been objectionable under
Davis v. Alaska, 415 U.S. 308 (1974). The record clearly
indicates that the purpose of appellant's cross-examination of
Mason was for general impeachment purposes rather than to show
specific bias or prejudice.
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IV. CONCLUSION
We hold that appellant did not properly preserve the issue
of the limitation of Mason's cross-examination and the
inadmissibility of appellant's testimony as to the statements of
the alleged co-conspirators. However, because we hold that the
admission of the officer's hearsay testimony was not harmless
error, we reverse appellant's convictions and remand for further
proceedings if the Commonwealth be so advised.
Reversed and remanded.
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