Randolph v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia

RICHARD LAWRENCE RANDOLPH
OPINION BY
v. Record No. 1383-95-4 JUDGE JOHANNA L. FITZPATRICK
MARCH 11, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Richard J. McCue for appellant.

Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Richard Lawrence Randolph (appellant) was convicted in a

joint jury trial of grand larceny, credit card theft, and

conspiracy to commit a felony. On appeal, he argues that the

trial court erred in: (1) admitting the hearsay statement of a

codefendant and (2) refusing to sever his trial from that of the

other defendants. For the reasons that follow, we affirm the

judgments of the trial court.
I. BACKGROUND

On July 24, 1994, Sergeant Kenneth Hutton (Hutton) of the

Metropolitan Washington Airport Authority (MWAA) was on

pickpocket detail at National Airport. At 7:10 p.m., he saw and

"recognized" appellant, who was walking toward the United

Airlines section of the airport with a green garment bag over his

shoulder. Hutton followed appellant, lost sight of him, but then

found him in the American Airlines baggage claim area. As Hutton
watched, appellant approached several people waiting to claim

their baggage, standing inches behind each person for a few

minutes and then moving on to another person. Appellant never

claimed any baggage. He then went to the cab stand outside the

Northwest Airlines baggage claim area, where he approached

several people in the same manner.

When appellant left the cab stand, he entered the front

passenger seat of a green Mercury automobile driven by

codefendant, Joyce Chambers (Chambers), and put the green garment

bag in the backseat. A few minutes later, Chambers drove toward

the U.S. Air terminal. Sergeant Alan Pelleranan (Pelleranan), a

MWAA officer, saw the car arrive with appellant, Chambers, Alice

Coffey (Coffey), and Linda Williams (Williams). Appellant,

Chambers, and Williams went into the terminal. When Hutton

arrived at the terminal, he saw appellant and Chambers exit the

terminal and walk to the shuttle bus stop. Appellant again

approached people from behind while Chambers stood about fifteen

feet away, looking around. Appellant and Chambers returned to

the Mercury, parked nearby. The police then arrested appellant,

Chambers, Coffey, and Williams, and transported them to the

police station. After being advised of her Miranda rights,
Chambers told Hutton that she and the others had come to the

airport "to steal . . . to pick pockets." 1

1
The evidence at trial established that on July 24, 1994,

Jill Rosenfeld (Rosenfeld) flew from National Airport to Chicago

2
 Appellant, Coffey, and Chambers were indicted for grand

larceny, credit card theft, and conspiracy to commit a felony.

Before trial, appellant moved to sever his trial from that of the

other two defendants, arguing that (1) the Commonwealth had not

established good cause for a joint trial and (2) a joint trial

would prejudice him. Appellant specifically alleged that

Chambers' statement about coming to the airport to "steal" and to

"pick pockets" was inadmissible against him and its admission at

a joint trial would constitute prejudice. The Commonwealth's

attorney stated that he would "not be able to use some of the

Commonwealth's evidence if I try [the defendants] together," and

told the court, "I think it is unlikely that I'm going to use

on an 8:00 p.m. flight. After arriving in Chicago, she noticed

that her purse "was lighter than normal" and discovered that her

wallet was missing. The last time she had seen her wallet was

when she bought a magazine at National Airport twenty minutes

before her flight. Rosenfeld's wallet was found in Williams'

purse, and her credit cards were found under a floor mat in the

car driven by Chambers. Rosenfeld identified Coffey and Williams

as having been in the area where she last used her wallet.
Denise Rollabouse (Rollabouse) testified that she was at
National Airport in the U.S. Air terminal on the evening of July
24, 1994. She was waiting in the baggage claim area when she
heard something behind her. She turned around and saw Williams
with her wallet. Williams asked if the wallet belonged to
Rollabouse, and she took the wallet from her. The wallet had
previously been in Rollabouse's closed bag. Rollabouse reported
the incident to airport security, provided a description of
Williams, and later identified her.

3
[the statement]. I certainly will not use it unless I can find

some legitimate case law to back it up." The court denied the

motion to sever, because "[t]he Commonwealth has stated that they

are not going to use [the statement] at this time."

At trial, appellant renewed his motion to sever. The

Commonwealth's attorney represented that "it appears that if the

statement is properly redacted, it can be used." The trial court

denied appellant's motion, ruling:
[T]he statement is admissible if it's
redacted to, ["]I came to steal,["] where
it's clear there[] [are] no references to the
other individuals that are on trial. . . .
The Court will . . . instruct the jury at the
time that that statement or that confession
should be received as evidence of guilt only
to the person who uttered the statement.

Later, appellant renewed his objection to Chambers'

statement and requested a cautionary instruction, arguing that

the statement was inadmissible against him because it was a

statement made by a co-conspirator after the termination of the

conspiracy and would not be admissible against him in a separate

trial. At trial, the Commonwealth's attorney argued that, even

in a joint trial, the statement was admissible against appellant

under the declaration against penal interest exception to the

hearsay rule. The trial court agreed with the Commonwealth, but

allowed the statement only in the redacted form. The court

refused to give a cautionary instruction, because "[t]he

Commonwealth has demonstrated the basis for the application of

the exception to the hearsay rule of declaration against

4
interest. It think it's proper and it will be admitted [without

instruction]."

On March 23, 1995, appellant was convicted of grand larceny,

three counts of credit card theft, and conspiracy to commit a

felony. The trial court sentenced appellant to five consecutive

twelve-month sentences.

II. ADMISSION OF CODEFENDANT'S CONFESSION

Appellant asserts that his right to confrontation guaranteed

by the Sixth and Fourteenth Amendments to the United States

Constitution was violated. He argues that the trial court erred

in admitting Chambers' statement because, as the statement of a

co-conspirator made after the termination of the conspiracy, it

was inadmissible hearsay. Additionally, appellant contends that,

under Richardson v. Marsh, 481 U.S. 200 (1987), and Bruton v.

United States, 391 U.S. 123 (1968), the admission of codefendant

Chambers' statement in a joint trial without proper redaction and

cautionary instruction violated the Confrontation Clause of the

Sixth Amendment.
A. Right to Confrontation

The Sixth Amendment to the Constitution provides in

pertinent part that "[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses

against him." The Confrontation Clause of the Sixth Amendment is

applicable to the States under the Fourteenth Amendment.

5
Additionally, the Sixth Amendment right of an accused in a

criminal case to confront the witnesses against him includes the

right of cross-examination. See Idaho v. Wright, 497 U.S. 805,

813 (1990); Richardson, 481 U.S. at 206; Dutton v. Evans, 400

U.S. 74, 79 (1970); Pointer v. Texas, 380 U.S. 400, 404 (1965).

The United States Supreme Court recently held that "[w]here

a nontestifying codefendant's confession incriminating the

defendant is not directly admissible against the defendant, the

Confrontation Clause bars its admission at their joint trial,

even if the jury is instructed not to consider it against the

defendant, and even if the defendant's own confession is admitted

against him." Cruz v. New York, 481 U.S. 186, 193 (1987)

(emphasis added) (citation omitted); see also Thompson v. State

of South Carolina, 672 F.Supp. 896, 902 (1987). 2 Under the

converse of this standard, where the confession is directly

admissible against the defendant, it may be admissible in the

joint trial of the codefendants. See Wright, 497 U.S. at 814

("'[T]he [Confrontation] Clause permits, where necessary, the

admission of certain hearsay statements against a defendant

2
The Cruz standard modifies the standard previously adopted

in Parker v. Randolph, 442 U.S. 62 (1979), where the Court held

that the Confrontation Clause is violated only when introduction

of the codefendant's confession is "devastating" to the

defendant's case. See Thompson, 672 F.Supp. at 901.

6
despite the defendant's inability to confront the declarant at

trial.'"); Evans, 400 U.S. at 89 (holding that the right of

confrontation is not absolute and that a statement sufficiently

clothed with indicia of reliability is properly placed before a

jury though there is no confrontation with the declarant). Thus,

the statement of a non-testifying codefendant "directly

admissible" against another codefendant under an exception to the

hearsay rule may be admitted in a joint trial without violating

the Confrontation Clause.
B. Declaration Against Penal Interest

We accept for purposes of this opinion appellant's

contention that Chambers' statement would be excluded as the

statement of a co-conspirator made after the termination of the

conspiracy. See Scaggs v. Commonwealth, 5 Va. App. 1, 4-5, 359

S.E.2d 830, 831-32 (1987) ("[A] co-conspirator's statements made

in the defendant's absence after the termination of the

conspiracy are inadmissible in evidence at the defendant's trial

because such statements are hearsay."). However, Chambers'

statement is independently admissible against appellant as a

declaration against penal interest made by an unavailable

witness. "'[I]t is settled in Virginia that . . . a declaration

against penal interest is recognized as an exception to the

hearsay rule.'" Id. at 4-5, 359 S.E.2d at 832 (citation

omitted). See Chandler v. Commonwealth, 249 Va. 270, 455 S.E.2d

219, cert. denied, 116 S. Ct. 233 (1995); Lewis v. Commonwealth,

7
18 Va. App. 5, 8, 441 S.E.2d 47, 49 (1994); Morris v.

Commonwealth, 229 Va. 145, 147, 326 S.E.2d 693, 694 (1985). See

also Raia v. Commonwealth, Record No. 1950-95-4, slip op. at 6-7

(Va. Ct. App. Nov. 26, 1996) ("Admissibility into evidence of the

statement against interests of an unavailable witness is a

'firmly rooted' exception to the hearsay rule in Virginia."). 3

3
In some jurisdictions, the admissibility of this exception,

for Sixth Amendment purposes, is unsettled. In United States v.
Battiste, 834 F.Supp. 995 (N.D. Illinois, E.D. 1993), the court

disagreed with the Seventh Circuit's decision in United States v.

York, 933 F.2d 1343 (7th Cir.), cert. denied, 502 U.S. 916

(1991), that a declaration against penal interest is a "firmly

rooted" exception to the hearsay rule. The Battiste court

concluded that this type of statement is "presumably unreliable."

Id. at 1000-02. As support for this holding, the court referred

to Lee v. Illinois, 476 U.S. 530, 544 n.5 (1986), as revealing

the Supreme Court's unwillingness to hold this exception as

"firmly rooted." Id. at 1002. However, in interpreting Lee, the

Seventh Circuit stated that:

The Lee majority did not rule that the
declaration against interest exception to the
hearsay rule was not a firmly-rooted
exception; it held merely that the
accomplice's inculpatory declarations were
presumptively unreliable because they were
not against interest (it was whether the
inculpatory portions of the confession were
reliable, not whether the declaration against
interest hearsay exception is firmly rooted,
on which the majority and dissent disagreed)

8
 In Chandler, the defendant and accomplices robbed a local

convenience store. During the robbery, defendant shot and killed

the store clerk. At trial, the court admitted a police officer's

testimony regarding statements made by a codefendant during the

officer's investigation of the case. Id. at 278, 455 S.E.2d at

224. Defendant objected to the admission of this statement,

arguing that "portions of [codefendant's] statement were not

self-inculpatory but rather incriminated [defendant]." Id. The

Virginia Supreme Court affirmed the admissibility of the

statement, based on the statement's reliability, and held that

the statement clearly implicated codefendant as an accomplice and

that "the inherent reliability of her statement is established by

her expressed belief that she could be charged as an accessory to

the crimes." Id. at 279, 455 S.E.2d at 224. The Court also

decided that the reliability of the codefendant's statement was

"buttressed" by other evidence presented at trial and concluded

that the codefendant's "entire statement is admissible as a

declaration against penal interest." Id. at 279, 455 S.E.2d at

225. Thus, as the Court established in Chandler, a

co-conspirator's statement made after the termination of the

conspiracy may be admissible under the declaration against penal

. . . . [T]o be admitted under Rule
804(b)(3), the inculpatory portion of a
statement against interest must be
sufficiently reliable . . . to satisfy the
[C]onfrontation [C]lause.

York, 933 F.2d at 1363-64 n.4 (emphasis added).

9
interest exception to the hearsay rule. 4

In Virginia, for a declaration against penal interest to be

admissible, it must meet the following requirements: (1) the

declarant must be "unavailable to testify at trial," Lewis, 18

Va. App. at 8, 441 S.E.2d at 49; (2) the statement must be

against the declarant's interest at the time it was made; see

Boney v. Commonwealth, 16 Va. App. 638, 643, 432 S.E.2d 7, 10

4
Additionally, the United States Court of Appeals for the

Fourth Circuit held that the admission of a statement under the

declaration against penal interest exception does not violate the

Confrontation Clause. See United States v. Workman, 860 F.2d 140

(4th Cir.), cert. denied, 489 U.S. 1078 (1989) (affirming the

indicia of reliability of this exception). The court reasoned

that "[a] statement which was at the time of its making so far

contrary to the declarant's pecuniary or proprietary interest, or

so far tended to subject the declarant to civil or criminal

liability, or to render invalid a claim by the declarant against

another, that a reasonable person in the declarant's position

would not have made the statement unless believing it to be

true." Id. at 144-45. The court concluded that the declaration

against penal interest has indicia of reliability warranting its

admissibility as an exception to the hearsay rule while at the

same time warranting its admission under the Confrontation

Clause. Id. at 145.

10
(1993); and (3) the declarant must be aware at the time the

statement is made that it is against his or her interest to make

it. Id. See also Raia, Record No. 1950-95-4, slip op. at 4

(Va. Ct. App. Nov. 26, 1996). 5 While it is settled in Virginia

that a declaration against penal interest is recognized as an

exception to the hearsay rule, "'such a declaration made out of

court by . . . [an] unavailable witness is admissible only upon a

showing that the declaration is reliable.'" Morris, 229 Va. at

147, 326 S.E.2d at 694 (quoting Ellison v. Commonwealth, 219 Va.
404, 408-09, 247 S.E.2d 685, 688 (1978)) (emphasis added). Thus,

by requiring the statement to be sufficiently reliable, the

exception as recognized in Virginia comports with the standard

articulated in York.

In determining whether a statement is against a declarant's

penal interest, "the inherent reliability of [the] statement is

5
The United States Court of Appeals for the Eleventh Circuit

set forth a similar three-prong test for evaluating whether a

statement is admissible under the declaration against penal

interest exception of Federal Rule of Evidence 804(b)(3): "[(1)]

[A] statement must be against the penal interest of the

declarant[;] [(2)] corroborating circumstances must exist

indicating the trustworthiness of the statement; and [(3)] the

declarant must be unavailable." United States v. Harrell, 788

F.2d 1524, 1526 (11th Cir. 1986).

11
established by [the declarant's] expressed belief that she could

be charged as an accessory to the crimes." Chandler, 249 Va. at

279, 455 S.E.2d at 224. It is generally recognized that such

"[d]eclarations against interest are admissible as an exception

to the hearsay rule because it is felt that a person will not

usually make statements damaging to his own interests unless such

statements are true." 2 Charles E. Friend, The Law of Evidence

in Virginia § 18-12 (4th ed. 1996). Where the evidence shows the

declarant's "knowledge of and complicity in the criminal act and

expose[s] [declarant] to liability as an accessory to the

crimes," the statement will be admissible as a declaration

against penal interest. Chandler, 249 Va. at 279, 455 S.E.2d at

225. Notably, the Virginia Supreme Court has made "'no attempt

. . . to delineate the quality or quantity of evidence necessary

to establish reliability; the question must be left to the sound

discretion of the trial court, to be determined upon the facts

and circumstances of each case.'" Morris, 229 Va. at 147, 326

S.E.2d at 694 (citation omitted). However, the Court emphasized

that "'in any case, once it has been established that a third-

party confession has been made, the crucial issue is whether the
content of the confession is trustworthy. And determination of

this issue turns upon whether . . . the case is one where "there

is anything substantial other than the bare confession to connect

the declarant with the crime."'" Id. (citations omitted).
Accord Scaggs, 5 Va. App. at 5, 359 S.E.2d at 832.

12
 In the instant case, the Commonwealth was not required to

call Chambers as a witness to establish her unavailability

because, as a codefendant in the joint trial, Chambers could not

be compelled to testify. See Va. Const. art. I, § 8 (no

defendant shall "be compelled in any criminal proceeding to give

evidence against himself"). See also Harrell, 788 F.2d at 1526

(holding that codefendant declarants were unavailable for

purposes of the declaration against penal interest exception

because "they were on trial and thus were privileged against

testifying").
Codefendant Chambers made the statement after being arrested

for credit card theft. The other evidence in the case clearly

established the context of her statement and corroborated its

trustworthiness and its reliability, even though reliability was

not raised as an issue. Thus, in a separate trial, Chambers'

confession that she and the other defendants went to the airport

"to steal . . . to pick pockets" would meet the requirements of
Chandler, and would be admissible against appellant as a

declaration against Chambers' penal interest. See also Raia,

Record No. 1950-95-4 (Va. Ct. App. Nov. 26, 1996) (applying

Virginia's three-prong test and holding that an accomplice's

statement against her penal interest was admissible in the

separate trial of the defendant). It remains for us to determine

whether the same statement would be admissible in a joint trial. 6

6
"Approximately one-half of all American jurisdictions . . .

13
 C. Joint Trial

Appellant argues that, in the context of a joint trial under

Code § 19.2-262.1, the admission of Chambers' statement

effectively denied his Sixth Amendment right to confront

Chambers, and the trial court should have excluded her

confession. Appellant relies on the United States Supreme Court

cases of Bruton v. United States, 391 U.S. 123 (1968), and

Richardson v. Marsh, 481 U.S. 200 (1987), to support this

do not recognize a hearsay exception which would allow the

prosecution to use, under certain circumstances, a codefendant's

confession as evidence against his or her fellow defendant

. . . . [T]hese jurisdictions do not recognize a hearsay

exception permitting the use of 'third-party inculpatory

declarations against penal interest.'" James B. Haddad and

Richard G. Agin, A Potential Revolution in Bruton Doctrine: Is
Bruton Applicable Where Domestic Evidence Rules Prohibit Use of a

Codefendant's Confession as Evidence Against a Defendant although

the Confrontation Clause Would Allow Such Use?, 81 Crim. L. &

Criminology 235, 236-37 (1990). However, Virginia is not one of

these states, and recognizes the exception. See, e.g., Chandler,

249 Va. 270, 455 S.E.2d 219; Morris, 229 Va. 145, 326 S.E.2d 693;

Lewis, 18 Va. App. 5, 441 S.E.2d 47; Scaggs, 5 Va. App. 1, 359

S.E.2d 830.

14
argument.

Bruton was a joint trial of two codefendants charged with

armed postal robbery. The trial court admitted in evidence the

confession of one codefendant implicating the other defendant.

The trial court then gave a "clear, concise and understandable

instruction" that the confession could only be used against the

declarant codefendant, and should be disregarded with respect to

the defendant. The Court of Appeals for the Eighth Circuit

affirmed the defendant's conviction. However, the United States

Supreme Court reversed, holding as follows:
[B]ecause of the substantial risk that the
jury, despite instructions to the contrary,
looked to [declarant's] incriminating
extrajudicial statements in determining
petitioner's guilt, admission of
[declarant's] confession in this joint trial
violated petitioner's right of
cross-examination secured by the
Confrontation Clause of the Sixth Amendment.

391 U.S. at 126 (emphasis added). The Court further stated that

"limiting instructions [are not acceptable] as an adequate

substitute for petitioner's constitutional right of

cross-examination." Id. at 137. The Court "emphasize[d] that

the hearsay statement inculpating petitioner was clearly

inadmissible against him under the traditional rules of evidence,

the problem arising only because the statement was . . .

admissible against the [codefendant] declarant." Id. at 129 n.3

(emphasis added). Thus, the Court reversed the conviction on the

ground that the admission, in a joint trial, of a statement

15
admissible against the codefendant declarant but inadmissible

against the other defendant violated the other defendant's right

of confrontation.

Richardson, the other case relied on by appellant, dealt

with a similar issue. In Richardson, also a joint trial, the

trial court admitted over defendant's objection a codefendant's

confession that had been redacted to omit all references to

defendant. Although the codefendant's statement did not directly

implicate defendant, as did the statement in Bruton, other
evidence properly admitted against defendant at trial connected

him to the codefendant's confession. The Supreme Court

determined that even when a codefendant's confession is redacted

to delete any reference to the defendant, if other evidence

properly admitted links the defendant to the confession, a

Confrontation Clause violation remains. The Court specifically

held that "the Confrontation Clause is not violated by the

admission of a nontestifying codefendant's confession with a
proper limiting instruction when . . . the confession is redacted

to eliminate not only the defendant's name, but any reference to

his or her existence." Richardson, 481 U.S. at 211 (emphasis

added). The Court distinguished Bruton:
If limited to facially incriminating
confessions, Bruton can be complied with by
redaction . . . . If extended to confessions
incriminating by connection, not only is that
not possible, but it is not even possible to
predict the admissibility of a confession in
advance of trial.

16
Id. at 208-09. Thus, in a joint trial where the codefendant's

statement is redacted but other evidence links the defendant to

the statement and indirectly implicates the defendant, Richardson

requires both redaction and a limiting instruction to cure the

prejudice to a defendant and render the statement admissible.

Both Bruton and Richardson involved a joint trial in which a

codefendant's confession implicated the other defendant, but was

otherwise inadmissible against him. Neither Bruton nor
Richardson addressed a case in which a codefendant's confession

is directly admissible against the other defendant under a

recognized exception to the hearsay rule. Thus, appellant's

reliance on the rationale of these cases is misplaced. Unlike

Bruton and Richardson, in the case at bar, Chambers' statement

was independently and directly admissible against appellant under

a recognized exception to the hearsay rule, specifically, the

declaration against penal interest exception. See Section II.A.

The Bruton Court declined to address the admissibility of

such a statement under "any recognized exception to the hearsay

rule." See Bruton, 391 U.S. at 128 n.3. Bruton "suggested that

each jurisdiction can shape its own rules of evidence to admit

some codefendant confessions as evidence against [another]

defendant, under an exception to the hearsay rule," without

violating the Confrontation Clause, "even where the defendant has

no opportunity to cross-examine the confessing codefendant."

James B. Haddad and Richard G. Agin, A Potential Revolution in

17
Bruton Doctrine: Is Bruton Applicable Where Domestic Evidence

Rules Prohibit Use of a Codefendant's Confession as Evidence

Against a Defendant although the Confrontation Clause Would Allow

Such Use?, 81 Crim. L. & Criminology 235, 236 (1990) (citing

Bruton, 391 U.S. at 128 n.3). See also Evans, 400 U.S. at 81

("[I]t does not follow that because the federal courts have

declined to extend the hearsay exception . . . such an extension

automatically violates the Confrontation Clause."). Moreover,

"[i]n jurisdictions that admit inculpatory declarations against

penal interest, admission of the codefendant's 'constitutionally

reliable' confession as evidence against a defendant will avoid
Bruton. . . . The Bruton limiting instruction problem disappears

once such a statement is admitted against the defendant." Haddad,

supra, at 251. 7

7
The following cases demonstrate that some jurisdictions

recognize the declaration against penal interest as being "firmly

rooted" and/or reliable, and therefore admissible: United States
v. York, 933 F.2d 1343 (7th Cir.), cert. denied, 502 U.S. 916

(1991); United States v. Workman, 860 F.2d 140 (4th Cir. 1988);

United States v. Harrell, 788 F.2d 1524 (11th Cir. 1986); Farina

v. State, 679 So.2d 1151 (Fla. 1996) (statement may be admissible

if sufficiently reliable); State v. Nielsen, 853 P.2d 256 (Or.

1993); People v. Drake, 785 P.2d 1253 (Colo. 1989); State v. St.

Pierre, 759 P.2d 383 (Wash. 1988); Commonwealth v. McLaughlin,

303 N.E.2d 338 (Mass. 1973); and People v. Gauthier, 184 N.W.2d

18
 In Commonwealth v. McLaughlin, the Supreme Court of

Massachusetts held that, in a joint trial, admission of a

non-testifying codefendant's statement against another defendant

under a recognized exception to the hearsay rule does not violate

the other defendant's Sixth Amendment right to confrontation. In

addressing the Bruton issue, the court stated:
In deciding the applicability of the Bruton
rule to the present case, it is important to
note that the rule does not purport to hold
that a defendant's right of cross-examination
secured by the Confrontation Clause of the
Sixth Amendment is violated whenever hearsay
evidence is admitted against him and he is
not able to cross-examine the person to whom
the hearsay statement is attributed.

McLaughlin, 303 N.E.2d 338, 345 (Mass. 1973). The court further

observed that "[a] number of cases decided since the Bruton case

have held that defendants' rights under the Confrontation Clause

. . . were not violated where hearsay evidence of a statement of

a co-conspirator inculpating the defendant was admitted without

opportunity by the defendant to cross-examine the

co-conspirator." Id. The court explained the grounds for the

admissibility of the statement:
If the defendant had been tried alone, the
same testimony would have been admissible
against him under [a] hearsay rule exception
. . . . In such a case the admissibility of
the testimony would not depend on the
availability of [the codefendant] for
cross-examination by the defendant.

488 (Mich.Ct.App. 1970) (classifying exception as "long

recognized").

19
Therefore the fact that the defendant did not
have an opportunity to cross-examine [the
codefendant] did not constitute a violation
of his right under the Confrontation Clause

20
 . . . . For the same reason, there was no
violation of the rule of the Bruton case.

Id. at 347. 8

The limited scope of the Bruton holding was further noted in

Cruz. The Cruz Court held that "where a nontestifying

codefendant's confession incriminating the defendant is not

directly admissible against the defendant, the Confrontation

Clause bars its admission at their joint trial." Cruz, 481 U.S.

at 194 (emphasis added). Additionally, the Seventh Circuit

construed the Bruton decision as "predicated upon the
inadmissibility of the statement against the defendant under the

rules of evidence," thus reserving judgment on the admissibility

of the hearsay statement under the rules applicable in the

jurisdiction. United States v. York, 933 F.2d 1343, 1362 (7th

Cir.), cert. denied, 502 U.S. 916 (1991) (emphasis added). 9 The

8
See also State v. St. Pierre, 759 P.2d 383 (Wash. 1988),

where the trial court admitted the declarant's statement in a

joint trial of the defendants as a declaration against penal

interest. The appellate court agreed that certain of the

contested statements qualified as declarations against penal

interest, holding that the statements possessed "sufficient

'indicia of reliability'" to be directly admissible in the trial

against" a codefendant. Id. at 388-89.

9
The court explained that "Bruton reflected the view that

prevailed prior to the advent of the Federal Rules of Evidence

21
court held that "[w]here the [evidentiary] rules so permit,

Bruton is inapplicable. Thus, under Bruton and subsequent cases,

whether an inculpatory hearsay statement violates the

[C]onfrontation [C]lause turns on the context of the rules of

evidence." Id. at 1362 n.3. 10 Moreover, the Eleventh Circuit

observed that "[c]ases interpreting Bruton have found its holding

inapplicable where the evidence alleged to violate Bruton

principles was properly admissible against the complaining

party." United States v. Astling, 733 F.2d 1446, 1455 (11th Cir.

1984). 11

that an inculpatory hearsay statement was inadmissible against an

accused." Id. at 1362 n.2 (emphasis added).

10
Although York involved a separate trial, the court's

analysis is equally applicable to the joint trial context.

11
In certain circumstances, the Supreme Court has declined to

construe the Confrontation Clause literally as a per se bar to

hearsay statements. The Supreme Court held that "[f]rom the

earliest days of our Confrontation Clause jurisprudence, we have

consistently held that the Clause does not necessarily prohibit

the admission of hearsay statements against a criminal defendant,

even though the admission of such statements might be thought to

violate the literal terms of the Clause." Idaho v. Wright, 497

U.S. 805, 813 (1990). "We reaffirmed only recently that '[w]hile

a literal interpretation of the Confrontation Clause could bar

22
 The rationale of these cases is persuasive. Neither the

Virginia nor the United States Supreme Court has addressed the

admissibility in a joint trial of a non-testifying codefendant's

statement inculpating another defendant when a recognized

exception to the hearsay rule rendered the codefendant's

statement admissible against the other defendant. However, the

Virginia rules of evidence permit a codefendant's statement

against interest to be used against another defendant when the

defendants are separately tried. We see no reason why the rule

should be different in a joint trial and can find no objection in

any United States Supreme Court case where the codefendant's

confession is admissible against another defendant under an

independent, "firmly rooted" exception to the hearsay rule.

Thus, we hold that the trial court did not err in admitting

Chambers' statement.
III. MOTION TO SEVER

Appellant next argues that the trial court erred in denying

his motion to sever because the improper admission of Chambers'

the use of any out-of-court statements when the declarant is

unavailable, this Court has rejected that view as "unintended and

too extreme."'" Id. at 814 (quoting Bourjaily v. United States,

483 U.S. 171, 182 (1987)). Accord Ohio v. Roberts, 448 U.S. 56,

62-63 (1980).

23
statement prejudiced him. 12

Code § 19.2-262.1 provides, in pertinent part, as follows:
On motion of the Commonwealth, for good cause
shown, the court, in its discretion, may
order persons charged with participating in
contemporaneous and related acts or
occurrences or in a series of acts or
occurrences constituting an offense or
offenses to be tried jointly unless such
joint trial would constitute prejudice to a
defendant.

(Emphasis added). We have held that "[i]n determining whether a

joint trial would prejudice a defendant, the trial court should

require '[t]he party moving for severance [to] establish that
actual prejudice would result from a joint trial.'" Goodson v.

Commonwealth, 22 Va. App. 61, 71, 467 S.E.2d 848, 853 (1996)

(quoting United States v. Reavis, 48 F.3d 763, 767 (4th Cir.),

cert. denied, 115 S. Ct. 2597 (1995)) (emphasis added).
[P]rejudice requiring severance . . . results
only when "there is a serious risk that a
joint trial would compromise a specific trial
right of one of the defendants, or prevent
the jury from making a reliable judgment
about guilt or innocence. . . . The risk of
prejudice will vary with the facts in each
case," and "the determination of the risk of
prejudice . . . [is left] to the sound

12
Appellant also argues prejudice resulted because the three

codefendants were seated together at trial and had antagonistic

defenses. These arguments were not raised at trial. The Court

of Appeals will not consider an argument on appeal which was not

presented to the trial court. Jacques v. Commonwealth, 12 Va.

App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule 5A:18).

24
 discretion of the [trial] court."

Barnes v. Commonwealth, 22 Va. App. 406, 412, 470 S.E.2d 579, 582

(1996) (citations omitted). 13

We hold that the record in this case shows that appellant,

the party moving for severance, failed to establish that actual

prejudice resulted from the joint trial. The trial court

properly admitted Chambers' statement under a recognized

exception to the hearsay rule. See Goodson, 22 Va. App. at 71,

467 S.E.2d at 853. Accordingly, the judgment of the trial court

is affirmed.
Affirmed.

13
Redaction was not required in the instant case. The

court's redaction of codefendant Chambers' statement did not harm

appellant; rather, it made the statement less harmful to him.

Moreover, appellant requested the redaction and cannot now object

to it.

25