COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Humphreys and Senior Judge Coleman
Argued at Richmond, Virginia
MUSA A. PARROTT
MEMORANDUM OPINION * BY
v. Record No. 1014-99-2 JUDGE ROBERT J. HUMPHREYS
MAY 15, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
(Phillip T. DiStanislao, Jr.; Hardy &
DiStanislao, P.C., on brief), for appellant.
Appellant submitting on brief.
John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
Musa Parrott appeals his conviction, after a jury trial, of
first degree murder, attempted murder, and use of a firearm in
the commission of the crimes. Parrott contends that the trial
court erred in finding the evidence sufficient to convict him
and that it erred in allowing a statement made to police by a
witness to be read into evidence, after the witness had invoked
his Fifth Amendment privilege, thereby violating Parrott's Sixth
Amendment right to confront the witness.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. Background
"On appellate review, we examine the evidence in the light
most favorable to the Commonwealth, and we may not disturb the
jury's verdict unless it is plainly wrong or without evidence to
support it." Ashby v. Commonwealth, 33 Va. App. 540, 548, 535
S.E.2d 182, 186-87 (2000).
So viewed, the evidence presented at trial established that
witness Daniel Harris was in the Green Lantern restaurant and
bar in the early morning hours of February 21, 1997. He was
there with his friend, William Parham. When the two entered the
building, Harris entered first and stepped toward the bar, where
he faced "the middle of the club, the center of the club where
[he could] see everything." There were over 100 people in the
club at the time.
Harris immediately noticed a gentleman in the middle of the
room, standing with his back to him, make a pulling motion with
his right hand from the side of his waist area and raise his
hand "turning to the side." Harris then heard four gunshots and
saw a "muzzle flash." The gunman stated, "Everybody get out of
my way. I mean everybody."
Another man, who was with the gunman, began "pushing people
out of the way to go out the door. And the gentleman that fired
the shots turned and started running." As the gunman ran toward
the door, he tripped on a chair. When he stood up, he was
"face-to-face" with Harris. He pointed the gun at Harris and
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said, "Didn't I say everybody get out of my way?" He then
pulled the trigger. The gun made a clicking noise, but did not
fire, and the gunman ran out of the bar.
After a few moments, Harris realized that someone in the
bar had been shot. He collected himself. Then, he and Parham
stepped out of the bar and saw the gunman and his companion get
into a "little red car" and drive away. The gunman was driving,
and the companion was in the passenger seat. Harris and Parham
followed the car in Parham's Honda. They followed for several
blocks, but the gunman's companion began shooting at them and
they eventually lost sight of the red car.
Several months later, Parrott was arrested for the murder
of Kiel Alston, the man who had been shot and killed in the
Green Lantern on February 21, 1997. 1 At trial, the medical
examiner testified that Alston had been shot four times. 2
However, only two bullets and a bullet fragment were recovered
from Alston's body.
The detective who investigated the scene testified that he
found "two bullets" at the Green Lantern. One was lodged in the
1
At trial, Harris testified that he had grown up with
Alston and had been friends with Alston and his family.
2
The wounds were in the area of Alston's chest and abdomen.
Two of the wounds appeared to be the result of gunshots from
close range.
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ceiling and one was lodged in the floor. 3 He also found Alston's
coat lying on a chair, next to where he had been shot.
Upon searching the apartment where Parrott was living,
police found a "six-shot revolver" and bullets that were
consistent with the type used in the shooting. 4 The police also
found a notebook, which Parrott stated was his "songbook," that
contained a letter/song dated "3/20/97" which read as follows:
yes me set up a plan, day pon me motion, And
here comes this man, want step ina me way,
want fe dis I man, Just me and Rudeboy ina
they club we a jam, everything start, From
wha on one omen, Rudeboy till nine fe chill
tru him Know how me stand, they boy don't
3
Parrott alleges that there were actually six gunshots,
instead of four, as Harris testified. By implication, Parrott
argues that Harris's testimony was inaccurate and that the
gunman must have known that the gun had no bullets left in it
when he pointed the gun at Harris and pulled the trigger.
In support of this, Parrott states that the medical
examiner testified four bullets were recovered from Alston's
body. He further notes that the detective who investigated the
scene testified that he could account for the recovery of six
bullets, four from the body of the deceased and two from the
crime scene. However, Parrott misstates the evidence. The
medical examiner testified that she recovered only two bullets
and one fragment from the body of the victim. The autopsy
report supports her testimony. Furthermore, the detective
merely testified that he had recovered two bullets from the
scene and that there "should be four on the medical autopsy
report." Despite the detective's testimony, the autopsy report
establishes that only two bullets and one fragment were
recovered from the victim.
4
The firearms expert was unable to positively identify the
revolver as the murder weapon because the barrel had been
tampered with, or "gouged," causing the "land and groove"
impressions that would be imprinted on bullets shot from the
weapon to be altered.
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know we flex don't even know fe we gang, him
a laugh after we tru we favor. Sampletons
they, boy a fool him never know fe we
intention, by that time me ready fe kill
someone, so the boy rush me and grab, like
say me like a man, hold from they waste, a
Seddam him try slam, one shot ina him heart,
push him off with me hand, take two steps
back, than finish they battleman, from me
lick one shot Rudeboy done understand him
pop off him gun, clear they way fe Seddam,
me a run and push with me gun ina me hand,
run jump ina the car, pon they gas me just
slam. two pussy ina Honda try fe follow
they Don, Rudeboy popoff, fe him gun just
Jam, so me think me a Driver, show hope they
can hang, take two corner, and them fire
shot after man, but me gone, can't stay,
time fe make a new plan. Once I look and
see what things become to be with me gun ina
me hand, Its time fe me fe just flee, to the
hill, and just go on, relaxe and chill, sick
a tired of the world, tired fe see the blood
spill,
By: Saddam 5
After being taken to the police station and read his
Miranda rights, Parrott was interviewed about the murder.
Parrott first stated that the gun found in his home was his, but
that he had loaned it to "a guy named Sheeke" for two days at
the beginning of the year, and that he did not ask Sheeke what
he had done with it. After being told by the detective that the
gun was being sent to the lab, Parrott said that Sheeke told him
he had shot a man in the Green Lantern. Parrott first stated
5
We have included each of the spelling and grammatical
errors as they are written in Parrott's letter.
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that he didn't know where Sheeke lived. Later, Parrott stated
he thought Sheeke lived on River Road Terrace. Finally, Parrott
stated that Sheeke's name was "Paul Donaldson" and that he lived
in Baltimore but had an apartment on River Road Terrace where he
sold marijuana.
After further questioning, Parrott confessed he knew about
the shooting and conceded that he was in the bar that evening.
He stated that Sheeke was talking to a girl and that Alston, who
was drunk, said, "Don't talk to this girl. This is my -- my
boy's sister." Sheeke said, "All right man," and told Alston to
leave him alone. Alston then took his coat off, picked up a
beer bottle and attempted to hit Sheeke. Parrott said he "was
scared" and ran, and "Sheeke shot him."
Parrott said that after the shooting, he and Sheeke ran to
the car Parrott had been driving, his girlfriend's red Ford
Aspire, and drove away. He stated that he drove and that Sheeke
rode in the passenger seat. Parrott stated that they had indeed
been followed by two men in a Honda and that Sheeke had shot at
the Honda from the passenger seat of the car.
During Parrott's interview, police were also interviewing a
friend of Parrott's, Daron Brown. After being misled by
detectives and told that Parrott had placed him at the Green
Lantern that evening, Brown gave a statement implicating Parrott
as the gunman. Brown indicated that he was Parrott's companion
that evening and corroborated the story about the fight
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occurring over a girl, as well as his actions in clearing the
way for Parrott to get out and the escape and chase by the two
men in the Honda.
At trial, Parrott's ex-girlfriend, Reesha Allen, testified
that she was the owner of the red Ford Aspire and that she often
loaned it to Parrott to drive. She also testified that Parrott
went by the street names of "Don" and "Saddam" and that his
friend Daron Brown went by the street name "Rude Boy."
Harris, who had earlier identified Parrott as the shooter
in a photographic lineup, made an in-court identification of
Parrott as the gunman. The Commonwealth also called Brown as a
witness; however, Brown pled the Fifth Amendment and refused to
answer questions. The Commonwealth therefore sought to admit
the statement Brown had made to police as a statement "against
penal interest," an exception to the hearsay rule. Over
Parrott's objection, contending that the statement was not truly
made "against penal interest," the trial court admitted the
statement, finding that the witness was "unavailable" and that
his statement otherwise met the requirements of the penal
interest exception.
Parrott was ultimately convicted of all four charges and
sentenced to a total of sixty-eight years in the Virginia state
penitentiary.
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II. Analysis
We first note that whether evidence is admissible falls
within the broad discretion of the trial court, and the court's
ruling will not be disturbed on appeal absent an abuse of
discretion. See Blain v. Commonwealth, 7 Va. App. 10, 16, 371
S.E.2d 838, 841 (1988). By definition, when the trial court
makes an error of law, an abuse of discretion occurs. See
Taylor v. Commonwealth, 28 Va. App. 1, 9, 502 S.E.2d 113, 117
(1998) (en banc).
The Commonwealth concedes that the trial court erred in
admitting Brown's statement. In Lilly v. Virginia, 527 U.S. 116
(1999), which was decided after the trial of this matter, the
United States Supreme Court held that the admission of an
accomplice's confession is a violation of a defendant's
constitutional right to confrontation, unless "the declarant's
truthfulness is so clear from the surrounding circumstances that
the test of cross-examination would be of marginal utility."
Id. at 134 (citation omitted). No argument is made that such
circumstances are present here.
Nevertheless, "an otherwise valid conviction should not be
set aside if the reviewing court may confidently say, on the
whole record, that the constitutional error was harmless beyond
a reasonable doubt." Dearing v. Commonwealth, 259 Va. 117, 123,
524 S.E.2d 121, 125 (2000) (citation omitted).
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Although Confrontation Clause error is of
constitutional magnitude, it is subject to
harmless error analysis. Constitutional
error is harmless . . . only if the
beneficiary of the constitutional error
. . . prove[s] beyond a reasonable doubt
that the error complained of did not
contribute to the verdict obtained. The
test, therefore, is not whether laying aside
the erroneously admitted evidence there was
other evidence sufficient to convict beyond
a reasonable doubt . . ., but, more
stringently, whether there is a reasonable
possibility that the evidence complained of
might have contributed to the conviction.
In other words, even if the other evidence
amply supports the . . . verdicts, [error is
not harmless when] the disputed testimony
may well have affected the . . . decision.
Williams v. Commonwealth, 32 Va. App. 395, 399-400, 528 S.E.2d
166, 168-69 (2000) (citations omitted).
With regard to the charge of first degree murder, Code
§ 18.2-32 provides that "[m]urder . . . by any willful,
deliberate, and premeditated killing . . . is murder of the
first degree . . . . Malice, an essential element of all grades
of murder, distinguishes murder from manslaughter." Rhodes v.
Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95, 98 (1989)
(citations omitted).
To sustain a conviction for attempted murder, the evidence
must establish a specific intent to kill the victim, as well as
an overt but ineffectual act committed in furtherance of this
criminal purpose. See Hargrave v. Commonwealth, 214 Va. 436,
437, 201 S.E.2d 597, 598 (1974).
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Finally, to convict an accused of violating Code
§ 18.2-53.1, the Commonwealth must prove that the accused
actually had a firearm in his possession and that he used or
attempted to use the firearm, or displayed the firearm in a
threatening manner, while committing or attempting to commit one
of the specified felonies, which include murder. See Yarborough
v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994).
Here, it is clear that Brown's statement was not important
to the Commonwealth's case. At most, it was cumulative of the
evidence already solicited from Harris, Parrott's own statement
to the police, and the evidence found in Parrott's home. In
fact, even excluding Brown's statement, the evidence
overwhelmingly proved that Parrott was guilty of the crimes
charged.
Thus, we conclude that although the admission of Brown's
statement compromised Parrott's right of confrontation, the
error, under the circumstances of this case, was harmless beyond
a reasonable doubt. Furthermore, in light of our holding in
this regard, we find no merit in Parrott's argument that the
evidence was insufficient to support his convictions.
Affirmed.
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