COURT OF APPEALS OF VIRGINIA
Present: Judge Willis, Senior Judges Hodges and Overton
Argued by teleconference
SANTO LANGLEY
MEMORANDUM OPINION * BY
v. Record No. 0772-99-1 JUDGE WILLIAM H. HODGES
DECEMBER 28, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
William P. Robinson, Jr. (Robinson &
Anderson, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Santo Langley (appellant) appeals from a judgment of the
Circuit Court of the City of Virginia Beach convicting him of
first degree murder, conspiracy, and burglary. He contends the
trial court erred by 1) refusing to sever his trial from that of
his codefendants; and 2) admitting his codefendants' out-of-court
statements into evidence against him. For the reasons that
follow, we reverse appellant's convictions.
Background
During the course of their investigation into the July 25,
1997 burglary of Tara Harper's residence and the murder of William
McKleny, police interrogated appellant, Terrence Woolard, Toney
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Griffin, Jerry Norman and Armard Smith. All five were ultimately
charged with conspiracy, burglary, first degree murder, and
related firearm offenses. Over appellant's objection, the court
permitted trial of appellant and his codefendants jointly and
admitted into evidence the statements of appellant's codefendants.
At trial, Detective Orr testified that he interviewed
appellant at 6:05 p.m. on July 25. He recalled that appellant
initially denied knowledge of the crimes but later admitted "he
. . . took part in the conversation . . . between him and the four
other codefendants . . . . about breaking in the home" and had
agreed to knock on the door and act as a lookout. Appellant
claimed that, after banging on the door with a stick several
times, he returned to Woolard's car and heard a gunshot.
Appellant testified that in the early morning hours of
July 25, he was a passenger in Woolard's car, following Griffin,
Norman and Smith in Norman's car. Parking in the Northridge
section of Virginia Beach, Griffin, Norman and Smith exited
Norman's car and walked down the street. Woolard and appellant
followed the others, and Woolard stopped near Harper's townhouse
and walked to the rear. As appellant returned toward the car, he
again encountered Woolard, and the two ran to the car after
hearing a gunshot. Norman, Griffin and Smith joined them a short
time later, and Woolard drove appellant to his home. Appellant
denied knowledge of the offenses. He explained that, when
Detective Orr advised him that a codefendant had told police
- 2 -
appellant knocked on the door, he had merely replied, "Okay,"
noting that Orr did "all the talking."
During Orr's trial testimony, the court admitted into
evidence Woolard's videotaped statement to police. Woolard then
had stated that, after arriving at Northridge, he overheard
someone mention a man who lived "up the street" and kept a lot of
money in his house. Walking behind Norman, Griffin and Smith,
Woolard became aware that one of the three had a gun. Woolard
also told the police that appellant knocked on or rang the bell at
the front door of Harper's residence. When Woolard testified,
however, he recanted that portion of his statement implicating
appellant, explaining that, when police mentioned to him that one
among the group had knocked on Harper's door or rung the doorbell,
he falsely named appellant because he was scared.
In recalling events at trial, Woolard testified that,
accompanied by appellant, he had driven to Northridge around
1:00 a.m. on July 25, following Norman, Griffin and Smith. After
Woolard parked, Norman, Griffin and Smith exited and walked away.
A short time later, Woolard and appellant followed, and Woolard
walked through a "cut," finding Smith in Harper's backyard.
Noticing Harper's back door ajar, Woolard stepped inside, but
concluded something was not right and returned to his car. En
route, Woolard was joined by appellant. Before reaching the car,
Woolard and appellant heard a gunshot, turned and observed Smith
and Norman running toward them from the direction of Harper's
- 3 -
residence and Griffin running from another direction. All five
men entered Woolard's car, and he drove to a nearby shopping
plaza, where the passengers exited and Woolard proceeded home.
The trial court also admitted into evidence videotaped
statements made to the police by codefendants Griffin, Smith and
Norman. Griffin admitted shooting the victim but did not
implicate appellant in his statements.
Smith initially denied involvement but later admitted to Orr
that he and appellant had gone to Harper's door and rung the
doorbell. Within minutes, however, Smith retracted this statement
and stated he and three men had walked to the rear of Harper's
residence and pried open the rear door, while appellant remained
at the front. Smith told Orr that appellant and Griffin knew a
drug dealer, "Big Mike," resided in the house, and appellant
suggested they go to "Big Mike['s] crib." Smith did not testify
at trial.
In his statement to police, Norman recalled that Smith had
mentioned "Big Mike" as a "big time drug dealer." Norman
initially said he stood in the backyard with appellant and Woolard
while Griffin and Smith pried open the back door and entered
Harper's residence. According to Norman, he left with Woolard and
appellant after Griffin and Smith said there was a little girl
inside the house. Moments later, however, Norman admitted he did
not leave the backyard and was in the house when Griffin shot the
- 4 -
victim. He also said that everyone knew he and Griffin were
armed. Norman did not testify at trial.
The jury convicted all the defendants of conspiracy,
burglary, and first degree murder. Griffin and Norman were also
convicted of using a firearm in the commission of a felony.
Analysis
"In all criminal prosecutions, state as well as federal, the
accused has a right, guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution, 'to be confronted
with the witnesses against him.'" Lilly v. Virginia, 527 U.S.
116, 123 (1999). "The central concern of the Confrontation Clause
is to ensure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context of
an adversary proceeding before the trier of fact." Maryland v.
Craig, 497 U.S. 836, 845 (1990). Thus, the admission of a
non-testifying codefendant's custodial confession violates a
defendant's rights under the Confrontation Clause, unless the
prosecution can otherwise establish the inherent reliability of
the confession. Lilly, 527 U.S. at 137-38.
Thus, to be admissible, a non-testifying codefendant's
confession
must be "supported by a 'showing of
particularized guarantees of
trustworthiness.'" The particularized
guarantees of trustworthiness necessary to
rebut the presumption of unreliability must
"be drawn from the totality of circumstances
that surround the making of the statement
- 5 -
and that render the declarant particularly
worthy of belief." Evidence admitted based
upon the existence of particularized
guarantees of trustworthiness must be so
trustworthy that adversarial testing would
add little to its reliability.
Bass v. Commonwealth, 31 Va. App. 373, 383-84, 523 S.E.2d 534, 539
(2000) (citations omitted). Factors that a court may consider in
determining such reliability include 1) the accomplice's
unawareness of the fact that he has been implicated in a crime by
a codefendant; 2) the police's ignorance of the confessor's
involvement in the crime confessed; and 3) "the exercise of any
contemporaneous cross-examination by counsel or its equivalent."
Id. at 384, 523 S.E.2d at 539.
Moreover, a codefendant's confession will be deemed reliable
and therefore, admissible, if it is substantially identical to the
defendant's confession, that is, if the two confessions interlock.
See id. at 384-85, 523 S.E.2d at 540. However,
"[i]f those portions of the codefendant's
purportedly 'interlocking' statement which
bear to any significant degree on the
defendant's participation in the crime are
not thoroughly substantiated by the
defendant's own confession, the admission of
the statement poses too serious a threat to
the accuracy of the verdict to be
countenanced by the Sixth Amendment. In
other words, when the discrepancies between
the statements are not insignificant, the
codefendant's confession may not be
admitted." Conversely, an accomplice's
statement that does not "interlock" with the
defendant's statement may be admitted
against the defendant if the areas of
disagreement are irrelevant or trivial.
- 6 -
Id. at 385, 523 S.E.2d at 540 (quoting Lee v. Illinois, 476 U.S.
530, 545 (1986)).
Here, Woolard testified and was subject to cross-examination.
Therefore, any attendant Confrontation Clause error was remedied.
However, neither Smith, Norman, nor Griffin testified. At the
time Smith and Norman confessed, each was in custody, aware they
were going to be charged with the burglary and McKleny's murder.
None of the non-testifying codefendants was subjected to
"contemporaneous cross-examination." Therefore, the circumstances
surrounding their respective confessions did not weigh in favor of
reliability. Further, no codefendants' incriminating confession
interlocked with appellant's statement or trial testimony.
The Commonwealth, therefore, failed to establish the
inherent reliability of the Norman, Smith, and Griffin
statements, and the trial court erroneously admitted those
statements into evidence. The error was not harmless.
The standard that guides our analysis of the
harmless error issue in this case is clear.
Thus, "before 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.
This standard requires a determination of
"whether there is a reasonable possibility
that the evidence complained of might have
contributed to the conviction." 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
- 7 -
tainted evidence on material points, and the
overall strength of the prosecution's case.
Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209
(1999) (citations omitted).
The record discloses no physical evidence of appellant's
involvement in the offenses. Both appellant and Woolard testified
and recanted those portions of their respective statements that
incriminated appellant. Thus, the confessions of Norman and Smith
constituted the only direct evidence that established appellant's
involvement in the offenses. We cannot conclude that admitting
those confessions into evidence was harmless beyond a reasonable
doubt.
Accordingly, the judgment of the trial court is reversed, and
the case is remanded for retrial if the Commonwealth be so
advised. 1
Reversed and remanded.
1
In consideration of our decision, we expressly decline to
address the remaining assignments of error.
- 8 -