COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia
JERRY NORMAN
MEMORANDUM OPINION * BY
v. Record No. 2925-99-1 JUDGE WILLIAM H. HODGES
NOVEMBER 14, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
William P. Robinson, Jr. (Robinson and
Anderson, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Jerry Norman (appellant) appeals from a judgment of the
Circuit Court for the City of Virginia Beach (trial court)
convicting him of first degree murder, conspiracy, robbery, and
using a firearm in the commission of a felony. He contends the
trial court erred by 1) refusing to suppress his confession to the
police; 1 2) trying him jointly with four codefendants; and 3)
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
In the petition for appeal, appellant framed this question
presented as a Fourth Amendment challenge to his arrest, but his
argument consisted solely of a Fifth Amendment challenge to the
admissibility of his confession. Although the order granting
the appeal framed the question presented as drafted by appellant
in the petition, we address the question as argued by appellant,
that is, the Fifth Amendment issue. See Cruz v. Commonwealth,
12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1 (1991) (only
admitting into evidence against him the extra-judicial statements
of his non-testifying codefendants. For the following reasons, we
affirm the judgment of the trial court.
I.
Around 2:30 a.m. on July 25, 1997, Tara Harper heard what
sounded like a knock at the front door of her townhouse. When
Harper's friend, William McKleny, went downstairs to
investigate, he was fatally shot in the back of the head by an
intruder.
Over the next several days, the police developed appellant,
Toney Griffin, Armard Smith, Santo Langley, and Terrence Woolard
as suspects. All five codefendants eventually made statements
to the police.
In his statement, appellant admitted being with his
codefendants at a convenience store near Harper's Northridge
neighborhood on the night of McKleny's death. Appellant was
riding with Griffin, who was driving appellant's car. Woolard,
Smith, and Langley were in Woolard's car. Appellant asserted
that Smith started talking about breaking into the Northridge
residence of "Big Mike," a purported drug dealer, and stealing
money. Appellant admitted that on the way to Northridge, he
told Griffin about a ski mask in the trunk of his car. Griffin
questions presented in the petition for appeal and granted by
the Court will be addressed on appeal).
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stopped the car and retrieved the mask in order to use it during
the upcoming burglary.
Appellant said the codefendants parked their cars in
Northridge and made their way to Harper's townhouse, which they
believed was Big Mike's residence. 2 Griffin and Smith pried open
Harper's back door with a screwdriver while appellant kept watch
to make sure that none of the townhouse's occupants came
downstairs. Appellant initially claimed that he never entered
the residence, that he remained back by the rear fence when
Smith and Griffin entered the house, and that he did not hear a
gunshot. When confronted with evidence that his shoe print was
found in Harper's kitchen, appellant admitted that he had
entered the house, but asserted he was not present when McKleny
was killed. Ultimately, appellant admitted that he entered the
house armed with a nine millimeter pistol and that he was
present when Griffin shot McKleny.
When appellant agreed to talk to Detective Byrum following
his arrest, he also led the police to the location of a .38
caliber revolver that was hidden under a piece of fencing in
Northridge. Appellant claimed the gun was Griffin's and that
Griffin hid the gun under the fence after the shooting, before
joining the other codefendants at Woolard's car.
2
Harper testified that she had been renting the townhouse
from Micah Jordan for nearly three months.
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At trial, appellant conceded that his shoe print was on
Harper's kitchen floor.
Griffin initially denied any knowledge of the crimes.
Gradually, however, Griffin admitted his involvement to Byrum
and Detective Orr. He claimed that appellant targeted the house
and provided him with a handgun. Griffin admitted forcing open
the door with a screwdriver and stated that appellant watched
the inside of the house through the window to make sure no one
caught them breaking in. During his first interview, Griffin
asserted he left the house after discovering one of Harper's
children sleeping upstairs. And he said he did not know who
shot the victim. At a second interview, however, Griffin told
the officers: "It was an accident. I never meant for it to
happen." He also stated "I didn't mean to pull the trigger."
At no point did Griffin accuse appellant of shooting McKleny.
Like Griffin, Smith initially denied any involvement in the
crimes and claimed he had an alibi. In gradually admitting his
involvement, Smith stated that Griffin was armed with a revolver
and appellant had an automatic pistol. Smith indicated that the
idea of breaking into Harper's residence originated with
Langley. Smith stated that he, Griffin and appellant entered
the house and he identified Griffin as the shooter. According
to Smith, Griffin claimed that he shot McKleny because McKleny
reached for him.
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Woolard told the detectives that appellant and Griffin had
handguns and that appellant's gun was a semi-automatic. At
trial, Woolard denied knowing that appellant or Griffin were
armed. He continually denied any knowledge of his codefendants'
intentions and asserted he was not present when the shooting
took place.
Langley initially denied any involvement in the crimes. He
ultimately admitted that, after a discussion with the other
codefendants about committing a burglary, he agreed to knock on
Harper's front door. He heard the gunshot, but never actually
entered the house. At trial, Langley recanted his confession
and asserted that he was not aware of the intentions of his
codefendants.
The five codefendants were jointly tried before a jury and
their confessions were admitted into evidence. The jury
convicted the five men of conspiracy, burglary, and first degree
murder. The jury also convicted appellant and Griffin of using
a firearm in the commission of murder. Neither appellant,
Griffin, nor Smith testified at trial.
II.
Appellant contends his confession was obtained in
contravention of his rights under the Fifth Amendment and the
Supreme Court's decision in Edwards v. Arizona, 451 U.S. 477
(1981).
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On an appeal from a trial court's ruling on a motion to
suppress
[w]e view the evidence in the light most
favorable to the prevailing party, granting
to it all reasonable inferences fairly
deducible therefrom. We review the trial
court's findings of historical fact only for
"clear error," 3 but we review de novo the
trial court's application of defined legal
standards to the particular facts of a case.
Harris v. Commonwealth, 27 Va. App. 554, 561, 500 S.E.2d 257,
260 (1998) (footnote added).
After Byrum and Orr encountered appellant and Griffin in
Northridge the morning after McKleny's murder, appellant
voluntarily accompanied the detectives to the police station.
There the detectives questioned appellant regarding the burglary
and murder. Although Byrum told appellant he was not under
arrest and free to leave, when appellant later stated that he
wanted to leave, Byrum informed him that he was being detained.
Appellant told Orr "that he may need a lawyer."
The detectives eventually released appellant (after Orr
seized appellant's shoes as evidence), but within an hour the
police took appellant into custody again. Byrum informed
3
"'Clear error' is a term of art derived from Rule 52(a) of
the Federal Rules of Civil Procedure, and applies when reviewing
questions of fact" in the federal system. Ornelas v. United
States, 517 U.S. 690, 694 n.3 (1996). In Virginia, questions of
fact are binding on appeal unless "plainly wrong." Quantum Dev.
Co. v. Luckett, 242 Va. 159, 161, 409 S.E.2d 121, 122 (1991);
Naulty v. Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542
(1986).
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appellant that he was under arrest and read appellant his
Miranda rights. Appellant invoked his right to remain silent,
and Byrum did not question him further.
Approximately two hours later, Byrum went to see appellant
for the purpose of completing a tracer sheet. Byrum only asked
for appellant's name, date of birth, and other personal
identification information, and did not question appellant
regarding the burglary/homicide. When Byrum told appellant he
was being charged with murder, appellant stated "[n]o, no, watch
me. I'm getting ready to turn into a pussy. They're not going
to pin this on me." Byrum re-Mirandized appellant and appellant
indicated that he wanted to make a statement.
Appellant testified that approximately two hours after he
was arrested, Byrum came into the interview room and said
"Didn't I tell you I was going to get you for murder."
Appellant claimed that Byrum then began relating to him
statements that Griffin was allegedly making, implicating
appellant as McKleny's killer. Appellant testified he again
asked for a lawyer, but was told that no lawyers were available.
In denying appellant's motion to suppress his confession,
the trial court found that appellant re-initiated contact with
the police.
The Fifth Amendment to the United States Constitution
provides that no person "shall be compelled in any criminal case
to be a witness against himself." U.S. Const. amend. V. A
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defendant's Fifth Amendment rights include both the right to
remain silent and the right to have an attorney present when
questioned by law enforcement officers. See Miranda v. Arizona,
384 U.S. 436 (1966). A defendant's custodial confession may not
be admitted against him at trial unless he was advised of his
Miranda rights and he knowingly and voluntarily waived those
rights before speaking to law enforcement officers. Id. at 444.
A defendant who has "expressed his desire to deal with the
police only through counsel is not subject to further
interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police."
Edwards, 451 U.S. at 484-85. "Only if the accused initiates
further 'communication, exchanges, or conversations with the
police,' and only if those communications result in the accused
changing his or her mind and freely and voluntarily waiving the
right to counsel, may the police resume interrogation without
violating the Edwards rule." Giles v. Commonwealth, 28 Va. App.
527, 532, 507 S.E.2d 102, 105 (1998) (citation omitted).
Interrogation includes "'not only . . . express
questioning, but also . . . any words or actions on the part of
the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.'" Hines v.
Commonwealth, 19 Va. App. 218, 222, 450 S.E.2d 403, 404 (1994)
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(quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)).
"Edwards does not prohibit routine communications between the
police and the accused." Giles, 28 Va. App. at 533, 507 S.E.2d
at 106; see Gates v. Commonwealth, 30 Va. App. 352, 356, 516
S.E.2d 731, 733 (1999) (holding that reading an arrest warrant
to the defendant did not constitute the "functional equivalent
of questioning").
Even if a defendant initiates further contact with the
police, the trial court may only admit the statement if it
determines that he knowingly and intelligently waived his
previously invoked rights. Quinn v. Commonwealth, 25 Va. App.
702, 712, 492 S.E.2d 470, 475 (1997); see Smith v. Illinois, 469
U.S. 91, 96 (1984). Whether the defendant knowingly and
intelligently waived his rights "depends 'upon the particular
facts and circumstances surrounding that case, including the
background, experience, and conduct of the accused.'" Eaton v.
Commonwealth, 240 Va. 236, 250-51, 397 S.E.2d 385, 394 (1990)
(citation omitted).
The record reflects that appellant initiated a dialogue
with Byrum after being read the arrest warrants. Byrum's
actions did not constitute the functional equivalent of
questioning. See Gates, 30 Va. App. at 356, 516 S.E.2d at 733.
And the trial court was not required to believe appellant's
testimony that Byrum goaded him into confessing. The evidence
also sufficiently established that appellant waived his Miranda
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rights knowingly and voluntarily. The trial court did not err,
therefore, when it denied appellant's motion to suppress. 4
III.
Appellant contends the trial court erred when it ordered
that he be tried jointly with his codefendants.
On motion of the Commonwealth, for good
cause shown, the court shall 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. If the court finds that a joint
trial would constitute prejudice to a
defendant, the court shall order severance
as to that defendant or provide such other
relief justice requires.
Code § 19.2-262.1.
"In 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
4
In denying the motion to suppress, the trial court made no
express finding that appellant invoked his right to counsel, see
Midkiff v. Commonwealth, 250 Va. 262, 462 S.E.2d 112 (1995), or
whether a sufficient period of time elapsed for him to contact a
lawyer from the time of his initial release until he was taken
back into custody, see Tipton v. Commonwealth, 18 Va. App. 832,
447 S.E.2d 539 (1994). For the purposes of this opinion, we
assume without deciding that appellant did invoke his right to
counsel and that his period of freedom was insufficient to
vitiate his rights under Edwards.
Although appellant did not raise the issue at trial, the
evidence also established that the police "scrupulously honored"
his post-arrest invocation of his right to remain silent. See
Riddick v. Commonwealth, 22 Va. App. 136, 145, 468 S.E.2d 135,
139 (1996).
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from a joint trial.'" Goodson v. Commonwealth, 22 Va. App. 61,
71, 467 S.E.2d 848, 853 (1996) (citation omitted).
Actual prejudice results only when "there is
a serious risk that a joint trial would
compromise a specific trial right of
[defendant], or prevent the jury from making
a reliable judgment about guilt or
innocence."
[P]rejudice may result when evidence
inadmissible against a defendant, if tried
alone, is admitted against a codefendant in
a joint trial.
Adkins v. Commonwealth, 24 Va. App. 159, 163, 480 S.E.2d 777,
779 (1997).
Appellant asserts he was prejudiced because the joint trial
permitted the Commonwealth to introduce into evidence the
extra-judicial statements of codefendants Griffin and Smith. He
contends the admission of these extra-judicial confessions
violated his rights under the Confrontation Clause of the Sixth
Amendment. 5 Because the underlying basis for these two questions
presented is identical, we address the issues in tandem.
"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
5
Woolard and Langley testified at trial and were subject to
cross-examination, thus remedying any potential Confrontation
Clause violation.
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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). The right of
cross-examination is an essential element of "the right of an
accused in a criminal case to confront the witnesses against
him." Lee v. Illinois, 476 U.S. 530, 539 (1986).
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. For Sixth Amendment purposes, "[a]n accomplice's
custodial confession that incriminates a codefendant is
presumptively unreliable . . . ." Bass v. Commonwealth, 31 Va.
App. 373, 382, 523 S.E.2d 534, 539 (2000).
To be admissible, an accomplice's extra-judicial 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
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.
Id. at 383-84, 523 S.E.2d at 539 (citations omitted). Factors
that a court may consider in determining the reliability of a
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confession 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.
None of the above factors apply in the present case. The
police used statements made (or allegedly made) by codefendants
to persuade each defendant to confess. While the police did not
know the extent of each defendant's role in these crimes, they
had reason to believe that each was involved to some extent.
And none of the non-testifying defendants was ever subjected to
cross-examination or its equivalent. Accordingly, on this
basis, the Commonwealth failed to establish the reliability of
the accomplices' confessions.
Our reliability analysis does not stop here, however. A
codefendant's extra-judicial confession may be admitted if it is
substantially identical to the defendant's confession, that is,
if the two confessions interlock. See Lee, 476 U.S. at 545;
Bass, 31 Va. App. at 384-85, 523 S.E.2d at 540. As long as the
codefendant's confession is thoroughly substantiated by the
defendant's own confession, then the requirements of the Sixth
Amendment are satisfied. Id. at 385, 523 S.E.2d at 540. "[A]n
accomplice's statement that does not 'interlock' with the
defendant's statement may be admitted against the defendant if
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the areas of disagreement are irrelevant or trivial." Id. If
there is a disagreement regarding the degree of the defendant's
role in a crime and the extent of his culpability, then
"admission of the statement poses too serious a threat to the
accuracy of the verdict to be countenanced by the Sixth
Amendment." Lee, 476 U.S. at 545.
The material portions of Smith's confession were thoroughly
substantiated by appellant's own confession. While Smith and
appellant disagreed on who originated the idea to break into Big
Mike's house, because Smith accused Langley, this discrepancy
was immaterial. Accordingly, the interlocking nature of the
confessions established the reliability of Smith's confession
and the admission of that statement against appellant did not
constitute a violation of his rights under the Confrontation
Clause.
The same cannot be said of Griffin's confession. Griffin
told Byrum and Orr that appellant originated the idea to target
Big Mike's house and that appellant provided him with a firearm.
Because this discrepancy pertained to appellant's level of
participation in the conspiracy, we cannot conclude that this
area of disagreement was "irrelevant or trivial." Bass, 31 Va.
App. at 385, 523 S.E.2d at 540. The trial court erred,
therefore, by admitting Griffin's confession into evidence
against appellant.
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Having concluded that admitting Griffin's confession into
evidence violated appellant's Sixth Amendment right of
confrontation, we must determine whether this error was
nevertheless harmless. "Confrontation Clause error is a federal
constitutional error subject to harmless error analysis." Id.
at 387, 523 S.E.2d at 541. Such error is harmless if the
reviewing court can conclude that the error was harmless beyond
a reasonable doubt. Timbers v. Commonwealth, 28 Va. App. 187,
201, 503 S.E.2d 233, 239 (1998).
The federal constitutional harmless error
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
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).
Appellant confessed to participating in the planning of
these crimes. After seeing Smith and Griffin force open the
sliding glass door, he entered Harper's residence armed with a
nine millimeter handgun. He stipulated that one of his shoe
prints was discovered on Harper's floor and he led the police to
the gun he claimed Griffin used to shoot McKleny. Griffin's
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confession, as well as that of Smith, was merely cumulative and
proved nothing relevant to appellant's legal culpability that
was not proved by other evidence. 6 Moreover, unlike Langley and
Woolard, appellant did not seek to recant any portion of his
confession at trial. Upon review of the record, we cannot
conclude there is a reasonable possibility that the verdict
would have been different had appellant been tried separately
and the extra-judicial confession of Griffin been excluded. Any
6
A panel of this Court recently reversed Griffin's first
degree murder conviction on the ground that the admission of
Smith's confession was not harmless error. While Griffin
claimed to have shot McKleny accidentally, Smith's statement to
the police belied this assertion. The panel reasoned that
Griffin's assertion that the killing was accidental was
sufficient to raise a reasonable doubt as to whether he acted
with premeditation. See Griffin v. Commonwealth, Record No.
2819-98-1 (October 10, 2000).
The Commonwealth filed a petition for rehearing or
rehearing en banc in Griffin. As of the date of this opinion,
that petition was still pending.
Whether Griffin shot McKleny accidentally is immaterial in
determining if appellant suffered any prejudice. Although the
arrest warrant charged appellant with premeditated murder, the
grand jury indictment merely charged him with committing first
degree murder in violation of Code § 18.2-32. And the jury was
instructed on felony murder, not premeditated murder.
The definition of first degree murder under Code § 18.2-32
includes any killing, even if unintentional, that occurs during
the commission of a burglary or attempted robbery. Ball v.
Commonwealth, 221 Va. 754, 757, 273 S.E.2d 790, 792 (1981). If
the Commonwealth proves that the killing occurred during one of
the enumerated felonies, it need not prove premeditation. See
Akers v. Commonwealth, 216 Va. 40, 47, 216 S.E.2d 28, 33 (1975);
Code § 18.2-33 (defining as second degree murder any
unintentional killing occurring during the commission of any
felonious act other than those enumerated in Code §§ 18.2-31 and
18.2-32).
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error committed by the trial court, therefore, was harmless
beyond a reasonable doubt.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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