COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons ∗ and Frank
Argued at Chesapeake, Virginia
TONEY DEAUNDRAE GRIFFIN
MEMORANDUM OPINION ∗∗ BY
v. Record No. 2819-98-1 JUDGE ROBERT P. FRANK
OCTOBER 10, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
Theresa B. Berry (Berry, Ermlich & Lomax, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Toney Deaundrae Griffin (appellant) appeals his convictions
for murder, burglary, conspiracy, and use of a firearm. On
appeal, he contends the trial court erred in: 1) denying his
motion to sever his trial from those of his four codefendants;
2) admitting the statements made by each of the four
codefendants into evidence without further instruction to the
jury; and 3) denying his motion for a mistrial when an
∗
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
African-American juror was struck for cause because he knew
Armard Smith, one of the codefendants.
I. BACKGROUND
On July 25, 1997, the home of Tara Harper was burglarized
and her friend, William McKleny (victim), was murdered. In the
following days, the police identified appellant, Jerry Norman,
Santo Langley, Terrence Woolard, and Armard Smith as suspects.
Each of the men was interrogated by the police and each of them
made statements.
Norman made a statement to the police on July 25, 1997.
Over appellant's objection, a transcript of the taped interview
was admitted into evidence. Norman admitted that all of the men
discussed breaking into the house to get money. Norman stated
appellant planned to wear a ski mask when they went into the
house. Norman told the police appellant and Smith pried open
the door of the house. When appellant told him there was
someone in the house, Norman started to leave. As Norman was
walking to the car, appellant and Langley appeared and said they
had to leave. Once they were in the car, appellant told Norman
he shot a man in the house. Norman said he knew appellant was
armed.
Later in the interview, Norman told the police he went into
the house with appellant and Smith. Smith told Norman there was
a little girl upstairs, and Norman left with Langley and
Woolard.
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Finally, Norman admitted to the police that he was in the
house and Smith was at the back door when appellant shot the
victim.
On July 26, 1997, Armard Smith gave his statement to the
police. Over appellant's objection, the transcript of the taped
interview was admitted into evidence. Initially, Smith denied
any involvement. Then, he told the police that he rode with the
other men to the house and that he and appellant pried open the
door. He stated that appellant and Norman went into the house.
Smith said that he went into the kitchen while the other two
went upstairs. He said that he then left the house and went
around to the front door with Langley. He and Langley rang the
doorbell but no one came to the door. Smith said he heard the
gunshot as he was returning to the back of the house. He said
he then ran home.
Later in the interview, Smith said when they arrived at the
house, appellant went to the front door. Then, all five men
walked to the back of the house. He said he, appellant, and
Norman tried to pry open the door with appellant's screwdriver.
Langley was in the alley. Woolard left when they got the door
open.
Appellant then went upstairs, Norman was at the bottom of
the stairs, and Woolard came into the kitchen area. Appellant
then came downstairs and said a baby was upstairs. Then, all of
the men left the house and went into an adjacent alley. Smith
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said he and Langley went to the front of the house to ring the
doorbell and, as he was returning to the back, he heard the
gunshot.
Finally, Smith admitted he did not go to the front door.
He said that after he, Langley, Woolard, Norman, and appellant
went into the alley, they decided to go back into the house for
money. Langley knocked on the door and a woman answered. She
went upstairs and returned with the victim. He then said, "They
rushed in the house and just, I heard him say something like I'm
scared or something and that's when Toney shot him." Smith said
Norman was behind appellant and they both had their guns out.
Norman's gun was a chrome automatic. Appellant's gun was a
black .32 or .38. Smith stated that he did not have a gun.
Smith said appellant explained that he shot the victim because
the victim was reaching for him.
Appellant made a statement to the police on July 25, 1997.
A transcript of the taped interview was admitted into evidence.
During the interview, appellant admitted the men planned to
break into the house because they thought a man lived there who
might have some money. Norman had a semiautomatic gun, but
appellant said appellant did not have a gun. Appellant said he
had a screwdriver and that Smith helped him break open the door.
Then, Norman gave appellant the gun, and appellant went into the
house and up the stairs. He said he saw the little girl and
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went downstairs to tell the others. He said he then left the
house.
On July 27, 1997, appellant made another statement to the
police. A transcript of the taped interview was admitted into
evidence. During this interview, appellant told the police that
he did not mean to pull the trigger and that the shooting was an
accident.
All five of the men were charged with first-degree murder,
conspiracy, burglary, and use of a firearm in the commission of
a murder.
I. ANALYSIS
Appellant argues the trial court erred in denying his
motions to sever his trial from that of his codefendants.
Code § 19.2-262.1 states:
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.
We have held that a defendant moving for severance must
establish that he or she would suffer actual prejudice from
being jointly tried. See Goodson v. Commonwealth, 22 Va. App.
61, 71, 467 S.E.2d 848, 853 (1996) (citation omitted).
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Prejudice requiring severance occurs 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.'" Barnes v.
Commonwealth, 22 Va. App. 406, 412, 470 S.E.2d 579, 582 (1996)
(quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)).
Appellant contends, under Batson v. Kentucky, 476 U.S. 79
(1986), he suffered actual prejudice as a result of the joint
trial because the Commonwealth used a peremptory strike to
remove an African-American juror because the juror stated she
knew Woolard's attorney and because another African-American
juror, who stated he knew Smith when Smith was a child, was
struck for cause on the fourth day of the trial because the
juror said his thoughts of Smith as a child were clouding his
judgment. 1
In Batson, the United States Supreme Court held:
[A] defendant may establish a prima
facie case of purposeful discrimination in
selection of the petit jury solely on
evidence concerning the prosecutor’s
exercise of peremptory challenges at the
defendant’s trial. To establish such a
case, the defendant first must show that he
is a member of a cognizable racial group,
and that the prosecutor has exercised
peremptory challenges to remove from the
venire members of the defendant’s race.
Second, the defendant is entitled to rely on
the fact, as to which there can be no
1
Appellant also argues he suffered prejudice as a result of
the admission of the statements made by his codefendants. This
issue is addressed below.
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dispute, that peremptory challenges
constitute a jury selection practice that
permits "those to discriminate who are of a
mind to discriminate." Finally, the
defendant must show that these facts and any
other relevant circumstances raise an
inference that the prosecutor used that
practice to exclude the veniremen from the
petit jury on account of their race. This
combination of factors in the empaneling of
the petit jury, as in the selection of the
venire, raises the necessary inference of
purposeful discrimination.
Id. at 96 (citations omitted).
To determine "whether the defendant has made the requisite
showing, the trial court should consider all relevant
circumstances." Id.
If the defendant makes a prima facie showing, the burden
shifts to the prosecutor to offer a "neutral explanation for
challenging black jurors." Id. at 97. The prosecutor's reason
is not required to "rise to the level justifying exercise of a
challenge for cause." Id. (citations omitted). However, the
prosecutor cannot state "merely that he challenged jurors of the
defendant’s race on the assumption -- or his intuitive judgment
–- that they would be partial to the defendant because of their
shared race." Id. (citation omitted). It is also insufficient
for the prosecutor to deny a discriminatory motive or affirm
"'good faith in making individual selections.'" Id. at 98
(citation omitted).
The Supreme Court of Virginia has held, "A trial court's
determination whether the reason given is race-neutral is
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entitled to great deference . . . and will not be reversed on
appeal unless it is 'clearly erroneous.'" Atkins v.
Commonwealth, 257 Va. 160, 175, 510 S.E.2d 445, 454 (1999)
(citations omitted).
In this case, the Commonwealth used a peremptory strike to
remove the juror who knew Woolard's attorney. Assuming, without
deciding, appellant made a prima facie showing under Batson, the
Commonwealth then offered the explanation that the juror was
struck because of her relationship with Woolard's attorney. We
find that the trial court did not abuse its discretion in
accepting the Commonwealth's racially-neutral explanation.
The second juror, the man who was removed because he knew
Smith as a child, was struck by the court for cause. Appellant
incorrectly argues Batson applies. Appellant appears to argue
that Batson affords him the right to particular jurors. A
defendant has a right to a fair and impartial jury, but does not
have the right to a specific juror or a jury composed of
particular individuals. See Reynolds v. State, 517 S.E.2d 51,
52 (Ga. 1999); State v. Cook, 659 A.2d 1313, 1322 (Md. 1995);
State v. Monk, 212 S.E.2d 125, 129-30 (N.C. 1975); State v.
Williams, 469 S.E.2d 49, 52 (S.C. 1996). We find no merit in
appellant's argument and find no error in the trial court's
removal of the juror.
Appellant next contends the trial court erred in admitting
into evidence the statements of his codefendants.
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"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 right of confrontation, which is secured
for defendants in state as well as federal criminal proceedings,
'means more than being allowed to confront the witness
physically.'" Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)
(citations omitted). "Indeed, '"[t]he main and essential
purpose of confrontation is to secure for the opponent the
opportunity of cross-examination."'" Id. (citations omitted).
"An accomplice's custodial confession that incriminates a
codefendant is presumptively unreliable in the context of an
alleged Confrontation Clause violation." Bass v. Commonwealth,
31 Va. App. 373, 382, 523 S.E.2d 534, 539 (2000) (citing Lilly,
527 U.S. 116). The admissibility of the confession is
determined by whether the confession is
"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 the 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.
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Id. at 383-84, 523 S.E.2d at 539 (citations omitted). In Bass,
we wrote:
Circumstances surrounding an accomplice's
confession that weigh in favor of finding
reliability include: (1) lack of knowledge
on the part of the accomplice that he or she
already has been implicated in a crime by a
codefendant, (2) making the confession to
authorities who were not aware of the
confessor's role 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 (citation omitted).
"[W]here codefendants' statements 'are identical in all
material respects,' such evidence may be considered because 'the
likelihood that they are accurate is significantly increased.'"
Id. at 384, 523 S.E.2d at 540 (quoting Lee v. Illinois, 476 U.S.
530, 545 (1986)). When portions of the
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.
Lee, 476 U.S. at 545. "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
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irrelevant or trivial." Bass, 31 Va. App. at 385, 523 S.E.2d at
540 (citing Lee, 476 U.S. at 545).
In this case, Woolard and Langley both testified at trial.
Therefore, any violations of the Confrontation Clause that may
have resulted from the admission of their statements were
remedied when they testified and were subject to
cross-examination.
Norman and Smith, however, did not testify and their
statements were admitted into evidence. While Norman's
confession essentially interlocks with appellant's confession
because appellant admitted he planned and participated in the
burglary and that he was the triggerman, the Commonwealth failed
to prove the inherent reliability required for admissibility of
Norman's statement. Norman was in custody and knew he was going
to be charged with burglary and murder. Therefore, Norman had
an incentive to provide unreliable information to the police.
Smith also was in custody and knew he would be charged with
burglary and murder. Furthermore, Smith's statement does not
interlock with appellant's confession. Appellant, although
admitting that he was the triggerman, insisted that the shooting
was an accident and that he did not intend to pull the trigger.
Smith, on the other hand, stated appellant told him that he shot
the victim because the man was reaching for him. Therefore, the
Commonwealth failed to prove the inherent reliability required
for admissibility of Smith's statement.
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It was, therefore, error for the trial court to admit
Norman's and Smith's statements.
"Constitutional error . . . is harmless only when the
reviewing court is 'able to declare a belief that it was
harmless beyond a reasonable doubt.'" Lavinder v. Commonwealth,
12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (citation
omitted).
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).
Norman's statement was merely cumulative of appellant's
confession. Norman stated that all the men discussed breaking
into the house to get money. Appellant also admitted he and the
other men discussed breaking into the house to get money.
Norman said appellant pried open the door. Appellant admitted
breaking open the door with a screwdriver. Norman stated
appellant was armed. Appellant admitted that he had a gun when
he went upstairs. Norman said appellant told him that he shot a
man in the house. Appellant admitted to being the triggerman.
Therefore, we find that the admission of Norman's statement was
harmless error.
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Smith's statement, however, was the only evidence that
proved appellant had the requisite intent sufficient to prove
first-degree murder. Although appellant admitted shooting the
victim, his confession was only sufficient to prove felony
murder. Without Smith's statement, the Commonwealth would have
been unable to prove appellant committed first-degree murder,
and, therefore, the admission of the statement was not harmless
beyond a reasonable doubt as to the conviction for first-degree
murder. Smith's statement as to appellant's involvement in the
conspiracy, burglary, and use of a firearm was sufficiently
interlocking with appellant's confession. For those
convictions, the admission of Smith's statement was harmless
error. We, therefore, reverse and remand appellant's conviction
for first-degree murder.
Finally, appellant argues the trial court erred in denying
his motion for a mistrial when the trial court removed the juror
who knew Smith for cause.
When the issue arises from a "midtrial"
challenge to a juror's impartiality, we
"will reverse the trial court's decision
only for an abuse of discretion," applying
the "same standard" of review appropriate to
appellate consideration of a decision to
seat a venireperson. Hence, we will not
overturn "the denial of a motion for a
mistrial . . . unless there exists a
manifest probability that [the ruling] was
prejudicial."
Green v. Commonwealth, 26 Va. App. 394, 401, 494 S.E.2d 888, 891
(1998) (citations omitted).
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Appellant argues the trial court abused its discretion in
failing to grant the mistrial because of the prejudice he
suffered by losing a second African-American juror.
"The Supreme Court has consistently
adhered to the view that there is no
requirement that a petit jury actually
chosen must mirror the racial balance of the
community. Further, no litigant is entitled
to a jury of any particular composition.
All that is required is a fair selection
system . . . ."
Simpson v. Commonwealth, 20 Va. App. 174, 180, 455 S.E.2d 749,
752 (1995) (quoting Watkins v. Commonwealth, 238 Va. 341, 347,
385 S.E.2d 50, 53 (1989)).
During voir dire, the juror indicated he knew Smith when
Smith was a child but stated he could decide the case fairly.
On the fourth day of trial, when the juror indicated he could
not decide the case with impartiality, the trial court struck
him from the jury for cause. Appellant is not entitled to have
members of his own race on his jury, instead he is entitled to
have a jury that is selected in a racially-neutral manner. The
dismissal of the juror who knew Smith was unrelated to race and,
furthermore, did not impact the jury selection process.
Therefore, we find no abuse of discretion in the trial court's
denial of appellant's motion for a mistrial.
III. CONCLUSION
For these reasons, we find no error in the trial court's
denial of appellant's motions to sever and appellant's motion for
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a mistrial. However, we do find error in the trial court's
admission of Smith's statement because it was the only evidence
that appellant had the intent to commit first-degree murder. We,
therefore, affirm the convictions for burglary, conspiracy, and
use of a firearm. However, we reverse appellant's conviction for
first-degree murder and remand for further proceedings if the
Commonwealth be so advised.
Affirmed, in part,
and reversed and
remanded, in part.
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