COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Lemons and
Senior Judge Duff
Argued by teleconference
ALFRED DEARING
MEMORANDUM OPINION * BY
v. Record No. 1233-98-4 JUDGE CHARLES H. DUFF
AUGUST 17, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
David A. Oblon (Albo & Oblon, L.L.P., on
briefs), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Alfred Dearing, appellant, appeals from his convictions of
robbery and the use of a firearm in the commission of robbery. On
appeal, appellant contends that the admission of a codefendant's
statement to the police violated appellant's Sixth Amendment
rights, as well as Virginia's hearsay rule. Finding no reversible
error, we affirm.
FACTS
On August 7, 1997, at about 1:35 a.m., Danny Neil was
walking near the corner of South Kenmore and Nineteenth Streets
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
in Arlington when a white or tan car stopped beside him. The
front seat passenger in the car pointed a handgun at Neil and
demanded money. When Neil indicated that he had no money, the
passenger ordered Neil to turn over his gold chain necklace.
Neil complied. Neil testified that the lighting in the vicinity
of the robbery was good, permitting him clearly to observe both
the driver and the front seat passenger, who were the only
occupants of the vehicle.
Police officers conducting routine surveillance in that
same area had begun watching the movements of a white Honda at
about 1:15 a.m. The vehicle had a Maryland license plate with
the number EDV 300. The two men in the vehicle had been
involved in a suspicious encounter with a male pedestrian, so
the police continued to watch the Honda as it moved about the
area, losing sight of the vehicle for only about thirty seconds
at a time. Officers saw the Honda stop near the intersection of
South Kenmore and Nineteenth Streets. A man was standing on the
sidewalk next to the passenger side of the car.
The car moved away from the pedestrian and made several
turns. At one point, the car stopped and the driver and
passenger switched places in the vehicle. Eventually, the car
traveled north on Route 395. The car slowed down abruptly when
a state trooper's vehicle approached to stop another car. After
crossing into Washington, D.C., the vehicle made a U-turn and
returned to Virginia. At that point, the police stopped the
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Honda. Appellant was the driver of the vehicle, and Leroy
Dorsey was the passenger.
Immediately after he was robbed, Neil called 911 from a
nearby pay telephone. The police subsequently brought Neil to
the location on Route 395 where officers were detaining
appellant and Dorsey. Neil identified appellant as the man who
robbed him, and Dorsey as the driver of the car in which
appellant was riding during the robbery. Appellant was wearing
Neil's gold chain necklace.
At about 2:15 a.m., Detective Paul Larson questioned Dorsey
about the robbery. Before the interrogation, an officer advised
Dorsey of his rights under Miranda v. Arizona, 384 U.S. 436
(1966). Dorsey, both verbally and in writing, affirmed that he
understood his rights.
Initially, Dorsey denied any involvement in the robbery.
Larson told Dorsey about the seriousness of the crime and that
honesty was "always the best policy." Larson testified that
Dorsey became somewhat emotional. Dorsey then admitted that he
and appellant came to Virginia from Maryland to commit a
robbery. Dorsey stated that he was driving and that appellant
actually robbed a man on Kenmore Street. He also said that
appellant was wearing the stolen necklace when the police
stopped them.
Between 9:00 and 10:00 a.m. on August 7, 1997, Detective
Larson located a handgun on the left side of northbound Route
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395 along the route where appellant and Dorsey had traveled.
Neil identified this weapon as the gun used by appellant during
the robbery.
At a joint jury trial for appellant and Dorsey, Neil
identified each of them, respectively, as the man who had robbed
him and the driver of the car. The Commonwealth introduced into
evidence against appellant Dorsey's statement to the police.
ANALYSIS
Appellant asserts that the admission of Dorsey's statement
violated his rights under the Confrontation Clause of the Sixth
Amendment. The Sixth Amendment guarantees a criminal defendant
the right "to be confronted with the witnesses against him."
U.S. Const. amend. VI. "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).
In Lilly v. Virginia, 119 S. Ct. 1887 (1999), the
Commonwealth introduced into evidence at trial the statement of
a codefendant. The codefendant told the police that he had been
drunk during a string of crimes in which he was involved with
Lilly and another individual. Although the codefendant admitted
committing a theft, he placed the blame for a subsequent
carjacking and murder principally upon Lilly. The Supreme Court
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of the United States found that the admission of the
codefendant's statement violated Lilly's Confrontation Clause
rights and reversed Lilly's convictions. See id. at 1901.
We assume without deciding that Lilly controls the present
case and that admission of Dorsey's statement against appellant
violated his rights under the Confrontation Clause. However, we
must determine whether such an error was harmless under the
circumstances. "An error committed in the trial of a criminal
case does not automatically require reversal of an ensuing
conviction." Galbraith v. Commonwealth, 18 Va. App. 734, 742,
446 S.E.2d 633, 638 (1994). "A federal constitutional error is
harmless, and thus excusable, only if it appears 'beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained.'" Quinn v. Commonwealth, 25 Va. App.
702, 719, 492 S.E.2d 470, 479 (1997) (citations omitted).
Even without Dorsey's statement, the evidence was
overwhelming that appellant robbed Neil and that he used a gun
to do so. The police observed the suspicious movements of
appellant's vehicle both before and after the robbery occurred.
The police saw the vehicle stopped near a pedestrian at the
location of the robbery. The robbery occurred in a well-lighted
area, enhancing Neil's ability to observe the passenger and
driver of the car. Neil positively identified appellant and
Dorsey as the perpetrators soon after the crimes occurred.
Appellant and Dorsey were wearing clothing matching the
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description provided by Neil. Neil identified the gun used in
the robbery as the one found along Route 395 where appellant and
Dorsey had traveled. Appellant was wearing Neil's stolen
necklace when he was apprehended by the police shortly after the
robbery. When stopped by the police, appellant was the driver
of the vehicle. This circumstance was consistent with the
observation by police officers of the driver and the passenger
switching places in the white Honda after the robbery.
Considering all of these facts and circumstances, we
conclude that any error in admitting Dorsey's statement was
harmless beyond a reasonable doubt. 1 Therefore, we affirm
appellant's convictions.
Affirmed.
1
Having concluded that any error was harmless under the
more rigorous "beyond a reasonable doubt" standard applicable to
constitutional error, we need not consider whether the admission
of Dorsey's statement violated Virginia's hearsay rule and, if
error, whether that error was harmless under the less exacting
standard applicable to errors of state law. See generally
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d
910, 911 (1991) (en banc) (finding that the "federal standard is
not required . . . for non-constitutional error").
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