COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
ARTHUR RAMBERT
v. Record No. 0559-94-2 MEMORANDUM OPINION *
BY JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA DECEMBER 5, 1995
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
John B. Boatwright, III (L.A. Rosenstock, III;
Boatwright & Linka, on briefs), for appellant.
Margaret Ann B. Walker, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Arthur Rambert was tried before a jury and convicted of the
robbery and first degree murder of Delmar DePriest. He was
sentenced to life imprisonment for the murder and 15 years for
the robbery. On appeal, appellant contends that the trial court
committed reversible error by overruling appellant's objection
and denying his motion for a mistrial when the Commonwealth
elicited evidence of appellant's subsequent arrest on unrelated
1
charges. We find that any error caused by the court's rulings
was harmless. Therefore, we affirm appellant's convictions.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
The issue on appeal was limited by order of this Court
entered on February 3, 1995.
1
I.
There is no dispute in the material facts in the case. On
February 25, 1993, appellant and four other men were preparing to
drive to New York. John Henney, the driver, testifying for the
prosecution, stated that Wilshawn Wright wanted to get marijuana
and money that was owed to him before going on the trip.
Appellant agreed to go with Wright, and Henney drove the two by
the victims' apartment. When Henney and the other two men picked
up Wright and appellant ten minutes later, Wright told them he
had shot Sonnet Morrison in the back of the head twice.
Appellant stated that he had shot Sonnet's roommate, Delmar
DePriest, in the back of the head. When Wright and appellant
returned to the car, Wright had a nine millimeter and appellant
possessed a black automatic handgun. Appellant and Wright
threatened to kill Henney and the other men if they "said
anything."
On cross-examination by appellant's counsel, Henney
testified that he had received no promises in return for his
testimony. He admitted that he had been charged with two capital
murders, one robbery, and three firearm offenses arising out of
the incident, and was awaiting trial on them. Defense counsel
also asked Henney if he had any other charges pending against
him. He admitted to possession of a firearm while in possession
of a controlled substance, conspiracy to sell heroin, possession
with intent to sell heroin and possession of heroin. He stated
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that these offenses occurred after the murder and had not been
scheduled for trial.
Defense counsel on cross-examination also asked Henney
whether he saw any guns after he arrived in New York. He
responded that he had, and that Wilshawn Wright and Lamont had
them. He stated that he did not possess a gun in New York. The
following colloquy then occurred between defense counsel and
Henney.
Q. The nine millimeter was taken out
of your trunk?
A. The one in my trunk wasn't mine,
sir.
Q. What happened to those guns? Did
you see what happened to those
guns, where they went after you saw
them in the possession of the two
gentlemen you talked about?
A. No.
On redirect examination, the Commonwealth's attorney asked
Henney whether appellant was with him on April 30th when he was
arrested on the drug and gun charges. Henney responded that he
was. Defense counsel objected on the ground that whether
appellant was arrested at the same time did not have anything to
do with proving any of the elements of the charges against
appellant. The Commonwealth's attorney argued that appellant
brought out the fact that Henney was arrested on April 30th on
drug and gun charges and that a nine millimeter gun was taken
from the trunk of Henney's car. The Commonwealth, therefore,
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claimed that the appellant had "opened the door" to this
evidence. The trial judge ruled that defense counsel had left
the jury with the impression that Henney was arrested on the drug
and gun charges and that a nine millimeter gun was found in the
trunk of his car and that it did not belong to anybody else
because no one else was in the car. The trial court admitted the
testimony limited to the one question that appellant was arrested
with Henney to show that someone else was present who could have
possessed the gun. 2 Therefore, the court overruled appellant's
objection and denied the motion for a mistrial.
II.
"As a general rule, evidence of other crimes is
inadmissible." Kirkpatrick v. Commonwealth, 211 Va. 269, 272,
176 S.E.2d 802, 805 (1970). We assume, without deciding, that
the prosecution's question was improper and that the trial court
erred in admitting the other crimes evidence. Nevertheless, we
find the error was harmless.
In Virginia, non-constitutional error is
harmless "when it plainly appears from the
record and the evidence given at the trial
that the parties have had a fair trial on the
merits and substantial justice has been
reached." Code § 8.01-678 (emphasis added).
"[A] fair trial on the merits and substantial
justice" are not achieved if an error at
trial has affected the verdict.
Consequently, under Code § 8.01-678, a
criminal conviction must be reversed unless
"it plainly appears from the record and the
evidence given at the trial that" the error
2
The evidence clearly established that this nine millimeter
gun was not the one used as the murder weapon by Wright.
4
did not affect the verdict. An error does
not affect a verdict if a reviewing court can
conclude, without usurping the jury's fact
finding function, that, had the error not
occurred, the verdict would have been the
same.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,
911 (1991) (en banc).
The evidence of appellant's guilt was overwhelming and
uncontradicted. Appellant accompanied Wright into the victims'
apartment with the expressed intention to obtain drugs and money.
Appellant and Wright turned up the TV, placed pillows on the
victims' head and shot them from behind in the head. The other
passengers in the car testified that appellant admitted he shot
DePriest, "the roommate." Appellant made incriminating comments
to Raheem Hayden in a note appellant passed to Hayden while they
were both in the Dinwiddie County jail. While appellant and Eric
Smith were in the City of Petersburg jail, appellant admitted to
Smith that he committed the murder and robbery. Furthermore, the
jury knew that appellant was involved with drugs because he went
to their apartment to obtain drugs and money. The statement also
involved a "prior arrest" and not a "prior crime." Nothing in
the record suggests that appellant was convicted on the charges.
Upon review of the entire record before us, we conclude that
the other crimes evidence "had little, if any, tendency to
prejudice the jury against [appellant] because it was so
inconsequential when viewed in comparison to the overwhelming
evidence of [appellant's] guilt." Hanson v. Commonwealth, 14 Va.
5
App. 173, 176, 416 S.E.2d 14, 16 (1992). Therefore, it "plainly
appears . . . that the parties have had a fair trial on the
merits and substantial justice has been reached." Code
§ 8.01-678. Accordingly, we find no reversible error by the
admission of the other crimes evidence.
Affirmed.
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