Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ. and Poff, Senior Justice
ALFRED DEARING
OPINION BY
v. Record No. 992215 SENIOR JUSTICE RICHARD H. POFF
November 3, 2000
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Alfred Lovell Dearing, Jr., was convicted by a jury of
robbery and the use of a firearm in the commission of a felony.
The Circuit Court of Arlington County imposed the jury's
verdict, and the Court of Appeals affirmed the judgment in an
unpublished opinion. Dearing v. Commonwealth, Record No. 1233-
98-4 (August 17, 1999) [hereinafter Dearing I]. We awarded
Dearing an appeal. The Commonwealth now concedes that the trial
court erred in admitting into evidence a co-defendant’s
statements to police. Cf. Dearing v. Commonwealth, 259 Va. 117,
123, 524 S.E.2d 121, 124 (1999)(addressing similar issue from a
different conviction). Thus, the dispositive issue is whether
the Court of Appeals erred in holding that any error in
admitting these statements was harmless beyond a reasonable
doubt.
"Applying well-established principles of appellate review,
we must consider the evidence and all reasonable inferences
fairly deducible therefrom in the light most favorable to the
Commonwealth [the prevailing party in the circuit court]." Derr
v. Commonwealth, 242 Va. 413, 424, 412 S.E.2d 662, 668 (1991).
At approximately 1:30 a.m. on August 7, 1997, Danny Neil, a
pedestrian, was stopped on the sidewalk by two men in a white
Honda automobile. The passenger in the front seat pointed a gun
at Neil and commanded Neil to give him all his money. When Neil
emptied his pockets to show that he had no money, the gunman
required Neil to give him a gold chain fastened around his
Neil’s neck. After the men in the Honda drove away, Neil placed
a 911 emergency call.
Police officers on night patrol in the community, who had
been following a white Honda automobile occupied by Dearing and
Leroy Vernoise Dorsey, learned that a car matching that
description may have been involved in the robbery and stopped
the car. When an officer brought Neil to the place where
Dearing and Dorsey were being detained, Neil identified Dearing
as the Honda passenger with a gun and noted that his gold chain
was around Dearing's neck. Neil testified that a gun found by
the officers on a shoulder of a road traveled by the white Honda
was the weapon Dearing had pointed at him.
Dearing and Dorsey were tried jointly. Over Dearing's
objection, Detective Paul Larson was allowed to testify that
Dorsey first denied any involvement in the crime, but after
Larson told him that "honesty is always the best policy", Dorsey
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stated that he had come over "from Maryland into Virginia to
commit a robbery with his cousin . . . Alfred Dearing". Larson
also testified that Dorsey had told him that he saw his cousin
using a small black handgun to perform the crime.
The Sixth Amendment of the Constitution of the United
States provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him", and this provision was held applicable
to the states under the Fourteenth Amendment in Pointer v.
Texas, 380 U.S. 400, 406 (1965). "[B]efore 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." Chapman v. California, 386 U.S. 18, 24
(1967); accord Rose v. Clark, 478 U.S. 570, 576 (1987).
"Whether such an error is harmless in a particular case
depends upon a host of factors, all readily accessible to
reviewing courts. These factors include the importance of the
witness' testimony in the prosecution's case, whether the
testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the
prosecution's case." Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986); accord Neder v. United States, 527 U.S. 1, 18 (1999).
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Significantly, the Chapman–Van Arsdall harmless error
standard has been applied expressly by the Supreme Court of the
United States in appeals in which the constitutional
Confrontation Clause had been violated. Brown v. United States,
411 U.S. 223 (1973); Schneble v. Florida, 405 U.S. 427 (1972);
Harrington v. California, 395 U.S. 250 (1969). We apply that
standard here.
While it is true that the challenged testimony was
incriminating, this testimony was merely cumulative of the other
evidence adduced by the Commonwealth. The Commonwealth's
cardinal witness at the jury trial, an eyewitness to the robbery
and criminal use of a gun, was the victim of the crime. In the
presence of investigating officers, and later at trial, Danny
Neil identified Dearing as the principal criminal agent, the gun
found discarded on the shoulder of the road as the criminal
instrument, and the victim's necklace as the fruit of the crime.
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We declare, therefore, that the evidentiary error committed
at trial was harmless beyond a reasonable doubt. ∗ Accordingly,
we will affirm the judgment of the Court of Appeals.
Affirmed.
∗
Appellant contends on brief that his assignments of error
raise a question presented "whether admission of co-defendant's
statements as a declaration against appellant's penal interest
constitutes reversible error under Virginia law." We agree with
the following ruling in the opinion of the Court of Appeals:
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"). Dearing I, slip
op. at 6 n.1.
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