COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, Elder,
Bray, Annunziata, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia
HURCUS JEROME WILLIAMS
OPINION BY
v. Record No. 2982-97-1 JUDGE JAMES W. BENTON, JR.
MAY 2, 2000
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
Lenita J. Ellis for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial judge convicted Hurcus Jerome Williams of capital
murder, robbery, and two counts of using a firearm in the
commission of a felony. Williams contends the trial judge
committed reversible error by (1) admitting in evidence a
non-testifying accomplice's out-of-court confession to police
and (2) refusing to provide the accomplice's confession to
Williams' counsel before ruling on its admissibility. A panel
of this Court, with one judge dissenting, affirmed the
convictions. See Williams v. Commonwealth, 30 Va. App. 378, 517
S.E.2d 246 (1999). Upon rehearing en banc, we reverse the
convictions and remand for a new trial.
I.
The grand jury indicted Williams for killing Vareck Griffin
in the commission of robbery, see Code § 18.2-31 (capital
murder), robbery, see Code § 18.2-58, using a firearm in the
commission of capital murder, see Code § 18.2-53.1, and using a
firearm in the commission of robbery. See id. The evidence at
trial proved that early in the morning on December 1, 1996,
someone shot and killed Vareck Griffin in Norfolk, Virginia, in
an apartment where Griffin and others sold "crack" cocaine. One
of the two men who operated the cocaine enterprise testified
that he left Griffin alone in the apartment to sell cocaine to
any potential customers.
Five and one-half months after Griffin was killed, the
police arrested Damyel Harris for "more than 11 charges." The
detective who interrogated Harris was investigating a homicide
unrelated to Griffin's killing and had been searching for Harris
in connection with that unrelated homicide. The detective
testified that "[w]hen we started asking [Harris] about the
[unrelated] homicide, [Harris] started talking about a different
homicide and started giving details, and that's when [the
detective] . . . realized that [Harris] wasn't talking about
[the unrelated homicide] but another homicide." During the
interrogation, Harris gave an extensive statement in which he
confessed to participating in the robbery of Griffin and said
Williams killed Griffin.
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The Commonwealth called Harris as its witness. When Harris
asserted his Fifth Amendment privilege and refused to testify,
the trial judge admitted in evidence Harris' confession and
overruled Williams' objection that use of the confession
violated his Sixth Amendment right to confront witnesses against
him. In addition to Harris' confession, the Commonwealth proved
through the testimony of three witnesses that Williams had made
statements, which the Commonwealth contends linked Williams to
the murder and robbery of Griffin.
At the conclusion of the evidence, the trial judge
convicted Williams of capital murder, robbery, and using a
firearm in the commission of both felonies. Williams contends
on appeal that the trial judge committed reversible error by
admitting Harris' confession in evidence and by refusing to
provide Harris' confession to his counsel for review before the
judge ruled on its admissibility. In its brief on this
rehearing en banc, the Commonwealth concedes that the trial
judge's admission of Harris' confession was error, see Lilly v.
Virginia, 527 U.S. 116, 139 (1999) (holding that "[t]he
admission of the untested confession of [a codefendant] violated
petitioner's Confrontation Clause rights"), and that the judge
also erred in refusing to permit Williams' counsel to see the
confession before the judge ruled on its admissibility. The
Commonwealth contends, however, that both errors were harmless.
We hold that the admission of Harris' confession was not
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harmless error. Because the trial judge's error in refusing to
permit Williams' counsel to see Harris' confession will not
recur if Williams is retried, we need not address whether that
error was harmless.
II.
Although Confrontation Clause error is of constitutional
magnitude, it is subject to harmless error analysis. See
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
Constitutional error is harmless, however, only if "the
beneficiary of the constitutional error . . . prove[s] beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained." Chapman v. California, 386 U.S. 18,
24 (1967). "The test, therefore, is not whether laying aside
the erroneously admitted evidence there was other evidence
sufficient to convict beyond a reasonable doubt . . . , but,
more stringently, 'whether there is a reasonable possibility
that the evidence complained of might have contributed to the
conviction.'" Thompson v. Leeke, 756 F.2d 314, 316 (4th Cir.
1985) (citation omitted). In other words, even if "the other
evidence amply supports the . . . verdicts, [error is not
harmless when] the disputed testimony may well have affected the
. . . decision." Cartera v. Commonwealth, 219 Va. 516, 519, 248
S.E.2d 784, 786 (1978).
An "emphasis and perhaps overemphasis, upon the [concept]
of 'overwhelming evidence'" has the effect of clouding the
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relevant question "'whether there is a reasonable possibility
that the evidence complained of might have contributed to the
conviction.'" Chapman, 386 U.S. at 23 (footnote and citations
omitted). As the Supreme Court has stated, "[t]he correct
inquiry is whether, assuming that the damaging potential of the
[evidence] were fully realized, a reviewing court might
nonetheless say that the error was harmless beyond a reasonable
doubt." Van Arsdall, 475 U.S. at 684; see also Olden v.
Kentucky, 488 U.S. 227, 232 (1988). Thus, "a harmless error
analysis . . . [is not] simply a sufficiency of the evidence
analysis." Hooker v. Commonwealth, 14 Va. App. 454, 458, 418
S.E.2d 343, 345 (1992).
Whether such an error is harmless in a
particular case depends upon a host of
factors. . . . 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.
Van Arsdall, 475 U.S. at 684. Thus, "Van Arsdall requires a
court to consider several specific factors - more than just
sufficiency of the evidence - when deciding whether the
Confrontation Clause error was harmless beyond a reasonable
doubt." Howard v. Gavin, 810 F. Supp. 1269, 1275 (S.D. Ga.
1993).
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Here we apply a more stringent standard
against the government. In a sufficiency
analysis we review the evidence to determine
whether the government has satisfied the
minimum required in order for a reasonable
juror to find guilt beyond a reasonable
doubt. In performing harmless error
analysis, however, the standard cuts more
sharply against the government: there must
be no reasonable possibility that the
unconstitutionally obtained evidence
contributed to the conviction.
United States v. Khoury, 901 F.2d 948, 960 (11th Cir. 1990)
(citing Chapman, 386 U.S. at 23).
Among the verdicts obtained in this case was one finding
Williams guilty of capital murder. To support a conviction for
capital murder that is predicated upon murder in the commission
of robbery, see Code § 18.2-31(4), the Commonwealth must prove
beyond a reasonable doubt "a killing which takes place before,
during, or after the robbery and is so closely related in time,
place, and causal connection as to make the killing part of the
same criminal enterprise as the robbery." George v.
Commonwealth, 242 Va. 264, 277-78, 411 S.E.2d 12, 20 (1991). In
other words, the evidence must "support a conclusion that the
killing and theft were interdependent objects of a common
criminal design." Quesinberry v. Commonwealth, 241 Va. 364,
374, 402 S.E.2d 218, 224 (1991).
An application of the Van Arsdall factors reveals that the
trial judge's error in admitting Harris' confession was not
harmless beyond a reasonable doubt. Harris' confession was
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central to the Commonwealth's case. Cf. Timbers v.
Commonwealth, 28 Va. App. 187, 201, 503 S.E.2d 233, 239 (1998)
(holding trial judge's error in admitting accused's admission
concerning the falsity of her signature was not harmless because
it was the most important evidence proving forgery); Watson v.
Commonwealth, 19 Va. App. 659, 666, 454 S.E.2d 358, 362-63
(1995) (holding the influence of the inculpatory statements upon
the jury was not harmless where those statements constitute the
principal evidence establishing his knowledge and control of
contraband). Assuming the damaging potential of Harris'
confession was realized, it established the essential causal
connection linking the killing to the robbery. See Satterwhite
v. Texas, 486 U.S. 249, 259 (1988) (holding that expert's
testimony on "future dangerousness was critical to the death
sentence" and was thus not harmless beyond a reasonable doubt).
In pertinent part, Harris' confession recounted the
following events:
[M]e and [Williams] met up one night. . . .
He told me that we could do a hit, get some
crack, a little bit of money. . . . I asked
him where was it at. He said Park Place. I
said no, I'm too hot out here; I been
chilling out. I said, do the guys know me?
So he was like, no, they don't know neither
one of us. So, we went around to the house,
walked up the stairs. I knocked on the
door; [Williams] stood on the side.
When the guy opened the door, he had a
gun in his hand. [Williams] punched the
guy; the gun fell. Both of them went
reaching for the gun. I grabbed a bottle
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and hit the guy in the head. Then
[Williams] grabbed the guy. We shut the
door; [Williams] grabbed the guy, took him
to the back. He told me to look up under
the couch and grab the dope and look on the
table and grab the scales. So when I was
reaching for the scales, I heard a gunshot,
one gunshot. And I heard the guy say,
please don't kill me. So then I went up
under the couch and found the drugs. That's
when I heard two more gunshots above five
seconds later.
Then [Williams] came running out the
door. He went straight out the door and I
yelled his name. He told me not to yell his
name; he kept running across the street. So
I ran over there to him, went up in the
hallway and he said, we'll meet . . . on the
back street and split up everything. So
when we got around there on the back street,
he counted out ninety some dollars. He said
he needed the money for something, like that
and told me I could take the high side of
the crack and that's what we did. He told
me he'll sell the scales and give me some
money the next day.
Although the Commonwealth produced at trial three witnesses
who testified that Williams made statements implicating himself
in a killing, we cannot conclude beyond a reasonable doubt that
the improperly admitted testimony did not affect the verdict.
Indeed, we cannot even conclude that the testimony of those
witnesses and the other circumstantial evidence were sufficient,
without Harris' statement, to prove that Williams killed
Griffin, that a robbery occurred, or that a robbery bore the
essential causal connection to the killing. As to those
elements, Harris' confession was crucial, indeed essential, to
the Commonwealth's case. "There was no physical evidence such
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as fingerprints . . . or human blood evidence to link [Williams
to the events that occurred in the apartment]." Lilly v.
Commonwealth, 258 Va. 548, 552, 523 S.E.2d 208, 209 (1999).
Harris' confession was not cumulative of the other evidence
the Commonwealth presented at trial. Jesse Keene testified that
Williams informed him that he had been "lay[ing] low" because,
when Williams and Harris went to the apartment, "the other kid
that was there got killed in the process." Keene further
testified as follows:
Q. Did [Williams] tell you anything else
about what happened at [the apartment]?
A. Other than that, no.
Q. Did he tell you how the kid that was at
[the apartment] got killed?
A. No.
Keene's testimony clearly is insufficient to prove that
Williams shot Griffin or that a robbery occurred. Although the
trier of fact arguably might infer from Keene's testimony that
Griffin was shot while Williams and Harris were at the apartment
and that either Williams or Harris may have committed the
murder, it is impossible to determine from Keene's testimony who
in fact shot Griffin. It is just as likely that Williams was
"lay[ing] low" because he was present at the apartment when
Harris or someone else shot Griffin (and, therefore, feared
being accused of the murder) as that Williams was "lay[ing] low"
because he shot Griffin.
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Jason Carter testified that while he and Williams were in
jail, he overheard Williams tell another prisoner that Williams
was in the apartment when Griffin was shot and killed. In
pertinent part, he testified as follows:
Q. What did you hear [Williams] say?
A. I heard him say that he went into the
house and . . . [Griffin] was the only one
there, and he went for the gun and he
tussled--
Q. Who had the gun originally?
A. [Griffin].
Q. Who went for the gun?
A. [Williams].
Q. Did he say what happened after that?
A. He said he got the gun from him and he
was shot.
Q. Who was shot?
A. [Griffin].
Q. Did he say who shot [Griffin]?
A. No. He just say he grabbed the gun from
him. I was believing that he had shot him
because by the way he was talking.
Q. Did he say why [Griffin] got shot?
A. I guess because he tried to give up the
fight.
Q. Did he say why he went to the house
where [Griffin] was?
A. No.
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Q. Did he say if he went alone or with
someone else?
A. It was with someone else.
This testimony does not clearly establish that Williams shot
Griffin and clearly fails to prove a robbery occurred.
Moreover, because Carter was Griffin's cousin, and Carter
testified to being "close" to Griffin, we cannot conclude that
the trier of fact would nonetheless have believed Carter's
testimony, despite his bias, had Harris' statement been
excluded.
Thomas Liggins testified that he met Williams in jail.
Liggins admitted to having been convicted of two felonies and of
making a false statement. He also testified that other charges
were pending against him at the time of Williams' trial.
Admitting further that, in return for his testimony, the
Commonwealth agreed to a suspended sentence on his pending
felony charge and to other consideration, Liggins testified as
follows:
Q. What did [Williams] tell you?
A. That he shot somebody.
Q. Did he tell you where he shot this
person?
A. No.
Q. Did he tell you who it was?
A. No.
Q. Did he tell you the circumstances of how
he shot this person?
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A. No. He just say he ain't had no mask
on, he had to shoot him. . . .
Q. Did he tell you what was happening when
he shot the person?
A. No.
Q. Did he tell you whether he was alone or
with someone else when he shot this person?
A. He was with someone.
Q. Did he tell you if it was a man or a
woman that he shot?
A. He ain't say.
Q. Did he say whether he did the shooting
or the other person did the shooting?
A. He said he did the shooting.
Q. Did he tell you what the other person
did?
A. Yeah.
Q. What did he say the other person did?
A. He said he hit him with a bottle.
Q. Did he tell you whether this happened in
a house or outside on the street?
A. No, he ain't say.
Q. Did he tell you about any other crimes
besides the shooting?
A. No.
Even if the trier of fact believed Liggins, his testimony
established neither that Williams was in the apartment where
Griffin was killed nor that a robbery occurred.
Simply put, we cannot conclude beyond a reasonable doubt
that, had the trial judge not considered Harris' confession, he
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would nonetheless have convicted Williams of the murder of
Griffin in the commission of robbery. The effect of Harris'
confession, inculpating Williams, on a trier of fact's view of
the entirety of the evidence cannot be overstated. When the
issue is "the potential for harm caused by the erroneous
admission of evidence which tends to support the [fact finder's]
credibility determination[,] . . . we must presume that such
evidence had the potential to influence the [fact finder] into
accepting the properly admitted evidence as more credible and,
thus, to taint the [fact finder's] determination of the facts."
Lilly, 258 Va. at 553, 523 S.E.2d at 210. Evidence which the
trier of fact would normally hold as not credible or
inconclusive can suddenly become convincing when corroborated by
the accusatory confession of one who was intimately involved in
the execution of the crime. Indeed, during the Commonwealth's
closing argument, the trial judge noted that after he heard the
testimony of Keene, Carter, and Liggins, which occurred before
the Commonwealth introduced Harris' confession, the trial judge
had written in his notes, "no robbery proved yet." The
prejudicial impact of Harris' confession clearly was significant
and undermines confidence in the verdict. In view of the
generalized nature of the other testimony, we cannot conclude
"beyond a reasonable doubt that the [improperly admitted
confession] did not contribute to the verdict obtained."
Chapman, 386 U.S. at 24. Thus, the Commonwealth has failed to
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prove beyond a reasonable doubt that the improperly admitted
evidence was harmless. Therefore, we reverse the convictions
and remand for retrial if the Commonwealth be so advised.
Reversed and remanded.
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