Rankins v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Lemons
Argued at Chesapeake, Virginia

DENNIE LEE RANKINS, S/K/A
DENNIE LEE RANKINS, JR.
OPINION BY
v. Record No. 0066-99-1 JUDGE LARRY G. ELDER
JANUARY 27, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge

Wade A. Bowie (Joseph M. DuRant; Cumming,
Hatchett & Jordan, on briefs), for appellant.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.

Dennie Lee Rankins (appellant) appeals from his bench trial

convictions for malicious wounding and use of a firearm in the

commission of a malicious wounding. On appeal, he contends (1)

the trial court's admission of the custodial confession of a

non-testifying accomplice violated the Confrontation Clause and

Virginia's hearsay rule and (2) the evidence was insufficient to

support his conviction because it did not establish he was a

principal in the second degree. We hold that the accomplice's

custodial confession was admissible under Virginia hearsay law

but inadmissible under the Confrontation Clause and that its

erroneous admission was not harmless. Therefore, we reverse
appellant's convictions without reaching the sufficiency issue,

and we remand for a new trial.

I.

FACTS

On March 22, 1998, four teenagers--Shaun Roberts, Ken

Jones, Jesse Harrod and appellant--rode together in Roberts' car

from Williamsburg to Hampton to visit Gwendolyn Williams and her

friend, Christine Johnson, at Williams' apartment. Jones,

Harrod and Johnson began to argue, and Jones threatened Johnson.

About that time, three older boys from Williams' neighborhood

came to Williams' apartment. Roberts and appellant thought

Johnson had called the older boys over to fight Roberts and his

friends, but they were able to leave without incident.

Roberts, Jones, Harrod and appellant returned to

Williamsburg, where Jones retrieved a "big gun" from his house.

About 10:00 p.m. that same night, they returned to Williams'

apartment complex. Roberts was driving, appellant was sitting

in the front passenger seat, Harrod was behind appellant, and

Jones was behind the driver. Williams, Johnson and one of the

older boys were standing outside Williams' apartment. Jones

fired, hitting Williams.

Appellant was indicted for malicious wounding and the

related use of a firearm and was tried jointly with Shaun

Roberts in a bench trial. The Commonwealth sought to introduce

the out-of-court custodial confession of accomplice Ken Jones,

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the shooter, 1 who asserted his Fifth Amendment right not to

testify. Appellant argued that the confession was hearsay and

that its admission would violate his right of confrontation.

The trial court ruled that Jones' statement was a declaration

against interest and admitted it into evidence.

The statements admitted were verbal and written statements

Jones made to Detective Gillis. Gillis went to Jones' high

school, took Jones into custody, read Jones his Miranda rights

and took his statement. Jones initially denied any involvement

in the crime but subsequently admitted his involvement and told

Gillis where to find the gun. Jones said, "[t]here was an

argument [at Williams' apartment] between the girls and them,

and . . . the girls had called an unknown male over to the

apartment." Then a group of boys gathered and "started acting

like they was going to fight [Jones and his friends]." Jones

said they were able to leave without incident, but they were

"mad and [Roberts] wanted to go[] back to see [what] was up but

not without a gun." They returned to Williamsburg where Jones

retrieved his .22 rifle, and they went back to the area of

Williams' apartment. They found "a lot of people . . .

wait[ing] for [them]," including "the same black male . . . they

had [an] earlier altercation with." People were yelling at them

1
The statement included reference to an earlier robbery,
but the Commonwealth offered it for its relevance to the
shooting, and the trial court agreed to redact any reference to
anything other than the shooting.

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and moving toward the car but the car was too far away for them

to reach it. "As [Roberts] turned around the car and started to

leave . . . the parking lot, . . . everybody in the car was

yelling for him to shoot, so he fired . . . to scare them." 2

Jones said he did not see anyone, did not aim and shot upward.

The Commonwealth subsequently offered statements appellant

and codefendant Roberts made to police. Appellant posed no

objection to the trial court's considering either statement as

substantive evidence against him.

Appellant made two statements to Detective Payne. 3

Appellant told Payne

that he was with the other people that were
charged in this matter, that basically his
only involvement with this was that he, in
fact, rode in the vehicle, that he didn't
actively participate in these things . . . .

* * * * * * *

He indicated that the group of the four
individuals did in fact go to that apartment
earlier in the day, that there was a[n]
altercation there between the girls and
them, and that they had left.
Prior to going back, . . . [Roberts]
said that he didn't want to go back without
a gun, and . . . they drove up to James City
County where [Jones] had gotten his gun.
And . . . at that particular point in
time he wanted to get out, [he said take me

2
Jones also said in his written statement that it was
"Nobodys" idea "to shoot at the people on Sacramento Dr."
3
Appellant's statements also contained a reference to what
appeared to be an earlier robbery, but the Commonwealth asked
the trial court "not to consider" "any reference to any robbery
charge," and the trial court responded, "All right."

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 home,] he didn't want to go back, but did go
back with them.
[T]hey went into the parking lot and
. . . the gentleman was standing outside,
and as they turned the vehicle around and as
they exited the parking lot . . . [Jones]
did in fact fire one shot.

Roberts also made a statement to Detective Payne. 4 Roberts

told Payne in detail about the repeated trips to Williams' home,

Johnson's becoming angry, and the arrival of older boys he

thought Johnson had called to fight Roberts and his companions.

Roberts said that when they left Williams' house, appellant said

they could get some beer in Williamsburg, so Roberts drove back

to Williamsburg, believing they were going home anyway. When

they arrived in Williamsburg, it was still early, and they went

back to Williams' house. When they arrived, "the boy from

earlier was standing outside and he started signaling for other

boys to come. [Appellant] said come on lets [sic] go and I

hurried up and turned around and we were leaving. I heard the

gun shot behind us." Roberts confirmed that Jones was the

person who fired the shot.

Appellant did not testify, but Roberts took the stand in

his own behalf. Roberts testified about the repeated trips to

Williams' apartment to see her. Roberts denied returning to

4
Roberts' statement, which included references to an
earlier robbery, was considered by the court in its entirety.
The portion of Roberts' statement describing the robbery does
not mention appellant and does not make clear whether he was
present in the car during the robbery.

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Williamsburg to get a gun and said he did not know Jones had a

gun until they were on their way back to Hampton. He gave no

testimony regarding appellant's involvement or lack of

involvement in the shooting.

The trial court convicted appellant of the charged

offenses. Codefendant Roberts also was convicted.

II.

ANALYSIS

A.

VIRGINIA'S HEARSAY RULE:
STATEMENT AGAINST PENAL INTEREST EXCEPTION

The admissibility of a statement made by an unavailable

witness that is against his or her penal interest "is a 'firmly

rooted' exception to the hearsay rule in Virginia." 5 Lilly v.

5
In reversing the Virginia Supreme Court's holding in Lilly
on Confrontation Clause grounds, a plurality of the United
States Supreme Court stated, "We assume, as we must, that [the
accomplice's] statements were against his penal interest as a
matter of [Virginia] law . . . ." Lilly v. Virginia, 119 S. Ct.
1887, 1894, 144 L. Ed. 2d 117 (1999). As early as 1923, the
Virginia Supreme Court recognized this exception for statements
incriminating a third party declarant and exculpating an
accused, either directly or indirectly. See Hines v.
Commonwealth, 136 Va. 728, 739-50, 117 S.E. 843, 846-49 (1923);
see also Newberry v. Commonwealth, 191 Va. 445, 460-62, 61
S.E.2d 318, 325-26 (1950). However, until more recently, no
Virginia appellate court appears to have applied this principle
in the context of a party's efforts to admit an accomplice's
statement or confession against penal interest that also
incriminates the accused. See, e.g., Chandler v. Commonwealth,
249 Va. 270, 278-79, 455 S.E.2d 219, 224-25 (1995); Scaggs v.
Commonwealth, 5 Va. App. 1, 4-5, 359 S.E.2d 830, 831-32 (1987)
(holding that accomplice's out-of-court statement incriminating
accused would have been admissible as statement against penal
interest of accomplice if Commonwealth had proved accomplice was

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Commonwealth, 255 Va. 558, 575, 499 S.E.2d 522, 534 (1998),

rev'd on other grounds, 119 S. Ct. 1887, 144 L. Ed. 2d 117

(1999). Under this exception, an out-of-court statement is

admissible to prove the truth of the matters asserted therein if

three requirements are met: (1) the declarant is unavailable to

testify at trial; (2) the statement is against the declarant's

interest at the time it was made; and (3) the declarant is

subjectively aware at the time the statement is made that it is

against his or her interest to make it. See Lilly, 255 Va. at

573, 499 S.E.2d at 533; Randolph v. Commonwealth, 24 Va. App.

345, 355, 482 S.E.2d 101, 105-06 (1997).

In addition, the record must contain evidence other than

the declaration itself establishing its reliability, such as

independent evidence connecting the declarant with the confessed

crime. See Lilly, 255 Va. at 573-74, 499 S.E.2d at 533-34;

unavailable but that error in admission of statement was
harmless). The plurality in Lilly agreed, observing as follows:

[P]rior to 1995, it appears that even
Virginia rarely allowed statements against
the penal interest of the declarant to be
used at criminal trials. . . . Virginia
relaxed that portion of its hearsay law when
it decided Chandler v. Commonwealth, 249 Va.
270, 455 S.E.2d 219 (1995), and . . . it
later apparently concluded that all
statements against penal interest fall
within "a 'firmly rooted' exception to
hearsay in Virginia," [Lilly,] 255 Va., at
575, 499 S.E.2d, at 534 . . . .

Lilly, 119 S. Ct. at 1898-99.

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Randolph, 24 Va. App. at 355-56, 482 S.E.2d at 106. Such

evidence may include testimony from other witnesses, physical

evidence, and the similarities or "correspondence between [the

declarant's] account and the accounts of other persons acquired

by law enforcement authorities." Lilly, 255 Va. at 574, 499

S.E.2d at 534. It may also include evidence of the declarant's

demeanor and the circumstances surrounding the giving of the

statement, including those indicating the voluntariness of the

confession. See Raia v. Commonwealth, 23 Va. App. 546, 551, 478

S.E.2d 328, 330 (1996).

That the declarant's statements are simultaneously against

penal interest and "self-serving, in that they tend[] to shift

principal responsibility to others or to offer claims of

mitigating circumstances, goes to the weight the [fact finder]

[may] assign to them and not to their admissibility." Lilly,

255 Va. at 574, 499 S.E.2d at 534. Determining whether a

statement against penal interest is reliable "lies within 'the

sound discretion of the trial court, to be determined upon the

facts and circumstances of each case.'" Raia, 23 Va. App. at

550, 478 S.E.2d at 330 (quoting Ellison v. Commonwealth, 219 Va.

404, 408, 247 S.E.2d 685, 688 (1978)).

We hold that the trial court did not abuse its discretion

in ruling that Jones' hearsay statements to Detective Gillis

satisfied the three-pronged test and, therefore, were directly

admissible against appellant under the statement against penal

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interest exception to Virginia's hearsay rule. Under the first

prong, the record indicates Jones was unavailable as a witness

because he asserted his Fifth Amendment right not to testify.

See Lilly, 255 Va. at 573, 499 S.E.2d at 533.

Under the second prong, Jones' statement was against his

interest because he admitted firing the shot that struck the

victim and admitted that he intended to fire the shot, although

he denied aiming or intending to hurt anyone. By making this

statement, Jones subjected himself to criminal liability for a

variety of possible offenses, including malicious wounding and

discharging a firearm from a motor vehicle.

Under the third prong, the record supports the conclusion

that Jones was aware his statements were against his interest at

the time he made them. Detective Gillis took Jones, a high

school student, into custody and read him his Miranda rights,

which included information that anything Jones said could be

used against him. See, e.g., Penn v. Commonwealth, 210 Va. 242,

250, 169 S.E.2d 427, 433 (1969). After saying he understood his

rights and denying any involvement in the crime, Jones then

admitted that the gun was his, was still in his possession and

that he was the person who fired the shot that wounded the

victim. This evidence was sufficient to establish Jones'

subjective awareness that the statements were against his penal

interest.

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 Finally, other evidence connected Jones to the confessed

crime, supporting the conclusion that the statement as a whole

was reliable enough to be admitted. Johnson saw "fire" come

from the car window where Jones was sitting, and both appellant

and Roberts confirmed that Jones was the person who fired the

shot. The absence of evidence corroborating Jones' statement

that "everybody" in the car encouraged him to shoot is not

dispositive of the statement's admissibility. The self-serving

nature of this portion of the statement "goes to the weight the

[fact finder] [may] assign to [it] and not to [its]

admissibility." Lilly, 255 Va. at 574, 499 S.E.2d at 534.

For these reasons, the trial court did not abuse its

discretion in holding the statement was admissible under the

Virginia hearsay rule.

B.

CONFRONTATION CLAUSE

The Confrontation Clause of the Sixth Amendment, which

applies to the States, provides: "In all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with

the witnesses against him." U.S. Const. amend. VI; see Ohio v.

Roberts, 448 U.S. 56, 62-63, 100 S. Ct. 2531, 2537, 65 L. Ed. 2d

597 (1980). The right to confront witnesses secured by the

Sixth Amendment encompasses the right to cross-examine them.

See Cruz v. New York, 481 U.S. 186, 107 S. Ct. 1714, 95 L. Ed.

2d 162 (1987); Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct.

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1074, 1076, 13 L. Ed. 2d 934 (1965). The right to confront and

to cross-examine witnesses is a "functional right" that

"advance[s] the pursuit of truth" and "promotes reliability" in

criminal trials by "ensuring that convictions will not be based

on the charges of unseen and unknown--and hence

unchallengeable--individuals." Lee v. Illinois, 476 U.S. 530,

540, 106 S. Ct. 2056, 2062, 90 L. Ed. 2d 514 (1986).

Under the Confrontation Clause, a hearsay statement of an

unavailable declarant is admissible "only if it bears adequate

'indicia of reliability.'" Roberts, 448 U.S. at 66, 100 S. Ct.

at 2539. The United States Supreme Court consistently has held,

for Confrontation Clause purposes,

that the veracity of hearsay statements is
sufficiently dependable to allow the
untested admission of such statements
against an accused when (1) "the evidence
falls within a firmly rooted hearsay
exception" or (2) it contains
"particularized guarantees of
trustworthiness" such that adversarial
testing would be expected to add little, if
anything, to the statements' reliability.

Lilly v. Virginia, 119 S. Ct. 1887, 1894, 144 L. Ed. 2d 117

(1999) (plurality opinion) (quoting Roberts, 448 U.S. at 66, 100

S. Ct. at 2539). Although a hearsay statement that is against

the penal interest of the declarant is recognized as a "firmly

rooted exception" to the hearsay rule in Virginia, 6 see Lilly,

255 Va. at 575, 499 S.E.2d at 534; Raia, 23 Va. App. at 552, 478

6
See supra note 5.

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S.E.2d at 331, the United States Supreme Court has expressly

refused to analyze "a confession by an accomplice which

incriminates a criminal defendant" as a declaration against

penal interest for the purpose of determining the admissibility

of such hearsay under the Confrontation Clause, see Lee, 476

U.S. at 544 n.5, 106 S. Ct. at 2064 n.5. In Lee, the Supreme

Court stated that the category of "declarations against penal

interest" is "too large a class for meaningful Confrontation

Clause analysis" and held that "a confession by an accomplice

which incriminates a criminal defendant" should be considered a

distinct category of hearsay for the purpose of determining its

admissibility under the Sixth Amendment. See id. More

recently, in Lilly, seven justices voiced their continuing

adherence to Lee's categorization of such confessions. See 119

S. Ct. at 1895 (plurality opinion); 119 S. Ct. at 1904

(Rehnquist, C.J., joined by O'Connor and Kennedy, JJ.,

concurring in the judgment).

The Court stated in Lee that, unlike hearsay statements

that fall under firmly rooted hearsay exceptions, which

presumably include statements against penal interest made in

other contexts, accomplices' confessions that incriminate

defendants are "presumptively unreliable" under the Sixth

Amendment's Confrontation Clause. 476 U.S. at 541, 106 S. Ct.

at 2062. The Court also stated in Lee, and reiterated in Lilly,

that the presumption of unreliability that attaches to

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accomplices' confessions that incriminate defendants may be

rebutted. 7 See Lee, 476 U.S. at 543, 106 S. Ct. at 2063; Lilly,

119 S. Ct. at 1899 n.5, 1900 (plurality opinion); 119 S. Ct. at

1903 (Thomas, J., concurring); 119 S. Ct. at 1904-05 (Rehnquist,

C.J., concurring). A hearsay statement that falls into this

category may "meet Confrontation Clause reliability standards if

it is supported by a 'showing of particularized guarantees of

trustworthiness.'" Lee, 476 U.S. at 543, 106 S. Ct. at 2063;

7
The plurality of four justices in Lilly opined that it is
"highly unlikely" that the presumption can be effectively
rebutted if the statement "shift[s] or spread[s] blame." 119
S. Ct. at 1899 n.5, 1900 (plurality opinion of Stevens, J.,
joined by Souter, Ginsburg and Breyer, JJ.). Four other
justices opined that the Confrontation Clause "does not impose a
'blanket ban on the government's use of accomplice statements
that incriminate a defendant.'" 119 S. Ct. at 1903 (Thomas, J.,
concurring in part and concurring in the judgment); 119 S. Ct.
at 1904-05 (Rehnquist, C.J., joined by O'Connor and Kennedy,
JJ., concurring in the judgment).
Justice Scalia was the only member of the Court whose
opinion did not specifically acknowledge this view. Even
Justice Scalia's opinion leaves open this possibility. He wrote
that Lilly involved "a paradigmatic Confrontation Clause
violation," but before making this statement, he observed that
"[the accomplice] told police officers that [defendant Lilly]
committed the charged murder." 119 S. Ct. at 1903. Therefore,
the type of statement to which Scalia referred could be
characterized as one which shifts blame away from the accomplice
and wholly onto the defendant. Further, Justice Scalia authored
the opinion in Cruz, a case involving an accomplice's custodial
confession. In Cruz, the Court said "the defendant's confession
may be considered at trial in assessing whether his
co-defendant's statements are supported by sufficient 'indicia
of reliability' to be directly admissible against him." 481
U.S. at 193-94, 107 S. Ct. at 1719. Thus, unless Justice Scalia
has abandoned the views he espoused in Cruz, he remains of the
opinion that an accomplice's custodial confession incriminating
a defendant may be directly admissible against the defendant
under certain circumstances.

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Lilly, 119 S. Ct. at 1894, 1899-1901 (plurality opinion); id. at

1905-06 (Rehnquist, C.J., concurring).

The Court previously has recognized that whether the

portions of an accomplice's confession regarding a defendant's

participation in a crime are sufficiently trustworthy to be

admissible without cross-examination under the Sixth Amendment

is determined by considering (1) the circumstances surrounding

the accomplice's confession and (2) in a case in which the

defendant also made a confession, the extent to which the

accomplice's and the defendant's confessions "interlock." See

Lee, 476 U.S. at 544-46, 106 S. Ct. at 2064-65; Cruz, 481 U.S.

at 193-94, 107 S. Ct. at 1719. The Court's recent holding in

Lilly does not indicate a rejection of the interlock theory. A

majority in Lilly presumably concluded that the accomplice's

custodial confession did not bear sufficient indicia of

reliability to be admissible against Lilly without

cross-examination but did not conclude that such statements are

never admissible. See Lilly, 119 S. Ct. at 1899-1901 (plurality

opinion); 119 S. Ct. at 1903 (Scalia, J., concurring in part and

concurring in the judgment) (holding that admission of

confession was "paradigmatic Confrontation Clause violation"

without discussing bases for independent admission such as

indicia of reliability). Further, the Court did not have

occasion to consider the impact of the interlocking nature of

the defendant's and accomplice's confessions in Lilly because

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the defendant's confession was directly at odds with the

challenged confession of his accomplice. See Lilly, 119 S. Ct.

at 1892. The accomplice reported to police that the defendant

murdered the victim and masterminded the related carjacking and

several robberies. See id. The defendant, by contrast,

reported that the accomplice and a third person forced him to

participate in the robberies, and he did not mention the murder. 8

See id.

When evaluating the circumstances surrounding the

confession, a court should consider the extent to which the

8
The plurality in Lilly noted its rejection of the "notion
that 'evidence corroborating the truth of a hearsay statement
may properly support a finding that the statement bears
"particularized guarantees of trustworthiness."'" Id. at
1900-01 (citation omitted). However, in doing so, it indirectly
confirmed its belief that a defendant's interlocking confession,
where one exists, may appropriately be considered in assessing
the reliability of the accomplice's statement. In rejecting the
use of corroborative evidence to assess the reliability of an
accomplice's confession, the plurality in Lilly relied on the
Court's earlier decision in Idaho v. Wright, 497 U.S. 805, 822,
110 S. Ct. 3139, 3150, 111 L. Ed. 2d 638 (1990). In Wright, the
Court discussed the interlock principle and did not expressly
reject it or overrule the language in Lee. See id. at 823-24 &
n.*, 110 S. Ct. at 3150-51 & n.*. It said that, in Lee, it
considered the interlock of the accomplice's and defendant's
confessions on the one hand and declined to rely on
corroborative physical evidence on the other. See Wright, 497
U.S. at 824, 110 S. Ct. at 3151 (citing Lee, 476 U.S. at 545-46,
106 S. Ct. at 2064-65). It also noted that it "rejected the
'interlock' theory in [Lee,]" in which it held that it did not
apply on those facts, but it did not hold that consideration of
"interlock" is inappropriate corroborative evidence. See
Wright, 497 U.S. at 824, 110 S. Ct. at 3151. Therefore, the
plurality in Lilly did not reject the Court's prior holdings on
the significance of interlock to the independent admissibility
of an accomplice's statement implicating the defendant.

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accomplice was "free from any desire, motive, or impulse . . .

either to mitigate the appearance of his own culpability by

spreading the blame [to the defendant] or to overstate [the

defendant's] involvement in retaliation for her having

implicated him in the [crime]." Lee, 476 U.S. at 544, 106

S. Ct. at 2064. When evaluating the interlocking nature of the

accomplice's and the defendant's confessions, a court should

consider the extent to which those portions of the accomplice's

confession regarding the defendant's participation in the crime

are substantiated by the defendant's own confession. See id. at

545, 106 S. Ct. at 2064. When the discrepancies between the

statements are "not insignificant," the accomplice's

out-of-court confession is inadmissible under the Sixth

Amendment. Id.; see Cruz, 481 U.S. at 192-93, 107 S. Ct. at

1718-19 (holding that tightly interlocking nature of confessions

establishes reliability, for if codefendant's confession

"confirms essentially the same facts as the defendant's own

confession it is more likely to be true").

A majority of the Court has expressly held that two factors

are irrelevant to the inquiry of whether an accomplice's

confession that incriminates a defendant is admissible under the

Sixth Amendment: (1) "whether the [accomplice's] confession was

found to be voluntary for Fifth Amendment purposes," see Lee,

476 U.S. at 544, 106 S. Ct. at 2064 (stating that "such a

finding does not bear on the [Sixth Amendment] question"), and

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(2) whether the other evidence at trial (except for the

defendant's own confession) tends to corroborate the truth of

the accomplice's statement, see Wright, 497 U.S. at 822-23, 110

S. Ct. at 3150 (stating that such corroboration is "no

substitute for cross-examination of the declarant at trial" and

would "permit admission of a presumptively unreliable statement

by bootstrapping on the trustworthiness of other evidence at

trial"). Instead, as with all hearsay statements that are

deemed admissible under the Confrontation Clause, the portion of

the accomplice's confession incriminating the defendant "must

possess indicia of reliability by virtue of its inherent

trustworthiness" such that adversarial testing would add little

to its reliability. Id. (emphasis added). "[T]he

'particularized guarantees of trustworthiness' required for

admission under the Confrontation Clause must . . . be drawn

from the totality of circumstances that surround the making of

the statement and that render the declarant particularly worthy

of belief." 9 Id. at 820, 110 S. Ct. at 3149.

9
The plurality in Lilly suggested additional limits on the
types of evidence relevant to establish a statement's
trustworthiness. It rejected the notion that "the police's
informing [the accomplice] of his Miranda rights render[ed] the
circumstances surrounding his statements significantly more
trustworthy," saying that "a suspect's consciousness of his
Miranda rights has little, if any, bearing on the likelihood of
truthfulness of his statements." Lilly, 119 S. Ct. at 1901
(analogizing to Lee's rejection of idea that Fifth Amendment
voluntariness determination bears on trustworthiness of
statement (quoting Lee, 476 U.S. at 544, 106 S. Ct. at 2064)).
It also said that "the absence of an express promise of leniency

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 Here, Jones admitted in his statement that he fired the

shot that wounded the victim but contended he did not intend to

hurt anyone. Although appellant's and Jones' statements

interlock in many respects, including the identities of those

present in Roberts' car and their identification of Jones as the

shooter, at least one significant discrepancy exists regarding

appellant's participation in the crime. Appellant said in his

statement that he was merely present in the car during the

shooting and that "he didn't actively participate in these

things." Jones, by contrast, said that "everybody" in the car

verbally encouraged him to "shoot up in the air" as Roberts' car

left the victim's neighborhood. This portion of Jones'

statement constitutes a classic attempt of one defendant to

shift to others at least some of the blame for his actions. As

a result, Jones' custodial confession did not bear sufficient

indicia of reliability to be directly admissible against

appellant in the absence of an opportunity for

cross-examination.

to [the accomplice] does not enhance his statements' reliability
to the level necessary for their untested admission." Id.
(emphasis added). It reasoned that "[t]he police need not tell
a person who is in custody that his statements may gain him
leniency in order for the suspect to surmise that speaking up,
and particularly placing blame on his cohorts, may inure to his
advantage." Id. The plurality did not suggest that the absence
of a promise of leniency is not a relevant factor for
consideration. Further, of course, because this portion of the
plurality opinion represented the view of only four members of
the Court, its contents are advisory rather than mandatory.

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 C.

HARMLESS ERROR

Under settled principles, a criminal conviction involving a

violation of the Confrontation Clause may be upheld if the

violation constituted error which was "'harmless beyond a

reasonable doubt.'" Lilly, 119 S. Ct. at 1901 (quoting Chapman

v. California, 386 U.S. 18, 24 (1967)). Such an error may be

harmless beyond a reasonable doubt when other evidence of guilt

"is so overwhelming, and the prejudicial effect of the

codefendant's admission is so insignificant by comparison, that

it is clear beyond a reasonable doubt that the improper . . .

admission [of the confession] was harmless error." See Schneble

v. Florida, 405 U.S. 427, 430, 92 S. Ct. 1056, 1059, 31 L. Ed.

2d 340 (1972) (involving Confrontation Clause error).

This standard requires a determination of
"whether there is a reasonable possibility
that the evidence complained of might have
contributed to the conviction." 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, ___ S.E.2d ___, ___

(1999) (on remand from United States Supreme Court).

Under certain circumstances, where a Confrontation Clause

error results from the admission of the custodial confession of

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a non-testifying accomplice, "the defendant's confession . . .

may be considered on appeal in assessing whether any

Confrontation Clause violation was harmless." Cruz, 481 U.S. at

193-94, 107 S. Ct. at 1719. The Court held in Cruz that, in the

usual case, the defendant challenges the existence or accuracy

of his own confession, and "[an] [accomplice's] confession will

be . . . enormously damaging if it confirms, in all essential

respects, the defendant's alleged confession." Id. at 192, 107

S. Ct. at 1718. Under these circumstances, "a[n] [accomplice's]

confession that corroborates the defendant's confession

significantly harms the defendant's case, whereas one that is

positively incompatible gives credence to the defendant's

assertion that his own alleged confession was nonexistent or

false." Id. at 192, 107 S. Ct. at 1719. Therefore, where a

defendant attempts to disclaim his own confession and the

non-testifying accomplice's confession closely interlocks, the

erroneous admission of the accomplice's statement generally

cannot be said to be harmless error. See id. at 192, 107 S. Ct.

at 1718-19.

Although considering the prospect unlikely, the Court also

acknowledged in Cruz that if the defendant's and the

accomplice's confessions "interlock" and the defendant actually

stands by his own confession, "it [may] be said that the

[accomplice's] confession does no more than support the

defendant's very own case." Id. at 192, 107 S. Ct. at 1719.

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Under these circumstances, therefore, the erroneous admission of

an accomplice's interlocking confession may be harmless error.

Here, appellant did not testify and did not object to the

admission of his own confession 10 in which he admitted being in

the car with Jones, whom he knew had a gun, but denied he

participated in or encouraged the shooting. If Jones'

confession interlocked with appellant's in all critical

respects, its admission could be harmless. As set out above,

however, Jones' statement differed from appellant's in one key

respect--Jones said "everybody" in the car, which would include

appellant, encouraged him to shoot, whereas appellant said in

his statement that he was merely present in the car during the

shooting and that "he didn't actively participate in these

things." Therefore, the admission of appellant's own statement

into evidence did not, standing alone, render the erroneous

admission of Jones' statement harmless.

We also conclude that the evidence of appellant's guilt,

other than Jones' statement, was not overwhelming. The

Commonwealth proceeded against appellant on the theory that

appellant was a principal in the second degree to Jones'

shooting of the victim. One who is "present, aiding and

abetting, and intend[s] his or her words, gestures, signals, or

10
Appellant's lack of objection to the admission of his
confession, combined with his failure to testify and his
reliance on the confession in argument to the court, can only be
fairly interpreted as standing by his own confession.

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actions to in some way encourage, advise, urge, or in some way

help the person committing the crime to commit it" is a

principal in the second degree. McGill v. Commonwealth, 24 Va.

App. 728, 733, 485 S.E.2d 173, 175 (1997). "[M]ere presence and

consent will not suffice." Underwood v. Commonwealth, 218 Va.

1045, 1048, 243 S.E.2d 231, 233 (1978). The person "must share

the criminal intent of the party who actually committed the

[crime] or be guilty of some overt act in furtherance thereof."

Augustine v. Commonwealth, 226 Va. 120, 124, 306 S.E.2d 886, 889

(1983). The circumstantial evidence of appellant's guilt was

not so overwhelming that we can say the erroneous admission of

Jones' statement, the only direct evidence of appellant's

encouragement, was harmless beyond a reasonable doubt.

For these reasons, we hold that the trial court's admission

of accomplice Jones' custodial confession violated the

Confrontation Clause and that its erroneous admission was not

harmless. Therefore, we reverse appellant's convictions and

remand for a new trial if the Commonwealth be so advised.

Reversed and remanded.

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