Michael Charles Cooke v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia
MICHAEL CHARLES COOKE
MEMORANDUM OPINION * BY
v. Record No. 1603-99-1 JUDGE WILLIAM H. HODGES
MAY 30, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Stephen K. Smith for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Michael Charles Cooke (appellant) appeals his convictions for
grand larceny and theft of a firearm in violation of Code
§ 18.2-108.1. Appellant contends that the trial court's error in
admitting evidence of a statement made to police by a
non-testifying alleged accomplice did not constitute harmless
error beyond a reasonable doubt. We disagree and, therefore,
affirm appellant's convictions.
The Commonwealth conceded and we agree that in light of the
United States Supreme Court's holding in Lilly v. Virginia, 527
U.S. 116 (1999), the trial court erred in admitting into evidence
against appellant the non-testifying alleged accomplice's
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
statement to the police. However, we find that such error was
harmless beyond a reasonable doubt.
"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). Here, in finding
appellant guilty, the trial judge specifically stated that he
did not consider the non-testifying accomplice's statement.
Taking the evidence in the light most favorable to the
Commonwealth, it established that on May 21, 1998, several
persons including appellant visited Michelle Wiltshire at her
home. While there, appellant saw a person named "Jamal" steal a
pager. Immediately thereafter, appellant left Wiltshire's house
and went across the street to Chris Ru's house. Ru told
appellant that he was going to call Wiltshire and ask her to
come over to his house so that the others could steal a gun from
Wiltshire's house.
Wiltshire received a telephone call from Ru, and, as a
result, she left her house and went across the street to Ru's
house. Wiltshire asked appellant, who was still at Ru's house,
"to watch them" while she was at Ru's house. Appellant agreed
to do so and returned to Wiltshire's house. Appellant knew at
that time that Wiltshire's friends intended to steal property
from her house while she was gone and did not tell her.
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While Wiltshire was at Ru's house, Justin Sanchez, Curtis
Williams, and Chad McSweeny took property from Wiltshire's
mother's bedroom while appellant watched. The items taken
included jewelry, a cell phone, two pagers, a stun gun, and a
.357 Magnum Smith & Wesson revolver, having a total value in
excess of $6,000. Some of the jewelry was later recovered from
the Sanchez home.
Appellant did not tell Wiltshire about the theft. However,
when questioned by the police several days later, appellant was
able to identify where several of the stolen items were located.
"A principal in the second degree is
one not the perpetrator, but present, aiding
and abetting the act done, or keeping watch
or guard at some convenient distance."
. . . The defendant's conduct must consist
of "inciting, encouraging, advising or
assisting in the [crime]." It must be shown
that the defendant procured, encouraged,
countenanced, or approved commission of the
crime. "To constitute one an aider and
abettor, he must be guilty of some overt
act, or he must share the criminal intent of
the principal."
Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823,
825 (1991) (citations omitted); see Code § 18.2-18 (in felony
cases, except most capital murders, principal in second degree
may be indicted, tried, convicted and punished in all respects
as if principal in first degree).
Appellant admitted knowing the plan to steal items from
Wiltshire's home when he returned to her house, yet he failed to
tell Wiltshire about it. In addition, he admitted he was
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present and watched while the others took the items, thereby
approving of the principals' actions and sharing in their
criminal intent. In addition, he was aware of the location of
some of the stolen items after the theft. Based upon this
evidence, without taking the accomplice's statement into
consideration, the trial court could conclude beyond a
reasonable doubt that appellant was guilty of grand larceny and
theft of a firearm as a principal in the second degree.
Accordingly, because the trial court's admission of the
accomplice's statement did not contribute to the verdict
obtained, it was harmless error, and we find that the evidence
was sufficient to prove beyond a reasonable doubt that appellant
was guilty of grand larceny and theft of a firearm. Therefore,
we affirm appellant's convictions.
Affirmed.
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