Delroy Wilson v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Elder and Senior Judge Duff
Argued at Richmond, Virginia
DELROY WILSON
v. Record No. 0069-94-1 MEMORANDUM OPINION * BY
JUDGE LARRY G. ELDER
COMMONWEALTH OF VIRGINIA JUNE 6, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Robert B. Cromwell, Jr., Judge
Michael A. Robusto (Slipow & Robusto, P.C., on
brief), for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Delroy Wilson (appellant) appeals his convictions for
(1) murder in violation of Code § 18.2-32, (2) attempted robbery
in violation of Code § 18.2-58, and (3) the use of a firearm
while committing or attempting to commit murder in violation of
Code § 18.2-53.1. Appellant claims that the trial court erred in
refusing to admit into evidence a co-defendant's hearsay
statement. While the trial court's refusal to admit the co-
defendant's statement was erroneous, the error was harmless. We
therefore affirm appellant's convictions.
Viewed in the light most favorable to the Commonwealth, the
record shows that appellant was riding in a car with three other
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
men and that all four were armed with firearms. After they drove
by a group of boys and discussed robbing them, appellant
testified that he asked to be let out of the car because he did
not want to participate in the robbery. The driver turned
around, the men jumped out, and the boys ran. The men fired
several shots at the boys, one of whom was killed. Eyewitnesses
testified that all four men had gotten out of the car, although
appellant claimed that he stayed in the car and did not
participate. The evidence also established that the individual
who stayed by the car fired a shot into the air. When the police
found the men in the car, all four ran, and appellant was found
hiding under a parked car.
At a bench trial, appellant sought to introduce an unsigned,
undated letter purportedly addressed to appellant and written by
the driver of the car. The driver had been called as a witness
but asserted his fifth amendment privilege not to testify. The
letter contained the statement, "I'm sorry. If I would've
stopped the car you wouldn't be in here." The trial judge
refused to admit the letter into evidence. The trial judge
indicated that he found the statement irrelevant to the question
of appellant's actual participation in the offense.
We hold that the trial court erred in refusing to admit the
co-defendant's hearsay statement. An exception to the hearsay
rules exists where (1) the declarant is unavailable; (2) the
hearsay statement was against the declarant's penal interest at
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the time it was made; and (3) the declarant knew the statement
was against his penal interest at the time it was made. Boney v.
Commonwealth, 16 Va. App. 638, 643, 432 S.E.2d 7, 10 (1993). In
addition, as with all evidence, the statement must be relevant.
See Johnson v. Commonwealth, 2 Va. App. 598, 601, 347 S.E.2d 163,
165 (1986). In this case, the co-defendant was unavailable, as
he had asserted his fifth amendment privilege to remain silent.
The statement as a whole was against the co-defendant's penal
interest, and the co-defendant knew this at the time he wrote the
letter. See Chandler v. Commonwealth, 249 Va. 270, 278-79, 455
S.E.2d 219, 224-25 (1995). Finally, the evidence had a tendency
to establish a fact that was properly at issue, namely
appellant's request to not participate in the crimes. Wise v.
Commonwealth, 6 Va. App. 178, 187-88, 367 S.E.2d 197, 202-03
(1988); Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361
S.E.2d 436, 441 (1987)("The admissibility of evidence is a matter
of law to be determined by the trial judge.").
However, we hold that while the trial judge erroneously
refused to admit the hearsay statement, this error was harmless.
As this Court has stated, 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. . . . 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.
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Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,
911 (1991)(en banc). The trial judge opined that the statement,
"If I would've stopped the car, you wouldn't be in here," did not
indicate that appellant "did not participate because the car
wasn't stopped. I base that on the other evidence." The other
evidence of appellant's guilt included the fact that eyewitnesses
saw four men outside of the car, that appellant possessed a
firearm, and that appellant fled from the scene and attempted to
elude the police after the crimes were committed.
In this case we have the benefit of knowing how the trier of
fact--the trial judge--viewed the disputed evidence. The trial
judge explained that the hearsay statement did not have any
bearing on whether appellant actually participated in the crimes
after he asked to be let out of the car. Based on the trial
judge's statements, it is clear that even if the hearsay
statement were admitted, the trial judge, as trier of fact, would
have chosen to attach little, if any, significance to it in light
of the other evidence, and the identical verdicts would have been
reached. See Lavinder, 12 Va. App. at 1005, 407 S.E.2d at 911.
For the foregoing reasons, we affirm appellant's
convictions.
Affirmed.
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