Montusa Karundo T. Pace v. Commonwealth of VA ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bray and Bumgardner
Argued at Chesapeake, Virginia
MONTUSA KARUNDO T. PACE
MEMORANDUM OPINION * BY
v. Record No. 1984-99-1 JUDGE RUDOLPH BUMGARDNER, III
MAY 9, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
James S. Ellenson for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
A jury convicted Montusa Karundo T. Pace of first-degree
murder, burglary, three counts of robbery, and five counts of
use of a firearm in the commission of a felony. He argues the
trial court erred in admitting the statement of Adam Davis, a
codefendant. The Commonwealth concedes the admission was error,
but we conclude the error was harmless beyond a reasonable
doubt.
On appeal, we consider the evidence and all reasonable
inferences fairly deducible therefrom in the light most
favorable to the Commonwealth. See Derr v. Commonwealth, 242
Va. 413, 424, 410 S.E.2d 662, 668 (1991). Viewed in that
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
manner, the evidence established that Adam Davis and Chris Moltz
asked Frankie Davis if he knew anyone who might be interested in
robbing a house for them. They believed drugs, weapons, and
money were in the house. Frankie Davis contacted the defendant
because the defendant had told him earlier that day that he
wanted to commit a robbery.
The defendant went to Frankie Davis's house with two other
men. All three were dressed in black, wore hoods over their
heads, and covered their faces with masks. Frankie Davis and
the defendant talked about the impending robbery. Adam Davis
gave the defendant a floor plan of the house to be robbed, but
when Adam Davis indicated that he wanted to go with the
defendant, the defendant said, "all he had to do was point the
house out and [the defendant and his friends] would take it from
there." The three masked men got into their car and followed
Adam Davis and Moltz.
A masked gunman forced his way inside James Kahley's house,
pointed a gun to Kahley's head, and told him it was a robbery.
Two more masked gunmen entered the house. As the defendant
entered, he shot Kahley's dog, and ordered Kahley and two
friends to lie on the floor. When a gunshot rang out upstairs,
the defendant told Kahley "not to fucking look up again or he'll
start killing people." The defendant had a chrome gun with a
laser sight.
- 2 -
Another masked gunman, later identified as Otis Thomas or
"O," went to the second floor. There he shot Michael Jackson
and got into a scuffle with Aaron Melton. The fight broke up
when the third masked gunman came to help Thomas. The two
gunmen hurried downstairs, and thirty seconds later, all three
gunmen left the house.
The defendant went to Frankie Davis's house the next
morning. He told Frankie Davis that the house was not like Adam
Davis and Moltz had described it. He also told Frankie Davis
that he forced some guy inside and shot a Rottweiler when it
came at him. The defendant stated, "O [Otis Thomas] had to wet
somebody." Frankie Davis understood that to mean that Thomas
had shot somebody. The defendant gave Frankie Davis a plastic
bag to keep because "he didn't want it to be in his house." The
bag contained a box of laser beams, a mechanism that fits around
the trigger of a gun, and a box for a laser sight. Frankie
Davis buried the items in his mother's backyard.
During the trial, the Commonwealth presented the statement
that Adam Davis gave the police as a declaration against penal
interest. In the statement Adam Davis described the planning of
the robbery. He denied knowing the robbers and did not identify
any of them. He gave no information about the events at the
Kahley house. The statement minimized Adam Davis's role in
planning the robbery, and it paralleled much of the testimony of
Frankie Davis about that stage of the robbery.
- 3 -
The Commonwealth conceded the trial court erred in
admitting Adam Davis's statement. Lilly v. Virginia, 527 U.S.
116, 134, 119 S. Ct. 1887, 1899 (1999), which was decided after
the trial of this case, held that the admission of an
accomplice's confession is a violation of a defendant's right to
confrontation. However, "'an otherwise valid conviction should
not be set aside if the reviewing court may confidently say, on
the whole record, that the constitutional error was harmless
beyond a reasonable doubt.'" Dearing v. Commonwealth, 259 Va.
117, 123, 524 S.E.2d 121, 125 (2000) (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 681 (1986)).
In order to determine if the error is harmless, this "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).
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, 523 S.E.2d 208, 209
(1999) (citations omitted).
- 4 -
Applying these principles, we conclude that the error was
harmless beyond a reasonable doubt. Frankie Davis testified
that the defendant had said he wanted to rob someone and that
Frankie Davis contacted the defendant when a robbery opportunity
presented itself. The defendant and two other men went to
Frankie Davis's house dressed in black with ski masks and hoods
to conceal their identity. The defendant spoke to Adam Davis
and was given a floor plan of the house to be robbed. The
defendant told Adam Davis to point out the house and he and his
boys would do the rest. Frankie Davis also testified that the
defendant came to his house early the next morning and told him
the house they robbed was different than described. The
defendant told Frankie Davis that he forced a guy into the house
and shot a dog. The defendant said that Thomas shot someone.
The defendant gave Frankie Davis a bag that contained a laser
switch because he did not want it to be found in his house.
Kahley testified that he was forced back in his house at
gunpoint and that a masked man with a laser beam on his gun shot
the dog. That man guarded him and his friends as the other two
went upstairs. When he heard a shot upstairs, the defendant
told him "not to fucking look up again or he'll start killing
people." One of the witnesses, Charles Oakman, testified that
he and Jackson were robbed before Jackson was killed. A second
witness, Aaron Melton, testified that he also was robbed.
- 5 -
The statement made by Adam Davis never mentioned the
defendant or his role in the robbery. It only described the
planning of the robbery and added no information to that
presented by Frankie Davis. The statement was primarily an
attempt by Adam Davis to minimize his role in planning the
robbery. The statement did not implicate the defendant in any
way, but the other evidence of the Commonwealth was credible and
overwhelmingly implicated the defendant in the crimes for which
he was convicted. The admission of Adam Davis's statement was
harmless beyond a reasonable doubt. Accordingly, we affirm the
judgment of the trial court.
Affirmed.
- 6 -