Terrence Marcellus Woolard v. Commonwealth of VA ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia
TERRENCE MARCELLUS WOOLARD
MEMORANDUM OPINION * BY
v. Record No. 2648-99-1 JUDGE MARVIN F. COLE
JULY 18, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
Andrew G. Wiggin (Donald E. Lee, Jr. and
Associates, on briefs), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Terrence Marcellus Woolard (appellant) appeals from a
judgment of the Circuit Court of the City of Virginia Beach
convicting him of first degree murder, conspiracy, and burglary.
He contends the trial court erred by 1) refusing to sever his
trial from that of his codefendants; 2) admitting his
codefendants' out-of-court statements into evidence against him;
and 3) denying his motions to strike the evidence and set aside
the jury's verdict on the ground that the evidence was
insufficient to convict him. For the reasons that follow, we
reverse appellant's convictions.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Background
During the course of their investigation into the July 25,
1997 burglary of Tara Harper's residence and the resulting
murder of her boyfriend, William McKleny, the police
interrogated appellant, Toney Griffin, Jerry Norman, Santo
Langley, and Armard Smith. All five men were ultimately charged
with conspiracy, burglary, first degree murder, and using a
firearm in the commission of murder. Over appellant's
objection, the trial court ruled that appellant and his
codefendants would be tried jointly. The court also ruled that
the statements made by appellant's codefendants would be
admissible against appellant.
At trial, appellant testified that sometime after 1:00 a.m.
on July 25, he and Langley drove to the Northridge section of
Virginia Beach, following Griffin, Norman, and Smith, who were
in Norman's car. When Griffin, who was driving Norman's car,
stopped on a street near Harper's neighborhood, appellant parked
behind him. Appellant stated that Griffin, Norman, and Smith
exited Norman's car and walked away.
Not long thereafter, appellant and Langley started to walk
down the street. Appellant testified that he heard voices
behind one of the townhouses, so he walked down a cut behind the
residences toward the voices. He soon came upon Smith, who was
standing in Harper's backyard. Appellant testified that
Harper's back door was ajar, so he stepped into the house.
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Concluding, however, that something was not right, he exited the
house, told Smith he was leaving, and started back for his car.
On the way, appellant encountered Langley, who joined him.
Appellant testified that, shortly thereafter, he heard a gunshot
and then Smith and Norman came running back to the cars from the
direction of Harper's residence. Griffin also came running back
to the cars, but from another direction, where the police
eventually recovered the murder weapon.
Because Griffin had apparently misplaced the keys to
Norman's car, the codefendants all entered appellant's car.
Appellant drove to a nearby shopping plaza where he dropped off
everyone.
Appellant denied any involvement in planning the burglary,
denied knowing that his codefendants intended to break into
Harper's residence, denied agreeing to help anyone to commit a
crime, and claimed he was unaware that any of his codefendants
were armed. Although admitting that he entered Harper's
residence, he stated that he did not know that the house had
been forcibly entered.
In his July 25, 1997 statement to the police, appellant
denied any culpability. Although at one point he told Detective
Orr that his codefendants had planned the burglary, he insisted
that he had not been involved in planning the crime and denied
acting as a lookout. He did admit knowing that Griffin and
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Norman were armed. Appellant testified at trial that he was
unaware that any crime had been planned until after it occurred.
Detective Orr, who interrogated Langley, testified that
Langley
admitted that he had been present and took
part in the conversation which took place
between him and the four other co-defendants
prior to the incident occurring. He
admitted that he had a discussion about
breaking in the home because the resident of
that home was supposed to have money.
They, being the group, thought that the
resident was an affluent drug dealer. . . .
[Langley] ultimately admitted that he
had knocked on the door. He explained the
others in the group had told him to do that
in the planning part of the conversation.
Langley testified at trial and retracted his confession. His
trial testimony did not incriminate appellant.
In his July 26, 1997 statement to the police, Smith said
appellant was present when Griffin broke into the townhouse. He
stated that appellant kept running back and forth between the
gate to Harper's yard and the cut. Smith also indicated that
everybody was talking about going to the house, where they
believed a drug dealer resided.
Norman told police that Smith was talking to everyone about
a man's house where they could get some money and that this
man--Big Mike--was a big time drug dealer who supposedly had a
lot of money.
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At the time Smith gave his videotaped statement to the
police, he was under arrest. Norman confessed knowing that he
too was going to be charged in connection with these crimes.
The jury convicted all the defendants of conspiracy,
burglary, and first degree murder. Griffin and Norman were also
convicted of using a firearm in the commission of a felony.
Analysis
"In all criminal prosecutions, state as well as federal,
the accused has a right, guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution, 'to be confronted
with the witnesses against him.'" Lilly v. Virginia, 527 U.S.
116, 123 (1999). "The central concern of the Confrontation
Clause is to ensure the reliability of the evidence against a
criminal defendant by subjecting it to rigorous testing in the
context of an adversary proceeding before the trier of fact."
Maryland v. Craig, 497 U.S. 836, 845 (1990). The admission of a
non-testifying codefendant's custodial confession violates a
defendant's rights under the Confrontation Clause unless the
prosecution can otherwise establish the inherent reliability of
the confession. See Lilly, 527 U.S. at 137-38.
"An accomplice's custodial confession that incriminates a
codefendant is presumptively unreliable in the context of an
alleged Confrontation Clause violation." Bass v. Commonwealth,
31 Va. App. 373, 382, 523 S.E.2d 534, 539 (2000) (citing Lilly,
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527 U.S. 116). In order for such a confession to be admissible,
it
must be "supported by a 'showing of
particularized guarantees of
trustworthiness.'" The particularized
guarantees of trustworthiness necessary to
rebut the presumption of unreliability must
"be drawn from the totality of circumstances
that surround the making of the statement
and that render the declarant particularly
worthy of belief." Evidence admitted based
upon the existence of particularized
guarantees of trustworthiness must be so
trustworthy that adversarial testing would
add little to its reliability.
Id. at 383-84, 523 S.E.2d at 539 (citations omitted). Factors
that a court can consider in determining the reliability of a
confession include 1) the accomplice's unawareness of the fact
that he has been implicated in a crime by a codefendant; 2) the
police's ignorance of the confessor's involvement in the crime
confessed; and 3) "the exercise of any contemporaneous
cross-examination by counsel or its equivalent." Id. at 384,
523 S.E.2d at 539.
A codefendant's confession can be admitted if it is
substantially identical to the defendant's confession, that is,
if the two confessions interlock. See id. at 384-85, 523 S.E.2d
at 540.
"If those portions of the codefendant's
purportedly 'interlocking' statement which
bear to any significant degree on the
defendant's participation in the crime are
not thoroughly substantiated by the
defendant's own confession, the admission of
the statement poses too serious a threat to
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the accuracy of the verdict to be
countenanced by the Sixth Amendment. In
other words, when the discrepancies between
the statements are not insignificant, the
codefendant's confession may not be
admitted." Conversely, an accomplice's
statement that does not "interlock" with the
defendant's statement may be admitted
against the defendant if the areas of
disagreement are irrelevant or trivial.
Id. at 385, 523 S.E.2d at 540.
Langley testified and was subject to cross-examination.
Any initial Confrontation Clause error caused by the admission
of his confession, therefore, was rectified when he took the
stand. On the other hand, neither Smith, Norman, nor Griffin
testified at trial. At the time Smith and Norman confessed,
they were in custody and knew they were going to be charged with
the burglary and McKleny's murder. When Griffin at first denied
any involvement in these crimes, he was quickly advised by the
interrogating officers that they had evidence tending to prove
the contrary, that Norman was waiting to be interrogated, and
that appellant was on his way to the police station.
Furthermore, the codefendants' incriminating confessions did not
interlock with appellant's statement.
The Commonwealth failed to establish the inherent
reliability of Norman, Smith, and Griffin's confessions, and the
trial court erred in admitting this evidence. Appellant's
convictions must be reversed, therefore, unless we can determine
that the error was harmless.
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The standard that guides our analysis
of the harmless error issue in this case is
clear. Thus, "before a federal
constitutional error can be held harmless,
the court must be able to declare a belief
that it was harmless beyond a reasonable
doubt;" otherwise the conviction under
review must be set aside. 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).
Griffin did not implicate appellant as a principal in these
crimes, so the admission of his confession was harmless error.
But the admission of Smith and Norman's confessions prejudiced
appellant. There was no physical evidence that proved
appellant's involvement in these crimes, appellant denied any
intentional wrongdoing, and Langley recanted his incriminating
confession. With the exception of Langley's confession, the
confessions of Norman and Smith constituted the only direct
evidence that proved appellant's involvement in committing these
crimes. Accordingly, because we cannot conclude that admitting
this evidence was harmless beyond a reasonable doubt,
appellant's convictions must be reversed.
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The judgment of the trial court is reversed, and the case
is remanded to the trial court for retrial if the Commonwealth
be so advised. In light of our holding, we need not address
appellant's other assignments of error.
Reversed and remanded.
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