Williams v. Commonwealth

ANNUNZIATA, Judge.

Hurcus Jerome Williams (“appellant”) was convicted by bench trial of capital murder, robbery, and two counts of using a firearm in the commission of a felony. On appeal, appellant contends the trial court committed reversible error: (1) by admitting an accomplice’s out-of-court confession to police; and (2) by refusing to provide his accomplice’s confession to him before ruling on its admissibility. We disagree and affirm appellant’s convictions.

I.

FACTUAL BACKGROUND

The evidence at appellant’s trial established the following relevant facts, stated in the light most favorable to the Commonwealth. See Smith v. Commonwealth, 27 Va.App. 357, 359, 499 S.E.2d 11, 12 (1998). In the early morning hours of December 1, 1996, Vareck Griffin sustained three gunshot wounds and died on the premises of a crack house on Colley Avenue in Norfolk, Virginia. Immediately before the shooting, Griffin was alone in the apartment, keeping watch over a stash of cocaine and selling the drug to customers from the premises. Appellant had visited the premises to obtain various amounts of cocaine three times that day and knew Griffin was alone in the apartment.

As a result of questioning by officers of the Norfolk Police Department on April 16,1997, Damyel Harris confessed appellant had enlisted his help to rob Griffin while Griffin conducted the sale of drugs from the Colley Avenue premises. Harris gave a statement to police, which provides in pertinent part:

[M]e and Hurcus met up one night. He came and got me; I was standing on the corner at 35th and Gosnold. He told' me that we could do a hit, get some crack, a little bit of money. So, I was like where? I said, do the guys — I asked him where was it at. He said Park Place. I said no, I’m too hot out here; I been chilling out. I said, do the guys know me? So he was like, no, they don’t know neither one of us. So, we went around to the house, walked up the stairs. I knocked on the door; Hurcus stood on the side.

When the guy opened the door, he had a gun in his hand. Hurcus punched the guy; the gun fell. Both of them went reaching for the gun. I grabbed a bottle and hit the guy in the head. Then Hurcus grabbed the guy. We shut the door; Hurcus grabbed the guy, took him to the back. He told me to look up under the couch and grab the dope and look on the table and grab the scales. So when I was reaching for the scales, I heard a gunshot, one gunshot. And I heard the guy say, please don’t kill me. So then I went up under the couch and found the drugs. That’s when I heard two more gunshots about five seconds later.

Then Hurcus came running out the door. He went straight out the door and I yelled his name. He told me. not to yell his name; he kept running across the street.

When the Commonwealth called Harris as a witness at appellant’s trial, Harris refused to testify, asserting his Fifth Amendment privilege. As a result, the Commonwealth offered into evidence the transcript of Harris’ statement. Appellant objected on the ground that admission of the statement violated his Sixth Amendment constitutional right to confront witnesses against him. The Commonwealth called Investigator Donald Norrell to establish the circumstances under which Harris made his statement. Appellant’s counsel advised the court that she had not previously seen the statement and requested an opportunity to review it before she cross-examined Norrell. The court refused counsel’s request, stating appellant would be given a chance to review the statement if the court ruled the statement to be admissible evidence. At the close of the Commonwealth’s examination, appellant’s counsel again objected to the procedure by which the court would determine the statement’s admissibility, arguing that she needed to review the statement “in order to adequately represent” her client. The court overruled the objection and, after reviewing the entire statement, ruled it was sufficiently reliable to be admitted.

In addition to Harris’ statement, the Commonwealth also produced several witnesses whose testimony implicated appellant in the instant offenses. Jesse Keene met appellant on the street in December of 1996 and testified that appellant stated he had gone to the Colley Avenue crack house with Harris and that he was “laying low” because Griffin “got killed” while they were there. Jason Carter recalled a conversation in his cell block in which appellant admitted that he went to the Colley Avenue premises with Harris, that Griffin was on the premises alone, that he wrestled a gun away from Griffin, and that he shot Griffin. Thomas Liggins, who shared a cell with appellant, testified that appellant stated that he was in jail because he shot someone, that he was with another person at the time of the shooting, that the other person struck the victim with a bottle, and that appellant had to shoot the victim because appellant was not wearing a mask.

II.

ADMISSION OF THE OUT-OF-COURT CONFESSION

Assuming without deciding that the admission of Harris’ confession violated appellant’s constitutional right to confrontation, see Lilly v. Virginia, 527 U.S. 116,---, 119 S.Ct. 1887, 1900-01, 144 L.Ed.2d 117 (1999), we find that error to have been harmless. When a trial court admits evidence in violation of the United States Constitution, the court’s error is a constitutional one. See Jenkins v. Commonwealth, 254 Va. 333, 336, 492 S.E.2d 131, 132 (1997). “ ‘[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.’ ” Id. (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). We decide whether the erroneous admission of evidence was sufficiently prejudicial to require reversal “ ‘on the basis of our own reading of the record and on what seems to us to have been the probable impact’ ” on the fact finder. Arnold v. Commonwealth, 4 Va.App. 275, 282, 356 S.E.2d 847, 851 (1987) (quoting Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972)). See McDonnough v. Commonwealth, 25 Va.App. 120, 132, 486 S.E.2d 570, 576 (1997).

We may declare the erroneous admission of evidence harmless beyond a reasonable doubt when the “record contains ‘overwhelming’ evidence of guilt.” Scott v. Commonwealth, 25 Va.App. 36, 42, 486 S.E.2d 120, 123 (1997). See Jenkins v. Commonwealth, 244 Va. 445, 454, 423 S.E.2d 360, 366 (1992), cert. denied, 507 U.S. 1036, 113 S.Ct. 1862, 123 L.Ed.2d 483 (1993) (concluding that the admission of a defendant’s confession was harmless error based on the Commonwealth’s presentation of overwhelming evidence of guilt, which consisted of other confessions to close friends, fellow jail inmates, and investigators); McDonnough, 25 Va.App. at 132-33, 486 S.E.2d at 576 (concluding that the admission of a statement in violation of the Confrontation Clause was harmless based on the sum of other testimonial and physical evidence of the defendant’s guilt). Although corroborating evidence is not relevant in determining the reliability of a statement under a Sixth Amendment analysis, such evidence is appropriately considered when determining whether the erroneous admission of a statement was harmless. See Idaho v. Wright, 497 U.S. 805, 823, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).

Based on our review of the record, we conclude that any error in admitting Harris’ confession was harmless beyond a reasonable doubt because of the overwhelming evidence of appellant’s guilt on each of his four convictions. As to the robbery conviction, the elements of robbery are: (1) the use of violence, or the threat thereof, against the victim, and (2) the theft of property from the victim’s person or in the victim’s presence. See Code § 18.2-58; Briley v. Commonwealth, 221 Va. 532, 543, 273 S.E.2d 48, 55 (1980), cert. denied, 451 U.S. 1031, 101 S.Ct. 3022, 69 L.Ed.2d 400 (1981). As to appellant’s conviction of capital murder, the Commonwealth had the burden of proving a “willful, deliberate, and premeditated lolling of any person in the commission of robbery or attempted robbery.” Code § 18.2-31.

Ignoring Harris’ confession, the Commonwealth presented the following evidence of appellant’s guilt at trial. Appellant visited the Colley Avenue premises several times on the day of Griffin’s murder to purchase drugs. Later that day, appellant learned of Griffin’s sole guardianship of the drugs on the premises. That night, Griffin died after sustaining three gunshot wounds on the premises, at least two of which were inflicted at a range of two to three feet. Detroy Woolard, another occupant of the premises, noticed that the drugs and the only gun kept on the premises were missing when he returned and discovered Griffin’s body. Further, the testimony of three witnesses established appellant’s role in the robbery and murder of Griffin. According to Jesse Keene, appellant admitted he entered the Colley Avenue premises with Harris and then “laid low” because Griffin was murdered during the encounter. Jason Carter testified that appellant admitted he went to the Colley Avenue premises with Harris, wrestled a gun away from Griffin, and shot Griffin with the gun. Finally, Thomas Liggins recalled appellant’s statement that he shot someone, that he was with another person at the time of the shooting and that the other person had struck the victim with a bottle, and that he had to shoot the victim to avoid being identified. Police found multiple empty bottles on the floor of the apartment where Griffin was killed. Appellant’s counsel was given full opportunity to cross-examine these witnesses and exercised that right as to each of them.

Based on our review of the record and the overwhelming evidence of appellant’s guilt, we conclude that the admission of Harris’ confession was harmless beyond a reasonable doubt.

III.

REFUSAL TO DISCLOSE WITNESS’ STATEMENT TO APPELLANT

Appellant next contends the trial court erred by refusing to disclose or order the Commonwealth to disclose Harris’ statement to his counsel before ruling on its admissibility at trial. We disagree.

“As a general rule the accused is not entitled to obtain statements made by prospective Commonwealth witnesses to police officers in connection with the investigation or prosecution of a criminal case.” Currie v. Commonwealth, 10 Va.App. 204, 208, 391 S.E.2d 79, 82 (1990). See Rule 3A:11(b)(2) (“This subparagraph does not authorize the discovery or inspection of statements made by Commonwealth witnesses or prospective Commonwealth witnesses to agents of the Commonwealth ____”). This rule is subject to the exception enunciated by the United States Supreme Court in Brady v. Maryland that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The content of Harris’ confession to police was plainly inculpatory. Although Harris’ confession contained minor inconsistencies with the remaining body of evidence against appellant, the confession was consistent “in every significant particular.” Currie, 10 Va.App. at 209-10, 391 S.E.2d at 82-83 (finding that a police report was not subject to disclosure under Brady, notwithstanding its minor inconsistencies with the victim’s trial testimony, because such inconsistencies had little impeachment value with respect to the central issue of the case). Furthermore, the text of Harris’ confession is internally consistent and, for that reason, was of little impeachment value. Indeed, after reviewing the statement, appellant’s counsel raised no further objection to the statement’s admissibility and did not seek to further cross-examine Norrell regarding the interview that produced the statement. Finally, there is no evidence Harris made the statement involuntarily or in ignorance of his constitutional rights, factors which may otherwise give rise to a basis for impeachment. Thus, Brady affords no basis for disclosure of Harris’ confession. We, therefore, find no error in the trial court’s refusal to require disclosure of Harris’ statement prior to ruling on its admissibility.

For the reasons set forth in this opinion, appellant’s convictions are affirmed.

Affirmed