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BASS v. COMMONWEALTH



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BASS

v.

COMMONWEALTH


JANUARY 27, 2000

Record No. 2554-98-1

KAWASKI BASS, S/K/A

KAWASKI LAJUNE BASS

v.   

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT
NEWS

Present: Chief Judge Fitzpatrick, Judges Willis
and Annunziata

Argued at Chesapeake, Virginia

Randolph T. West, Judge

Lyn M. Simmons for appellant.

Kathleen B. Martin, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

OPINION BY JUDGE ROSEMARIE ANNUNZIATA


Kawaski Bass appeals from his convictions of
robbery and use of a firearm in the commission of a felony. He
contends on appeal 1) that the trial court erred in
admitting statements of his two codefendants as evidence in the
guilt phase of the prosecution, and 2) that without those
statements the evidence offered against him at trial was
insufficient to sustain his convictions. We agree that the
statements of Bass’ codefendants should not have been admitted
against him at trial, but we find that the admission of his
codefendants’ statements was harmless error. We therefore affirm
his convictions.

FACTUAL BACKGROUND

In the late evening of February 1, 1998, Bass
and two friends, Maurice Sirls and Julius Scott, drove in Scott’s
mother’s car from Hampton, Virginia to a shopping center in
Newport News. According to the statements of Bass and his
codefendants, the three planned to rob customers as they exited a
Food Lion grocery store located in the shopping center. Sirls had
a .25 caliber chrome handgun with six bullets in it, and Scott
had an unloaded Smith & Wesson. The three men entered the
grocery store and identified their intended victims, Robert
Randolph and his friend, Jacqueline James, who were shopping at
the store shortly after midnight. Randolph bumped into Bass while
in the store, triggering a short, innocuous exchange of words.
When Randolph exited the store and walked toward his car, he saw
Bass, Sirls, and Scott exit the store from another door. One of
the three asked Randolph which way he was going. The men then
moved in different directions, Sirls coming toward Randolph while
Scott, and possibly Bass, approached from the other side of the
car. As Randolph unlocked his car door, he heard someone behind
him. Sirls pointed the small chrome handgun at Randolph and
"instructed [him] to cooperate," threatening to shoot
or kill him. Randolph told Sirls his money was in the top left
pocket of his shirt. Sirls took $8 from Randolph and a
"handful of lollipops" from his pants pocket and ran
from the scene with Scott and Bass.

At trial, Randolph identified all three
suspects, but could not testify as to Bass’ presence during the
robbery. James could not identify any of the three assailants;
she heard the men but did not see them. However, she saw a gun
aimed at Randolph and felt something "hard" at the back
of her head. After checking her pockets, one of the men took the
bag of groceries from her hand before leaving the scene.

Officer Larry Rilee of the Newport News Police
Department interviewed Bass and Sirls on April 21, 1998 at the
Hanover County jail, where they had been detained. He interviewed
Scott on April 28, 1998, at a detention center in James City
County. Each of them made lengthy statements to Rilee recounting
the events of the evening in question and providing an account of
the robbery that took place.

Bass stated that on the evening in question he
drove himself, Sirls and Scott in Scott’s mother’s car to the
parking lot of a 7-Eleven store just across the street from a
Food Lion grocery store located on Warwick Boulevard. Bass
admitted that he drove his companions there knowing that they
were armed and intended to commit a robbery. When asked by the
police whether he, Sirls and Scott discussed committing a robbery
while en route to the Food Lion, Bass replied, "Yeah."
In response to further questioning as to why Sirls and Scott had
guns with them, Bass answered, "I guess they was going in to
do a robbery. . . ." He stated that he and
his two associates walked to the Food Lion and that on the way
Sirls "cocked his .25 gun back," but Scott "didn’t
have no bullets in his gun." Bass stated that the three men
browsed around in the store until they saw Randolph and James and
that he, Sirls and Scott exited the store when they identified
Randolph and James as their victims. According to Bass, Sirls at
this point said to him, "Yo, let’s get down," which
Bass understood to be an invitation to participate in robbing
Randolph and James. Bass replied, "Naw, uh-uh, I’m
leaving," and, "Man, I’m turning around." Bass
described the robbery that took place, however, stating that he
was "away from the scene" of the robbery, having walked
to "the end of the street," but admitting he could see
tears running down James’ cheeks when Scott told her to put her
hands behind her head. Bass further stated that he could still
see "the tears rolling down [James'] eyes" as the three
fled. Bass also admitted that he helped Sirls and Scott effect
their escape by driving them from the scene. In addition, he
accurately described the clothes worn by Sirls and Scott on the
evening in question.

Sirls stated that he went to the Food Lion in
company with Bass and Scott and that Bass drove them to the
7-Eleven parking lot in Scott’s mother’s car. According to
Rilee’s testimony, Sirls also stated that while driving to the
store "they planned to do a robbery," in which they
intended "just to pick a target at some point." He
admitted that he and Scott were armed, and stated that Bass was
unarmed. Sirls stated that he carried a .22 or .25 chrome handgun
and that Scott was armed with a "wooden" or
"antique" gun. Sirls described the robbery, indicating
that once Randolph and James exited the Food Lion, Sirls
approached Randolph, produced the chrome handgun, and robbed
Randolph while Scott held a gun on James and checked her pockets
for cash. He also accurately described the clothes worn by Bass
and Scott. When asked where Bass was positioned during the
robbery, Sirls stated that he "could have reached and
touched [Bass], that’s how close he was."

In his statement, Scott likewise stated that
Bass drove the three defendants to the 7-Eleven parking lot, from
which they walked to the Food Lion, and that while en route they
discussed committing a robbery. He also stated that Bass alone of
the three was unarmed, that Sirls carried a chrome handgun, and
that he was armed with an old, "wooden" gun. He
recounted how Sirls robbed Randolph while he robbed James, taking
a bag of groceries from her, and that Bass fled the scene with
him and Sirls. He finally noted that once they returned to the
car they ate some of the groceries stolen from James.

Bass, Sirls and Scott were tried together, and
none of them testified at trial. The Commonwealth offered the
statements of all three men made in response to police
questioning as evidence against Bass, introducing the statements
through the testimony of Officer Rilee, and through a transcript
of Bass’ statement. Bass’ objection to admitting the statements
of his codefendants against him was overruled, in reliance upon
our decision in Randolph v. Commonwealth, 24 Va. App.
345, 353, 482 S.E.2d 101, 104-05 (1997) (codefendant’s hearsay
statement admissible as a declaration against penal interest, a
"’firmly rooted’" hearsay exception (quoting Raia v.
Commonwealth
, 23 Va. App. 546, 552, 478 S.E.2d 328, 331
(1996))); see also Chandler v. Commonwealth, 249
Va. 270, 455 S.E.2d 219, cert. denied, 516 U.S. 889
(1995); Morris v. Commonwealth, 229 Va. 145, 147, 326
S.E.2d 693, 694 (1985); Lewis v. Commonwealth, 18
Va. App. 5, 8, 441 S.E.2d 47, 49 (1994); Scaggs v.
Commonwealth
, 5 Va. App. 1, 4-5, 359 S.E.2d 830, 832
(1987). The court also denied Bass’ motion to strike the evidence
on the ground the Commonwealth had failed to present evidence
connecting him with the offense.

HEARSAY ANALYSIS

Whether evidence is admissible falls within the
broad discretion of the trial court, and the court’s ruling will
not be disturbed on appeal absent an abuse of discretion. See
Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d
838, 841 (1988). By definition, when the trial court makes an
error of law, an abuse of discretion occurs. See Taylor
v. Commonwealth
, 28 Va. App. 1, 9, 502 S.E.2d 113, 117
(1998) (en banc).

An accomplice’s custodial confession that
incriminates a codefendant is presumptively unreliable in the
context of an alleged Confrontation Clause violation. See Lilly
v. Virginia
, 119 S. Ct. 1887, 1900 (1999) (plurality
opinion); Lee v. Illinois, 476 U.S. 530, 541-43 (1986)
("[A] codefendant’s confession is presumptively unreliable
as to the passages detailing the defendant’s conduct or
culpability because those passages may well be the product of the
codefendant’s desire to shift or spread blame, curry favor,
avenge himself, or divert attention to another."). "[A] confession by an accomplice which incriminates a criminal
defendant" should be considered a distinct category of
hearsay for the purpose of determining its admissibility under
the Sixth Amendment, Lee, 476 U.S. at 544 n.5, and this
category of statements is not a "firmly rooted
exception" to the hearsay rule.
[1] See Lilly, 119 S. Ct. at 1897
(plurality opinion).

The presumption of unreliability attaching to
an accomplice’s confession implicating a defendant may be
rebutted,
[2]although the bar for rebuttal of the presumption is set
very high.
[3] See id. at 1900; Lee, 476 U.S. at
543. The confession must be "supported by a ‘showing of
particularized guarantees of trustworthiness.’" Id.
at 543 (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)).
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." Idaho v. Wright, 497 U.S. 805, 820 (1990).
Evidence admitted based upon the existence of particularized
guarantees of trustworthiness must be so trustworthy that
adversarial testing would add little to its reliability. See
id. at 821.

Circumstances surrounding an accomplice’s
confession that weigh in favor of finding reliability include:
(1) lack of knowledge on the part of the accomplice that he
or she has already been implicated in a crime by a codefendant,
(2) making the confession to authorities who were not aware
of the confessor’s role in the crime confessed, and (3) the
exercise of any contemporaneous cross-examination by counsel or
its equivalent. See Lee, 476 U.S. at 544.

In Wright, the Supreme Court held that
evidence which corroborates the truth of an accomplice’s
confession is irrelevant to the determination of the confession’s
reliability. See 497 U.S. at 822 ("To be admissible
under the Confrontation Clause, hearsay evidence used to convict
a defendant must possess indicia of reliability by virtue of its
inherent trustworthiness, not by reference to other evidence at
trial."). The use of corroborating evidence to establish a
statement’s reliability is "no substitute for
cross-examination of the declarant at trial" and would allow
the admission of presumptively unreliable statements by
bootstrapping on the trustworthiness of other evidence admitted
at trial. Wright, 497 U.S. at 822-23. However, the Supreme
Court in Wright did not reject the use of the interlocking
character of codefendant confessions as probative of their
reliability, but merely "declined to rely on corroborative physical
evidence" in applying Lee‘s analysis. Id. at
824 (emphasis added); see Washington v. Rice, 844
P.2d 416, 427 n.5 (Wash. 1993) (en banc) (observing
that Wright rejected only physical evidence as
corroborative of a codefendant’s "interlocking"
confession, not the interlocking nature of the confessions
themselves). Thus, under the Supreme Court’s reasoning in Lee
and Wright, where codefendants’ statements "are
identical in all material respects," such evidence may be
considered because "the likelihood that they are accurate is
significantly increased." 476 U.S. at 545. Such statements
are considered to substantially "interlock," in that
they "recite[ ] essentially the same facts as those of
. . . nontestifying codefendants." Cruz v. New
York
, 481 U.S. 186, 190-91 (1987).

The degree to which such confessions must
"interlock" to be admissible was defined in Lee
as follows:

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 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.

476 U.S. at 545 (emphasis added). 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.
See id. at 545. Before an accomplice’s confession
may be admitted, the court must be able to conclude that the
declarant’s truthfulness is so clear from the surrounding
circumstances that cross-examination would be of "marginal
utility." Wright, 497 U.S. at 823.

Finally, although a violation of the
Confrontation Clause results when a court admits against a
defendant an accomplice’s interlocking confession that differs in
substantial ways from the defendant’s confession, if the
admission of the accomplice’s statement is found harmless beyond
a reasonable doubt the error does not require reversal of the
conviction. See Cruz, 481 U.S. at 193-94. In
examining the record for harmless error, corroborating physical
evidence may be considered, although it is an improper basis upon
which to determine the reliability of the accomplice’s
statement. See Wright, 497 U.S. at 823-24.

Applying these principles to the issue before
us, we find Bass met his burden to show that the trial court’s
decision was erroneous. See Fore v. Commonwealth,
220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied,
449 U.S. 1017 (1980).

We view the evidence in the light most
favorable to the Commonwealth, the party prevailing below. See
Williams v. Commonwealth, 30 Va. App. 378, 381, 517
S.E.2d 246, 248 (1999). All three defendants gave tape-recorded
confessions to the police in response to questioning. The
accomplices’ statements admitted against Bass came into evidence
through the testimony of Officer Rilee. They were unsworn and
were not subject to cross-examination. See Lee, 476
U.S. at 544. Furthermore, Sirls and Scott were aware at the time
they made the statements that they were facing charges of
robbery, and the police were aware of the declarants’ roles in
the crime under investigation. See id. at 544, cited
in
Wright, 497 U.S. at 821.

Finally, the confessions of the three
defendants were not substantially interlocking. Sirls and Scott
both said in their confessions that Bass was present during the
robbery of the two victims. Sirls offered an indicator of Bass’
proximity, stating that while he held a gun to the chin of Robert
Randolph, Bass stood close enough that Sirls "could have
reached and touched him, that’s how close he was." Bass
disagreed on this point. While admitting that he was close enough
to see the "tears in the eyes" of the female victim,
Jacqueline James, Bass described his location relative to the
robbery as being "away from the scene . . . at the
end of the street," but close enough to see Sirls and Scott
committing the robbery in the parking lot. He replied to Sirls’
invitation to participate in the robbery in the parking lot by
saying, "Naw, uh-uh, I’m leaving. . . ."
When police asked Bass why he thought his companions were armed,
he replied, "Because I guess they was going in to do
a robbery." (Emphasis added).

Under Lee, the defendant’s confession
must "thoroughly substantiate[ ]" those portions
of his accomplices’ confessions which bear upon the defendant’s
guilt to render their statements admissible against him. See
476 U.S. at 545. Here, the confessions do not thoroughly
substantiate each other. In his statement, Bass denied having
participated in the robbery, claimed he was not in the parking
lot when it occurred, and further stated he "was
leaving" when Sirls and Scott made clear their plans to rob
the two victims. Sirls and Scott, however, placed Bass
immediately at the scene, close enough that Sirls "could
have . . . touched him." This discrepancy is
neither "irrelevant" nor "trivial," see
Lee, 476 U.S. at 545, because the statements go to whether
Bass’ conduct was such that it supports his conviction as a
principal in the second degree or as an accessory before the
fact. See Jones v. Commonwealth, 15 Va. App.
384, 387, 424 S.E.2d 563, 565 (1992) (an accused’s mere presence
and consent to the crime will not suffice to convict as an
accomplice (citing Underwood v. Commonwealth, 218 Va.
1045, 1048, 243 S.E.2d 231, 233 (1978))). Furthermore, because
Bass’ statement did not thoroughly substantiate those of Sirls
and Scott, and because the discrepancies in the confessions taken
from Sirls and Scott gave rise to the need for probative
cross-examination, we cannot say that cross-examination of the
declarants would have been only marginally useful. See Wright,
497 U.S. at 823.

For the foregoing reasons, we hold that the
trial court erroneously admitted the statements of Sirls and
Scott into evidence against Bass. We now examine whether this
error was harmless or whether it requires reversal of Bass’
convictions.

HARMLESS ERROR ANALYSIS

Where constitutional error occurs, the court
must assess whether the error was harmless beyond a reasonable
doubt. See Lilly, 119 S. Ct. at 1901 (citing Chapman
v. California
, 386 U.S. 18, 24 (1967)). Confrontation Clause
error is a federal constitutional error subject to harmless error
analysis. See Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986). "’[B]efore 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.’" Lilly
v. Commonwealth
, 258 Va. 548, 551, ___ S.E.2d ___, ___ (1999)
(quoting Chapman, 386 U.S. at 24). "This standard
requires a determination of ‘whether there is a reasonable
possibility that the evidence complained of might have
contributed to the conviction.’" Id. at 551, ___
S.E.2d at ___ (quoting Chapman, 386 U.S. at 23).

In making [a] determination [of such reasonable
possibility], 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.

Id. at 551, ___ S.E.2d at ___.

In determining whether an erroneously admitted
codefendant statement incriminating a defendant constituted
harmless error, the interlocking nature of the codefendant’s and
defendant’s statements may also be considered in assessing
whether the error contributed to the defendant’s conviction. See
Cruz, 481 U.S. at 190-91 (citing Harrington v.
California
, 395 U.S. 250, 253 (1969)); Preston v. Florida,
641 So.2d 169, 171 n.7 (Fla. 1994) (observing Cruz noted
that interlocking confessions may be considered for purposes
other than reliability of the statements, including harmlessness
of error). Where the defendant makes no attempt to disclaim his
own confession which closely interlocks with the confession of
non-testifying accomplices, the error may be deemed harmless. See
Cruz, 481 U.S. at 193-94.

It is well established that an accused cannot
be convicted solely on his or her uncorroborated extrajudicial
confession. See Phillips v. Commonwealth, 202 Va.
207, 210-11, 116 S.E.2d 282, 284-85 (1960). Rather, the corpus
delicti of an offense must be established by such
substantial corroborative circumstances as will, when taken in
connection with the confession, establish the corpus delicti
beyond a reasonable doubt. See id. at 211, 116
S.E.2d at 285. The corpus delicti of an offense is
the fact that the crime charged has been actually perpetrated,
meaning "’objective proof or substantial fact that a crime
has been committed.’" Claxton v. City of Lynchburg,
15 Va. App. 152, 154, 421 S.E.2d 891, 893 (1992) (citation
omitted).

"To show an accused guilty of a crime as a
principal in the second degree, the Commonwealth must show that
the accused was present, aiding and abetting, and intended his or
her words, gestures, signals, or actions to in some way
encourage, advise, urge, or in some way help the person
committing the crime to commit it." McGill v.
Commonwealth
, 24 Va. App. 728, 733, 485 S.E.2d 173, 175
(1997) (citing Ramsey v. Commonwealth, 2 Va. App.
265, 269, 343 S.E.2d 465, 468 (1986)). A person accused as an
accomplice is accountable for all crimes committed by his or her
confederates in furtherance of the criminal enterprise, even
though the accomplice may never have intended that a particular
crime would be committed. See Jones, 15
Va. App. at 387, 424 S.E.2d at 565 (citing Boggs v.
Commonwealth
, 153 Va. 828, 836, 149 S.E. 445, 447 (1929))
(additional citation omitted).

"[E]vidence [that] establishes that the
accomplice was . . . present . . . at a
convenient distance" is sufficient to establish the
accomplice’s presence at the crime scene. McGhee v.
Commonwealth
, 221 Va. 422, 425 n.2, 270 S.E.2d 729, 731 n.2
(1980). However, the accused’s mere presence and consent to the
crime will not suffice to convict as an accomplice. See Jones,
15 Va. App. at 387, 424 S.E.2d at 565 (citing Underwood
v. Commonwealth
, 218 Va. 1045, 1048, 243 S.E.2d 231, 233
(1978)). The accused "’must share the criminal intent of the
party who actually committed the [crime] or be guilty of some
overt act in furtherance thereof.’" Jones, 15
Va. App. at 387, 424 S.E.2d at 565 (quoting Augustine v.
Commonwealth
, 226 Va. 120, 124, 306 S.E.2d 886, 889 (1983)).

Applying the law to the facts of this case, we
find the trial court’s error in admitting the accomplices’
statements to be harmless. Bass’ statement to the police admitted
that he accompanied Sirls and Scott to the Food Lion store on the
evening in question and that he drove them there knowing that
they were armed and intended to commit a robbery. He stated that
he and his cohorts walked around in the store until they saw
Randolph and James and that he exited the store with Sirls and
Scott when they identified Randolph and James as their victims.
He further admitted that, despite declining Sirls’ invitation to
assist in the robbery, he stood close by until his cohorts
completed their crime, then fled with them, helping Sirls and
Scott effect their escape by driving them from the scene. He also
accurately described the clothes worn by Sirls and Scott on the
evening in question. The only significant difference between his
account and that of Sirls was in respect to Bass’ proximity to
the robbery.

The accounts given by Sirls and Scott match
Bass’ statement in their material respects. All three individuals
agreed that they went to the Food Lion store together, that Bass
drove them in Scott’s mother’s car, and that discussion of the
robbery took place on the way. The three accounts were also
consistent concerning the manner in which Sirls and Scott were
armed, in reporting that Bass was unarmed, and in describing how
Sirls robbed Randolph while Scott held a gun on James and checked
her pockets for cash. Sirls and Bass also accurately described
the clothes worn by each codefendant, though no statement by
Scott was offered into evidence on this point. The only material
respect in which Sirls’ account differed from Bass’ was in Sirls’
assertion that Bass stood so close to him during the robbery that
Sirls could have touched him. Scott’s statement differed from
Bass’ only in his statement that once the three returned to the
car, he, Bass and Sirls ate some of the groceries taken from
James. In short, the only respects in which the accounts of Sirls
and Scott differ from that of Bass are Bass’ proximity to the
robbery as it occurred, and whether Bass ate any of the groceries
taken from James.

Although the confessions were not sufficiently
interlocking to permit their admission under the principles of Lee,
476 U.S. at 545-46, their substantially interlocking nature, when
considered together with the other evidence in the case,
establishes the foundation for finding harmless error. Bass’ own
statement, taken in conjunction with the testimony of the two
crime victims, beyond any reasonable doubt places him at the
scene of the robbery in question, aiding and abetting Sirls and
Scott and acting in furtherance of their crime. The testimony of
the two victims established they were robbed, and they identified
all three codefendants as being present at the Food Lion store
just prior to the robbery. Randolph also identified Sirls and
Scott as the robbers, and stated that Bass was present while
Sirls and Scott committed the crime. More importantly, Bass
admitted that he drove Sirls and Scott to the Food Lion store on
the evening in question, that he knew of the plan to commit a
robbery, that he knew his confederates were armed, and that he
knew they brought their weapons into the store in order to commit
a robbery. Although Bass stated he declined to participate
directly in the robbery of the two victims when invited to do so,
he admitted that while Sirls and Scott robbed the two victims, he
waited at a distance close enough to the crime scene to see the
female victim crying. Bass further admitted that after the
robbery was completed, he fled with Sirls and Scott, and that he
drove them away from the scene of the robbery. The evidence thus
establishes that Bass aided Sirls and Scott in a criminal
enterprise, by driving them to the Food Lion store, knowing their
intent to commit a robbery, and by helping them escape after the
robbery was completed. These admissions evidence his
participation in a common criminal enterprise with Sirls and
Scott, and fully support his conviction of robbery as a principal
in the second degree. See Jones, 15 Va. App.
at 387, 424 S.E.2d at 565.

According the accomplices’ statements their
full prejudicial value, see Schneble v. Florida,
405 U.S. 427, 432 (1972), we find that the accounts of Sirls and
Scott add nothing significant to the other evidence in the case,
particularly the picture painted by Bass’ own statement depicting
himself as a principal in the second degree. Under the accomplice
theory which underlies his conviction, it matters not whether
Bass stood shoulder to shoulder with Sirls as the latter held a
gun to Randolph or whether he ate any of the stolen groceries
afterward. The evidence provided by Bass himself unquestionably
revealed that he was aware of his companions’ criminal purpose
and that he acted in furtherance of that purpose by driving them
to the store, waiting while they perpetrated the robbery, and
driving them from the scene. Thus, even viewing the erroneously
admitted accomplice confessions with an eye toward their full
damaging potential to Bass’ defense, the remaining evidence of
Bass’ guilt is overwhelming, see id., and
establishes no "’reasonable possibility that the [improperly
admitted] evidence . . . contributed to the
conviction,’" or that a different verdict might have been
reached but for the admission of the accomplice statements. Lilly,
258 Va. at 551, ___ S.E.2d at ___ (quoting Chapman, 386
U.S. at 23); see Schneble, 405 U.S. at 432 (whether
improperly admitted testimony required reversal of conviction
depended upon whether the evidence was sufficiently prejudicial
to defendant; if there was no "reasonable possibility"
that the evidence contributed to the conviction, reversal was not
required); Harrington, 395 U.S. at 254. It is thus clear
beyond a reasonable doubt that the admission of the accomplice
confessions was harmless error. See Schneble, 405
U.S. at 432; Lilly, 258 Va. at 551, ___ S.E.2d at ___.

Because we find that the admission of Sirls’
and Scott’s statements inculpating Bass was harmless error, we
affirm the judgment of the trial court.

Affirmed.

 

 

FOOTNOTES:

[1] The Supreme Court noted in Lilly
that hearsay statements against the penal interest of the
declarant are recognized as constituting "a firmly rooted
exception" to the hearsay rule in Virginia. See 119
S. Ct. at 1894. The Court emphasized, however, that it does
not regard accomplices’ custodial confessions as falling within
that exception in determining admissibility of such statements
under the Confrontation Clause. See id.

[2] In Lilly, the Supreme
Court observed:

This [opinion] does not mean . . .
that the [Sixth Amendment] Confrontation Clause imposes a
"blanket ban on the government’s use of [nontestifying] accomplice statements that incriminate a defendant." Rather,
it simply means that the Government must satisfy the second prong
of the Ohio v. Roberts[, 448 U.S. 56 (1980),] test in
order to introduce such statements.

119 S. Ct. at 1899 n.5.

[3] Justice Stevens’ plurality
opinion states:

It is highly unlikely that the presumptive
unreliability that attaches to accomplices’ confessions that
shift or spread blame can be effectively rebutted when the
statements are given under conditions that implicate the core
concerns of the old ex parte affidavit practice
– that is, when the government is involved in the
statements’ production, and when the statements describe past
events and have not been subjected to adversarial testing.

Lilly, 119 S. Ct. at 1900.

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