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November 3, 2000
Record No. 992215
Present: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ. and Poff, Senior Justice
COMMONWEALTH OF VIRGINIA
OPINION BY SENIOR JUSTICE RICHARD H. POFF
FROM THE COURT OF APPEALS OF VIRGINIA
Alfred Lovell Dearing, Jr., was convicted by a
jury of robbery and the use of a firearm in the commission of a
felony. The Circuit Court of Arlington County imposed the jury’s
verdict, and the Court of Appeals affirmed the judgment in an
unpublished opinion. Dearing v. Commonwealth, Record No.
1233-98-4 (August 17, 1999) [hereinafter Dearing I]. We
awarded Dearing an appeal. The Commonwealth now concedes that the
trial court erred in admitting into evidence a
co-defendant’s statements to police. Cf. Dearing
v. Commonwealth, 259 Va. 117, 123, 524 S.E.2d 121, 124
(1999)(addressing similar issue from a different conviction).
Thus, the dispositive issue is whether the Court of Appeals erred
in holding that any error in admitting these statements was
harmless beyond a reasonable doubt.
"Applying well-established principles of
appellate review, we must consider the evidence and all
reasonable inferences fairly deducible therefrom in the light
most favorable to the Commonwealth [the prevailing party in the
circuit court]." Derr v. Commonwealth, 242 Va. 413,
424, 412 S.E.2d 662, 668 (1991).
At approximately 1:30 a.m. on August 7, 1997,
Danny Neil, a pedestrian, was stopped on the sidewalk by two men
in a white Honda automobile. The passenger in the front seat
pointed a gun at Neil and commanded Neil to give him all his
money. When Neil emptied his pockets to show that he had no
money, the gunman required Neil to give him a gold chain fastened
around his Neil’s neck. After the men in the Honda drove
away, Neil placed a 911 emergency call.
Police officers on night patrol in the
community, who had been following a white Honda automobile
occupied by Dearing and Leroy Vernoise Dorsey, learned that a car
matching that description may have been involved in the robbery
and stopped the car. When an officer brought Neil to the place
where Dearing and Dorsey were being detained, Neil identified
Dearing as the Honda passenger with a gun and noted that his gold
chain was around Dearing’s neck. Neil testified that a gun found
by the officers on a shoulder of a road traveled by the white
Honda was the weapon Dearing had pointed at him.
Dearing and Dorsey were tried jointly. Over
Dearing’s objection, Detective Paul Larson was allowed to testify
that Dorsey first denied any involvement in the crime, but after
Larson told him that "honesty is always the best
policy", Dorsey stated that he had come over "from
Maryland into Virginia to commit a robbery with his cousin
. . . Alfred Dearing". Larson also testified that
Dorsey had told him that he saw his cousin using a small black
handgun to perform the crime.
The Sixth Amendment of the Constitution of the
United States provides that "[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be
confronted with the witnesses against him", and this
provision was held applicable to the states under the Fourteenth
Amendment in Pointer v. Texas, 380 U.S. 400, 406 (1965).
"[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." Chapman v.
California, 386 U.S. 18, 24 (1967); accord Rose v.
Clark, 478 U.S. 570, 576 (1987).
"Whether such an error is harmless in a
particular case depends upon a host of factors, all readily
accessible to reviewing courts. These factors include the
importance of the witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the
prosecution’s case." Delaware v. Van Arsdall, 475
U.S. 673, 684 (1986); accord Neder v. United States,
527 U.S. 1, 18 (1999).
Significantly, the Chapman–Van
Arsdall harmless error standard has been applied expressly by
the Supreme Court of the United States in appeals in which the
constitutional Confrontation Clause had been violated. Brown
v. United States, 411 U.S. 223 (1973); Schneble v. Florida,
405 U.S. 427 (1972); Harrington v. California, 395 U.S.
250 (1969). We apply that standard here.
While it is true that the challenged testimony
was incriminating, this testimony was merely cumulative of the
other evidence adduced by the Commonwealth. The Commonwealth’s
cardinal witness at the jury trial, an eyewitness to the robbery
and criminal use of a gun, was the victim of the crime. In the
presence of investigating officers, and later at trial, Danny
Neil identified Dearing as the principal criminal agent, the gun
found discarded on the shoulder of the road as the criminal
instrument, and the victim’s necklace as the fruit of the crime.
We declare, therefore, that the evidentiary
error committed at trial was harmless beyond a reasonable doubt. Accordingly, we will affirm the judgment of the Court
 Appellant contends on brief that his assignments of
error raise a question presented "whether admission of
co-defendant’s statements as a declaration against appellant’s
penal interest constitutes reversible error under Virginia
law." We agree with the following ruling in the opinion of
the Court of Appeals:
Having concluded that any error was
harmless under the more rigorous "beyond a
reasonable doubt" standard applicable to
constitutional error, we need not consider whether the
admission of Dorsey’s statement violated Virginia’s
hearsay rule and, if error, whether that error was
harmless under the less exacting standard applicable to
errors of state law. See generally Lavinder
v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d
910, 911 (1991) (en banc) (finding that the
"federal standard is not required . . .
for non-constitutional error"). Dearing I,
slip op. at 6 n.1.