Virginia Lawyers Weekly VA Lawyers Weekly
Appellant’s motion for a separate trial was properly denied. Admission of the co-defendant’s out-of-court confessions, which incriminated appellant, did not violate his Sixth Amendment confrontation rights because the statements were not testimonial.
Background
Appellant Hargrove and Coleman planned to rob Anderson, who had won money in a lottery. They broke into Anderson’s house. Anderson attempted to shoot at them but his gun jammed when appellant and Coleman were running from the house. Coleman and appellant returned fire. A shot struck and killed Anderson’s eight-year-old son.
“Appellant and Coleman were charged with the same offenses. Over appellant’s objection, the court granted the Commonwealth’s motion to join their cases for trial.”
A jury convicted appellant of “first-degree murder, attempted robbery, armed burglary, discharging a firearm in an occupied building, conspiracy to commit burglary, conspiracy to commit robbery, and three counts of using a firearm in the commission of a felony.”
Joinder
“Appellant contends his joint trial with Coleman was prejudicial because the admission of Coleman’s confessions violated appellant’s Sixth Amendment confrontation rights under Bruton v. United States, 391 U.S. 123 (1968). …
“The United States Supreme Court held in Bruton “that at a joint trial, the admission into evidence of a nontestifying co[-]defendant’s out-of-court confession violates the Confrontation Clause if the confession incriminates the other defendant. …
“Appellant argues that the admission of Coleman’s out-of-court confessions violated Bruton because Coleman’s confessions to Holmes, Jefferson, and his fellow inmate involved ‘they’ statements and ‘clearly incriminated [him].’
“These confessions, however, were not ‘testimonial’ statements under Crawford v. Washington, 541 U.S. 36 (2004). Bruton and its core progeny were decided before the Supreme Court’s decision in Crawford, which limited the application of the Confrontation Clause to ‘testimonial’ statements. …
“Because Crawford limited the scope of the Confrontation Clause to testimonial statements, and the Bruton doctrine depends on the Confrontation Clause, it therefore follows that Crawford limited Bruton’s protections to those statements that implicate the Confrontation Clause – testimonial statements. …
“[A]ppellant cannot show that the confessions he challenges were ‘testimonial’ statements. …
“Out-of-court statements are ‘testimonial’ if ‘in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony.’ …
“As for Coleman’s confessions to his fellow inmate, the Supreme Court in Davis v. Washington, 547 U.S. 813 (2006), referred to statements made unwittingly to a government informant as ‘clearly nontestimonial.’ …
“Here, ‘[i]t is hardly likely [that a reasonable person would have] expected [that] his confession to [his fellow inmate] would be “used prosecutorially” at trial.’ … Thus, the statements Coleman made to his fellow inmate were nontestimonial. …
“Coleman’s confessions to Holmes and Jefferson were also nontestimonial. When Coleman confessed, a reasonable person would not have intended to create a statement ‘for use in an investigation or prosecution of a crime.’ …
“Instead, a reasonable person in Coleman’s position was likely to confide in people he was close to, whom he did not anticipate would participate in his prosecution. …
“[W]e hold that Bruton does not apply to nontestimonial statements, and the admission of Coleman’s confessions did not violate appellant’s Confrontation Clause rights.”
Reliable judgment
“Appellant next argues that the weight of the evidence and ‘simplicity of the case’ against Coleman skewed the jury’s perception of the case against appellant and thereby kept the jury from making ‘a reliable judgment about guilt or innocence.’ …
“Appellant argues that much of the evidence against Coleman, particularly his confessions, would have been inadmissible against appellant in a separate trial, creating a heightened risk of prejudice. Appellant, however, cites no authority for this proposition, and we find it unnecessary to examine the evidence in detail to determine whether it would have been admissible in a separate trial.
“Although ‘prejudice may result when evidence inadmissible against a defendant, if tried alone, is admitted against a co[-]defendant in a joint trial,’ the evidence admitted specifically against appellant fails to establish a sufficient ‘basis for concluding the jury was prevented from making a reliable judgment about his guilt or innocence.’ …
“The evidence of appellant’s guilt was ample, even setting aside the evidence against Coleman. ‘Thus, [appellant’s] contentions fail to establish the requisite actual prejudice.’ … (emphasis added).
“[W]e hold that the court did not abuse its discretion in permitting a joint trial.”
Prior convictions
Appellant did not preserve his argument that his prior convictions should not have been admitted. This argument was not presented to the trial court.
“Appellant only preserved a challenge to the relevance of his conviction for possessing a firearm as a felon.”
In the trial court, appellant “argued that ‘[n]either [appellant’s] felony record nor his particular conviction for possession of a firearm as a felon [were] relevant to the case at hand’ because he only ‘pleaded guilty to possession of a firearm as a felon, NOT guilty to possession of a specific firearm as a felon.’ …
“[A]ppellant’s contention that ‘nothing in the guilty plea … admit[s] a connection to th[e] particular gun’ is incorrect: the certificate of analysis connects him to the gun that was used in the burglary and murder. The conviction was highly relevant to prove appellant’s identity, presence, and involvement in the crimes, and therefore the court did not err in admitting the evidence.”
Sufficient evidence
“Appellant argues that the circumstantial evidence did not establish that he participated in the crimes. He contends that he was convicted solely based on ‘guilt by association.’ …
“Appellant’s possession of the same gun that had been fired at the crime scene is probative of his presence at the crime scene and that he participated in the shooting. …
“Appellant does not contest that the gun was used during the crimes, and he cannot contest that he possessed the same gun shortly thereafter – he entered a no contest plea to possessing the weapon that a certificate of analysis later linked to the January 21 crimes.
Appellant also admitted that he owned the Samsung phone seized from him when he was arrested in Richmond. …
“Appellant used that phone to exchange text messages with Coleman that referenced a planned robbery and to arrange to meet that night at the First Avenue residence.
“Holmes testified that the men in fact met at the First Avenue residence the night of the crime. Forensic evidence established that appellant’s phone – as well as phones belonging to Coleman, Downey, and Holmes – were all at that residence until 10:41 p.m.
“Appellant’s phone was later tracked to a location about one-quarter mile from Anderson’s home and was tracked back to the First Avenue address. The next morning, appellant’s phone was used for several searches about crime reports in King William County, where Anderson lived.
“[T]he evidence … was sufficient for the jury to find appellant guilty beyond a reasonable doubt.”
Affirmed.
Hargrove v. Commonwealth. Record No. 1351-21-2, May 2, 2023. CAV (published opinion) (O’Brien). From the Circuit Court of King William County (Bondurant). Ivan D. Fehrenbach for appellant. Timothy J. Huffstutter, Jason S. Miyares for appellee. VLW 023-7-154, 18 pp.
