Bass v. Com.

• Decision Date: 27 January 2000
• Docket Number: Record No. 2554-98-1.
• Court: Virginia Court of Appeals
• Parties: Kawaski BASS, s/k/a Kawaski Lajune Bass v. COMMONWEALTH of Virginia.

523 S.E.2d 534

31 Va. App. 373

Kawaski BASS, s/k/a Kawaski Lajune Bass v. COMMONWEALTH of Virginia.

Record No. 2554-98-1.

Court of Appeals of Virginia, Chesapeake.

January 27, 2000.

Lyn M. Simmons, Newport News, for appellant.

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

Present: FITZPATRICK, C.J., and WILLIS and ANNUNZIATA, JJ.

ANNUNZIATA, Judge.

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 chrom 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, 116 S.Ct. 233, 133 L.Ed.2d 162 (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, 527 U.S. 116, ___, 119 S.Ct. 1887, 1900, 144 L.Ed.2d 117 (1999) (plurality opinion)

; Lee v. Illinois, 476 U.S. 530, 541-43, 106 S.Ct. 2056, 2062-63, 90 L.Ed.2d 514 (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,

106 S.Ct. at 2064 n. 5, and this category of statements is not a "firmly rooted exception" to the hearsay rule.¹

See Lilly, 527 U.S. at ___, 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 ___, 119 S.Ct. at 1900; Lee, 476 U.S. at 543, 106 S.Ct. at 2063. The confession must be "supported by a `showing of particularized guarantees of trustworthiness.'" Id. at 543, 106 S.Ct. at 2063 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980)). The particularized guarantees of trustworthiness necessary to rebut the presumption of unreliability must "be drawn from the totality of circumstances that surround the...