Pitt v. Com.

• Decision Date: 05 January 1999
• Docket Number: Record No. 1015-97-1.
• Citation: 28 Va. App. 730,508 S.E.2d 891
• Parties: Deshon W. PITT v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

508 S.E.2d 891

28 Va. App. 730

Deshon W. PITT v. COMMONWEALTH of Virginia.

Record No. 1015-97-1.

Court of Appeals of Virginia, Norfolk.

January 5, 1999.

Donald S. Clarke, Virginia Beach, for appellant.

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

Present: BENTON, ELDER and LEMONS, JJ.

ELDER, Judge.

Deshon W. Pitt (appellant) appeals his conviction for attempted robbery. He contends the trial court abused its discretion when it granted the Commonwealth's pretrial motion made pursuant to Code § 19.2-262.1 to try him jointly with Lambert Lee Bonds. Appellant argues that, because the Commonwealth intended to introduce at their joint trial Bonds' out-of-court confession incriminating appellant, the trial court erred when it concluded appellant's Sixth Amendment right to confront the witnesses against him would not be compromised. The Commonwealth contends that Bonds' statement was admissible under Virginia's "statement against penal interest" exception to the hearsay rule, which also rendered it admissible against appellant without violating appellant's rights under the Confrontation Clause. For the reasons that follow and the position taken by Judge Lemons in his concurring opinion, we affirm the conviction. I would hold, as would Judge Benton, that admission of the statement violated Virginia's hearsay rule. But, I would hold that its admission was harmless error. I would also hold that its admission did not violate the Confrontation Clause. For these reasons, I would hold that the trial court's error in joining the trial was harmless.

I. FACTS

Around 4:00 a.m. on May 29, 1996, appellant and Bonds were arrested in connection with the attempted robbery of Randy Williams (victim). Appellant and Bonds were taken to police headquarters, where each separately waived his Miranda rights and made a statement to Detective Samuel A. Thomson. Appellant and Bonds were subsequently indicted for attempted robbery.

Prior to trial, the Commonwealth moved for a joint trial of appellant and Bonds pursuant to Code § 19.2-262.1. At a hearing on the Commonwealth's motion, appellant's counsel argued that, because both appellant and Bonds made statements to Detective Thomson that the Commonwealth would seek to admit at trial and because neither defendant was likely to testify, "the Commonwealth is going to have a problem with [Bruton]."¹ Appellant's counsel argued:

[U]nder [Bruton], the United States Supreme Court has found that in instances where each defendant has made statements and if neither one takes the stand, neither one of those defendant's statements can be used against the other.

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... I would ask the court, based on the fact that the Commonwealth has got a very real [Bruton] problem here ... that regardless of judicial economy[,] the prejudice to either one of these defendants is going to be so great depending upon the admissibility of either portions of their statements that they can't be tried together. They need, under the law, to be tried separately.

At the conclusion of the hearing, the trial court granted the Commonwealth's motion for a joint trial.

At the joint jury trial, the victim testified that he was walking home from a friend's house at about 3:45 a.m. on May 29, 1996, when he saw appellant, Bonds, and one other person riding bicycles in a parking lot. Bonds and the unidentified person rode past the victim, and appellant stopped his bike next to the victim. According to the victim, appellant told him, "I got that killer," and asked the victim if he was "looking." The victim understood that appellant was talking about illegal drugs and responded by saying, "No, I don't do things like that." Appellant then rode away on his bike in "the same direction the other guys was going."

The victim testified that, after appellant left him, he had "a weary feeling something [was] going to happen." As a precaution, he removed a twenty-dollar bill from his pocket and placed it inside his mouth. The victim continued walking toward his home. A short while later, appellant and Bonds returned on their bikes and followed the victim. Appellant started asking the victim about drugs. The victim told appellant, "I don't do that," and continued walking. After the victim attempted to elude appellant and Bonds by cutting through a grassy area, appellant approached on his bike, dismounted, and blocked the victim's path. Appellant then grabbed the victim, and the two started "tussling and wrestling." According to the victim, Bonds then joined the fray and wrestled the victim to the ground. Appellant placed his knees on the victim's arms, searched through his pockets, and attempted to pry open the victim's mouth. The victim heard appellant say, "It is in his mouth." After about three minutes, the police arrived at the scene, and appellant attempted to flee. The victim testified he was not injured during the fracas with appellant and Bonds, and no property was actually taken from him.

Detective Thomson testified that he met with appellant and Bonds shortly after they were brought to police headquarters on May 29, 1996. Detective Thomson met with appellant and Bonds in separate rooms at different times. The detective testified that he first met with appellant at 5:45 a.m. According to Detective Thomson, appellant waived his Miranda rights and initially stated he "knew nothing about the robbery." Appellant stated he thought he had been arrested for assault. Appellant also stated that he knew the victim and that the victim "was bothering him trying to make cocaine sales." At this point, the detective stepped out of the room with appellant and met with Bonds at 5:55 a.m. The record does not indicate what, if anything, Bonds told the detective during this meeting.

Detective Thomson then returned at 6:00 a.m. and told appellant he did not believe his account. After Detective Thomson provided appellant with a cigarette, appellant stated he was riding bicycles with Bonds when he encountered the victim. Appellant stated he attempted to "obtain cocaine in case [the victim] had cocaine on him." Appellant stated that he proceeded to "[get] in a struggle with [the victim]" and "[t]hey went to the ground." According to appellant, "Bonds helped to get [the victim] on the ground." Appellant stated that, when he was on the ground with the victim, he "tried to get cocaine out of [the victim's mouth]" by prying it open with his hands.

Detective Thomson testified that he "came back at 6:48 a.m." to speak with Bonds, who had previously waived his Miranda rights. Bonds indicated that he wished to make a statement. Detective Thomson testified that he and Bonds discussed Bonds' account of the morning's events, and, at 7:15 a.m., the detective recorded Bonds' statement on a tape.

At this point in the trial, the Commonwealth's attorney indicated her intent to play for the jury the tape of Bonds' statement. Before the tape was played, appellant's counsel objected to the admission of Bonds' statements in the case against appellant. The trial court overruled the objection, stating, "The jury will be instructed at the time. The evidence is individual as to evidence against each defendant. It will be clear to them."

The tape of Bonds' statement was then played for the jury and admitted into evidence as Commonwealth's exhibit 1. In his statement,² Bonds said that he and appellant were riding bikes together around 4:00 a.m. on May 29 when they saw the victim. Bonds stated that appellant approached the victim to inquire about obtaining "rock cocaine." Bonds stated that appellant "smoke[d] a little rock," but he (Bonds) did not use cocaine. According to Bonds, when the victim did not "give [appellant] a piece of the rock," appellant met up with Bonds and told Bonds to ride with him as he followed the victim. Appellant then rode ahead of Bonds and started talking to the victim. As Bonds approached on his bike, appellant and the victim started wrestling. Bonds stated that, when he saw the victim "getting the best of [appellant]," Bonds "bumped into them to give [appellant] an equal chance with the wrestling." As Bonds was on the ground wrestling with appellant and the victim, he saw appellant attempt to pry open the victim's mouth in order to take cocaine appellant believed was hidden there. Bonds stated that he "just wrestled" the victim down "like a football tackle." When asked if the victim was injured, Bonds stated, "there was no trying to hurt no one or nothing like that." He also stated that neither he nor appellant took any of the victim's property. Bonds concluded his statement by saying that "everybody knows ... I'm not a robber or anything like that." Near the end of the interview, Detective Thomson reminded Bonds that the detective had earlier told him he would talk to the Commonwealth's attorney and the magistrate "in reference to this case." After the tape was played, Detective Thomson testified that, following the interview with Bonds, he took appellant and Bonds to the magistrate. Detective Thomson testified that he told the magistrate that "Mr. Bonds was cooperative."

At the conclusion of the Commonwealth's case, appellant called Bonds as a witness. Bonds asserted his Fifth Amendment right against self-incrimination and refused to testify about the incident with the victim.

At the conclusion of the evidence, the trial court gave the following instruction to the jury:

The Court instructs the jury that any statements made by Lambert Lee Bonds to the police are not evidence against Deshon W. Pitt and may not be considered by you in determining the guilt or innocence of Deshon W. Pitt.

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The Court instructs the jury that the Commonwealth's Exhibit No. 1 is not evidence against the Defendant, Deshon Pitt, and should not be considered by you against him.

The jury convicted appellant of attempted robbery and sentenced him to ten years in prison. Bonds was found...