Randolph v. Com.

• Decision Date: 11 March 1997
• Docket Number: No. 1383-95-4,1383-95-4
• Citation: 24 Va.App. 345,482 S.E.2d 101
• Parties: Richard Lawrence RANDOLPH v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 101

482 S.E.2d 101

24 Va.App. 345

Richard Lawrence RANDOLPH v. COMMONWEALTH of Virginia.

Record No. 1383-95-4.

Court of Appeals of Virginia,

Alexandria.

March 11, 1997.

Richard J. McCue, Falls Church, for appellant.

Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: FITZPATRICK and ANNUNZIATA, JJ., and DUFF, Senior Judge.

FITZPATRICK, Judge.

Richard Lawrence Randolph (appellant) was convicted in a joint jury trial of grand larceny, credit card theft, and conspiracy to commit a felony. On appeal, he argues that the trial court erred in: (1) admitting the hearsay statement of a codefendant and (2) refusing to sever his trial from that of the other defendants. For the reasons that follow, we affirm the judgments of the trial court.

I. BACKGROUND

On July 24, 1994, Sergeant Kenneth Hutton (Hutton) of the Metropolitan Washington Airport Authority (MWAA) was on pickpocket detail at National Airport. At 7:10 p.m., he saw and "recognized" appellant, who was walking toward the United Airlines section of the airport with a green garment bag over his shoulder. Hutton followed appellant, lost sight of him, but then found him in the American Airlines baggage claim area. As Hutton watched, appellant approached several people waiting to claim their baggage, standing inches behind each person for a few minutes and then moving on to another person. Appellant never claimed any baggage. He then went to the cab stand outside the Northwest Airlines baggage claim area where he approached several people in the same manner.

When appellant left the cab stand, he entered the front passenger seat of a green Mercury automobile driven by codefendant, Joyce Chambers (Chambers), and put the green garment bag in the backseat. A few minutes later, Chambers drove toward the U.S. Air terminal. Sergeant Alan Pelleranan (Pelleranan), a MWAA officer, saw the car arrive with appellant, Chambers, Alice Coffey (Coffey), and Linda Williams (Williams). Appellant, Chambers, and Williams went into the terminal. When Hutton arrived at the terminal, he saw appellant and Chambers exit the terminal and walk to the shuttle bus stop. Appellant again approached people from behind while Chambers stood about fifteen feet away, looking around. Appellant and Chambers returned to the Mercury, parked nearby. The police then arrested appellant, Chambers, Coffey, and Williams, and transported them to the police station. After being advised of her Miranda rights, Chambers told Hutton that she and the others had come to the airport "to steal ... to pick pockets." ¹

Appellant, Coffey, and Chambers were indicted for grand larceny, credit card theft, and conspiracy to commit a felony. Before trial, appellant moved to sever his trial from that of the other two defendants, arguing that (1) the Commonwealth had not established good cause for a joint trial and (2) a joint trial would prejudice him. Appellant specifically alleged that Chambers' statement about coming to the airport to "steal" and to "pick pockets" was inadmissible against him and its admission at a joint trial would constitute prejudice. The Commonwealth's attorney stated that he would "not be able to use some of the Commonwealth's evidence if I try [the defendants] together," and told the court, "I think it is unlikely that I'm going to use [the statement]. I certainly will not use it unless I can find some legitimate case law to back it up." The court denied the motion to sever, because "[t]he Commonwealth has stated that they are not going to use [the statement] at this time."

At trial, appellant renewed his motion to sever. The Commonwealth's attorney represented that "it appears that if the statement is properly redacted, it can be used." The trial court denied appellant's motion, ruling:

[T]he statement is admissible if it's redacted to, ["]I came to steal,["] where it's clear there[ ] [are] no references to the other individuals that are on trial.... The Court will ... instruct the jury at the time that that statement or that confession should be received as evidence of guilt only to the person who uttered the statement.

Later, appellant renewed his objection to Chambers' statement and requested a cautionary instruction, arguing that the statement was inadmissible against him because it was a statement made by a co-conspirator after the termination of the conspiracy and would not be admissible against him in a separate trial. At trial, the Commonwealth's attorney argued that, even in a joint trial, the statement was admissible against appellant under the declaration against penal interest exception to the hearsay rule. The trial court agreed with the Commonwealth, but allowed the statement only in the redacted form. The court refused to give a cautionary instruction, because "[t]he Commonwealth has demonstrated the basis for the application of the exception to the hearsay rule of declaration against interest. It think it's proper and it will be admitted [without instruction]."

On March 23, 1995, appellant was convicted of grand larceny, three counts of credit card theft, and conspiracy to commit a felony. The trial court sentenced appellant to five consecutive twelve-month sentences.

II. ADMISSION OF CODEFENDANT'S CONFESSION

Appellant asserts that his right to confrontation guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution was violated. He argues that the trial court erred in admitting Chambers' statement because, as the statement of a co-conspirator made after the termination of the conspiracy, it was inadmissible hearsay. Additionally, appellant contends that, under Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the admission of codefendant Chambers' statement in a joint trial without proper redaction and cautionary instruction violated the Confrontation Clause of the Sixth Amendment.

A. Right to Confrontation

The Sixth Amendment to the Constitution provides in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The Confrontation Clause of the Sixth Amendment is applicable to the States under the Fourteenth Amendment. Additionally, the Sixth Amendment right of an accused in a criminal case to confront the witnesses against him includes the right of cross-examination. See Idaho v. Wright, 497 U.S. 805, 813, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638 (1990); Richardson, 481 U.S. at 206, 107 S.Ct. at 1706-07; Dutton v. Evans, 400 U.S. 74, 79, 91 S.Ct. 210, 214-15, 27 L.Ed.2d 213 (1970); Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).

The United States Supreme Court recently held that "[w]here a nontestifying codefendant's confession incriminating the defendant is not directly admissible against the defendant, the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant's own confession is admitted against him." Cruz v. New York, 481 U.S. 186, 193, 107 S.Ct. 1714, 1719, 95 L.Ed.2d 162 (1987) (emphasis added) (citation omitted); see also Thompson v. State of South Carolina, 672 F.Supp. 896, 902 (1987). ² Under the converse of this standard, where the confession is directly admissible against the defendant, it may be admissible in the joint trial of the codefendants. See Wright, 497 U.S. at 814, 110 S.Ct. at 3146 (" '[T]he [Confrontation] Clause permits, where necessary, the admission of certain hearsay statements against a defendant despite the defendant's inability to confront the declarant at trial.' "); Evans, 400 U.S. at 89, 91 S.Ct. at 219-20 (holding that the right of confrontation is not absolute and that a statement sufficiently clothed with indicia of reliability is properly placed before a jury though there is no confrontation with the declarant). Thus, the statement of a non-testifying codefendant "directly admissible" against another codefendant under an exception to the hearsay rule may be admitted in a joint trial without violating the Confrontation Clause.

B. Declaration Against Penal Interest

We accept for purposes of this opinion appellant's contention that Chambers' statement would be excluded as the statement of a co-conspirator made after the termination of the conspiracy. See Scaggs v. Commonwealth, 5 Va.App. 1, 4-5, 359 S.E.2d 830, 831-32 (1987) ("[A] co-conspirator's statements made in the defendant's absence after the termination of the conspiracy are inadmissible in evidence at the defendant's trial because such statements are hearsay."). However, Chambers' statement is independently admissible against appellant as a declaration against penal interest made by an unavailable witness. " '[I]t is settled in Virginia that ... a declaration against penal interest is recognized as an exception to the hearsay rule.' " Id. at 4-5, 359 S.E.2d at 832 (citation omitted). See Chandler v. Commonwealth, 249 Va. 270, 455 S.E.2d 219, cert. denied, --- U.S. ----, 116 S.Ct. 233, 133 L.Ed.2d 162 (1995); Lewis v. Commonwealth, 18 Va.App. 5, 8, 441 S.E.2d 47, 49 (1994); Morris v. Commonwealth, 229 Va. 145, 147, 326 S.E.2d 693, 694 (1985). See also Raia v. Commonwealth, 23 Va.App. 546, 552, 478 S.E.2d 328, 331 (1996) ("Admissibility into evidence of the statement against interests of an unavailable witness is a 'firmly rooted' exception to the hearsay rule in Virginia."). ³

In Chandler, the defendant and accomplices robbed a local convenience store. During the robbery, defendant shot and killed the store clerk. At trial, the court admitted a police officer's testimony regarding statements made by a codefendant during the officer's investigation of the case. Id. at 278, 455 S.E.2d at 224. Defendant objected to the admission of this statement,...