                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia


EDMUND STEVEN HARDMAN
                                          MEMORANDUM OPINION * BY
v.   Record No. 1878-99-3             JUDGE RUDOLPH BUMGARDNER, III
                                               MAY 16, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                   Mosby G. Perrow, III, Judge

          David E. Wright, Assistant Public Defender,
          for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     After a bench trial, the trial court convicted Edmund

Steven Hardman of possession with intent to distribute cocaine,

possession with intent to distribute marijuana, and possession

of a firearm while possessing a controlled substance in

violation of Code §§ 18.2-248, -248.1, and -308.4.   The

defendant contends the trial court erred in admitting statements

he made to a police officer who had not informed him of his

rights under Miranda v. Arizona, 384 U.S. 436 (1966).      Assuming

the trial court erred, we find the error harmless beyond a

reasonable doubt.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     The evidence viewed in the light most favorable to the

Commonwealth established that Officer H.W. Duff went to the

defendant's apartment at 12:38 a.m. to investigate a traffic

accident.   Two plainclothes officers accompanied Duff.     The

defendant answered the door and let the officers enter when they

acknowledged that they were inquiring "about the car."      The

defendant's girlfriend, Christy Stevens, and one other person

were present when the officers entered.

     Upon entering the living room, Duff noticed a partially

smoked marijuana blunt.   The defendant admitted he had smoked it

earlier that day, but when Duff asked to search the apartment,

the defendant refused to give consent.      Duff went to get a

search warrant, leaving the other officers at the apartment.

They asked the occupants to remain in the living room because

they were under investigation.    The officers did not draw

weapons or handcuff the occupants.       When Duff returned around

2:45 a.m. with the search warrant, three or four uniformed

officers had already arrived to assist.

     As the officers began the search, the defendant said he

needed to use the bathroom.    Duff insisted on accompanying him

and remained within four feet of the defendant.      While still in

the bathroom, Duff asked the defendant if he had anything in the

apartment he wanted to tell the officer about.      The defendant

replied, "[H]e had a .380 caliber semi-automatic pistol in the

bedroom for his protection."   Duff asked the defendant if he had

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any marijuana or cocaine, and the defendant replied that he had

about a half ounce of marijuana in the bedroom.     The defendant

admitted that he sold marijuana but denied selling cocaine.

     Assuming the trial court erred, we consider whether the

error was harmless.    In order for an error to be harmless, "'the

court must be able to declare a belief that the error was

harmless beyond a reasonable doubt.'"      Dearing v. Commonwealth,

259 Va. 117, 123, 524 S.E.2d 121, 124 (2000) (quoting Chapman v.

California, 386 U.S. 18, 24 (1967)).      "'[A]n otherwise valid

conviction should not be set aside if the reviewing court can

confidently say, on the whole record, that the constitutional

error was harmless beyond a reasonable doubt.'"      Id. at 123, 524

S.E.2d at 125 (citations omitted).      In determining whether the

error was harmless, the court must consider several factors,

including "the importance of the tainted evidence in the

prosecution's case, whether the evidence was cumulative, the

presence or absence of evidence corroborating or contradicting

the tainted evidence on material points, and, of course, the

overall strength of the prosecution's case."      Lilly v.

Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 (1999)

(citations omitted).

     Applying these principles, we find the error in admitting

the defendant's statements was harmless beyond a reasonable

doubt.   The defendant consented to the officers entering his

apartment and admitted he smoked marijuana earlier that day.

                                - 3 -
Duff obtained a warrant to search the apartment for contraband.

When Duff questioned the defendant, officers were lawfully

executing the warrant.    The defendant's statements pointed to

evidence the officers would discover during the search and added

little to a very strong case.

        The apartment contained two bedrooms, but only one was

used.    In that bedroom, the officers found statements from a

joint bank account that the defendant shared with Stevens.

Under the bed, they recovered a .38 caliber semi-automatic

handgun, and on the closet floor, they found the bullets.      The

officers also found marijuana under the mattress.      The officers

pried open two safes found in the bedroom when the defendant

refused to furnish keys.    One safe contained marijuana and $522.

Two wooden boxes contained bags of cocaine and $874.      In the

kitchen, the officers found digital scales, razor blades and

knives with cocaine residue, and plastic bags.      In the living

room, they found a police scanner.       The defendant had $590 in

his sock.    In total, the officers recovered 70 grams of

marijuana, 28.4 grams of cocaine, and $1,986 cash.

        Christy Stevens testified that she lived in the apartment

with the defendant but neither the drugs nor the scales belonged

to her.    The gun did not belong to her though she had seen it

before.    She did not have a key to the defendant's safe nor was

she aware of its contents.    Stevens stated that the defendant

used the wooden boxes, but she had never looked into them.

                                 - 4 -
     The police properly acquired all the physical evidence by

execution of a valid search warrant and independently of any

tainted evidence.   Along with Christy Stevens' testimony, it

conclusively established the defendant's guilt beyond a

reasonable doubt.   Indeed, the trial court found that the

evidence without the defendant's statements still proved the

offenses beyond a reasonable doubt.    The trial court stated:

         I think the circumstantial evidence is
         overwhelming. Even without [the defendant's]
         statement to Officer Duff, [the defendant] is
         tied to that bedroom through the papers found
         there. The quantity of cocaine is in excess
         of $3,000 of street value. And not just the
         quantity of cocaine and marijuana alone,
         you’ve got the scales and all of the other
         paraphernalia or accoutrements of the drug
         trade in the house, and I think the evidence
         is overwhelming.

     Any error in admitting the defendant's statements was

harmless beyond a reasonable doubt.    Accordingly, we affirm the

convictions.

                                                          Affirmed.




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