                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Annunziata and Bumgardner
Argued at Salem, Virginia


SOMCHITH XAYAPHETH
                                           MEMORANDUM OPINION * BY
v.     Record No. 0524-99-3            JUDGE RUDOLPH BUMGARDNER, III
                                                MARCH 14, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                    Porter R. Graves, Jr., Judge

            Danita S. Alt for appellant.

            Shelly R. James, Assistant Attorney General
            (Mark L. Earley, Attorney General; Amy L.
            Marshall, Assistant Attorney General, on
            brief), for appellee.


       A jury convicted Somchith Xayapheth of first degree murder

and use of a firearm in the commission of murder.    The defendant

argues the trial court erred in denying his motion to suppress

his confession.    He contends (1) that the police did not

properly advise him of his Miranda rights, and (2) that he

invoked his right to counsel during the interrogation.

       It is undisputed that the police advised the defendant of

his Miranda rights in English.    They also advised him in Laotian

of all rights except that anything he said would be used against

him.    The defendant contends the advice was insufficient because


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Laotian is his native tongue, and though he had lived in the

United States for seventeen years, he did not understand English

well enough to knowingly and intelligently waive his rights.

The trial court conducted thorough and careful reviews of the

audio recording of the interview and of the transcripts made

from the recording.   The interview was a complex exchange

between the defendant, the police investigator, and the

translator during which the conversation by and with the

defendant shifted between Laotian and English.

     The trial court found that the defendant understood English

sufficiently to comprehend the Miranda rights as explained and

that the defendant knowingly and intelligently waived those

rights.   The trial court also found that the defendant waived

his right to have counsel present.     The trial court had the

opportunity to speak with the defendant and observe him talking

with others.   We cannot conclude that the trial court erred in

finding that the defendant sufficiently understood the English

language to comprehend his rights according to the Miranda

warnings and that he knowingly and voluntarily waived those

rights.   If any error was committed, it was harmless beyond a

reasonable doubt.   The evidence, absent the confession, was

overwhelming and established the defendant's guilt conclusively.

Accordingly, we affirm the convictions.

      The defendant called the 911 dispatcher from his home and

stated in English, "I kill my wife."    After the dispatcher

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obtained an interpreter, the defendant advised that his wife had

met another man and he was tired of talking to her about it.

She wanted to leave him, but he refused to let her go.      The

defendant said that he shot his wife, she was dead, and the gun

was still in the house.    The police arrived at the defendant's

home during the call.   They found him standing at the front door

with blood on his shirt.   His wife was lying on the bedroom

floor, and a gun was on the bed.

       The wife had three separate gunshot wounds.   One, fired at

close range, went through her right cheek and perforated her

larynx.    A bullet was extracted from her left shoulder.    She

also suffered a long grazing wound across her shoulder blades.

The medical examiner found fresh defensive injuries on her arms,

the backs of her hands and forearms, and on her back and

abdomen.

       The gun found at the scene functioned normally.      The

defendant's palm print was on the gun, and the bullet extracted

from the wife's shoulder was fired from that gun.    A gunshot

residue test revealed that the defendant had recently fired a

gun.

       Two days before the murder, the defendant told a shop owner

known to the family that his wife had a boyfriend and he "wanted

to kill his wife and he kill himself."   Two to three weeks

earlier, the wife told her sister the defendant threatened her,

pushed her into a towel rack, and put a knife to her neck.        When

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the sister confronted the defendant, he admitted the incident

but said he would not threaten her anymore with a knife or gun.

The couple's son testified that his parents fought every week

for the two months preceding the shooting, that the defendant

hit his mother and threatened her with knives, and that he

injured her about once a month.   A month before the shooting,

the defendant's supervisor at work heard him say his wife was

"no good.   I kill her.   I kill her."   The supervisor observed

black and blue marks across the wife's back, which the wife told

her came from the defendant's beating her.

     During his interview at the police station, the defendant

admitted killing his wife by shooting her twice with a black,

small caliber gun.   He shot her because she had a boyfriend and

was going to leave him.   During the shooting she had scratched

him, but she did not have a weapon.

     At trial, the defendant testified the shooting was an

accident.   He believed his wife began an affair in 1995, but he

refused to let her leave him.   After arguing and crying for an

hour, he took out his gun intending to shoot himself.    While he

had his finger on the trigger, the wife fought him for the gun,

and it fired twice, one shot after the other.    Later, the

defendant testified that after the first shot, they struggled,

and then she fell to the floor.   He told his kids "your mother

is dead" and cried in front of them.     He also told the kids,

"she was messing around with someone else.    I killed her."

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     The harmless error doctrine applies on review of a

conviction challenged on Fifth and Sixth Amendment grounds.     See

Arizona v. Fulminante, 499 U.S. 279, 306-10 (1991) (applying

harmless error standard to erroneously admitted confession);

Milton v. Wainwright, 407 U.S. 371, 372-73 (1972).     "[B]efore a

federal constitutional error can be held harmless, the court

must be able to declare a belief that it was harmless beyond a

reasonable doubt."   Chapman v. California, 386 U.S. 18, 24

(1967).   The error is reversible, however, "if there is a

reasonable possibility that the evidence complained of might

have contributed to the conviction."     Fahy v. Connecticut, 375

U.S. 85, 86-87 (1963).   See Lilly v. Commonwealth, 258 Va. 548,

552-53, 523 S.E.2d 208, 210 (1999) (reversible error where

evidence did not clearly establish, absent erroneously admitted

evidence, that the defendant was the triggerman).

     Dearing v. Commonwealth, ___ Va. ___, ___ S.E.2d ___

(2000), stated factors a court must consider when determining

constitutional harmless error.    They are:   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 the overall strength of the prosecution's case.     See

id. at ___ , ___ S.E.2d at ___.

     The Commonwealth had to prove beyond a reasonable doubt

that the defendant maliciously killed his wife and that the

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killing was "willful, deliberate, and premeditated."     Code

§ 18.2-32.   The defendant was at the murder scene with blood on

his shirt when the police arrived.      There is no indication of

remorse or contrition.   The wife had three gunshot wounds and

fresh defensive injuries on her back, abdomen, and arms.     The

bullet extracted from her had been fired from the gun found on

the bed.    The defendant's palm print was on that gun, and the

residue test showed that he had recently fired a weapon.     The

defendant told the 911 dispatcher that he had shot and killed

his wife because she was seeing another man and was going to

leave the defendant.

     Two days before the murder, the defendant told an

acquaintance that he wanted to kill his wife.     Two to three

weeks before the murder, he admitted to threatening his wife

with a knife.   Approximately a month before the murder, the

defendant told his supervisor that he would kill his wife.       The

defendant's son testified that the parties argued weekly, the

defendant hit his mother, and he injured her about once a month.

The son also saw the defendant threaten his mother with a knife.

     The defendant's confession provides no further admission

than what he told the 911 dispatcher when first reporting the

shooting.    The confession was only cumulative of other evidence.

It supplied no additional detail and was less specific than the

other evidence.   What evidence the confession corroborated was

more fully corroborated by other evidence, much of which was

                                - 6 -
uncontradicted scientific evidence.    The confession did not

contradict the defendant's testimony at trial that the shooting

was an accident.

     We conclude that any error in admitting the confession was

harmless beyond a reasonable doubt.    The Commonwealth's other

evidence overwhelmingly proved the defendant committed a

willful, deliberate, and premeditated act, and the wife's fresh

defensive injuries belie his theory that her death was an

accident.   Accordingly, we affirm the convictions.

                                                           Affirmed.




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