                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Lemons ∗ and Frank
Argued at Chesapeake, Virginia


TONEY DEAUNDRAE GRIFFIN
                                           MEMORANDUM OPINION ∗∗ BY
v.   Record No. 2819-98-1                   JUDGE ROBERT P. FRANK
                                               OCTOBER 10, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                      Edward W. Hanson, Jr., Judge

             Theresa B. Berry (Berry, Ermlich & Lomax, on
             brief), for appellant.

             Eugene Murphy, Assistant Attorney General
             (Mark L. Earley, Attorney General, on brief),
             for appellee.


     Toney Deaundrae Griffin (appellant) appeals his convictions

for murder, burglary, conspiracy, and use of a firearm.      On

appeal, he contends the trial court erred in:       1) denying his

motion to sever his trial from those of his four codefendants;

2) admitting the statements made by each of the four

codefendants into evidence without further instruction to the

jury; and 3) denying his motion for a mistrial when an




     ∗
       Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
African-American juror was struck for cause because he knew

Armard Smith, one of the codefendants.

                          I.   BACKGROUND

     On July 25, 1997, the home of Tara Harper was burglarized

and her friend, William McKleny (victim), was murdered.    In the

following days, the police identified appellant, Jerry Norman,

Santo Langley, Terrence Woolard, and Armard Smith as suspects.

Each of the men was interrogated by the police and each of them

made statements.

     Norman made a statement to the police on July 25, 1997.

Over appellant's objection, a transcript of the taped interview

was admitted into evidence.    Norman admitted that all of the men

discussed breaking into the house to get money.    Norman stated

appellant planned to wear a ski mask when they went into the

house.   Norman told the police appellant and Smith pried open

the door of the house.   When appellant told him there was

someone in the house, Norman started to leave.    As Norman was

walking to the car, appellant and Langley appeared and said they

had to leave.   Once they were in the car, appellant told Norman

he shot a man in the house.    Norman said he knew appellant was

armed.

     Later in the interview, Norman told the police he went into

the house with appellant and Smith.     Smith told Norman there was

a little girl upstairs, and Norman left with Langley and

Woolard.

                                - 2 -
        Finally, Norman admitted to the police that he was in the

house and Smith was at the back door when appellant shot the

victim.

        On July 26, 1997, Armard Smith gave his statement to the

police.    Over appellant's objection, the transcript of the taped

interview was admitted into evidence.    Initially, Smith denied

any involvement.    Then, he told the police that he rode with the

other men to the house and that he and appellant pried open the

door.    He stated that appellant and Norman went into the house.

Smith said that he went into the kitchen while the other two

went upstairs.    He said that he then left the house and went

around to the front door with Langley.    He and Langley rang the

doorbell but no one came to the door.    Smith said he heard the

gunshot as he was returning to the back of the house.    He said

he then ran home.

        Later in the interview, Smith said when they arrived at the

house, appellant went to the front door.    Then, all five men

walked to the back of the house.    He said he, appellant, and

Norman tried to pry open the door with appellant's screwdriver.

Langley was in the alley.    Woolard left when they got the door

open.

        Appellant then went upstairs, Norman was at the bottom of

the stairs, and Woolard came into the kitchen area.    Appellant

then came downstairs and said a baby was upstairs.    Then, all of

the men left the house and went into an adjacent alley.    Smith

                                 - 3 -
said he and Langley went to the front of the house to ring the

doorbell and, as he was returning to the back, he heard the

gunshot.

     Finally, Smith admitted he did not go to the front door.

He said that after he, Langley, Woolard, Norman, and appellant

went into the alley, they decided to go back into the house for

money.   Langley knocked on the door and a woman answered.   She

went upstairs and returned with the victim.    He then said, "They

rushed in the house and just, I heard him say something like I'm

scared or something and that's when Toney shot him."   Smith said

Norman was behind appellant and they both had their guns out.

Norman's gun was a chrome automatic.   Appellant's gun was a

black .32 or .38.   Smith stated that he did not have a gun.

Smith said appellant explained that he shot the victim because

the victim was reaching for him.

     Appellant made a statement to the police on July 25, 1997.

A transcript of the taped interview was admitted into evidence.

During the interview, appellant admitted the men planned to

break into the house because they thought a man lived there who

might have some money.   Norman had a semiautomatic gun, but

appellant said appellant did not have a gun.   Appellant said he

had a screwdriver and that Smith helped him break open the door.

Then, Norman gave appellant the gun, and appellant went into the

house and up the stairs.   He said he saw the little girl and



                               - 4 -
went downstairs to tell the others.      He said he then left the

house.

     On July 27, 1997, appellant made another statement to the

police.   A transcript of the taped interview was admitted into

evidence.   During this interview, appellant told the police that

he did not mean to pull the trigger and that the shooting was an

accident.

     All five of the men were charged with first-degree murder,

conspiracy, burglary, and use of a firearm in the commission of

a murder.

                            I.   ANALYSIS

     Appellant argues the trial court erred in denying his

motions to sever his trial from that of his codefendants.

     Code § 19.2-262.1 states:

                 On motion of the Commonwealth, for good
            cause shown, the court shall order persons
            charged with participating in
            contemporaneous and related acts or
            occurrences or in a series of acts or
            occurrences constituting an offense or
            offenses, to be tried jointly unless such
            joint trial would constitute prejudice to a
            defendant. If the court finds that a joint
            trial would constitute prejudice to a
            defendant, the court shall order severance
            as to that defendant or provide such other
            relief justice requires.

     We have held that a defendant moving for severance must

establish that he or she would suffer actual prejudice from

being jointly tried.    See Goodson v. Commonwealth, 22 Va. App.

61, 71, 467 S.E.2d 848, 853 (1996) (citation omitted).

                                 - 5 -
Prejudice requiring severance occurs when "'there is a serious

risk that a joint trial would compromise a specific trial right

of one of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence.'"      Barnes v.

Commonwealth, 22 Va. App. 406, 412, 470 S.E.2d 579, 582 (1996)

(quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)).

     Appellant contends, under Batson v. Kentucky, 476 U.S. 79

(1986), he suffered actual prejudice as a result of the joint

trial because the Commonwealth used a peremptory strike to

remove an African-American juror because the juror stated she

knew Woolard's attorney and because another African-American

juror, who stated he knew Smith when Smith was a child, was

struck for cause on the fourth day of the trial because the

juror said his thoughts of Smith as a child were clouding his

judgment. 1

     In Batson, the United States Supreme Court held:

                   [A] defendant may establish a prima
              facie case of purposeful discrimination in
              selection of the petit jury solely on
              evidence concerning the prosecutor’s
              exercise of peremptory challenges at the
              defendant’s trial. To establish such a
              case, the defendant first must show that he
              is a member of a cognizable racial group,
              and that the prosecutor has exercised
              peremptory challenges to remove from the
              venire members of the defendant’s race.
              Second, the defendant is entitled to rely on
              the fact, as to which there can be no

     1
       Appellant also argues he suffered prejudice as a result of
the admission of the statements made by his codefendants. This
issue is addressed below.

                                  - 6 -
          dispute, that peremptory challenges
          constitute a jury selection practice that
          permits "those to discriminate who are of a
          mind to discriminate." Finally, the
          defendant must show that these facts and any
          other relevant circumstances raise an
          inference that the prosecutor used that
          practice to exclude the veniremen from the
          petit jury on account of their race. This
          combination of factors in the empaneling of
          the petit jury, as in the selection of the
          venire, raises the necessary inference of
          purposeful discrimination.

Id. at 96 (citations omitted).

     To determine "whether the defendant has made the requisite

showing, the trial court should consider all relevant

circumstances."     Id.

     If the defendant makes a prima facie showing, the burden

shifts to the prosecutor to offer a "neutral explanation for

challenging black jurors."     Id. at 97.   The prosecutor's reason

is not required to "rise to the level justifying exercise of a

challenge for cause."     Id. (citations omitted).   However, the

prosecutor cannot state "merely that he challenged jurors of the

defendant’s race on the assumption -- or his intuitive judgment

–- that they would be partial to the defendant because of their

shared race."     Id. (citation omitted).   It is also insufficient

for the prosecutor to deny a discriminatory motive or affirm

"'good faith in making individual selections.'"      Id. at 98

(citation omitted).

     The Supreme Court of Virginia has held, "A trial court's

determination whether the reason given is race-neutral is

                                 - 7 -
entitled to great deference . . . and will not be reversed on

appeal unless it is 'clearly erroneous.'"     Atkins v.

Commonwealth, 257 Va. 160, 175, 510 S.E.2d 445, 454 (1999)

(citations omitted).

     In this case, the Commonwealth used a peremptory strike to

remove the juror who knew Woolard's attorney.    Assuming, without

deciding, appellant made a prima facie showing under Batson, the

Commonwealth then offered the explanation that the juror was

struck because of her relationship with Woolard's attorney.      We

find that the trial court did not abuse its discretion in

accepting the Commonwealth's racially-neutral explanation.

     The second juror, the man who was removed because he knew

Smith as a child, was struck by the court for cause.      Appellant

incorrectly argues Batson applies.     Appellant appears to argue

that Batson affords him the right to particular jurors.      A

defendant has a right to a fair and impartial jury, but does not

have the right to a specific juror or a jury composed of

particular individuals.   See Reynolds v. State, 517 S.E.2d 51,

52 (Ga. 1999); State v. Cook, 659 A.2d 1313, 1322 (Md. 1995);

State v. Monk, 212 S.E.2d 125, 129-30 (N.C. 1975); State v.

Williams, 469 S.E.2d 49, 52 (S.C. 1996).    We find no merit in

appellant's argument and find no error in the trial court's

removal of the juror.

     Appellant next contends the trial court erred in admitting

into evidence the statements of his codefendants.

                               - 8 -
     "In all criminal prosecutions, state as well as federal,

the accused has a right, guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution, 'to be confronted

with the witnesses against him.'"       Lilly v. Virginia, 527 U.S.

116, 123 (1999).   "The right of confrontation, which is secured

for defendants in state as well as federal criminal proceedings,

'means more than being allowed to confront the witness

physically.'"    Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)

(citations omitted).   "Indeed, '"[t]he main and essential

purpose of confrontation is to secure for the opponent the

opportunity of cross-examination."'"       Id. (citations omitted).

     "An accomplice's custodial confession that incriminates a

codefendant is presumptively unreliable in the context of an

alleged Confrontation Clause violation."       Bass v. Commonwealth,

31 Va. App. 373, 382, 523 S.E.2d 534, 539 (2000) (citing Lilly,

527 U.S. 116).   The admissibility of the confession is

determined by whether the confession is

          "supported by a 'showing of particularized
          guarantees of trustworthiness.'" The
          particularized guarantees of trustworthiness
          necessary to rebut the presumption of
          unreliability must "be drawn from the
          totality of the circumstances that surround
          the making of the statement and that render
          the declarant particularly worthy of
          belief." Evidence admitted based upon the
          existence of particularized guarantees of
          trustworthiness must be so trustworthy that
          adversarial testing would add little to its
          reliability.



                                - 9 -
Id. at 383-84, 523 S.E.2d at 539 (citations omitted).      In Bass,

we wrote:

            Circumstances surrounding an accomplice's
            confession that weigh in favor of finding
            reliability include: (1) lack of knowledge
            on the part of the accomplice that he or she
            already has been implicated in a crime by a
            codefendant, (2) making the confession to
            authorities who were not aware of the
            confessor's role in the crime confessed, and
            (3) the exercise of any contemporaneous
            cross-examination by counsel or its
            equivalent.

Id. at 384, 523 S.E.2d at 539 (citation omitted).

     "[W]here codefendants' statements 'are identical in all

material respects,' such evidence may be considered because 'the

likelihood that they are accurate is significantly increased.'"

Id. at 384, 523 S.E.2d at 540 (quoting Lee v. Illinois, 476 U.S.

530, 545 (1986)).   When portions of the

            purportedly "interlocking" statement which
            bear to any significant degree on the
            defendant's participation in the crime are
            not thoroughly substantiated by the
            defendant's own confession, the admission of
            the statement poses too serious a threat to
            the accuracy of the verdict to be
            countenanced by the Sixth Amendment. In
            other words, when the discrepancies between
            the statements are not insignificant, the
            codefendant's confession may not be
            admitted.

Lee, 476 U.S. at 545.   "Conversely, an accomplice's statement

that does not 'interlock' with the defendant's statement may be

admitted against the defendant if the areas of disagreement are




                               - 10 -
irrelevant or trivial."    Bass, 31 Va. App. at 385, 523 S.E.2d at

540 (citing Lee, 476 U.S. at 545).

     In this case, Woolard and Langley both testified at trial.

Therefore, any violations of the Confrontation Clause that may

have resulted from the admission of their statements were

remedied when they testified and were subject to

cross-examination.

     Norman and Smith, however, did not testify and their

statements were admitted into evidence.   While Norman's

confession essentially interlocks with appellant's confession

because appellant admitted he planned and participated in the

burglary and that he was the triggerman, the Commonwealth failed

to prove the inherent reliability required for admissibility of

Norman's statement.    Norman was in custody and knew he was going

to be charged with burglary and murder.   Therefore, Norman had

an incentive to provide unreliable information to the police.

     Smith also was in custody and knew he would be charged with

burglary and murder.   Furthermore, Smith's statement does not

interlock with appellant's confession.    Appellant, although

admitting that he was the triggerman, insisted that the shooting

was an accident and that he did not intend to pull the trigger.

Smith, on the other hand, stated appellant told him that he shot

the victim because the man was reaching for him.   Therefore, the

Commonwealth failed to prove the inherent reliability required

for admissibility of Smith's statement.

                               - 11 -
     It was, therefore, error for the trial court to admit

Norman's and Smith's statements.

     "Constitutional error . . . is harmless only when the

reviewing court is 'able to declare a belief that it was

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

12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (citation

omitted).

                 In making that determination, the
            reviewing court is to consider a host of
            factors, including the importance of the
            tainted evidence in the prosecution's case,
            whether that 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.

Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209

(1999) (citations omitted).

     Norman's statement was merely cumulative of appellant's

confession.   Norman stated that all the men discussed breaking

into the house to get money.   Appellant also admitted he and the

other men discussed breaking into the house to get money.

Norman said appellant pried open the door.   Appellant admitted

breaking open the door with a screwdriver.   Norman stated

appellant was armed.   Appellant admitted that he had a gun when

he went upstairs.   Norman said appellant told him that he shot a

man in the house.   Appellant admitted to being the triggerman.

Therefore, we find that the admission of Norman's statement was

harmless error.

                               - 12 -
     Smith's statement, however, was the only evidence that

proved appellant had the requisite intent sufficient to prove

first-degree murder.   Although appellant admitted shooting the

victim, his confession was only sufficient to prove felony

murder.   Without Smith's statement, the Commonwealth would have

been unable to prove appellant committed first-degree murder,

and, therefore, the admission of the statement was not harmless

beyond a reasonable doubt as to the conviction for first-degree

murder.   Smith's statement as to appellant's involvement in the

conspiracy, burglary, and use of a firearm was sufficiently

interlocking with appellant's confession.   For those

convictions, the admission of Smith's statement was harmless

error.    We, therefore, reverse and remand appellant's conviction

for first-degree murder.

     Finally, appellant argues the trial court erred in denying

his motion for a mistrial when the trial court removed the juror

who knew Smith for cause.

                 When the issue arises from a "midtrial"
            challenge to a juror's impartiality, we
            "will reverse the trial court's decision
            only for an abuse of discretion," applying
            the "same standard" of review appropriate to
            appellate consideration of a decision to
            seat a venireperson. Hence, we will not
            overturn "the denial of a motion for a
            mistrial . . . unless there exists a
            manifest probability that [the ruling] was
            prejudicial."

Green v. Commonwealth, 26 Va. App. 394, 401, 494 S.E.2d 888, 891

(1998) (citations omitted).

                               - 13 -
     Appellant argues the trial court abused its discretion in

failing to grant the mistrial because of the prejudice he

suffered by losing a second African-American juror.

               "The Supreme Court has consistently
          adhered to the view that there is no
          requirement that a petit jury actually
          chosen must mirror the racial balance of the
          community. Further, no litigant is entitled
          to a jury of any particular composition.
          All that is required is a fair selection
          system . . . ."

Simpson v. Commonwealth, 20 Va. App. 174, 180, 455 S.E.2d 749,

752 (1995) (quoting Watkins v. Commonwealth, 238 Va. 341, 347,

385 S.E.2d 50, 53 (1989)).

     During voir dire, the juror indicated he knew Smith when

Smith was a child but stated he could decide the case fairly.

On the fourth day of trial, when the juror indicated he could

not decide the case with impartiality, the trial court struck

him from the jury for cause.    Appellant is not entitled to have

members of his own race on his jury, instead he is entitled to

have a jury that is selected in a racially-neutral manner.      The

dismissal of the juror who knew Smith was unrelated to race and,

furthermore, did not impact the jury selection process.

Therefore, we find no abuse of discretion in the trial court's

denial of appellant's motion for a mistrial.

                         III.    CONCLUSION

     For these reasons, we find no error in the trial court's

denial of appellant's motions to sever and appellant's motion for


                                - 14 -
a mistrial.   However, we do find error in the trial court's

admission of Smith's statement because it was the only evidence

that appellant had the intent to commit first-degree murder.    We,

therefore, affirm the convictions for burglary, conspiracy, and

use of a firearm.   However, we reverse appellant's conviction for

first-degree murder and remand for further proceedings if the

Commonwealth be so advised.

                                              Affirmed, in part,
                                              and reversed and
                                              remanded, in part.




                               - 15 -
