                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Bumgardner and Frank
Argued at Chesapeake, Virginia


ARMARD RASHAD SMITH
                                          MEMORANDUM OPINION * BY
v.   Record No. 2752-00-1                  JUDGE RICHARD S. BRAY
                                              FEBRUARY 26, 2002
COMMONWEALTH OF VIRGINIA


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

          Gary P. Arsenault (Michael E. Grey; Grey &
          Arsenault, P.C., on brief), for appellant.

          Eugene Murphy, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on
          brief), for appellee.


     Armard Rashad Smith (defendant) was convicted by a jury of

first-degree murder, conspiracy to commit a felony and burglary,

violations of Code §§ 18.2-32, -22, and -89, respectively.

Defendant appeals the murder conviction, contending the reversal

by this Court of a codefendant's first-degree murder conviction

"requires a new trial or reversal of [his] conviction."   We

disagree and affirm the conviction.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.   Guided by familiar principles of


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
appellate review, we view the evidence in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom.    Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987).

                                  I.

     On July 25, 1997, at approximately 2:30 a.m., intruders

burglarized the residence of Tara Harper, and a visitor in the

home, William McKleny, III (the victim), was murdered.   Shortly

thereafter, police arrested defendant, Toney Griffin, Jerry

Norman, Santo Langley, and Terrence Woolard, charging each with

conspiracy to commit a felony, burglary, first-degree murder, and

related uses of a firearm, all offenses arising from the incidents

at Harper's home.   The codefendants were tried jointly, and

videotaped statements of defendant, Griffin, and Norman to police

were admitted into evidence.   The jury convicted all five men of

conspiracy, burglary, and first-degree murder, and, in addition,

convicted Griffin and Norman of the related firearm offenses. 1


     1
       Upon appeal by Langley, a panel of this Court reversed the
convictions, finding error in the admission of the Norman and
Smith statements as evidence against Langley. See Langley v.
Commonwealth, No. 0772-99-1 (Va. Ct. App. Dec. 28, 2000).
       On appeal by Norman, a panel of this Court affirmed the
convictions. See Norman v. Commonwealth, No. 2925-99-1 (Va. Ct.
App. Nov. 14, 2000). His subsequent appeal to the Supreme Court
of Virginia remains undecided.
       Woolard's appeal to this Court resulted in a reversal of
the convictions because we concluded the trial court erred in
admitting the Norman and Smith statements as evidence against
Woolard. See Woolard v. Commonwealth, No. 2648-99-1 (Va. Ct.
App. July 18, 2000).


                                - 2 -
     On October 10, 2000, a panel of this Court reversed the

first-degree murder conviction of Toney Griffin.      See Griffin v.

Commonwealth, No. 2819-98-1 (Va. Ct. App. Oct. 10, 2000).

Concluding the Commonwealth had "failed to prove the inherent

reliability required for admissibility of Smith's statement" as

evidence against Griffin, the panel ruled the trial court

erroneously admitted the statement.    Id. 2   Defendant contends our

decision in Griffin requires reversal of the instant

convictions.

                                II.

     The doctrine of felony-murder is well established in this

Commonwealth.   In Wooden v. Commonwealth, 222 Va. 758, 284

S.E.2d 811 (1981), the Supreme Court of Virginia defined the

concept thusly:

          Where a person maliciously engages in
          criminal activity, such as robbery, and
          homicide of the victim results, the malice
          inherent in the robbery provides the malice
          prerequisite to a finding that the homicide
          was murder. And, all of the criminal
          participants in the initial felony may be
          found guilty of the felony-murder of the
          victim so long as the homicide was within
          the res gestae of the initial felony.




     2
       The Commonwealth's appeal of Griffin to the Supreme Court
of Virginia remains unresolved.


                               - 3 -
Id. at 762, 284 S.E.2d at 814 (citation omitted).    Accordingly,

Code § 18.2-32 classifies the offense as "murder in the first

degree." 3

     Here, although defendant was brought to trial on an

indictment that simply alleged he "did kill and murder" the

victim in violation of Code § 18.2-32, the theory underlying the

prosecution and reflected in the attendant instructions to the

jury, relied only upon the concept of felony-murder. 4      Thus, to


     3
       Code § 18.2-32, in effect at the time of the instant
proceedings, provided:

             Murder, other than capital murder, by
             poison, lying in wait, imprisonment,
             starving, or by any willful, deliberate, and
             premeditated killing, or in the commission
             of, or attempt to commit, arson, rape,
             forcible sodomy, inanimate object sexual
             penetration, robbery, burglary or abduction,
             except as provided in § 18.2-31, is murder
             of the first degree, punishable as a Class 2
             felony.

(Emphasis added).
     4
         The jury was instructed as follows:

                          INSTRUCTION NO. 26

                  The Court instructs the jury that the
             defendant is charged with the crime of first
             degree murder. The Commonwealth must prove
             beyond a reasonable doubt each of the
             following elements of that crime:

             1. That William McKleny, III was killed;
             and

             2. That the killing occurred during a
             burglary; and


                                 - 4 -
convict defendant, the Commonwealth was required to prove beyond

a reasonable doubt that the murder occurred while defendant was

engaged in burglary as a principal in the first or second

degree.

     Viewed in the light most favorable to the Commonwealth, the

instant record clearly establishes the requisite elements.

Defendant confessed to the burglary as a principal in the first

degree, and the victim was murdered during commission of the

offense, facts acknowledged by his counsel during oral argument

on the instant appeal.   Under such circumstances, defendant was

clearly guilty of felony-murder, resulting in a conviction free

of the error that infected the record in Griffin.

     Accordingly, we affirm the conviction.

                                                    Affirmed.




          3. That the defendant was a principal in
          the first or second degree, as defined by
          the court in other instructions, to
          burglary.

               If you find from the evidence that the
          Commonwealth has proved beyond a reasonable
          doubt each of the above elements of the
          offense as charged, then you shall find the
          defendant guilty of first degree murder
          . . . .


                               - 5 -
