                    COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Lemons and
          Senior Judge Duff
Argued by teleconference


ALFRED DEARING
                                          MEMORANDUM OPINION * BY
v.   Record No. 1233-98-4                  JUDGE CHARLES H. DUFF
                                              AUGUST 17, 1999
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                  Benjamin N. A. Kendrick, Judge

           David A. Oblon (Albo & Oblon, L.L.P., on
           briefs), for appellant.

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


     Alfred Dearing, appellant, appeals from his convictions of

robbery and the use of a firearm in the commission of robbery.      On

appeal, appellant contends that the admission of a codefendant's

statement to the police violated appellant's Sixth Amendment

rights, as well as Virginia's hearsay rule.   Finding no reversible

error, we affirm.

                               FACTS

     On August 7, 1997, at about 1:35 a.m., Danny Neil was

walking near the corner of South Kenmore and Nineteenth Streets


     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
in Arlington when a white or tan car stopped beside him.    The

front seat passenger in the car pointed a handgun at Neil and

demanded money.   When Neil indicated that he had no money, the

passenger ordered Neil to turn over his gold chain necklace.

Neil complied.    Neil testified that the lighting in the vicinity

of the robbery was good, permitting him clearly to observe both

the driver and the front seat passenger, who were the only

occupants of the vehicle.

     Police officers conducting routine surveillance in that

same area had begun watching the movements of a white Honda at

about 1:15 a.m.   The vehicle had a Maryland license plate with

the number EDV 300.   The two men in the vehicle had been

involved in a suspicious encounter with a male pedestrian, so

the police continued to watch the Honda as it moved about the

area, losing sight of the vehicle for only about thirty seconds

at a time.   Officers saw the Honda stop near the intersection of

South Kenmore and Nineteenth Streets.   A man was standing on the

sidewalk next to the passenger side of the car.

     The car moved away from the pedestrian and made several

turns.   At one point, the car stopped and the driver and

passenger switched places in the vehicle.   Eventually, the car

traveled north on Route 395.   The car slowed down abruptly when

a state trooper's vehicle approached to stop another car.    After

crossing into Washington, D.C., the vehicle made a U-turn and

returned to Virginia.   At that point, the police stopped the

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Honda.    Appellant was the driver of the vehicle, and Leroy

Dorsey was the passenger.

     Immediately after he was robbed, Neil called 911 from a

nearby pay telephone.    The police subsequently brought Neil to

the location on Route 395 where officers were detaining

appellant and Dorsey.    Neil identified appellant as the man who

robbed him, and Dorsey as the driver of the car in which

appellant was riding during the robbery.   Appellant was wearing

Neil's gold chain necklace.

     At about 2:15 a.m., Detective Paul Larson questioned Dorsey

about the robbery.   Before the interrogation, an officer advised

Dorsey of his rights under Miranda v. Arizona, 384 U.S. 436

(1966).    Dorsey, both verbally and in writing, affirmed that he

understood his rights.

     Initially, Dorsey denied any involvement in the robbery.

Larson told Dorsey about the seriousness of the crime and that

honesty was "always the best policy."   Larson testified that

Dorsey became somewhat emotional.   Dorsey then admitted that he

and appellant came to Virginia from Maryland to commit a

robbery.   Dorsey stated that he was driving and that appellant

actually robbed a man on Kenmore Street.   He also said that

appellant was wearing the stolen necklace when the police

stopped them.

     Between 9:00 and 10:00 a.m. on August 7, 1997, Detective

Larson located a handgun on the left side of northbound Route

                                - 3 -
395 along the route where appellant and Dorsey had traveled.

Neil identified this weapon as the gun used by appellant during

the robbery.

     At a joint jury trial for appellant and Dorsey, Neil

identified each of them, respectively, as the man who had robbed

him and the driver of the car.    The Commonwealth introduced into

evidence against appellant Dorsey's statement to the police.

                             ANALYSIS

     Appellant asserts that the admission of Dorsey's statement

violated his rights under the Confrontation Clause of the Sixth

Amendment.   The Sixth Amendment guarantees a criminal defendant

the right "to be confronted with the witnesses against him."

U.S. Const. amend. VI.   "The central concern of the

Confrontation Clause is to ensure the reliability of the

evidence against a criminal defendant by subjecting it to

rigorous testing in the context of an adversary proceeding

before the trier of fact."   Maryland v. Craig, 497 U.S. 836, 845

(1990).

     In Lilly v. Virginia, 119 S. Ct. 1887 (1999), the

Commonwealth introduced into evidence at trial the statement of

a codefendant.   The codefendant told the police that he had been

drunk during a string of crimes in which he was involved with

Lilly and another individual.    Although the codefendant admitted

committing a theft, he placed the blame for a subsequent

carjacking and murder principally upon Lilly.   The Supreme Court

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of the United States found that the admission of the

codefendant's statement violated Lilly's Confrontation Clause

rights and reversed Lilly's convictions.     See id. at 1901.

     We assume without deciding that Lilly controls the present

case and that admission of Dorsey's statement against appellant

violated his rights under the Confrontation Clause.    However, we

must determine whether such an error was harmless under the

circumstances.    "An error committed in the trial of a criminal

case does not automatically require reversal of an ensuing

conviction."     Galbraith v. Commonwealth, 18 Va. App. 734, 742,

446 S.E.2d 633, 638 (1994).    "A federal constitutional error is

harmless, and thus excusable, only if it appears 'beyond a

reasonable doubt that the error complained of did not contribute

to the verdict obtained.'"     Quinn v. Commonwealth, 25 Va. App.

702, 719, 492 S.E.2d 470, 479 (1997) (citations omitted).

     Even without Dorsey's statement, the evidence was

overwhelming that appellant robbed Neil and that he used a gun

to do so.   The police observed the suspicious movements of

appellant's vehicle both before and after the robbery occurred.

The police saw the vehicle stopped near a pedestrian at the

location of the robbery.    The robbery occurred in a well-lighted

area, enhancing Neil's ability to observe the passenger and

driver of the car.    Neil positively identified appellant and

Dorsey as the perpetrators soon after the crimes occurred.

Appellant and Dorsey were wearing clothing matching the

                                 - 5 -
description provided by Neil.   Neil identified the gun used in

the robbery as the one found along Route 395 where appellant and

Dorsey had traveled.   Appellant was wearing Neil's stolen

necklace when he was apprehended by the police shortly after the

robbery.   When stopped by the police, appellant was the driver

of the vehicle.   This circumstance was consistent with the

observation by police officers of the driver and the passenger

switching places in the white Honda after the robbery.

     Considering all of these facts and circumstances, we

conclude that any error in admitting Dorsey's statement was

harmless beyond a reasonable doubt. 1   Therefore, we affirm

appellant's convictions.

                                                    Affirmed.




     1
       Having concluded that any error was harmless under the
more rigorous "beyond a reasonable doubt" standard applicable to
constitutional error, we need not consider whether the admission
of Dorsey's statement violated Virginia's hearsay rule and, if
error, whether that error was harmless under the less exacting
standard applicable to errors of state law. See generally
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d
910, 911 (1991) (en banc) (finding that the "federal standard is
not required . . . for non-constitutional error").



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