                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia


JANNIE BRANT
                                               OPINION BY
v.    Record No. 1691-98-2                JUDGE ROBERT P. FRANK
                                              APRIL 25, 2000
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
                      Timothy J. Hauler, Judge

           William B. Bray (Perry & Bray, on brief), for
           appellant.

           Michael T. Judge, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


      Jannie Brant (appellant) appeals her convictions of armed

robbery and conspiracy to commit robbery after a bench trial on

December 9, 1997.   On appeal, she contends the trial court erred

in:   1) admitting hearsay statements of alleged accomplices,

Mandel Coleman and Algie Harris, 2) limiting her

cross-examination of prosecution witness Charles Mason, and 3)

restricting her testimony about statements made by alleged

co-conspirators during the alleged conspiracy.     We agree with

appellant that the trial court erred in admitting into evidence

the hearsay statements of the alleged accomplices but find that

she did not properly preserve the second and third issues.      We,
therefore, reverse and remand for further proceedings if the

Commonwealth be so advised.

                           I.   BACKGROUND

       On June 10, 1997, a McDonald's restaurant in Colonial

Heights was robbed by two men.    One man had a pistol, and the

other had a shotgun.    The two men pointed their guns at the

restaurant shift manager, threatened to shoot him, and grabbed a

portion of the night deposit money before leaving the

restaurant.

       Officer Earley of the Colonial Heights Police Department

testified that he identified appellant as a suspect in the

robbery.   Before questioning her at the police station, he

advised her of her Miranda rights and she signed a waiver form.

Officer Earley testified that appellant denied driving the

robbers to the McDonald's restaurant.    After Earley told

appellant she was videotaped in the Golden Corral parking lot

next to the McDonald's with three men in her car, she admitted

she drove three men to the Golden Corral parking lot on the

night of the robbery.   She identified two of the men as Charles

Mason and Algie Harris.   She did not know the name of the third

man.   He was later identified as Mandel Coleman.

       Appellant told Earley that Algie Harris and Mandel Coleman

exited the car after she drove into the Golden Corral parking

lot.   She did not know where they went.     As she started to drive

out of the Golden Corral parking lot, Mason told her they needed

                                 - 2 -
to go back to pick up Harris and Coleman.   She made a loop

around the shopping center where the restaurants were located

and drove back to the Golden Corral parking lot.   The two men

got into the car.   She said she saw Coleman with a bookbag but

was unaware of what had happened.    She told Earley that she did

not see a shotgun in the car but did see what appeared to be a

pistol in Coleman's waistband when she took him to Petersburg

later that evening.

     Officer Earley also testified about statements made by

Mandel Coleman:

          [PROSECUTOR]: Okay. At some point in time,
          did you ask him about any participation of
          Jannie Brant, the defendant here in this
          case in that incident?

          [OFFICER]:   Yes, I did.

          [PROSECUTOR]: When you made that inquire
          [sic] of him, had you already advised him
          that he was a suspect in the charge also?

          [OFFICER]:   Yes.

          [PROSECUTOR]: And what did you ask him
          about her and what did she tell you -- what
          did he tell you?

          [OFFICER]: He advised me that Jannie –- he
          rode up there with Algie.

          [DEFENSE COUNSEL]:   Objection, Your Honor,
          we have hearsay.

          THE COURT: Do we have a Brewton [sic]
          violation here?

          [PROSECUTOR]: Your Honor, actually, we
          don't. What we have here is a case that
          falls under Randolph versus the Commonwealth

                               - 3 -
and Chanaler versus the Commonwealth. The
Courts in this jurisdiction have set out
exceptions to the hearsay rule and this
falls exactly, squarely in that exception.
The Commonwealth must first show that it was
a statement made against the person making
the statements [sic] penal interests;
therefore, making it a reliable statement.
We must also show that he is unavailable to
the Commonwealth and we have done that
exactly as the case law has described. The
person making that statement is charged and
still waiting trial and as such is
unavailable to the Commonwealth as a
witness. I have the case for the Court, if
you like to see it.

[DEFENSE COUNSEL]: Your Honor, I believe
they need to have him come in, if they're
going to prove unavailability, and put him
on the stand and have him say, "No, I take
the Fifth," or "I refuse to testify."

[PROSECUTOR]: Your Honor, the case law
specifically addresses that question,
Randolph and Chandler, which Randolph
addresses the issue of using those
statements in a joint trial. Chandler
addresses the issue of using them in
separate trials. The Court specifically
said the Commonwealth is not required to do
that.

THE COURT:   Mr. Paul, do you have any
comment you want to put on the record?

[DEFENSE COUNSEL]: Your Honor, they haven't
pulled in Mr. Coleman. We don't know if he
is available or not. He is a co-conspirator
or alleged co-conspirator and is charged
with these crimes. Also, the –- at the time
he made his statement, you know, we don't
know what -- you, what was going on, what
was said to him or anything else.
Certainly, no one had a chance to.
Basically, they're offering this hearsay
that can't be cross-examined, can't be
looked at in any way. They're offering it
for the truth of the matter. They're not

                    - 4 -
          offering it for any other reason and I think
          it's inappropriate.

          THE COURT:   All right. The defense
          objection is overruled. The Court finds
          specifically pursuant to Randolph versus
          Commonwealth, 24 VA Appellate 345, that this
          co-actor, co-conspirator is reasonably
          unavailable to testify due to his Fifth
          Amendment rights; that there was a statement
          apparently admissible against him that was
          rendered and the Court will find that that
          statement may be properly presented during
          the course of this trial. Defense exception
          to the Court's ruling is noted for the
          record.

          [DEFENSE COUNSEL]:   Thank you, Your Honor.

     Officer Earley then testified that Coleman admitted that he

robbed the restaurant with Algie Harris.   Coleman told Earley

that appellant drove him, Algie Harris, and Charles Mason to the

Golden Corral parking lot.   After the robbery, appellant drove

the men back to Petersburg, and Harris gave her some of the

money taken during the robbery.

     Officer Earley also testified as to his conversation with

Algie Harris.   Appellant noted her objection for the reasons

stated in her objection to the hearsay testimony regarding

Coleman's statements.   The court overruled the objection and

permitted Earley to testify.

     Officer Earley stated that Algie Harris told him that

Harris, Coleman, and appellant discussed robbing the restaurant

prior to the event.   Appellant drove Harris, Coleman, and Mason

to the Golden Corral parking lot.   She drove them back to


                               - 5 -
Petersburg after he and Coleman robbed the restaurant.      Harris

told Officer Earley that Coleman paid appellant from the robbery

proceeds.    Officer Earley recovered the shotgun from Harris'

residence.

     Charles Mason, the front seat passenger in appellant's

vehicle, testified at trial.     He stated that appellant, Harris,

and Coleman planned the robbery at a laundromat before going to

the McDonald's restaurant, and appellant directed Harris to

bring a gun.    He testified that appellant drove Harris and

Coleman to the McDonald's and was given money after the robbery.

During cross-examination, defense counsel attempted to impeach

Mason.

             [DEFENSE COUNSEL]: Okay. Have you ever
             been charged with a felony?

             [PROSECUTOR]:   Objection.   It's improper.

             [DEFENSE COUNSEL]: Have you ever been
             convicted of a felony?

             [PROSECUTOR]: Objection, Your Honor, he's
             juvenile. Case of Alaska versus United
             States, it's prohibited from asking juvenile
             that question.

             THE COURT:   Mr. Paul?

             [DEFENSE COUNSEL]: I can't cite the case
             law, Your Honor, but I think that we have
             credibility issues here. Just because he's
             a juvenile, now we're going to embrace him
             and say, yes, he gets these special
             protections and we can't attack his
             credibility.

             [PROSECUTOR]: I didn't make the rule,
             Judge, I'm just telling you that's what the

                                  - 6 -
          case says. It could perhaps be phrased a
          different way.

          THE COURT:    Rephrase your question.

          [DEFENSE COUNSEL]: Have you ever been
          investigated for a crime that's considered a
          felony?

          [PROSECUTOR]:    Objection, Your Honor.

          THE COURT:     Well, that's objectionable.
          Sustained.

          [DEFENSE COUNSEL]: Let me rephrase it.          If
          I had the case, it'd be easier.

          [DEFENSE COUNSEL]: Are you currently –- how
          old are you right now?

          MASON:   Sixteen.

          [DEFENSE COUNSEL]: Sixteen. Okay.         Have
          you –- are you currently under any
          supervision?

          [PROSECUTOR]:    Objection, Your Honor.

          THE COURT:    Sustained.

     Appellant testified at trial.       On direct examination she

testified as follows:

          [DEFENSE COUNSEL]: What I'd like you to do
          is tell the Court your first contact with
          Algie Harris and Mandel Coleman on the date
          of June 10th.

          [APPELLANT]: Well, my first contact with
          them was in China Kitchen, a Chinese
          restaurant. And it was Johnny and Joe and
          Charlie, Mandel Coleman or Nafece was not
          present.

          [DEFENSE COUNSEL]: Okay.        Johnny is the
          same person as Algie?

          [APPELLANT]:    Yes.

                                 - 7 -
[DEFENSE COUNSEL]: Okay. So you met them
there and what did you all talk about?

[APPELLANT]: He asked me could I give them
a ride later on that night to go to Golden
Corral.

[DEFENSE COUNSEL]:   And what did you tell
him?

[APPELLANT]: Yes, but he had to give me
some gas money.

[DEFENSE COUNSEL]:   What was his response?

[APPELLANT]:   He said okay.

[PROSECUTOR]: I'm sorry, Your Honor. I
have an objection at this point. These are
out-of-court statements offered for the
truth of the matter.

[DEFENSE COUNSEL]: It's a conversation,
Your Honor, that she's in the middle of. It
is relevant to the fact that the
Commonwealth has come in and has said, "Hey,
they talked to Detective Earley and they're
under interrogation and we're taking all
their statements in," and now they're saying
–--

THE COURT: Yeah, but those were statements
against interest. This is not a statement
against interest. Those individuals could
be called for that testimony.

[DEFENSE COUNSEL]:   Fair enough.

THE COURT: They've got Fifth Amendment
rights, but their Fifth Amendment rights
don't exclude them to testify in this
matter.

[DEFENSE COUNSEL]:   Okay.

THE COURT:   Sustained.

[DEFENSE COUNSEL]:   Okay, Your Honor.

                     - 8 -
                      II.    HEARSAY STATEMENTS

     Appellant contends the trial court erred in permitting

Officer Earley to testify as to the statements of Mandel Coleman

and Algie Harris.   We agree.

     The trial court permitted introduction of the hearsay

testimony from Officer Earley because the two declarants, Harris

and Coleman, were unavailable to testify.    The trial court ruled

that under Randolph v. Commonwealth, 24 Va. App. 345, 482 S.E.2d

101 (1997), Harris and Coleman were unavailable to testify by

virtue of the Fifth Amendment to the United States Constitution.

Randolph involved the admissibility of a hearsay statement by a

co-conspirator where the defendant and the co-conspirator were

tried jointly at the same trial.     See Randolph, 24 Va. App. at

351, 482 S.E.2d at 103-04.    We held that the Commonwealth was

not required to call the co-conspirator as a witness to

establish unavailability because the co-conspirator could not be

compelled to testify as a codefendant in the joint trial.     See

id. at 356, 482 S.E.2d at 106.

     We hold that the trial court erred in its application of

Randolph.   In this case, the alleged co-conspirators were not

tried jointly with appellant.    There was no evidence of their

unavailability.   Therefore, the rule from Randolph is

inapplicable in this case, and the trial court erred in ruling

that Harris and Coleman were unavailable.



                                 - 9 -
     The Commonwealth argues in its brief that, assuming error

on the part of the trial court, appellant waived her objection

to the introduction of Officer Earley's testimony regarding the

statements made by Harris and Coleman because on

cross-examination she questioned the officer about the statement

made by Mason.   The Commonwealth argues that because appellant

introduced evidence of a like nature she waived her objection,

and, therefore, any error by the trial court was harmless.    We

disagree.

                 An objection to previously introduced
            testimony is not waived by "the mere
            cross-examination of a witness or the
            introduction of rebuttal evidence, either or
            both." Snead v. Commonwealth, 138 Va. 787,
            801, 121 S.E. 82, 86 (1924); Culbertson v.
            Commonwealth, 137 Va. 752, 757, 119 S.E. 87,
            88 (1923). A waiver does not result until
            the party objecting to the introduction of
            evidence actually introduces, on his own
            behalf, evidence that is similar to that to
            which the objection applies. Id.

McGill v. Commonwealth, 10 Va. App. 237, 244, 391 S.E.2d 597,

601 (1990).

     In this case, appellant questioned Officer Earley on

cross-examination about the statement Mason made to Earley.

Mason also testified at trial.    We hold that Earley's testimony

about Mason's statement was not a waiver of the objectionable

testimony regarding statements made by Harris and Coleman.

     The Commonwealth also argues that any error committed by

the trial court was harmless.    We disagree.   Appellant argued at


                                - 10 -
trial that she was unable to cross-examine the hearsay

declarants, Harris and Coleman, because their statements came

into evidence through the testimony of Officer Earley.

Appellant's argument at trial preserved the constitutional issue

of right to cross-examination under the Sixth Amendment to the

United States Constitution.

     "'[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;' otherwise the conviction

under review must be set aside."   Lilly v. Commonwealth, 258 Va.

548, 551, 523 S.E.2d 208, 209 (1999) (quoting Chapman v.

California, 386 U.S. 18, 24 (1967)).   "This standard requires a

determination of 'whether there is a reasonable possibility that

the evidence complained of might have contributed to the

conviction.'"   Id. (quoting Chapman, 386 U.S. at 23).

          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.

Id. (citations omitted).

     We believe that this case is squarely on point with Lilly.

In Lilly, the Supreme Court of Virginia held that the

inadmissible statement of one co-conspirator was the only

evidence that corroborated the other co-conspirator's in-court

                              - 11 -
testimony that the defendant was the triggerman in the murder.

See id. at 552-53, 523 S.E.2d at 209.   The Court wrote:

            [H]ere the issue is not the credibility of
            the witness, but rather the potential for
            harm caused by the erroneous admission of
            evidence which tends to support the jury's
            credibility determination. In that context
            we must presume that such evidence had the
            potential to influence the jury into
            accepting the properly admitted evidence as
            more credible and, thus, to taint the jury's
            determination of the facts.

Id. at 553, 523 S.E.2d at 210.

     In this case, Mason's testimony clearly implicates

appellant in planning the robbery of the McDonald's restaurant.

The only evidence that corroborates Mason's testimony about

appellant's participation in the robbery is the hearsay

statements of Harris and Coleman.   In the absence of the hearsay

statements, Mason's testimony is supported only by evidence that

appellant drove the men to the restaurant.   We assume that the

jury weighed Mason's credibility in light of the corroborating

hearsay evidence.   Therefore, we cannot declare beyond a

reasonable doubt that the admission of the hearsay testimony was

harmless.   We reverse appellant's convictions and remand for

further proceedings if the Commonwealth be so advised.

    III.    CROSS-EXAMINATION OF MASON AND APPELLANT'S HEARSAY

     Appellant contends that the trial court erred in limiting

her cross-examination of Charles Mason and in restricting her

testimony detailing statements made by the co-conspirators.      We


                               - 12 -
find that appellant did not properly preserve these issues for

appellate review.

               "When testimony is delivered but
          excluded upon objection, an appellate court
          has a record of the content and purport of
          the testimony upon which to determine the
          propriety of the trial court's ruling; when
          testimony is rejected before it is
          delivered, an appellate court has no basis
          for adjudication unless the record reflects
          a proper proffer."

Whittaker v. Commonwealth, 217 Va. 966, 968-69, 234 S.E.2d 79,

81 (1977) (quoting Jackson's Case, 98 Va. 845, 846-47, 36 S.E.

487, 488 (1900)).   "The requirement for proffer of testimony is

to assure that the record will be complete."    Wyche v.

Commonwealth, 218 Va. 839, 843, 241 S.E.2d 772, 775 (1978).

     Appellant did not proffer the testimony of Mason regarding

whether he was previously convicted of a felony 1 and did not

proffer her own testimony regarding the statements of the

co-conspirators.    We, therefore, have "no basis for

adjudication" and affirm the ruling of the trial court on these

issues.




     1
       Even had appellant properly proffered the testimony
regarding Mason's previous conviction of a felony, her
cross-examination of Mason would have been objectionable under
Davis v. Alaska, 415 U.S. 308 (1974). The record clearly
indicates that the purpose of appellant's cross-examination of
Mason was for general impeachment purposes rather than to show
specific bias or prejudice.


                               - 13 -
                         IV.   CONCLUSION

     We hold that appellant did not properly preserve the issue

of the limitation of Mason's cross-examination and the

inadmissibility of appellant's testimony as to the statements of

the alleged co-conspirators.   However, because we hold that the

admission of the officer's hearsay testimony was not harmless

error, we reverse appellant's convictions and remand for further

proceedings if the Commonwealth be so advised.

                                            Reversed and remanded.




                               - 14 -
