                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia


TERRENCE MARCELLUS WOOLARD
                                          MEMORANDUM OPINION * BY
v.   Record No. 2648-99-1                  JUDGE MARVIN F. COLE
                                               JULY 18, 2000
COMMONWEALTH OF VIRGINIA


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

          Andrew G. Wiggin (Donald E. Lee, Jr. and
          Associates, on briefs), for appellant.

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


     Terrence Marcellus Woolard (appellant) appeals from a

judgment of the Circuit Court of the City of Virginia Beach

convicting him of first degree murder, conspiracy, and burglary.

He contends the trial court erred by 1) refusing to sever his

trial from that of his codefendants; 2) admitting his

codefendants' out-of-court statements into evidence against him;

and 3) denying his motions to strike the evidence and set aside

the jury's verdict on the ground that the evidence was

insufficient to convict him.   For the reasons that follow, we

reverse appellant's convictions.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                             Background

     During the course of their investigation into the July 25,

1997 burglary of Tara Harper's residence and the resulting

murder of her boyfriend, William McKleny, the police

interrogated appellant, Toney Griffin, Jerry Norman, Santo

Langley, and Armard Smith.   All five men were ultimately charged

with conspiracy, burglary, first degree murder, and using a

firearm in the commission of murder.      Over appellant's

objection, the trial court ruled that appellant and his

codefendants would be tried jointly.      The court also ruled that

the statements made by appellant's codefendants would be

admissible against appellant.

     At trial, appellant testified that sometime after 1:00 a.m.

on July 25, he and Langley drove to the Northridge section of

Virginia Beach, following Griffin, Norman, and Smith, who were

in Norman's car.   When Griffin, who was driving Norman's car,

stopped on a street near Harper's neighborhood, appellant parked

behind him.   Appellant stated that Griffin, Norman, and Smith

exited Norman's car and walked away.

     Not long thereafter, appellant and Langley started to walk

down the street.   Appellant testified that he heard voices

behind one of the townhouses, so he walked down a cut behind the

residences toward the voices.    He soon came upon Smith, who was

standing in Harper's backyard.    Appellant testified that

Harper's back door was ajar, so he stepped into the house.

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Concluding, however, that something was not right, he exited the

house, told Smith he was leaving, and started back for his car.

On the way, appellant encountered Langley, who joined him.

Appellant testified that, shortly thereafter, he heard a gunshot

and then Smith and Norman came running back to the cars from the

direction of Harper's residence.   Griffin also came running back

to the cars, but from another direction, where the police

eventually recovered the murder weapon.

     Because Griffin had apparently misplaced the keys to

Norman's car, the codefendants all entered appellant's car.

Appellant drove to a nearby shopping plaza where he dropped off

everyone.

     Appellant denied any involvement in planning the burglary,

denied knowing that his codefendants intended to break into

Harper's residence, denied agreeing to help anyone to commit a

crime, and claimed he was unaware that any of his codefendants

were armed.   Although admitting that he entered Harper's

residence, he stated that he did not know that the house had

been forcibly entered.

     In his July 25, 1997 statement to the police, appellant

denied any culpability.   Although at one point he told Detective

Orr that his codefendants had planned the burglary, he insisted

that he had not been involved in planning the crime and denied

acting as a lookout.   He did admit knowing that Griffin and



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Norman were armed.   Appellant testified at trial that he was

unaware that any crime had been planned until after it occurred.

     Detective Orr, who interrogated Langley, testified that

Langley

          admitted that he had been present and took
          part in the conversation which took place
          between him and the four other co-defendants
          prior to the incident occurring. He
          admitted that he had a discussion about
          breaking in the home because the resident of
          that home was supposed to have money.

               They, being the group, thought that the
          resident was an affluent drug dealer. . . .

               [Langley] ultimately admitted that he
          had knocked on the door. He explained the
          others in the group had told him to do that
          in the planning part of the conversation.

Langley testified at trial and retracted his confession.    His

trial testimony did not incriminate appellant.

     In his July 26, 1997 statement to the police, Smith said

appellant was present when Griffin broke into the townhouse.       He

stated that appellant kept running back and forth between the

gate to Harper's yard and the cut.     Smith also indicated that

everybody was talking about going to the house, where they

believed a drug dealer resided.

     Norman told police that Smith was talking to everyone about

a man's house where they could get some money and that this

man--Big Mike--was a big time drug dealer who supposedly had a

lot of money.




                               - 4 -
     At the time Smith gave his videotaped statement to the

police, he was under arrest.    Norman confessed knowing that he

too was going to be charged in connection with these crimes.

     The jury convicted all the defendants of conspiracy,

burglary, and first degree murder.      Griffin and Norman were also

convicted of using a firearm in the commission of a felony.

                               Analysis

     "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 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).      The admission of a

non-testifying codefendant's custodial confession violates a

defendant's rights under the Confrontation Clause unless the

prosecution can otherwise establish the inherent reliability of

the confession.    See Lilly, 527 U.S. at 137-38.

     "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,



                                - 5 -
527 U.S. 116).   In order for such a confession to be admissible,

it

          must be "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 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.

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

that a court can consider in determining the reliability of a

confession include 1) the accomplice's unawareness of the fact

that he has been implicated in a crime by a codefendant; 2) the

police's ignorance of the confessor's involvement 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.

     A codefendant's confession can be admitted if it is

substantially identical to the defendant's confession, that is,

if the two confessions interlock.      See id. at 384-85, 523 S.E.2d

at 540.

          "If those portions of the codefendant's
          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

                               - 6 -
           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." 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 irrelevant or trivial.

Id. at 385, 523 S.E.2d at 540.

     Langley testified and was subject to cross-examination.

Any initial Confrontation Clause error caused by the admission

of his confession, therefore, was rectified when he took the

stand.   On the other hand, neither Smith, Norman, nor Griffin

testified at trial.   At the time Smith and Norman confessed,

they were in custody and knew they were going to be charged with

the burglary and McKleny's murder.       When Griffin at first denied

any involvement in these crimes, he was quickly advised by the

interrogating officers that they had evidence tending to prove

the contrary, that Norman was waiting to be interrogated, and

that appellant was on his way to the police station.

Furthermore, the codefendants' incriminating confessions did not

interlock with appellant's statement.

     The Commonwealth failed to establish the inherent

reliability of Norman, Smith, and Griffin's confessions, and the

trial court erred in admitting this evidence.      Appellant's

convictions must be reversed, therefore, unless we can determine

that the error was harmless.


                                 - 7 -
                  The standard that guides our analysis
             of the harmless error issue in this case is
             clear. Thus, "before 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. This standard
             requires a determination of "whether there
             is a reasonable possibility that the
             evidence complained of might have
             contributed to the conviction." 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).

     Griffin did not implicate appellant as a principal in these

crimes, so the admission of his confession was harmless error.

But the admission of Smith and Norman's confessions prejudiced

appellant.    There was no physical evidence that proved

appellant's involvement in these crimes, appellant denied any

intentional wrongdoing, and Langley recanted his incriminating

confession.    With the exception of Langley's confession, the

confessions of Norman and Smith constituted the only direct

evidence that proved appellant's involvement in committing these

crimes.   Accordingly, because we cannot conclude that admitting

this evidence was harmless beyond a reasonable doubt,

appellant's convictions must be reversed.


                                 - 8 -
     The judgment of the trial court is reversed, and the case

is remanded to the trial court for retrial if the Commonwealth

be so advised.   In light of our holding, we need not address

appellant's other assignments of error.

                                            Reversed and remanded.




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