                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia

ARTHUR RAMBERT

v.   Record No. 0559-94-2                       MEMORANDUM OPINION *
                                             BY JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA                         DECEMBER 5, 1995


           FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                     James F. D'Alton, Jr., Judge

               John B. Boatwright, III (L.A. Rosenstock, III;
               Boatwright & Linka, on briefs), for appellant.
               Margaret Ann B. Walker, Assistant Attorney General
               (James S. Gilmore, III, Attorney General, on
               brief), for appellee.



     Arthur Rambert was tried before a jury and convicted of the

robbery and first degree murder of Delmar DePriest.      He was

sentenced to life imprisonment for the murder and 15 years for

the robbery.      On appeal, appellant contends that the trial court

committed reversible error by overruling appellant's objection

and denying his motion for a mistrial when the Commonwealth

elicited evidence of appellant's subsequent arrest on unrelated
           1
charges.       We find that any error caused by the court's rulings

was harmless.      Therefore, we affirm appellant's convictions.


     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
      The issue on appeal was limited by order of this Court
entered on February 3, 1995.




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                                 I.

       There is no dispute in the material facts in the case.     On

February 25, 1993, appellant and four other men were preparing to

drive to New York.   John Henney, the driver, testifying for the

prosecution, stated that Wilshawn Wright wanted to get marijuana

and money that was owed to him before going on the trip.

Appellant agreed to go with Wright, and Henney drove the two by

the victims' apartment.   When Henney and the other two men picked

up Wright and appellant ten minutes later, Wright told them he

had shot Sonnet Morrison in the back of the head twice.

Appellant stated that he had shot Sonnet's roommate, Delmar

DePriest, in the back of the head.    When Wright and appellant

returned to the car, Wright had a nine millimeter and appellant

possessed a black automatic handgun.   Appellant and Wright

threatened to kill Henney and the other men if they "said

anything."
       On cross-examination by appellant's counsel, Henney

testified that he had received no promises in return for his

testimony.   He admitted that he had been charged with two capital

murders, one robbery, and three firearm offenses arising out of

the incident, and was awaiting trial on them.   Defense counsel

also asked Henney if he had any other charges pending against

him.   He admitted to possession of a firearm while in possession

of a controlled substance, conspiracy to sell heroin, possession

with intent to sell heroin and possession of heroin.   He stated




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that these offenses occurred after the murder and had not been

scheduled for trial.

        Defense counsel on cross-examination also asked Henney

whether he saw any guns after he arrived in New York.    He

responded that he had, and that Wilshawn Wright and Lamont had

them.    He stated that he did not possess a gun in New York.    The

following colloquy then occurred between defense counsel and

Henney.
             Q.   The nine millimeter was taken out
                  of your trunk?
             A.   The one in my trunk wasn't mine,
                  sir.

             Q.   What happened to those guns? Did
                  you see what happened to those
                  guns, where they went after you saw
                  them in the possession of the two
                  gentlemen you talked about?

             A.   No.


        On redirect examination, the Commonwealth's attorney asked

Henney whether appellant was with him on April 30th when he was

arrested on the drug and gun charges.    Henney responded that he

was.    Defense counsel objected on the ground that whether

appellant was arrested at the same time did not have anything to

do with proving any of the elements of the charges against

appellant.    The Commonwealth's attorney argued that appellant

brought out the fact that Henney was arrested on April 30th on

drug and gun charges and that a nine millimeter gun was taken

from the trunk of Henney's car.    The Commonwealth, therefore,




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claimed that the appellant had "opened the door" to this

evidence.   The trial judge ruled that defense counsel had left

the jury with the impression that Henney was arrested on the drug

and gun charges and that a nine millimeter gun was found in the

trunk of his car and that it did not belong to anybody else

because no one else was in the car.    The trial court admitted the

testimony limited to the one question that appellant was arrested

with Henney to show that someone else was present who could have

possessed the gun. 2   Therefore, the court overruled appellant's

objection and denied the motion for a mistrial.

                                 II.

     "As a general rule, evidence of other crimes is

inadmissible."   Kirkpatrick v. Commonwealth, 211 Va. 269, 272,

176 S.E.2d 802, 805 (1970).    We assume, without deciding, that

the prosecution's question was improper and that the trial court

erred in admitting the other crimes evidence.    Nevertheless, we

find the error was harmless.
               In Virginia, non-constitutional error is
          harmless "when it plainly appears from the
          record and the evidence given at the trial
          that the parties have had a fair trial on the
          merits and substantial justice has been
          reached." Code § 8.01-678 (emphasis added).
          "[A] fair trial on the merits and substantial
          justice" are not achieved if an error at
          trial has affected the verdict.
          Consequently, under Code § 8.01-678, a
          criminal conviction must be reversed unless
          "it plainly appears from the record and the
          evidence given at the trial that" the error
     2
      The evidence clearly established that this nine millimeter
gun was not the one used as the murder weapon by Wright.




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          did not affect the verdict. An error does
          not affect a verdict if a reviewing court can
           conclude, without usurping the jury's fact
          finding function, that, had the error not
          occurred, the verdict would have been the
          same.


Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,

911 (1991) (en banc).

     The evidence of appellant's guilt was overwhelming and

uncontradicted.   Appellant accompanied Wright into the victims'

apartment with the expressed intention to obtain drugs and money.

Appellant and Wright turned up the TV, placed pillows on the

victims' head and shot them from behind in the head.   The other

passengers in the car testified that appellant admitted he shot

DePriest, "the roommate."   Appellant made incriminating comments

to Raheem Hayden in a note appellant passed to Hayden while they

were both in the Dinwiddie County jail.   While appellant and Eric

Smith were in the City of Petersburg jail, appellant admitted to

Smith that he committed the murder and robbery.   Furthermore, the

jury knew that appellant was involved with drugs because he went

to their apartment to obtain drugs and money.   The statement also

involved a "prior arrest" and not a "prior crime."   Nothing in

the record suggests that appellant was convicted on the charges.
     Upon review of the entire record before us, we conclude that

the other crimes evidence "had little, if any, tendency to

prejudice the jury against [appellant] because it was so

inconsequential when viewed in comparison to the overwhelming

evidence of [appellant's] guilt."    Hanson v. Commonwealth, 14 Va.



                                 5
App. 173, 176, 416 S.E.2d 14, 16 (1992).   Therefore, it "plainly

appears . . . that the parties have had a fair trial on the

merits and substantial justice has been reached."   Code

§ 8.01-678.   Accordingly, we find no reversible error by the

admission of the other crimes evidence.

                                                           Affirmed.




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