                   COURT OF APPEALS OF VIRGINIA


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


MONTUSA KARUNDO T. PACE
                                         MEMORANDUM OPINION * BY
v.   Record No. 1984-99-1            JUDGE RUDOLPH BUMGARDNER, III
                                               MAY 9, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                    Wilford Taylor, Jr., Judge

          James S. Ellenson for appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     A jury convicted Montusa Karundo T. Pace of first-degree

murder, burglary, three counts of robbery, and five counts of

use of a firearm in the commission of a felony.   He argues the

trial court erred in admitting the statement of Adam Davis, a

codefendant.   The Commonwealth concedes the admission was error,

but we conclude the error was harmless beyond a reasonable

doubt.

     On appeal, we consider the evidence and all reasonable

inferences fairly deducible therefrom in the light most

favorable to the Commonwealth.   See Derr v. Commonwealth, 242

Va. 413, 424, 410 S.E.2d 662, 668 (1991).    Viewed in that

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
manner, the evidence established that Adam Davis and Chris Moltz

asked Frankie Davis if he knew anyone who might be interested in

robbing a house for them.   They believed drugs, weapons, and

money were in the house.    Frankie Davis contacted the defendant

because the defendant had told him earlier that day that he

wanted to commit a robbery.

       The defendant went to Frankie Davis's house with two other

men.   All three were dressed in black, wore hoods over their

heads, and covered their faces with masks.   Frankie Davis and

the defendant talked about the impending robbery.   Adam Davis

gave the defendant a floor plan of the house to be robbed, but

when Adam Davis indicated that he wanted to go with the

defendant, the defendant said, "all he had to do was point the

house out and [the defendant and his friends] would take it from

there."   The three masked men got into their car and followed

Adam Davis and Moltz.

       A masked gunman forced his way inside James Kahley's house,

pointed a gun to Kahley's head, and told him it was a robbery.

Two more masked gunmen entered the house.    As the defendant

entered, he shot Kahley's dog, and ordered Kahley and two

friends to lie on the floor.   When a gunshot rang out upstairs,

the defendant told Kahley "not to fucking look up again or he'll

start killing people."   The defendant had a chrome gun with a

laser sight.



                                - 2 -
     Another masked gunman, later identified as Otis Thomas or

"O," went to the second floor.    There he shot Michael Jackson

and got into a scuffle with Aaron Melton.   The fight broke up

when the third masked gunman came to help Thomas.    The two

gunmen hurried downstairs, and thirty seconds later, all three

gunmen left the house.

     The defendant went to Frankie Davis's house the next

morning.    He told Frankie Davis that the house was not like Adam

Davis and Moltz had described it.    He also told Frankie Davis

that he forced some guy inside and shot a Rottweiler when it

came at him.    The defendant stated, "O [Otis Thomas] had to wet

somebody."   Frankie Davis understood that to mean that Thomas

had shot somebody.   The defendant gave Frankie Davis a plastic

bag to keep because "he didn't want it to be in his house."      The

bag contained a box of laser beams, a mechanism that fits around

the trigger of a gun, and a box for a laser sight.   Frankie

Davis buried the items in his mother's backyard.

     During the trial, the Commonwealth presented the statement

that Adam Davis gave the police as a declaration against penal

interest.    In the statement Adam Davis described the planning of

the robbery.    He denied knowing the robbers and did not identify

any of them.    He gave no information about the events at the

Kahley house.   The statement minimized Adam Davis's role in

planning the robbery, and it paralleled much of the testimony of

Frankie Davis about that stage of the robbery.

                                 - 3 -
     The Commonwealth conceded the trial court erred in

admitting Adam Davis's statement.      Lilly v. Virginia, 527 U.S.

116, 134, 119 S. Ct. 1887, 1899 (1999), which was decided after

the trial of this case, held that the admission of an

accomplice's confession is a violation of a defendant's right to

confrontation.   However, "'an otherwise valid conviction should

not be set aside if the reviewing court may confidently say, on

the whole record, that the constitutional error was harmless

beyond a reasonable doubt.'"   Dearing v. Commonwealth, 259 Va.

117, 123, 524 S.E.2d 121, 125 (2000) (quoting Delaware v. Van

Arsdall, 475 U.S. 673, 681 (1986)).

     In order to determine if the error is harmless, this "court

must be able to declare a belief that it was harmless beyond a

reasonable doubt."   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." 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).




                               - 4 -
     Applying these principles, we conclude that the error was

harmless beyond a reasonable doubt.     Frankie Davis testified

that the defendant had said he wanted to rob someone and that

Frankie Davis contacted the defendant when a robbery opportunity

presented itself.   The defendant and two other men went to

Frankie Davis's house dressed in black with ski masks and hoods

to conceal their identity.   The defendant spoke to Adam Davis

and was given a floor plan of the house to be robbed.    The

defendant told Adam Davis to point out the house and he and his

boys would do the rest.   Frankie Davis also testified that the

defendant came to his house early the next morning and told him

the house they robbed was different than described.    The

defendant told Frankie Davis that he forced a guy into the house

and shot a dog.   The defendant said that Thomas shot someone.

The defendant gave Frankie Davis a bag that contained a laser

switch because he did not want it to be found in his house.

     Kahley testified that he was forced back in his house at

gunpoint and that a masked man with a laser beam on his gun shot

the dog.   That man guarded him and his friends as the other two

went upstairs.    When he heard a shot upstairs, the defendant

told him "not to fucking look up again or he'll start killing

people."   One of the witnesses, Charles Oakman, testified that

he and Jackson were robbed before Jackson was killed.    A second

witness, Aaron Melton, testified that he also was robbed.



                                - 5 -
     The statement made by Adam Davis never mentioned the

defendant or his role in the robbery.    It only described the

planning of the robbery and added no information to that

presented by Frankie Davis.    The statement was primarily an

attempt by Adam Davis to minimize his role in planning the

robbery.   The statement did not implicate the defendant in any

way, but the other evidence of the Commonwealth was credible and

overwhelmingly implicated the defendant in the crimes for which

he was convicted.   The admission of Adam Davis's statement was

harmless beyond a reasonable doubt.     Accordingly, we affirm the

judgment of the trial court.

                                                           Affirmed.




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