                  COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Humphreys and Senior Judge Coleman
Argued at Richmond, Virginia


MUSA A. PARROTT
                                         MEMORANDUM OPINION * BY
v.   Record No. 1014-99-2               JUDGE ROBERT J. HUMPHREYS
                                              MAY 15, 2001
COMMONWEALTH OF VIRGINIA


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

          (Phillip T. DiStanislao, Jr.; Hardy &
          DiStanislao, P.C., on brief), for appellant.
          Appellant submitting on brief.

          John H. McLees, Jr., Senior Assistant
          Attorney General (Mark L. Earley, Attorney
          General, on brief), for appellee.


     Musa Parrott appeals his conviction, after a jury trial, of

first degree murder, attempted murder, and use of a firearm in

the commission of the crimes.   Parrott contends that the trial

court erred in finding the evidence sufficient to convict him

and that it erred in allowing a statement made to police by a

witness to be read into evidence, after the witness had invoked

his Fifth Amendment privilege, thereby violating Parrott's Sixth

Amendment right to confront the witness.




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

     "On appellate review, we examine the evidence in the light

most favorable to the Commonwealth, and we may not disturb the

jury's verdict unless it is plainly wrong or without evidence to

support it."   Ashby v. Commonwealth, 33 Va. App. 540, 548, 535

S.E.2d 182, 186-87 (2000).

     So viewed, the evidence presented at trial established that

witness Daniel Harris was in the Green Lantern restaurant and

bar in the early morning hours of February 21, 1997.     He was

there with his friend, William Parham.      When the two entered the

building, Harris entered first and stepped toward the bar, where

he faced "the middle of the club, the center of the club where

[he could] see everything."    There were over 100 people in the

club at the time.

     Harris immediately noticed a gentleman in the middle of the

room, standing with his back to him, make a pulling motion with

his right hand from the side of his waist area and raise his

hand "turning to the side."    Harris then heard four gunshots and

saw a "muzzle flash."   The gunman stated, "Everybody get out of

my way.   I mean everybody."

     Another man, who was with the gunman, began "pushing people

out of the way to go out the door.      And the gentleman that fired

the shots turned and started running."      As the gunman ran toward

the door, he tripped on a chair.   When he stood up, he was

"face-to-face" with Harris.    He pointed the gun at Harris and

                                - 2 -
said, "Didn't I say everybody get out of my way?"    He then

pulled the trigger.   The gun made a clicking noise, but did not

fire, and the gunman ran out of the bar.

     After a few moments, Harris realized that someone in the

bar had been shot.    He collected himself.   Then, he and Parham

stepped out of the bar and saw the gunman and his companion get

into a "little red car" and drive away.    The gunman was driving,

and the companion was in the passenger seat.    Harris and Parham

followed the car in Parham's Honda.     They followed for several

blocks, but the gunman's companion began shooting at them and

they eventually lost sight of the red car.

     Several months later, Parrott was arrested for the murder

of Kiel Alston, the man who had been shot and killed in the

Green Lantern on February 21, 1997. 1   At trial, the medical

examiner testified that Alston had been shot four times. 2

However, only two bullets and a bullet fragment were recovered

from Alston's body.

     The detective who investigated the scene testified that he

found "two bullets" at the Green Lantern.     One was lodged in the




     1
       At trial, Harris testified that he had grown up with
Alston and had been friends with Alston and his family.
     2
       The wounds were in the area of Alston's chest and abdomen.
Two of the wounds appeared to be the result of gunshots from
close range.


                                - 3 -
ceiling and one was lodged in the floor. 3   He also found Alston's

coat lying on a chair, next to where he had been shot.

     Upon searching the apartment where Parrott was living,

police found a "six-shot revolver" and bullets that were

consistent with the type used in the shooting. 4   The police also

found a notebook, which Parrott stated was his "songbook," that

contained a letter/song dated "3/20/97" which read as follows:

          yes me set up a plan, day pon me motion, And
          here comes this man, want step ina me way,
          want fe dis I man, Just me and Rudeboy ina
          they club we a jam, everything start, From
          wha on one omen, Rudeboy till nine fe chill
          tru him Know how me stand, they boy don't

     3
       Parrott alleges that there were actually six gunshots,
instead of four, as Harris testified. By implication, Parrott
argues that Harris's testimony was inaccurate and that the
gunman must have known that the gun had no bullets left in it
when he pointed the gun at Harris and pulled the trigger.
     In support of this, Parrott states that the medical
examiner testified four bullets were recovered from Alston's
body. He further notes that the detective who investigated the
scene testified that he could account for the recovery of six
bullets, four from the body of the deceased and two from the
crime scene. However, Parrott misstates the evidence. The
medical examiner testified that she recovered only two bullets
and one fragment from the body of the victim. The autopsy
report supports her testimony. Furthermore, the detective
merely testified that he had recovered two bullets from the
scene and that there "should be four on the medical autopsy
report." Despite the detective's testimony, the autopsy report
establishes that only two bullets and one fragment were
recovered from the victim.

     4
       The firearms expert was unable to positively identify the
revolver as the murder weapon because the barrel had been
tampered with, or "gouged," causing the "land and groove"
impressions that would be imprinted on bullets shot from the
weapon to be altered.



                              - 4 -
          know we flex don't even know fe we gang, him
          a laugh after we tru we favor. Sampletons
          they, boy a fool him never know fe we
          intention, by that time me ready fe kill
          someone, so the boy rush me and grab, like
          say me like a man, hold from they waste, a
          Seddam him try slam, one shot ina him heart,
          push him off with me hand, take two steps
          back, than finish they battleman, from me
          lick one shot Rudeboy done understand him
          pop off him gun, clear they way fe Seddam,
          me a run and push with me gun ina me hand,
          run jump ina the car, pon they gas me just
          slam. two pussy ina Honda try fe follow
          they Don, Rudeboy popoff, fe him gun just
          Jam, so me think me a Driver, show hope they
          can hang, take two corner, and them fire
          shot after man, but me gone, can't stay,
          time fe make a new plan. Once I look and
          see what things become to be with me gun ina
          me hand, Its time fe me fe just flee, to the
          hill, and just go on, relaxe and chill, sick
          a tired of the world, tired fe see the blood
          spill,

                                    By:   Saddam 5

     After being taken to the police station and read his

Miranda rights, Parrott was interviewed about the murder.

Parrott first stated that the gun found in his home was his, but

that he had loaned it to "a guy named Sheeke" for two days at

the beginning of the year, and that he did not ask Sheeke what

he had done with it.   After being told by the detective that the

gun was being sent to the lab, Parrott said that Sheeke told him

he had shot a man in the Green Lantern.    Parrott first stated




     5
       We have included each of the spelling and grammatical
errors as they are written in Parrott's letter.

                               - 5 -
that he didn't know where Sheeke lived.    Later, Parrott stated

he thought Sheeke lived on River Road Terrace.   Finally, Parrott

stated that Sheeke's name was "Paul Donaldson" and that he lived

in Baltimore but had an apartment on River Road Terrace where he

sold marijuana.

     After further questioning, Parrott confessed he knew about

the shooting and conceded that he was in the bar that evening.

He stated that Sheeke was talking to a girl and that Alston, who

was drunk, said, "Don't talk to this girl.   This is my -- my

boy's sister."    Sheeke said, "All right man," and told Alston to

leave him alone.   Alston then took his coat off, picked up a

beer bottle and attempted to hit Sheeke.   Parrott said he "was

scared" and ran, and "Sheeke shot him."

     Parrott said that after the shooting, he and Sheeke ran to

the car Parrott had been driving, his girlfriend's red Ford

Aspire, and drove away.   He stated that he drove and that Sheeke

rode in the passenger seat.   Parrott stated that they had indeed

been followed by two men in a Honda and that Sheeke had shot at

the Honda from the passenger seat of the car.

     During Parrott's interview, police were also interviewing a

friend of Parrott's, Daron Brown.   After being misled by

detectives and told that Parrott had placed him at the Green

Lantern that evening, Brown gave a statement implicating Parrott

as the gunman.    Brown indicated that he was Parrott's companion

that evening and corroborated the story about the fight

                                - 6 -
occurring over a girl, as well as his actions in clearing the

way for Parrott to get out and the escape and chase by the two

men in the Honda.

     At trial, Parrott's ex-girlfriend, Reesha Allen, testified

that she was the owner of the red Ford Aspire and that she often

loaned it to Parrott to drive.    She also testified that Parrott

went by the street names of "Don" and "Saddam" and that his

friend Daron Brown went by the street name "Rude Boy."

     Harris, who had earlier identified Parrott as the shooter

in a photographic lineup, made an in-court identification of

Parrott as the gunman.   The Commonwealth also called Brown as a

witness; however, Brown pled the Fifth Amendment and refused to

answer questions.   The Commonwealth therefore sought to admit

the statement Brown had made to police as a statement "against

penal interest," an exception to the hearsay rule.   Over

Parrott's objection, contending that the statement was not truly

made "against penal interest," the trial court admitted the

statement, finding that the witness was "unavailable" and that

his statement otherwise met the requirements of the penal

interest exception.

     Parrott was ultimately convicted of all four charges and

sentenced to a total of sixty-eight years in the Virginia state

penitentiary.




                                 - 7 -
                           II.    Analysis

     We first note that whether evidence is admissible falls

within the broad discretion of the trial court, and the court's

ruling will not be disturbed on appeal absent an abuse of

discretion.   See Blain v. Commonwealth, 7 Va. App. 10, 16, 371

S.E.2d 838, 841 (1988).   By definition, when the trial court

makes an error of law, an abuse of discretion occurs.     See

Taylor v. Commonwealth, 28 Va. App. 1, 9, 502 S.E.2d 113, 117

(1998) (en banc).

     The Commonwealth concedes that the trial court erred in

admitting Brown's statement.     In Lilly v. Virginia, 527 U.S. 116

(1999), which was decided after the trial of this matter, the

United States Supreme Court held that the admission of an

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

constitutional right to confrontation, unless "the declarant's

truthfulness is so clear from the surrounding circumstances that

the test of cross-examination would be of marginal utility."

Id. at 134 (citation omitted).    No argument is made that such

circumstances are present here.

     Nevertheless, "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) (citation omitted).



                                 - 8 -
          Although Confrontation Clause error is of
          constitutional magnitude, it is subject to
          harmless error analysis. Constitutional
          error is harmless . . . only if the
          beneficiary of the constitutional error
          . . . prove[s] beyond a reasonable doubt
          that the error complained of did not
          contribute to the verdict obtained. The
          test, therefore, is not whether laying aside
          the erroneously admitted evidence there was
          other evidence sufficient to convict beyond
          a reasonable doubt . . ., but, more
          stringently, whether there is a reasonable
          possibility that the evidence complained of
          might have contributed to the conviction.
          In other words, even if the other evidence
          amply supports the . . . verdicts, [error is
          not harmless when] the disputed testimony
          may well have affected the . . . decision.

Williams v. Commonwealth, 32 Va. App. 395, 399-400, 528 S.E.2d

166, 168-69 (2000) (citations omitted).

     With regard to the charge of first degree murder, Code

§ 18.2-32 provides that "[m]urder . . . by any willful,

deliberate, and premeditated killing . . . is murder of the

first degree . . . .   Malice, an essential element of all grades

of murder, distinguishes murder from manslaughter."   Rhodes v.

Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95, 98 (1989)

(citations omitted).

     To sustain a conviction for attempted murder, the evidence

must establish a specific intent to kill the victim, as well as

an overt but ineffectual act committed in furtherance of this

criminal purpose.   See Hargrave v. Commonwealth, 214 Va. 436,

437, 201 S.E.2d 597, 598 (1974).



                               - 9 -
     Finally, to convict an accused of violating Code

§ 18.2-53.1, the Commonwealth must prove that the accused

actually had a firearm in his possession and that he used or

attempted to use the firearm, or displayed the firearm in a

threatening manner, while committing or attempting to commit one

of the specified felonies, which include murder.   See Yarborough

v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994).

     Here, it is clear that Brown's statement was not important

to the Commonwealth's case.   At most, it was cumulative of the

evidence already solicited from Harris, Parrott's own statement

to the police, and the evidence found in Parrott's home.    In

fact, even excluding Brown's statement, the evidence

overwhelmingly proved that Parrott was guilty of the crimes

charged.

     Thus, we conclude that although the admission of Brown's

statement compromised Parrott's right of confrontation, the

error, under the circumstances of this case, was harmless beyond

a reasonable doubt.   Furthermore, in light of our holding in

this regard, we find no merit in Parrott's argument that the

evidence was insufficient to support his convictions.

                                                           Affirmed.




                              - 10 -
