                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia


JEREMY SHAWN WALTON

v.   Record No. 2471-97-1

COMMONWEALTH OF VIRGINIA                    MEMORANDUM OPINION * BY
                                            JUDGE RICHARD S. BRAY
ROBERT SABB                                     MARCH 30, 1999

v.   Record No. 2472-97-1

COMMONWEALTH OF VIRGINIA


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

          Charles E. Haden for appellants.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on
          briefs), for appellees.


     Jeremy Shawn Walton and Robert Sabb (appellants) were

convicted in a joint trial for robbery.     On appeal, each

contends that the court erroneously allowed a Commonwealth

witness to invoke the Fifth Amendment, found that he was,

therefore, "unavailable" to testify, and admitted his

extrajudicial statement to police into evidence.     Appellants

also complain that the court erred in denying a continuance to

permit them to produce a witness that failed to appear at trial

     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
and refusing to allow a defense witness to testify.    Finding no

error, we affirm the convictions.

                                  I.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to

disposition of the appeal.    "On appeal, we review the evidence

in the light most favorable to the Commonwealth, granting to it

all reasonable inferences fairly deducible therefrom."       Martin

v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).

     On June 10, 1997, Jimmy Baggett, a white male, robbed a

branch of the First Union Bank.    Tara Ramirez, a teller,

testified that Baggett entered the bank, "came up to one of the

desks and was writing." 1   He then approached another teller, who,

"for some reason," asked Baggett for identification.    Baggett

then "went back outside" briefly, returned, entered Ramirez's

line and presented a note demanding $350.    The note also

threatened Ramirez that Baggett "was pointing a gun at [her],"

and she noticed he was "holding [something] underneath his

shirt."   Ramirez gave Baggett the money and watched him exit the




     1
      Ramirez recognized Baggett as "the same person that [had
reportedly] robbed the bank next door . . ., the afternoon
before."




                                - 2 -
bank and enter "a gray, big car," parked nearby and occupied by

"four or five black males."

     Officer Jimmy Forbes was alerted to the robbery and soon

located the car described by Ramirez, stopping it at a service

station.   Police arrested and questioned the occupants, four

black males, including appellants, and a black female.       All

denied involvement in the offense.      Baggett was arrested a short

distance away, waived his Miranda rights, and provided the

disputed statement to Forbes.   In searches incidental to the

arrests, police recovered $50 and $157 in cash from appellants

Walton and Sabb, respectively, a screwdriver from the vehicle,

and a "practice [robbery] note" from Baggett's sock.

     At trial, Baggett was called as a Commonwealth witness and,

during initial questioning, acknowledged an acquaintance with

appellants "[t]hrough drug dealing."     However, when the

prosecutor asked if Baggett was with appellants on the day of

the robbery, he invoked the Fifth Amendment and refused to

answer questions related to the offense.     After Baggett

responded similarly to cross-examination, the court declared him

an unavailable witness.   The Commonwealth then recalled Officer

Forbes and, over appellants' objections, he repeated Baggett's

earlier statement which implicated appellants in a scheme to

coerce Baggett to rob the bank and pay a drug debt to appellant

Walton.



                                - 3 -
                                 II.

     "It is generally recognized that . . . '[d]eclarations

against [penal] interest are admissible as an exception to the

hearsay rule because it is felt that a person will not usually

make statements damaging to his own interests unless such

statements are true.'"    Randolph v. Commonwealth, 24 Va. App.

345, 355-56, 482 S.E.2d 101, 106 (1997) (citation omitted).

Accordingly,

          [a] third party's statement is admissible as
          an exception to the hearsay rule if: (1)
          the declarant is unavailable, (2) the
          statement was against the declarant's
          interest at the time it was made, and (3)
          the declarant was aware at the time the
          statement was made that it was against his
          interests to make it. Furthermore, the
          declaration [by the unavailable witness]
          must be shown to be reliable. 2

Raia v. Commonwealth, 23 Va. App. 546, 550, 478 S.E.2d 328, 330

(1996) (citations omitted).   "'[W]here proffered hearsay has

sufficient guarantees of reliability to come within a firmly

rooted exception to the hearsay rule, the [Sixth Amendment]

confrontation clause is satisfied.'"    Id. at 551, 478 S.E.2d at

330 (citation omitted).

     Thus, "'"once it has been established that a third-party

confession has been made, the crucial issue is whether the

     2
      Appellants challenge only the court’s findings that Baggett
was entitled to assert his Fifth Amendment privilege, rendering
him unavailable, and that his statement was reliable.



                                - 4 -
content of the confession is trustworthy."'"    Randolph, 24 Va.

App. at 356, 482 S.E.2d at 106 (citations omitted).    The

"'"determination of this issue turns upon whether . . . the case

is one where 'there is anything substantial other than the bare

confession to connect the declarant with the crime'"'" and rests

with the sound discretion of the trial court.    Id.

     Here, Baggett's statement implicated him in a bank robbery

and, therefore, was against his penal interest, irrespective of

the sufficiency of the statement to convict him of the offense.

See Chandler v. Commonwealth, 249 Va. 270, 279, 455 S.E.2d 219,

224, cert. denied, 516 U.S. 889 (1995).   Moreover, Baggett

admitted involvement in unlawful drug trafficking, also clearly

contrary to his penal interest.   See 2 Charles E. Friend, The

Law of Evidence in Virginia § 18-12 (4th ed. 1996).

Additionally, Baggett was identified as the robber and fled in

an automobile occupied by appellants and stopped by police near

the scene shortly after the offense.   The screwdriver used in

the offense was found in the car, appellants admitted Baggett's

indebtedness to Walton for drug purchases, and cash was

recovered from appellants, all consistent with Baggett's

statement to police.

     Such evidence, together with other circumstances, provided

"sufficient indicia of reliability to support the




                              - 5 -
trustworthiness of [Baggett's] statement."      Raia, 23 Va. App. at

551, 478 S.E.2d at 331 (citation omitted).

                                  III.

     Appellants next complain that the trial court erroneously

allowed Baggett to invoke the Fifth Amendment, despite Code

§§ 19.2-270 and 18.2-262 which clothe such testimony with

immunity. 3    However, Code § 19.2-270, "by its terms, confers only

use immunity . . . .     Such limited protection is obviously not

co-extensive with the constitutional privilege and cannot

overcome it, once validly asserted."      Gosling v. Commonwealth,

14 Va. App. 158, 164-65, 415 S.E.2d 870, 873 (1992).     Therefore,

the statute "[does] not supplant [a] witness's constitutional

privilege to invoke the protection of the Fifth Amendment."

Boney v. Commonwealth, 16 Va. App. 638, 642, 432 S.E.2d 7, 10

(1993).

     Code § 18.2-262 provides, in pertinent part:

              No person shall be excused from testifying
              . . . for the Commonwealth as to any offense
              alleged to have been committed by another
              under this article or under the Drug Control
              Act (§ 54.1-3400 et seq.) by reason of his
              testimony or other evidence tending to
              incriminate himself . . . .


     3
      Appellants also contend that "[t]he    trial court erred in
overruling [their] objection to Baggett's    invocation of the
Fifth Amendment where Baggett had already    begun to testify
substantively against [them]," a question    previously raised on
petition and denied by this Court.




                                  - 6 -
The referenced "article" relates to crimes involving illegal

drugs, not robbery, the instant offense.      Thus, the statute was

inapplicable to Baggett's testimony.

                                  IV.

        Appellants next argue that the trial court erroneously

denied their mid-trial motion for a continuance to secure the

presence of witness Andre Wiggins.       In support of the motion,

appellants' counsel proffered that Wiggins' attorney had assured

him "that he's willing to have [him] testify and corroborate the

testimony of [appellants]" and "feels that he can probably have

him here tomorrow if the Court is willing to set it over to

tomorrow."    In denying appellants' motion, the trial judge

concluded that Wiggins was not "a material witness," and the

court was not satisfied that he "would . . . likely be present

on another date," noting also that "[w]e're at the end of

trial."

        The record discloses that appellants' attorney had caused a

subpoena to be issued for Wiggins "at the jail" on August 8,

1997.    On August 13, 1997, the subpoena was returned, bearing a

notation which advised that Wiggins was "not found . . .,"

having been "bonded [on] 08-01-97," and provided his "home

address [then] on file."    Nevertheless, appellants did not




                                 - 7 -
resubpoena Wiggins or request a continuance of trial, then

scheduled for August 26, 1997. 4

     "'The decision whether to grant a continuance is a matter

within the sound discretion of the trial court.   Abuse of

discretion and prejudice to the complaining party are essential

to reversal.'"   Lowery v. Commonwealth, 9 Va. App. 304, 307, 387

S.E.2d 508, 509 (1990) (citations omitted).

     "In determining whether the trial court properly exercised

its discretionary powers, we look to the diligence exercised by

the moving party to locate the witness and secure his attendance

at trial," always "'with due regard to the constitutional

guaranty of a fair and impartial trial to one accused of crime,

and the right to call for evidence in his favor.'"    Cherricks v.

Commonwealth, 11 Va. App. 96, 99-100, 396 S.E.2d 397, 399 (1990)

(citations omitted).    "[C]ontinuances in the midst of trial

should not be an everyday occurrence."    Bennett v. Commonwealth,

236 Va. 448, 461, 374 S.E.2d 303, 311-12 (1988), cert. denied,

490 U.S. 1028 (1989).

     Appellants' proffer suggested that Wiggins' testimony would

only have been cumulative of appellants' testimonies denying


     4
      During the colloquy with the court at arraignment,
appellant Sabb advised the court that his witnesses were
present. However, appellant Walton answered, "No," to a like
inquiry, although he raised no objection to the commencement of
trial.




                                - 8 -
knowledge of the robbery by other occupants of the car.

Appellants' attorney was unable to assure the court of Wiggins'

appearance or the availability of his testimony.   Moreover, no

effort had been made to resubpoena Wiggins, or to previously

seek a continuance, despite the return of service, nearly two

weeks before trial, advising that he was "not found . . .," and

including his "home address."   Such circumstances clearly fail

to establish that the court abused its discretion in denying the

continuance motion.

                                 V.

     Lastly, appellants complain that the trial judge erred in

refusing to permit witness Calvin Williams to impeach Baggett's

statement that appellant Sabb had accompanied him on another

bank robbery the day preceding the subject offense.   Through

Williams' testimony, appellants sought to establish that Sabb

was with Williams at the time of the earlier robbery, contrary

to Baggett's claim.

     Assuming, without deciding, that Williams' testimony was

proper impeachment of Baggett's statement to police, the

disputed ruling was clearly harmless.   In Delaware v. Van

Arsdall, 475 U.S. 673 (1986), the United States Supreme Court

instructed that "the constitutionally improper denial of a

defendant's opportunity to impeach a witness . . ., like other

Confrontation Clause errors, is subject to . . . harmless-error



                                - 9 -
analysis."    Id. at 684; see Williams v. Commonwealth, 4 Va. App.

53, 78, 354 S.E.2d 79, 93 (1987).    A non-constitutional error is

harmless if "'it plainly appears from the record and the

evidence given at the trial that' the error did not affect the

verdict."    Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407

S.E.2d 910, 911 (1991) (en banc) (quoting Code § 8.01-678).       "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."    Id.   "The crux of the harmless error analysis is

whether the defendant received a fair trial on the merits and

substantial justice has been achieved."     Timmons v.

Commonwealth, 15 Va. App. 196, 199, 421 S.E.2d 894, 896 (1992).

     Baggett's credibility was sufficiently impeached at trial

in the absence of Williams' testimony.    Baggett was an admitted

crack cocaine addict, under the influence of the drug during the

robbery, his second like offense in as many days.    Shane

Ellenson, a cellmate with Baggett, testified that Baggett "said

ain't nobody know what was going on" when he robbed the bank and

vowed to falsely incriminate others.     Further impeachment with

respect to the details of an unrelated robbery clearly would

have not changed the result and any related error did not

compromise appellants' rights to a fair and just trial.




                                - 10 -
Accordingly, we affirm the convictions.

                                          Affirmed.




                        - 11 -
Benton, J. dissenting.

     I would reverse the convictions of Jeremy Shawn Walton and

Robert Sabb for bank robbery on June 10, 1997 and remand for a

new trial.

                                  I.

     The evidence proved that Jimmy Baggett robbed the Old Point

National Bank on June 9, 1997, and robbed the First Union Bank

on June 10, 1997.    On each occasion Baggett entered the bank

alone.   When the police arrested Baggett on June 10, 1997,

Baggett was alone at a gas station.      A police officer put

Baggett in the back of a police car, told Baggett he was under

arrest for bank robbery, and read to him Miranda rights.

Baggett then made the following statement to the officer:

                [Y]esterday, Monday, the nine, after
             being up all evening doing crack cocaine in
             which Drey, Andre, and Hursh, and the guy
             with the dread-locks in his hair were
             supplying me, started threatening me. When
             they found out I didn't have the money to
             pay then they told me that they were going
             to take me to the bank, any bank, and I was
             going to get their money no matter what I
             had to do. Then they started telling me
             what they were going to do to me and my
             family if I didn't pay them.

                The guy with the gray sweat shirt put a
             gun to my head and said, I'm telling you, we
             don't play. So then the driver of the
             Cadillac, Andre, told me how to write the
             letter and what to do when I got in the
             bank. And if I put a screwdriver under my
             shirt it would look like a gun.




                                - 12 -
   So some time during the day we went to
the bank and I did what they told me while
they, Andre, Hursh, Drey and the guy with
the gray shirt waited out front of the bank.
Then when I went inside the bank I was so
high and scared for my life, and my family,
I did what they told me.

   I was thinking about getting the next
hit. So after we left the bank we went to a
place on Monitor Apartment D-1, where we
stayed there until dark. Then we went to
the Golden Sands Motel where they gave me
more dope, crack. And I ran into the same
problem this time. They told me to get more
money so I could . . . buy crack. . . .

   The only difference was Hursh was no
longer there. There was a short guy with a
camouflage jacket on that kept giving me
crack. And there was a girl who was a
whore, who either of the two did I ever talk
to about this. But on the way to the bank
we stopped off at some apartments whether he
gave me some crack. And Andre and the guy
with the gray sweat shirt, said don't try
nothing slick, because we know where your
mom works and we'll get her.

   The next thing I remember we were in
front of the bank. I was so high I don't
even remember the drive from the apartments
to the bank where they gave me the crack.
Then I went inside the bank. Came . . .
out, got in the car. The two guys in the
back seat, the guy in the gray shirt and the
one in the camouflage jacket were saying go
to the Interstate. Then a guy in a blue
pickup pulled up beside us and was looking
for crack. So Drey said pull over and let's
make this quick sale.

   As soon as the car pulled into Hardees
parking lot I was still so high and scared I
threw the money on the seat of the car, got
out, and ran to Maida where my mom works,
where I was arrested. Also the driver,



                   - 13 -
          Andre, said we don't have to worry they
          didn't see the car and we need gas. We
          can't go to the interstate.

             Signed Jimmy Baggett.       I really did not
          want to do this.

     When Walton and Sabb were arrested on June 10, 1997, they

were in an automobile with three other people.      Although both

men admitted that Baggett earlier had been in the car, they

denied knowing Baggett had robbed the bank employees and denied

assisting him in the robbery.

                                 II.

     To be admissible as an exception to the rule against

hearsay, the statement of a declarant, who is not a party, must

meet the following prerequisites:      (1) the declarant must be

unavailable; (2) the statement must have been against the

declarant's penal interest at the time the statement was made;

(3) the declarant must have been aware at the time the statement

was made that it was against his interest to make it; and (4)

the declaration must be shown to be reliable.       See Ellison v.

Commonwealth, 219 Va. 404, 408, 247 S.E.2d 685, 688 (1978);

Boney v. Commonwealth, 16 Va. App. 638, 643, 432 S.E.2d 7, 10

(1993).

                         Penal Interest

     "'A statement's admissibility [as a statement against penal

interest] is based on the [declarant's] subjective belief that




                                - 14 -
he is making admissions against his penal interests.'"     Pitt v.

Commonwealth, 28 Va. App. 730, 743, 508 S.E.2d 891, 898 (1999)

(citation omitted) (emphasis in original), reh'g en banc

granted, ___ Va. App. ___, ___ S.E.2d ___ (1999).   See also

Chandler v. Commonwealth, 249 Va. 270, 278-79, 455 S.E.2d 219,

224-25 (1995).   The record does not support the conclusion that

Baggett was aware his statement was against his penal interest

when he made the statement.   Rather, the statement is Baggett's

self-serving explanation that he committed the robbery because

of duress.   According to the statement, the men threatened

Baggett because he owed them money, "put a gun to his head,"

told him "what they were going to do to [him] and [his] family,"

and made him commit the robbery to get money to pay his debt.

     "The common law defense of duress excuses acts which would

otherwise constitute a crime, where the defendant shows that the

acts were the product of threats inducing a reasonable fear of

immediate death or serious bodily injury."   Pancoast v.

Commonwealth, 2 Va. App. 28, 33, 340 S.E.2d 833, 836 (1986).

Baggett's statement clearly is an assertion that he committed

the robberies only because he subjectively believed that he or

members of his family would be killed if he did not do as

ordered by the armed men.   His final statement, "I really did

not want to do this" is emphatic evidence that he was attempting

to excuse his conduct by asserting that he was coerced into



                              - 15 -
acting against his will.    Baggett's statement clearly was not

truly self-inculpatory.    Furthermore, no evidence tended to

prove any circumstances indicating Baggett had a subjective

belief he was making an admission against his interest.

                             Reliability

     The Commonwealth could establish the admissibility of the

statement "only upon a showing that [the statement] is

reliable."   Ellison, 219 Va. at 408, 247 S.E.2d at 688.     Where,

as in this case, a declarant's statement is also inculpatory as

to a defendant, it can only be admitted in evidence in the

defendant's criminal trial when, additionally, the statement is

proved to be trustworthy.    See id.    Nothing about the statement

or the circumstances surrounding the giving of the statement

imbue it with reliability.   Significantly, the United States

Supreme Court has noted that "'the arrest statements of a

codefendant have traditionally been viewed with special

suspicion.   Due to his strong motivation to implicate the

defendant and to exonerate himself, a codefendant's statements

about what the defendant said or did are less credible than

ordinary hearsay evidence.'"    Lee v. Illinois, 476 U.S. 530, 541

(1986) (citation omitted).

     For reasons that I have more fully stated in Pitt, see 28

Va. App. at 766 n.12, 508 S.E.2d at 909 n.12 (Benton, J.,

concurring in part and dissenting in part), I would hold that



                               - 16 -
Baggett's statement was untrustworthy because of the

circumstances in which it was made.    Baggett was under the

influence of cocaine; he was being interrogated in police

custody; he had a motive to mitigate his own criminal conduct;

and he made accusatory statements placing greater blame upon

another while seeking to excuse his own conduct.    See id.    In

view of these circumstances, the Commonwealth failed to provide

an "affirmative reason, arising from the circumstances in which

the statement was made [that] provides a basis for rebutting the

presumption that a hearsay statement is not worthy of reliance

at trial."   Idaho v. Wright, 497 U.S. 805, 821 (1990).    Thus,

the record fails to establish a basis to admit Baggett's

statement.

                               III.

     I would also hold that the trial judge erred in barring

Calvin Williams' testimony.   The opportunity of the accused to

present a complete defense "would be an empty one if the State

were permitted to exclude competent, reliable evidence bearing

on . . . credibility . . . when such evidence is central to the

defendant's claim of innocence."   Crane v. Kentucky, 476 U.S.

683, 690 (1986).

     In its case-in-chief, the Commonwealth sought to prove by

Baggett's statement that Walton and Sabb engaged in bank robbery

and a course of criminal conduct with Baggett on June 9 and June



                              - 17 -
10.   Walton and Sabb were entitled to attack Baggett's

credibility by proving that his narrative of the events was

false.     See Deavers v. Commonwealth, 220 Va. 14, 16, 255 S.E.2d

458, 459 (1979); Hummel v. Commonwealth, 217 Va. 548, 550, 231

S.E.2d 216, 217 (1977).    Because the trier of fact determines

the credibility of witnesses, Zirkle v. Commonwealth, 189 Va.

862, 870, 55 S.E.2d 24, 29 (1949), Walton and Sabb were entitled

to offer impeaching evidence that had the tendency to cause the

trier of fact to reject Baggett's testimonial statement.      Id.

Relevant evidence that tends to impeach a witness' credibility

and assists in an accused's defense is always admissible.       See

Hummel, 217 Va. at 550, 231 S.E.2d at 217.

      The error was not harmless.   Williams' testimony, if

believed by the trier of fact, would have provided a basis for

the trier of fact to reject Baggett's statement.    Baggett's

statement was the only evidence that tied Walton and Sabb to the

robbery.    The failure to consider Williams' testimony could not

have been harmless because "[t]he excluded testimony addressed

the credibility of the only witness against the defendant and

the weight to be given to his testimony."     Jury v. Commonwealth,

10 Va. App. 718, 722, 395 S.E.2d 213, 216 (1990).

      For these reasons, I dissent.




                                - 18 -
