                    COURT OF APPEALS OF VIRGINIA


Present: Judge Willis, Senior Judges Hodges and Overton
Argued by teleconference


SANTO LANGLEY
                                           MEMORANDUM OPINION * BY
v.   Record No. 0772-99-1                  JUDGE WILLIAM H. HODGES
                                              DECEMBER 28, 2000
COMMONWEALTH OF VIRGINIA


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

            William P. Robinson, Jr. (Robinson &
            Anderson, on brief), for appellant.

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


     Santo Langley (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; and 2) admitting his codefendants' out-of-court

statements into evidence against him.     For the reasons that

follow, we reverse appellant's convictions.

                             Background

     During the course of their investigation into the July 25,

1997 burglary of Tara Harper's residence and the murder of William

McKleny, police interrogated appellant, Terrence Woolard, Toney

     *
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Griffin, Jerry Norman and Armard Smith.    All five were ultimately

charged with conspiracy, burglary, first degree murder, and

related firearm offenses.   Over appellant's objection, the court

permitted trial of appellant and his codefendants jointly and

admitted into evidence the statements of appellant's codefendants.

     At trial, Detective Orr testified that he interviewed

appellant at 6:05 p.m. on July 25.     He recalled that appellant

initially denied knowledge of the crimes but later admitted "he

. . . took part in the conversation . . . between him and the four

other codefendants . . . . about breaking in the home" and had

agreed to knock on the door and act as a lookout.    Appellant

claimed that, after banging on the door with a stick several

times, he returned to Woolard's car and heard a gunshot.

     Appellant testified that in the early morning hours of

July 25, he was a passenger in Woolard's car, following Griffin,

Norman and Smith in Norman's car.    Parking in the Northridge

section of Virginia Beach, Griffin, Norman and Smith exited

Norman's car and walked down the street.    Woolard and appellant

followed the others, and Woolard stopped near Harper's townhouse

and walked to the rear.   As appellant returned toward the car, he

again encountered Woolard, and the two ran to the car after

hearing a gunshot.   Norman, Griffin and Smith joined them a short

time later, and Woolard drove appellant to his home.    Appellant

denied knowledge of the offenses.    He explained that, when

Detective Orr advised him that a codefendant had told police

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appellant knocked on the door, he had merely replied, "Okay,"

noting that Orr did "all the talking."

     During Orr's trial testimony, the court admitted into

evidence Woolard's videotaped statement to police.   Woolard then

had stated that, after arriving at Northridge, he overheard

someone mention a man who lived "up the street" and kept a lot of

money in his house.   Walking behind Norman, Griffin and Smith,

Woolard became aware that one of the three had a gun.   Woolard

also told the police that appellant knocked on or rang the bell at

the front door of Harper's residence.    When Woolard testified,

however, he recanted that portion of his statement implicating

appellant, explaining that, when police mentioned to him that one

among the group had knocked on Harper's door or rung the doorbell,

he falsely named appellant because he was scared.

     In recalling events at trial, Woolard testified that,

accompanied by appellant, he had driven to Northridge around

1:00 a.m. on July 25, following Norman, Griffin and Smith.    After

Woolard parked, Norman, Griffin and Smith exited and walked away.

A short time later, Woolard and appellant followed, and Woolard

walked through a "cut," finding Smith in Harper's backyard.

Noticing Harper's back door ajar, Woolard stepped inside, but

concluded something was not right and returned to his car.    En

route, Woolard was joined by appellant.    Before reaching the car,

Woolard and appellant heard a gunshot, turned and observed Smith

and Norman running toward them from the direction of Harper's

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residence and Griffin running from another direction.   All five

men entered Woolard's car, and he drove to a nearby shopping

plaza, where the passengers exited and Woolard proceeded home.

     The trial court also admitted into evidence videotaped

statements made to the police by codefendants Griffin, Smith and

Norman.   Griffin admitted shooting the victim but did not

implicate appellant in his statements.

     Smith initially denied involvement but later admitted to Orr

that he and appellant had gone to Harper's door and rung the

doorbell.   Within minutes, however, Smith retracted this statement

and stated he and three men had walked to the rear of Harper's

residence and pried open the rear door, while appellant remained

at the front.   Smith told Orr that appellant and Griffin knew a

drug dealer, "Big Mike," resided in the house, and appellant

suggested they go to "Big Mike['s] crib."   Smith did not testify

at trial.

     In his statement to police, Norman recalled that Smith had

mentioned "Big Mike" as a "big time drug dealer."   Norman

initially said he stood in the backyard with appellant and Woolard

while Griffin and Smith pried open the back door and entered

Harper's residence.   According to Norman, he left with Woolard and

appellant after Griffin and Smith said there was a little girl

inside the house.   Moments later, however, Norman admitted he did

not leave the backyard and was in the house when Griffin shot the



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victim.   He also said that everyone knew he and Griffin were

armed.    Norman did not testify at trial.

     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).    Thus, 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.    Lilly, 527 U.S. at 137-38.

     Thus, to be admissible, a non-testifying codefendant's

confession

             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

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          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.

Bass v. Commonwealth, 31 Va. App. 373, 383-84, 523 S.E.2d 534, 539

(2000) (citations omitted).   Factors that a court may consider in

determining such reliability 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.

     Moreover, a codefendant's confession will be deemed reliable

and therefore, admissible, 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.    However,

          "[i]f 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
          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.


                                 - 6 -
Id. at 385, 523 S.E.2d at 540 (quoting Lee v. Illinois, 476 U.S.

530, 545 (1986)).

     Here, Woolard testified and was subject to cross-examination.

Therefore, any attendant Confrontation Clause error was remedied.

However, neither Smith, Norman, nor Griffin testified.    At the

time Smith and Norman confessed, each was in custody, aware they

were going to be charged with the burglary and McKleny's murder.

None of the non-testifying codefendants was subjected to

"contemporaneous cross-examination."   Therefore, the circumstances

surrounding their respective confessions did not weigh in favor of

reliability.   Further, no codefendants' incriminating confession

interlocked with appellant's statement or trial testimony.

     The Commonwealth, therefore, failed to establish the

inherent reliability of the Norman, Smith, and Griffin

statements, and the trial court erroneously admitted those

statements into evidence.   The error was not harmless.

          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

                               - 7 -
             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).

     The record discloses no physical evidence of appellant's

involvement in the offenses.    Both appellant and Woolard testified

and recanted those portions of their respective statements that

incriminated appellant.    Thus, the confessions of Norman and Smith

constituted the only direct evidence that established appellant's

involvement in the offenses.    We cannot conclude that admitting

those confessions into evidence was harmless beyond a reasonable

doubt.

     Accordingly, the judgment of the trial court is reversed, and

the case is remanded for retrial if the Commonwealth be so

advised. 1

                                              Reversed and remanded.




     1
       In consideration of our decision, we expressly decline to
address the remaining assignments of error.

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