                   COURT OF APPEALS OF VIRGINIA


Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


JOYCE ELAINE CHAMBERS
                                            MEMORANDUM OPINION * BY
v.       Record Nos. 1623-95-4           JUDGE JOHANNA L. FITZPATRICK
             through 1629-95-4                  MARCH 11, 1997

COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                  Benjamin N. A. Kendrick, Judge
           Bobby B. Stafford (Kathryn E. Coward; Raby &
           Stafford, on brief), for appellant.

           Michael T. Judge, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



     Joyce Elaine Chambers (appellant) was tried jointly with

Richard Lawrence Randolph (Randolph), and Alice Lavada Coffey

(Coffey), and was convicted in a jury trial of grand larceny,

credit card theft, and conspiracy to commit a felony.      On appeal,

she argues that the trial court erred in:      (1) denying her motion

to sever and (2) limiting her cross-examination of the
                          1
Commonwealth's witness.       For the reasons that follow, we reverse

     *
      Pursuant to Code § 17-116.010 this opinion is not

designated for publication.

     1
      Because we reverse on the cross-examination issue, we do

not address the severance issue.      However, we address the

severance issue in the companion case Randolph v. Commonwealth,
___ Va. App. ___, ___ S.E.2d ___ (1997) (holding joint trial not
the convictions.

     On the evening of July 24, 1994, Sergeant Kenneth Hutton

(Hutton) of the Metropolitan Washington Airport Authority (MWAA)

was on pickpocket detail at National Airport.    He first observed

Randolph, with a green garment bag draped over his shoulder,

walking toward the United Airlines section of the airport.      In

the American Airlines baggage claim area, Hutton saw Randolph

approach several people from behind who were waiting to claim

their baggage.   Randolph stood within inches of each person for a

few minutes and then moved on to another person.   He never

claimed any baggage.   Next, he went to the cab stand outside the

Northwest Airlines baggage claim area and approached several

people in the same manner.
     When Randolph left the cab stand, he got into the front

passenger seat of a green Mercury automobile driven by appellant

and put the green garment bag in the backseat.    A few minutes

later, Sergeant Alan Pelleranan (Pelleranan), a MWAA officer, saw

the car driven by appellant arrive at the U.S. Air terminal with

Randolph, Coffey, and Linda Williams (Williams).   Appellant,

Randolph, and Williams went into the terminal.    When Hutton

arrived at the terminal, he saw appellant and Randolph exit the

terminal and walk over to the shuttle bus stop.    Randolph again



error where codefendant's confession implicates both defendants

and statement is otherwise admissible.)



                                 2
approached people from behind while appellant stood about fifteen

feet away, looking around.    Appellant and Randolph returned to

the Mercury, which Coffey had parked nearby.   Pelleranan

apprehended Williams inside the terminal and brought her to the

car.

       Upon her arrest and after being advised of her Miranda

rights, Hutton asked appellant "why she had come to the airport."

She answered:     "To steal . . . to pick pockets."   Hutton wrote

in his notes that:   "Subject #3 [appellant] advised us in the

interview that on the way over to National Airport from the D.C.

Convention Center [S]ubject[] #1 [Williams] and Subject #2

[Randolph] discussed stealing.   She further advised us that she

knew the reason they were coming to the airport was to steal

(pick-pocket)."
       Appellant, Randolph, and Coffey were indicted for grand

larceny, credit card theft, and conspiracy to commit a felony,

and were scheduled to be tried jointly.   Prior to trial, Randolph

and Coffey objected to the admission of appellant's statement,

and all three codefendants requested to be tried separately.     The

court denied the motions.

       On the morning of trial, when the codefendants renewed their

motions to sever, the Commonwealth suggested redacting

appellant's statement from "we came to steal" to "I came to

steal."   (Emphasis added).   Appellant objected to the redaction

and argued that it would negate the conspiracy theory, and that



                                  3
it was prejudicial to her because it gave the other defendants "a

license to dump it on her to exonerate" themselves.   The trial

court ruled that "[t]he motion to sever is denied.    The statement

is admissible if it's redacted to, [']I came to steal,['] where

it's clear there[] [are] no references to the other individuals

that are on trial."

     During the joint trial, codefendant Randolph requested a

limiting instruction that would direct the jury to consider the

statement only in reference to appellant.   The Commonwealth

argued that the statement required no such instruction, because

it was admissible as a declaration against penal interest.     In

response, appellant asserted that redacting her statement would

be "tantamount to instructing the jury that she is saying that, I

came over her[e] to steal."   Appellant also contended that the

redaction would make cross-examination more difficult because she

would not be able to "cross-examine on the 'we,' the context, who

was there, who is included in the statement and so forth."     The

court held that the statement was "admissible if it's redacted to

'I came to steal.'"
     At trial, Hutton testified that appellant told him

          that she came to the airport "to steal . . .

          to pick pockets."   During cross-examination,

          appellant questioned Hutton about his written

          notes, and Hutton admitted that his testimony

          regarding appellant's confession was not an




                                 4
exact quote.   Appellant then asked Hutton:

"[I]sn't it correct that your summary of that

statement suggests that they came over here

to steal?"   (Emphasis added).   The trial

court sustained codefendant Coffey's

objection, and required appellant to question

Hutton further regarding his report out of

the presence of the jury.   Hutton testified

that although he wrote "they," appellant

actually used the word "we."     The court ruled

that appellant could not introduce the

reference to "they" because of "the authority

[appellant's counsel] relied on [Berger v.
Commonwealth, 217 Va. 332, 228 S.E.2d 559

(1976)]."    Appellant argued that she was "not

saying in that statement that she came over

here to steal," but "that others came over

here to steal."   (Emphasis added).   In

response to Randolph's objection to "anybody

asking any question about any of the details

of that statement," the court told

appellant's counsel that he would not be

allowed to ask questions regarding the

written statement as reflected in Hutton's

report, and if he did, he would be held in



                        5
             contempt.   The court directed:   We spent

             hours talking about this and [appellant's

             counsel] asked the question anyway. . . .    I

             am telling [appellant's counsel] in no

             uncertain terms that if [he] [tries] to

             deliberately cause a mistrial on areas that

             [he] know[s] [he] should not ask, [he] will

             be held in contempt to Court.     [He] may get

             the mistrial but [he'll] get more than that.



     On March 23, 1995, appellant was convicted of grand larceny,

credit card theft, and conspiracy to commit a felony.         On appeal,

appellant argues that the trial court erred in (1) limiting her

cross-examination of the Commonwealth's witness regarding her

confession, and (2) overruling the motions to sever and

subsequently admitting a redacted statement attributed only to

appellant.

     In a separate trial, appellant's unredacted statement would

have been admissible against the codefendants under the

declaration against penal interest exception to the hearsay rule

and against appellant as a party admission.        See Scaggs v.

Commonwealth, 5 Va. App. 1, 4-5, 359 S.E.2d 830, 831-32 (1987)

("[I]t is settled in Virginia that . . . a declaration against

penal interest is recognized as an exception to the hearsay

rule. . . ."), and Alatishe v. Commonwealth, 12 Va. App. 376,



                                    6
378, 404 S.E.2d 81, 82 (1991) ("Any statement by a party to the

proceedings . . . is admissible as an exception to the hearsay

rule when offered against that party.").    Appellant argues that

redaction was inappropriate in this case because it changed the

meaning of her original statement and it failed to "solve a

conflict that only severance could adequately alleviate."

     In the instant case, appellant's response to Hutton's

question about the codefendants' purpose in being at the airport

was contested.    The trial court redacted appellant's original

response that Williams and Randolph discussed stealing and that

she knew "they" were coming to the airport "to steal" to "I came

to steal."   This change "radically alter[ed] the meaning" of the

statement.   See Pugliese v. Commonwealth, 16 Va. App. 82, 90, 428

S.E.2d 16, 23 (1993), and United States v. Washington, 952 F.2d

1402, 1404 (D.C. 1991), cert. denied, Jones v. United States, 503

U.S. 1009 (1992).    Further, the limitation on cross-examination

of the context of the statement compounded the detrimental effect

of the redaction.    Thus, appellant argues, the trial court

improperly limited her cross-examination of Hutton regarding her

confession, which was "the most crucial part of the evidence

against her."    We agree.

     "Cross-examination of prosecution witnesses 'is "fundamental

to the truth-finding process and is an absolute right guaranteed

to an accused by the [C]onfrontation [C]lause of the [S]ixth

[A]mendment."'"     Maynard v. Commonwealth, 11 Va. App. 437, 444,




                                   7
399 S.E.2d 635, 639 (1990) (en banc) (quoting Williams v.

Commonwealth, 4 Va. App. 53, 77-78, 354 S.E.2d 79, 93 (1987)

(citations omitted)).   "Subject to such reasonable limitations as

the trial court may impose, a party has an absolute right to

cross-examine his opponent's witness on a matter relevant to the

case, which the opponent has put in issue by direct examination

of the witness."   Id. (citation omitted) (emphasis added).

"Limitation of cross-examination is a matter within the sound

discretion of the trial court and is subject to review only for

abuse of discretion."   Naulty v. Commonwealth, 2 Va. App. 523,

529, 346 S.E.2d 540, 543 (1986) (citation omitted). 2


     2
      See also United States v. Gravely, 840 F.2d 1156, 1163 (4th

Cir. 1988) (citing United States v. Atwell, 766 F.2d 416, 419-20

(10th Cir. 1985), cert. denied, 474 U.S. 921 (1985)) ("limiting

the extent of cross-examination is within the discretion of the

trial court and does not warrant reversal absent an abuse of

discretion clearly prejudicial to the defendant"), and Delaware
v. Van Arsdall, 475 U.S. 673, 678 (1986) ("[T]rial judges retain

wide latitude insofar as the Confrontation Clause is concerned to

impose reasonable limits on such cross-examination based on

concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness' safety, or interrogation

that is repetitive or only marginally relevant.") (emphasis

added).




                                 8
     "In exercising that discretion, the trial judge may

appropriately consider whether the proposed cross-examination

would unfairly prejudice a co-defendant."     United States v.

Bodden, 736 F.2d 142, 145 (4th Cir. 1984) (citing United States

v. Dansker, 537 F.2d 40 (3d Cir. 1976), cert. denied, 429 U.S.

1038 (1977)).   A restriction on cross-examination to avoid unfair

prejudice to a codefendant when the probative value of the

excluded evidence is slight will be upheld.     See, e.g., United
States v. Tarantino, 846 F.2d 1384, 1400 (D.C. Cir.) (per

curiam), cert. denied, 488 U.S. 840 (1988).

     Regarding oral utterances "[t]he general rule . . . is . . .

that the substance or the effect of the actual words spoken will

suffice, [and] the witness . . . may give his 'understanding' or

'impression' as to the net meaning of the words heard."     Pierce

v. Commonwealth, 2 Va. App. 383, 388, 345 S.E.2d 1, 4 (1986)

(citations omitted).   However, "[w]hen a confession is

admissible, the whole of what the accused said upon the subject

at the time of making the confession is admissible and should be

taken together . . . the accused is entitled to put in evidence

all that was said to and by him at the time . . . including any
exculpatory or self-serving declarations connected therewith."

Id. at 389, 345 S.E.2d at 4 (emphasis added).

     In the instant case, the trial court restricted appellant's

cross-examination of Hutton regarding the actual words and

context of her confession.   It prevented her from eliciting




                                 9
potentially exculpatory evidence or exploring any ambiguity in

the original statement.    Although the trial court attempted to

redact appellant's statement to prevent possible prejudice to the

codefendants, see Randolph v. Commonwealth, ___ Va. App. ___,

___, ___ S.E.2d ___, ___ (1997), the court's restriction of

appellant's cross-examination regarding the context of the

statement and of the circumstances surrounding its making was

prejudicial to her.
     We cannot say, when looking at this record, that the error

was harmless, as the statement was the primary evidence linking

appellant to the crimes.   Accordingly, we hold that the court

abused its discretion, and we reverse and remand this case for

further proceedings.

                                          Reversed and remanded.




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