                    COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia


JERRY NORMAN
                                          MEMORANDUM OPINION * BY
v.   Record No. 2925-99-1                 JUDGE WILLIAM H. HODGES
                                             NOVEMBER 14, 2000
COMMONWEALTH OF VIRGINIA


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

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

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


     Jerry Norman (appellant) appeals from a judgment of the

Circuit Court for the City of Virginia Beach (trial court)

convicting him of first degree murder, conspiracy, robbery, and

using a firearm in the commission of a felony.     He contends the

trial court erred by 1) refusing to suppress his confession to the

police; 1 2) trying him jointly with four codefendants; and 3)


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       In the petition for appeal, appellant framed this question
presented as a Fourth Amendment challenge to his arrest, but his
argument consisted solely of a Fifth Amendment challenge to the
admissibility of his confession. Although the order granting
the appeal framed the question presented as drafted by appellant
in the petition, we address the question as argued by appellant,
that is, the Fifth Amendment issue. See Cruz v. Commonwealth,
12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1 (1991) (only
admitting into evidence against him the extra-judicial statements

of his non-testifying codefendants.    For the following reasons, we

affirm the judgment of the trial court.

                                I.

     Around 2:30 a.m. on July 25, 1997, Tara Harper heard what

sounded like a knock at the front door of her townhouse.     When

Harper's friend, William McKleny, went downstairs to

investigate, he was fatally shot in the back of the head by an

intruder.

     Over the next several days, the police developed appellant,

Toney Griffin, Armard Smith, Santo Langley, and Terrence Woolard

as suspects.   All five codefendants eventually made statements

to the police.

     In his statement, appellant admitted being with his

codefendants at a convenience store near Harper's Northridge

neighborhood on the night of McKleny's death.    Appellant was

riding with Griffin, who was driving appellant's car.     Woolard,

Smith, and Langley were in Woolard's car.    Appellant asserted

that Smith started talking about breaking into the Northridge

residence of "Big Mike," a purported drug dealer, and stealing

money.   Appellant admitted that on the way to Northridge, he

told Griffin about a ski mask in the trunk of his car.     Griffin




questions presented in the petition for appeal and granted by
the Court will be addressed on appeal).

                               - 2 -
stopped the car and retrieved the mask in order to use it during

the upcoming burglary.

     Appellant said the codefendants parked their cars in

Northridge and made their way to Harper's townhouse, which they

believed was Big Mike's residence. 2   Griffin and Smith pried open

Harper's back door with a screwdriver while appellant kept watch

to make sure that none of the townhouse's occupants came

downstairs.   Appellant initially claimed that he never entered

the residence, that he remained back by the rear fence when

Smith and Griffin entered the house, and that he did not hear a

gunshot.   When confronted with evidence that his shoe print was

found in Harper's kitchen, appellant admitted that he had

entered the house, but asserted he was not present when McKleny

was killed.   Ultimately, appellant admitted that he entered the

house armed with a nine millimeter pistol and that he was

present when Griffin shot McKleny.

     When appellant agreed to talk to Detective Byrum following

his arrest, he also led the police to the location of a .38

caliber revolver that was hidden under a piece of fencing in

Northridge.   Appellant claimed the gun was Griffin's and that

Griffin hid the gun under the fence after the shooting, before

joining the other codefendants at Woolard's car.




     2
       Harper testified that she had been renting the townhouse
from Micah Jordan for nearly three months.

                               - 3 -
     At trial, appellant conceded that his shoe print was on

Harper's kitchen floor.

     Griffin initially denied any knowledge of the crimes.

Gradually, however, Griffin admitted his involvement to Byrum

and Detective Orr.   He claimed that appellant targeted the house

and provided him with a handgun.   Griffin admitted forcing open

the door with a screwdriver and stated that appellant watched

the inside of the house through the window to make sure no one

caught them breaking in.   During his first interview, Griffin

asserted he left the house after discovering one of Harper's

children sleeping upstairs.   And he said he did not know who

shot the victim.   At a second interview, however, Griffin told

the officers:   "It was an accident.   I never meant for it to

happen."   He also stated "I didn't mean to pull the trigger."

At no point did Griffin accuse appellant of shooting McKleny.

     Like Griffin, Smith initially denied any involvement in the

crimes and claimed he had an alibi.    In gradually admitting his

involvement, Smith stated that Griffin was armed with a revolver

and appellant had an automatic pistol.   Smith indicated that the

idea of breaking into Harper's residence originated with

Langley.   Smith stated that he, Griffin and appellant entered

the house and he identified Griffin as the shooter.   According

to Smith, Griffin claimed that he shot McKleny because McKleny

reached for him.



                               - 4 -
     Woolard told the detectives that appellant and Griffin had

handguns and that appellant's gun was a semi-automatic.     At

trial, Woolard denied knowing that appellant or Griffin were

armed.    He continually denied any knowledge of his codefendants'

intentions and asserted he was not present when the shooting

took place.

     Langley initially denied any involvement in the crimes.      He

ultimately admitted that, after a discussion with the other

codefendants about committing a burglary, he agreed to knock on

Harper's front door.   He heard the gunshot, but never actually

entered the house.   At trial, Langley recanted his confession

and asserted that he was not aware of the intentions of his

codefendants.

     The five codefendants were jointly tried before a jury and

their confessions were admitted into evidence.   The jury

convicted the five men of conspiracy, burglary, and first degree

murder.   The jury also convicted appellant and Griffin of using

a firearm in the commission of murder.   Neither appellant,

Griffin, nor Smith testified at trial.

                                 II.

     Appellant contends his confession was obtained in

contravention of his rights under the Fifth Amendment and the

Supreme Court's decision in Edwards v. Arizona, 451 U.S. 477

(1981).



                                - 5 -
     On an appeal from a trial court's ruling on a motion to

suppress

           [w]e view the evidence in the light most
           favorable to the prevailing party, granting
           to it all reasonable inferences fairly
           deducible therefrom. We review the trial
           court's findings of historical fact only for
           "clear error," 3 but we review de novo the
           trial court's application of defined legal
           standards to the particular facts of a case.

Harris v. Commonwealth, 27 Va. App. 554, 561, 500 S.E.2d 257,

260 (1998) (footnote added).

     After Byrum and Orr encountered appellant and Griffin in

Northridge the morning after McKleny's murder, appellant

voluntarily accompanied the detectives to the police station.

There the detectives questioned appellant regarding the burglary

and murder.   Although Byrum told appellant he was not under

arrest and free to leave, when appellant later stated that he

wanted to leave, Byrum informed him that he was being detained.

Appellant told Orr "that he may need a lawyer."

     The detectives eventually released appellant (after Orr

seized appellant's shoes as evidence), but within an hour the

police took appellant into custody again.   Byrum informed


     3
      "'Clear error' is a term of art derived from Rule 52(a) of
the Federal Rules of Civil Procedure, and applies when reviewing
questions of fact" in the federal system. Ornelas v. United
States, 517 U.S. 690, 694 n.3 (1996). In Virginia, questions of
fact are binding on appeal unless "plainly wrong." Quantum Dev.
Co. v. Luckett, 242 Va. 159, 161, 409 S.E.2d 121, 122 (1991);
Naulty v. Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542
(1986).


                               - 6 -
appellant that he was under arrest and read appellant his

Miranda rights.   Appellant invoked his right to remain silent,

and Byrum did not question him further.

      Approximately two hours later, Byrum went to see appellant

for the purpose of completing a tracer sheet.   Byrum only asked

for appellant's name, date of birth, and other personal

identification information, and did not question appellant

regarding the burglary/homicide.    When Byrum told appellant he

was being charged with murder, appellant stated "[n]o, no, watch

me.   I'm getting ready to turn into a pussy.   They're not going

to pin this on me."   Byrum re-Mirandized appellant and appellant

indicated that he wanted to make a statement.

      Appellant testified that approximately two hours after he

was arrested, Byrum came into the interview room and said

"Didn't I tell you I was going to get you for murder."

Appellant claimed that Byrum then began relating to him

statements that Griffin was allegedly making, implicating

appellant as McKleny's killer.    Appellant testified he again

asked for a lawyer, but was told that no lawyers were available.

      In denying appellant's motion to suppress his confession,

the trial court found that appellant re-initiated contact with

the police.

      The Fifth Amendment to the United States Constitution

provides that no person "shall be compelled in any criminal case

to be a witness against himself."    U.S. Const. amend. V.   A

                                 - 7 -
defendant's Fifth Amendment rights include both the right to

remain silent and the right to have an attorney present when

questioned by law enforcement officers.   See Miranda v. Arizona,

384 U.S. 436 (1966).   A defendant's custodial confession may not

be admitted against him at trial unless he was advised of his

Miranda rights and he knowingly and voluntarily waived those

rights before speaking to law enforcement officers.     Id. at 444.

     A defendant who has "expressed his desire to deal with the

police only through counsel is not subject to further

interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the police."

Edwards, 451 U.S. at 484-85.   "Only if the accused initiates

further 'communication, exchanges, or conversations with the

police,' and only if those communications result in the accused

changing his or her mind and freely and voluntarily waiving the

right to counsel, may the police resume interrogation without

violating the Edwards rule."   Giles v. Commonwealth, 28 Va. App.

527, 532, 507 S.E.2d 102, 105 (1998) (citation omitted).

     Interrogation includes "'not only . . . express

questioning, but also . . . any words or actions on the part of

the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to

elicit an incriminating response from the suspect.'"     Hines v.

Commonwealth, 19 Va. App. 218, 222, 450 S.E.2d 403, 404 (1994)

                               - 8 -
(quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)).

"Edwards does not prohibit routine communications between the

police and the accused."     Giles, 28 Va. App. at 533, 507 S.E.2d

at 106; see Gates v. Commonwealth, 30 Va. App. 352, 356, 516

S.E.2d 731, 733 (1999) (holding that reading an arrest warrant

to the defendant did not constitute the "functional equivalent

of questioning").

     Even if a defendant initiates further contact with the

police, the trial court may only admit the statement if it

determines that he knowingly and intelligently waived his

previously invoked rights.     Quinn v. Commonwealth, 25 Va. App.

702, 712, 492 S.E.2d 470, 475 (1997); see Smith v. Illinois, 469

U.S. 91, 96 (1984).   Whether the defendant knowingly and

intelligently waived his rights "depends 'upon the particular

facts and circumstances surrounding that case, including the

background, experience, and conduct of the accused.'"     Eaton v.

Commonwealth, 240 Va. 236, 250-51, 397 S.E.2d 385, 394 (1990)

(citation omitted).

     The record reflects that appellant initiated a dialogue

with Byrum after being read the arrest warrants.    Byrum's

actions did not constitute the functional equivalent of

questioning.   See Gates, 30 Va. App. at 356, 516 S.E.2d at 733.

And the trial court was not required to believe appellant's

testimony that Byrum goaded him into confessing.    The evidence

also sufficiently established that appellant waived his Miranda

                                 - 9 -
rights knowingly and voluntarily.     The trial court did not err,

therefore, when it denied appellant's motion to suppress. 4

                               III.

     Appellant contends the trial court erred when it ordered

that he be tried jointly with his codefendants.

               On motion of the Commonwealth, for good
          cause shown, the court shall order persons
          charged with participating in
          contemporaneous and related acts or
          occurrences or in a series of acts or
          occurrences constituting an offense or
          offenses to be tried jointly unless such
          joint trial would constitute prejudice to a
          defendant. If the court finds that a joint
          trial would constitute prejudice to a
          defendant, the court shall order severance
          as to that defendant or provide such other
          relief justice requires.

Code § 19.2-262.1.

     "In determining whether a joint trial would prejudice a

defendant, the trial court should require '[t]he party moving

for severance [to] establish that actual prejudice would result



     4
       In denying the motion to suppress, the trial court made no
express finding that appellant invoked his right to counsel, see
Midkiff v. Commonwealth, 250 Va. 262, 462 S.E.2d 112 (1995), or
whether a sufficient period of time elapsed for him to contact a
lawyer from the time of his initial release until he was taken
back into custody, see Tipton v. Commonwealth, 18 Va. App. 832,
447 S.E.2d 539 (1994). For the purposes of this opinion, we
assume without deciding that appellant did invoke his right to
counsel and that his period of freedom was insufficient to
vitiate his rights under Edwards.
     Although appellant did not raise the issue at trial, the
evidence also established that the police "scrupulously honored"
his post-arrest invocation of his right to remain silent. See
Riddick v. Commonwealth, 22 Va. App. 136, 145, 468 S.E.2d 135,
139 (1996).

                              - 10 -
from a joint trial.'"    Goodson v. Commonwealth, 22 Va. App. 61,

71, 467 S.E.2d 848, 853 (1996) (citation omitted).

           Actual prejudice results only when "there is
           a serious risk that a joint trial would
           compromise a specific trial right of
           [defendant], or prevent the jury from making
           a reliable judgment about guilt or
           innocence."

                [P]rejudice may result when evidence
           inadmissible against a defendant, if tried
           alone, is admitted against a codefendant in
           a joint trial.

Adkins v. Commonwealth, 24 Va. App. 159, 163, 480 S.E.2d 777,

779 (1997).

     Appellant asserts he was prejudiced because the joint trial

permitted the Commonwealth to introduce into evidence the

extra-judicial statements of codefendants Griffin and Smith.    He

contends the admission of these extra-judicial confessions

violated his rights under the Confrontation Clause of the Sixth

Amendment. 5   Because the underlying basis for these two questions

presented is identical, we address the issues in tandem.

     "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


     5
       Woolard and Langley testified at trial and were subject to
cross-examination, thus remedying any potential Confrontation
Clause violation.


                               - 11 -
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).     The right of

cross-examination is an essential element of "the right of an

accused in a criminal case to confront the witnesses against

him."     Lee v. Illinois, 476 U.S. 530, 539 (1986).

        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.    For Sixth Amendment purposes, "[a]n accomplice's

custodial confession that incriminates a codefendant is

presumptively unreliable . . . ."     Bass v. Commonwealth, 31 Va.

App. 373, 382, 523 S.E.2d 534, 539 (2000).

        To be admissible, an accomplice's extra-judicial 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
             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.

Id. at 383-84, 523 S.E.2d at 539 (citations omitted).       Factors

that a court may consider in determining the reliability of a

                                - 12 -
confession 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.

     None of the above factors apply in the present case.       The

police used statements made (or allegedly made) by codefendants

to persuade each defendant to confess.    While the police did not

know the extent of each defendant's role in these crimes, they

had reason to believe that each was involved to some extent.

And none of the non-testifying defendants was ever subjected to

cross-examination or its equivalent.     Accordingly, on this

basis, the Commonwealth failed to establish the reliability of

the accomplices' confessions.

     Our reliability analysis does not stop here, however.       A

codefendant's extra-judicial confession may be admitted if it is

substantially identical to the defendant's confession, that is,

if the two confessions interlock.    See Lee, 476 U.S. at 545;

Bass, 31 Va. App. at 384-85, 523 S.E.2d at 540.     As long as the

codefendant's confession is thoroughly substantiated by the

defendant's own confession, then the requirements of the Sixth

Amendment are satisfied.   Id. at 385, 523 S.E.2d at 540.       "[A]n

accomplice's statement that does not 'interlock' with the

defendant's statement may be admitted against the defendant if

                                - 13 -
the areas of disagreement are irrelevant or trivial."      Id.   If

there is a disagreement regarding the degree of the defendant's

role in a crime and the extent of his culpability, then

"admission of the statement poses too serious a threat to the

accuracy of the verdict to be countenanced by the Sixth

Amendment."   Lee, 476 U.S. at 545.

     The material portions of Smith's confession were thoroughly

substantiated by appellant's own confession.   While Smith and

appellant disagreed on who originated the idea to break into Big

Mike's house, because Smith accused Langley, this discrepancy

was immaterial.   Accordingly, the interlocking nature of the

confessions established the reliability of Smith's confession

and the admission of that statement against appellant did not

constitute a violation of his rights under the Confrontation

Clause.

     The same cannot be said of Griffin's confession.      Griffin

told Byrum and Orr that appellant originated the idea to target

Big Mike's house and that appellant provided him with a firearm.

Because this discrepancy pertained to appellant's level of

participation in the conspiracy, we cannot conclude that this

area of disagreement was "irrelevant or trivial."   Bass, 31 Va.

App. at 385, 523 S.E.2d at 540.   The trial court erred,

therefore, by admitting Griffin's confession into evidence

against appellant.



                              - 14 -
     Having concluded that admitting Griffin's confession into

evidence violated appellant's Sixth Amendment right of

confrontation, we must determine whether this error was

nevertheless harmless.   "Confrontation Clause error is a federal

constitutional error subject to harmless error analysis."     Id.

at 387, 523 S.E.2d at 541.    Such error is harmless if the

reviewing court can conclude that the error was harmless beyond

a reasonable doubt.   Timbers v. Commonwealth, 28 Va. App. 187,

201, 503 S.E.2d 233, 239 (1998).

     The federal constitutional harmless error

          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).

     Appellant confessed to participating in the planning of

these crimes.   After seeing Smith and Griffin force open the

sliding glass door, he entered Harper's residence armed with a

nine millimeter handgun.   He stipulated that one of his shoe

prints was discovered on Harper's floor and he led the police to

the gun he claimed Griffin used to shoot McKleny.   Griffin's


                               - 15 -
confession, as well as that of Smith, was merely cumulative and

proved nothing relevant to appellant's legal culpability that

was not proved by other evidence. 6    Moreover, unlike Langley and

Woolard, appellant did not seek to recant any portion of his

confession at trial.   Upon review of the record, we cannot

conclude there is a reasonable possibility that the verdict

would have been different had appellant been tried separately

and the extra-judicial confession of Griffin been excluded.     Any




     6
       A panel of this Court recently reversed Griffin's first
degree murder conviction on the ground that the admission of
Smith's confession was not harmless error. While Griffin
claimed to have shot McKleny accidentally, Smith's statement to
the police belied this assertion. The panel reasoned that
Griffin's assertion that the killing was accidental was
sufficient to raise a reasonable doubt as to whether he acted
with premeditation. See Griffin v. Commonwealth, Record No.
2819-98-1 (October 10, 2000).
     The Commonwealth filed a petition for rehearing or
rehearing en banc in Griffin. As of the date of this opinion,
that petition was still pending.
     Whether Griffin shot McKleny accidentally is immaterial in
determining if appellant suffered any prejudice. Although the
arrest warrant charged appellant with premeditated murder, the
grand jury indictment merely charged him with committing first
degree murder in violation of Code § 18.2-32. And the jury was
instructed on felony murder, not premeditated murder.
     The definition of first degree murder under Code § 18.2-32
includes any killing, even if unintentional, that occurs during
the commission of a burglary or attempted robbery. Ball v.
Commonwealth, 221 Va. 754, 757, 273 S.E.2d 790, 792 (1981). If
the Commonwealth proves that the killing occurred during one of
the enumerated felonies, it need not prove premeditation. See
Akers v. Commonwealth, 216 Va. 40, 47, 216 S.E.2d 28, 33 (1975);
Code § 18.2-33 (defining as second degree murder any
unintentional killing occurring during the commission of any
felonious act other than those enumerated in Code §§ 18.2-31 and
18.2-32).


                              - 16 -
error committed by the trial court, therefore, was harmless

beyond a reasonable doubt.

     For the foregoing reasons, the judgment of the trial court

is affirmed.

                                                        Affirmed.




                             - 17 -
