                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Lemons ∗ and Frank
Argued at Chesapeake, Virginia


CHRISTOPHER JAMES MOLTZ
                                           MEMORANDUM OPINION ∗∗ BY
v.   Record No. 0930-99-1                  JUDGE DONALD W. LEMONS
                                                 MAY 2, 2000
COMMONWEALTH OF VIRGINIA


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

          Charles E. Haden for appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Christopher J. Moltz appeals his conviction for murder,

robbery and conspiracy to commit robbery.     On appeal, he

contends that the trial court erred (1) by admitting the

statement of Adam Davis as a declaration against penal interest,

(2) by denying Moltz's motion for a mistrial, (3) by denying

Moltz's motion to strike, and (4) by denying Moltz's motion to

set aside the verdict.     Finding no reversible error, we affirm.




     ∗
       Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                          I.   BACKGROUND

     On the evening of December 17, 1997, three men wearing

black clothes and masks entered a house occupied by James

Kahley, Aaron Melton, James Ritchie and Michael Jackson.      The

first man put a gun to Kahley's head and demanded money and

jewelry.   Kahley gave him twenty dollars.   The second man

carried a chrome gun with a laser site and immediately shot and

killed the occupants' six-month-old Rottweiler.   The third man

went upstairs where he confronted Melton and Jackson and

demanded money from Jackson.   He shot Jackson in the head after

Jackson told the man that he had no money.   Melton wrestled the

assailant to the ground and, in the course of the struggle,

managed to remove part of his mask, exposing his face.   The men

left after "three to four minutes."    An autopsy revealed that

Jackson died from a gunshot wound to the head.

     On December 21, 1997, police questioned Adam Davis ("Adam")

about the murder.   Adam told police that he and Moltz had been

"having problems with [Kahley and his roommates]," that Moltz

said he could get someone to rob them and that he and Moltz

asked Frankie Davis, Adam's brother, if he knew someone who

would be interested in participating in a robbery.   Adam stated

that Moltz had a map drawn in pencil and used it to explain the

layout of the victims' house to Montusa Pace, Otis Thomas and a

man known as "Nique."



                               - 2 -
     On December 22, 1997, police obtained a statement from

Frankie implicating Moltz in the robbery.   On January 8, 1998,

police showed Melton a photo spread from which he identified

Otis Thomas as the man who shot Jackson.    Police recovered a

"laser switch beam" from Frankie's yard and recovered a school

bag from his mother's house that contained bullets.   Moltz was

tried before a jury on one count of first degree murder, one

count of conspiracy to rob, three counts of robbery, one count

of burglary and five counts of use of a firearm in the

commission of a felony.    He was tried jointly with Adam, Otis

Thomas and Montusa Pace.

     At trial, Frankie testified that on the afternoon of

December 17, 1997, Moltz and Adam went to Frankie's home in

Hampton and asked if he or anyone he knew wanted to participate

in a robbery.   Frankie stated that he telephoned Montusa Pace,

told him what Moltz and Adam wanted and arranged a meeting.

Pace arrived at the meeting dressed in a ski mask and a "hoody."

Otis Thomas and a third male known as "Nique" accompanied Pace;

all three men wore black clothes.   Frankie testified that Adam

and Moltz used a pencil-drawn map to explain the layout of the

victims' house.   Between 8:45 and 8:55 p.m. Moltz and Adam led

Pace, Thomas and Nique to the victims' house.

     According to Frankie's testimony, Adam returned around

11:30 p.m. and told Frankie that "[s]omething went wrong"

because he had "seen police cars and ambulances everywhere."

                                - 3 -
The following morning Adam told Frankie, "Your boy shot somebody

last night."      Frankie testified that as Adam was leaving, Pace

arrived with "a crazy look on his face" and said, "[the house

was] nothing like [Adam and Moltz] said it was."     Frankie told

the jury that Pace said he shot a Rottweiler and that Thomas

"had to [shoot] somebody."     Frankie further testified that Pace

gave him a bag containing a .38 caliber weapon and bullets.

     Pace's attorney objected since the .38 caliber handgun was

not evidence in this case. 1    The trial judge sustained the

objection, gave a cautionary instruction to the jury directing

them to ignore testimony concerning the .38 caliber handgun and

stated, "[t]hat evidence is not before the Court, and it's not

relevant in this case, and you're not to consider it."     The

Commonwealth's attorney again asked Frankie whether anything

else was in the bag.     Frankie told the jury that Pace gave him a

coat, inside of which was a Tech .22 rifle.     Pace's attorney

made the same objection and moved for a mistrial based upon the

jury hearing evidence that the court had already ruled

inadmissible. 2    The court denied the motion for a mistrial and

the following exchange occurred:

          THE COURT: Ladies and gentlemen, during the
          preliminary instructions, I gave you a
          guidance that you should not consider any

     1
       The .38 caliber handgun had been ruled inadmissible on the
first day of the three-day trial.
     2
       For purposes of this appeal, Moltz has adopted the
arguments and objections of Pace's trial counsel.

                                  - 4 -
            evidence that is stricken or that you are
            told to disregard as a result of my
            sustaining an objection.

                 Again, we have reference to a .22
            caliber weapon – the bullet, I'm sorry.
            Yes, .22 caliber bullet. .22 caliber which
            I sustained an objection. You've heard
            that. You're not to consider it. You are
            to disregard that. That's not evidence in
            this case.

            [DEFENSE COUNSEL]:   I believe it was the
            rifle, Judge.

            THE COURT: All right. .22 caliber rifle.
            You are not to consider that. It is not
            evidence in this case.

     Frankie testified that Pace gave him "some bullets" in a

bag and identified Commonwealth's Exhibit 16 as the "laser

switch beam" that had been given to him by Pace which Frankie

hid in his backyard.   Pace told Frankie to hold onto the items

because he did not want them in his house "in case something

went on."   Frankie testified that he "switched [the bullets] and

put them in a book bag" which he "put behind some old equipment"

in his "mom's backyard."

     After finding Adam, Thomas and Pace guilty of a total of

thirty-one counts, the jury resumed deliberations the following

Monday morning on the charges against Moltz.    In the course of

those deliberations, the jury sent the following question to the

judge:   "What is the difference in legal terms [between]

burglary and robbery?"   The jury deliberated for six more hours




                                 - 5 -
but was deadlocked.    The trial judge gave the jury an "Allen

charge" instruction stating,

               As you have been told, your verdict
          must be unanimous. If you can possibly
          reach a verdict, it is your duty to do so.
          You should listen to the views and opinions
          of your fellow jurors with fairness, and
          candor, and you should give consideration to
          what they say.

               However, you must decide the case for
          yourself, and you should reach an agreement
          only if it can be done without sacrificing
          your individual judgment.

               During the course of your
          deliberations, each of you, whether in the
          majority or the minority, should not
          hesitate to reexamine your own views and
          change your opinion if you are convinced it
          was wrong.

               No juror, however, should give up his
          or her honest opinion as to the evidence
          solely because of the opinion of his or her
          fellow jurors or for the mere purpose of
          returning a verdict. If you can reach a
          decision without surrendering your
          conscientious opinion, it is your duty to do
          so.

The jury convicted Moltz of murder, conspiracy to commit robbery

and three counts of robbery.     Moltz's subsequent motion to set

aside the jury's verdict was overruled.

                      II.   ADMISSION OF STATEMENT

     The Commonwealth concedes that the admission of Adam's

statement to police was error.     Adam's statement to police may

have satisfied Virginia evidentiary requirements for

qualification as an exception to the hearsay rule, but



                                  - 6 -
nonetheless fails to pass constitutional scrutiny.   As in Lilly

v. Virginia, 527 U.S. 116, 125 (1999), "[w]e assume, as we must,

that [Adam's] statements were against his penal interest as a

matter of state law, but the question whether the statements

fall within a firmly rooted hearsay exception for Confrontation

Clause purposes is a question of federal law."   The Supreme

Court of the United States has "consistently either stated or

assumed that the mere fact that one accomplice's confession

qualified as a statement against his penal interest did not

justify its use as evidence against another person."     Id. at

128.   "[A]ccomplice's confessions that inculpate a criminal

defendant are not within a firmly rooted exception to the

hearsay rule as that concept has been defined in [the Court's]

Confrontation Clause jurisprudence."   Id. at 134.

           When a court can be confident- as in the
           context of hearsay falling within a firmly
           rooted exception--"that the declarant's
           truthfulness is so clear from the
           surrounding circumstances that the test of
           cross-examination would be of marginal
           utility," the Sixth Amendment's residual
           "trustworthiness" test allows the admission
           of the declarant's statements.

Id. at 136 (quoting Idaho v. Wright, 497 U.S. 805, 820 (1990)).

Accordingly, the possibility of admitting an accomplice's

statement under a "residual trustworthiness" test was left open.

We do not consider the question of residual trustworthiness,

however, since the Commonwealth does not argue that it applies



                               - 7 -
in this case.    Rather, the Commonwealth argues that the error in

admission of Adam's statement was harmless.

                        III.   HARMLESS ERROR

     The United States Supreme Court in Lilly remanded the case

to the Supreme Court of Virginia "to assess the effect of

erroneously admitted evidence in light of substantive state

criminal law."    Lilly, 527 U.S. at 139.   On remand, the Supreme

Court of Virginia recited the standard to be employed in such an

analysis.

            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.
            Chapman v. California, 386 U.S. 18, 24
            (1967). This standard requires a
            determination of "whether there is a
            reasonable possibility that the evidence
            complained of might have contributed to the
            conviction." Id. at 23. 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.
            Delaware v. Van Arsdall, 475 U.S. 673, 684
            (1986); see also Harrington v. California,
            395 U.S. 250, 254 (1969); Schneble v.
            Florida, 405 U.S. 427, 432 (1972)
            (erroneously admitted evidence harmless
            where it was merely cumulative of other
            overwhelming evidence of guilt).




                                - 8 -
Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209

(1999).

     Here, Adam's statement was entirely cumulative of Frankie's

statement which had already been received in evidence without

objection from Moltz.   Frankie's testimony established that:

(1) Moltz and Adam came to Frankie's house looking for someone

to rob the victims because "[Moltz and Adam] were beefin' with

the guys over some girls"; (2) that Moltz had a map of the

victims' house drawn out in pencil; (3) that Frankie contacted

Pace, Thomas and Nique to commit the robbery; (4) that Adam had

the map and showed it to Pace and Thomas; (5) that Moltz and

Adam spoke with Pace, Thomas and Nique about the layout of the

house and the robbery; (6) that Moltz and Adam drove to the

victims' house and pointed it out to Pace and his cohorts; and

(7) that Pace came over to Frankie's house the day after the

murder and gave him a bag containing a laser site and bullets.

     In comparison, Adam's oral and written confessions to the

police established that:   (1) he and Moltz had been in a dispute

with the victims; (2) Moltz initiated the conversation about the

robbery; (3) Moltz said that "he could have someone else [commit

the robbery] for him"; (4) Moltz asked Frankie if he knew

somebody who wanted to participate in a robbery; and (5) he and

Moltz had a map drawn in pencil of the victims' house, and Moltz

used it to explain the robbery to Pace.



                               - 9 -
     Unlike Lilly where there was no independent corroboration

of who was the "trigger man" and the accomplice testimony was

clearly harmful on this crucial question, here, the admission of

Adam's oral and written confessions provided no further evidence

than that which had already been established by Frankie's

testimony at trial.   Although error, we hold that the admission

of Adam's statement was harmless beyond a reasonable doubt.

                      III.   MOTION FOR MISTRIAL

     "Whether improper evidence is so prejudicial as to require

a mistrial is a question of fact to be resolved by the trial

court in each particular case."     Beavers v. Commonwealth, 245

Va. 268, 280, 427 S.E.2d 411, 420 (1993); see Lewis v.

Commonwealth, 211 Va. 80, 83, 175 S.E.2d 236, 238 (1970).

"[W]hether a trial court should grant a mistrial is a matter

resting within its discretion, and absent a showing of abuse of

discretion, the court's ruling will not be disturbed on appeal."

Cheng v. Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599, 607

(1990).   The judgment "will not be reversed for the improper

admission of evidence that a court subsequently directs a jury

to disregard because juries are presumed to follow prompt,

explicit, and curative instructions."     Beavers, 245 Va. at 280,

427 S.E.2d at 420.    Only if a manifest probability existed as a

matter of law that the improper evidence prejudiced Moltz by

remaining on the minds of the jury and influencing their verdict

despite the instruction to disregard it, will the trial court's

                                - 10 -
decision be reversed.    See Bennett v. Commonwealth, 29 Va. App.

261, 273-74, 511 S.E.2d 439, 445 (1999).    "'Whether a manifest

probability exists that . . . improper evidence prejudiced the

accused despite [a court's] cautionary instruction depends upon

the nature of the incompetent evidence when considered in

relation to the nature of the charges, the other evidence in the

case, and [the] manner in which the prejudicial evidence was

presented.'"   Id. at 274, 511 S.E.2d at 445 (quoting Mills v.

Commonwealth, 24 Va. App. 415, 420-21, 482 S.E.2d 860, 862-63

(1997)).   "Additionally, a court's failure to take any action in

response to an improper question is relevant to determining

prejudice because the jury may infer from such inaction that the

court approved of the impropriety."     Bennett, 29 Va. App. at

274-75, 511 S.E.2d at 445.    "The number of references to an

error is also relevant to our consideration of whether prejudice

influenced the jury."    Id. at 275, 511 S.E.2d at 445.

     At the beginning of the second day of a three-day trial,

the Commonwealth's attorney, in an attempt to elicit Frankie's

testimony with respect to specific items contained in the bag

given to him by Pace without leading the witness, asked general

questions about the contents of the bag.    In his responses,

Frankie mentioned that the bag contained a Tech .22 rifle and a

.38 caliber handgun. 3   Frankie's testimony, however, did not link


     3
       Although the record indicates the jury may have seen one
of the weapons the day before, it is inconclusive in that

                               - 11 -
the Tech .22 rifle or the .38 caliber handgun to the robbery and

shooting.   Furthermore, defense counsel immediately objected,

and the trial court immediately sustained each objection.    That

testimony was not further developed or explored, leaving the

jury to have heard of each weapon only once.     Having evaluated

the effect of the testimony and considered its impact, the trial

court judge determined that a curative instruction was the

appropriate corrective means.

     Upon review of the record, we hold that the curative

instruction was clear that the weapons were not evidence in the

case and were not to be considered by the jury.    Because of the

vast weight of evidence against Moltz and his codefendants, the

manner in which the guns were mentioned by Frankie and the

clarity and decisiveness of the trial court judge's curative

instruction, we do not find that a manifest probability existed

that the jury's verdict was affected by hearing about the

existence of these weapons.    Accordingly, we cannot say that the

trial court abused its discretion.

                       IV.    MOTION TO STRIKE

     On appeal, when considering sufficiency of the evidence,

this Court considers all the evidence and any reasonable

inferences fairly deducible from it in the light most favorable

to the Commonwealth.   See Higginbotham v. Commonwealth, 216 Va.


respect and a deliberate effort was made by the trial court to
prevent the jury from seeing them.

                                - 12 -
349, 352, 218 S.E.2d 534, 537 (1975).   The credibility of a

witness, the weight accorded the testimony and the inferences to

be drawn from proven facts are matters to be determined by the

fact finder.   See Long v. Commonwealth, 8 Va. App. 194, 199, 379

S.E.2d 473, 476 (1989).   A trial court's judgment is not to be

disturbed on appeal unless it is plainly wrong or without

evidence to support it.   See Code § 8.01-680.

     Moltz was found guilty of conspiracy to commit robbery and

as an accessory before the fact to the murder of Jackson and

accessory before the fact to three robberies.    Kahley testified

that he and his friends had been involved in a dispute with

Moltz and Adam.   Frankie testified that Moltz approached him

about participating in the robbery and that Pace was contacted.

Moltz obtained a map of the house for the purpose of robbing the

victims, showed it to Pace, Thomas and Nique and accompanied

Adam in the car that led Pace, Thomas and Nique to the house.

Kahley described the downstairs assailant as being dressed in

black and using a gun with a laser site.   Melton identified

Thomas in a photo spread and at trial as the gunman who shot

Jackson.   Frankie testified that Pace, Thomas and Nique wore

black clothes, that the following day Pace gave Frankie a bag

containing a laser site and bullets, and informed him that the

robbery had gone wrong and that a person and dog had been shot.

     When acting in concert, all participants "may be held

accountable for incidental crimes committed by another

                              - 13 -
participant during the enterprise even though not originally or

specifically designed."    Berkeley v. Commonwealth, 19 Va. App.

279, 283, 451 S.E.2d 41, 43 (1994).     When Jackson responded that

he had no money, Thomas shot him in the head.    This shooting

occurred during an armed robbery that Moltz planned.     Even if he

did not anticipate someone being shot, "[a]n incidental and

probable consequence of the use of a firearm in the commission

of a robbery is that someone will get killed."     Jones v.

Commonwealth, 15 Va. App. 384, 389, 424 S.E.2d 563, 566 (1992);

see Carter v. Commonwealth, 232 Va. 122, 126, 348 S.E.2d 265,

268 (1986).   Accordingly, the evidence was sufficient to support

the convictions.

                V.   MOTION TO SET ASIDE THE VERDICT

     An "Allen charge" is appropriate "'[w]hen jurors have

announced their inability to agree.'"     Joseph v. Commonwealth,

249 Va. 78, 97, 452 S.E.2d 862, 868 (1995) (quoting Petcosky v.

Brown, 197 Va. 240, 252, 89 S.E.2d 4, 13 (1955)).      An "Allen

charge" is given to explain the importance of the jury reaching

an agreement and their duty to do so if they can without

surrendering their individual consciences.     See Poindexter v.

Commonwealth, 213 Va. 212, 215, 191 S.E.2d 200, 203 (1972).

     The Commonwealth correctly notes that the "Allen charge"

given here did not ask the jurors to deviate from their




                               - 14 -
individual consciences to come to a verdict. 4   The motion to set

aside the verdict was properly denied.

                         VI.   CONCLUSION

     For the reasons stated, we affirm the convictions.

                                                          Affirmed.




     4
       We also note that the fact that the jury may have
compromised by convicting Moltz of some charges and acquitting
him of others is not a basis for upsetting the verdict. See
Reed v. Commonwealth, 239 Va. 594, 597, 391 S.E.2d 75, 76
(1990); see also, Dunn v. United States, 284 U.S. 390, 394
(1932).

                               - 15 -
