Pitt v. Commonwealth

PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Stephenson, S.J.
DESHON W. PITT
OPINION BY
v. 	Record No. 000107 	SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
November 3, 2000
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider the defendant's claim that the
trial court committed reversible error in admitting into
evidence a co-defendant's statement to police.
I
A jury in the Circuit Court of the City of Virginia Beach
convicted the defendant, Deshon W. Pitt, of attempted robbery
and fixed his punishment at ten years' imprisonment and a fine
of $50,000. 	The trial court's judgment approved the jury's
verdict.
Pitt appealed the judgment to the Court of Appeals, and a
panel of the Court affirmed the conviction. 	Following a hearing
en banc, the trial court's judgment was again affirmed, without
opinion, by an evenly-divided Court. 	Pitt v. Commonwealth, 31
Va. App. 173, 521 S.E.2d 790, vacating 28 Va. App. 730, 508
S.E.2d 891 (1999). 	We awarded Pitt this appeal.
II

On May 29, 1996, about 4:00 a.m., Randy Williams, the
victim, was walking alone on Birdneck Road in the City of
Virginia Beach. 	While Williams was in the process of turning
onto Virginia Beach Boulevard, three men on bicycles approached
him. 	Two of the men rode past Williams, but the third man,
Pitt, stopped and spoke. 	Pitt asked Williams if he was
"looking," and Williams believed that Pitt was referring to
drugs. 	Williams told Pitt that he was not interested, and Pitt
rode away.
Williams then crossed the street to a service station. 	He
took a $20 bill from his pocket, folded it, and put it in his
mouth because he believed "[s]omething was going to happen."
A short time later, Pitt and one of the other riders,
Lambert L. Bonds, Pitt's co-defendant, again approached
Williams. 	They began to follow Williams and ask him "crazy
questions about drugs." 	Williams continued to walk down the
street, and he told the two men that he did not "do" drugs.
Williams crossed the street, and, after Pitt and Bonds
passed a building on a street corner, Williams "cut back" to
avoid further contact with the two men. 	About that time,
however, Pitt jumped off his bicycle, grabbed Williams, and
began to wrestle with him. 	Bonds then joined in the struggle
and helped to hold Williams down while Pitt "was sticking his
2

hands in [Williams'] mouth." 	About that time, the police
arrived at the scene and apprehended Pitt and Bonds.
Pitt and Bonds gave statements to a police detective after
being advised of and waiving their Miranda rights. 	Pitt told
the detective that he had struggled with Williams in an attempt
to retrieve cocaine from Williams' mouth. 	Pitt explained that
he, with Bonds' help, had gotten Williams to the ground and that
he had tried to pry open Williams' mouth with his hands.
Bonds told the detective that, when Pitt and Williams got
into a struggle, he tackled both men. 	Bonds explained that he
did this because Williams "was getting the better of Pitt."
Bonds also said that, as he helped to hold Williams, Pitt tried
to open Williams' mouth to get cocaine. 	Over Pitt's objection,
Bonds' recorded statement was played to the jury at trial.
III
The trial court ordered a joint trial for Pitt and Bonds
over Pitt's objection. 	Pitt contended that he and Bonds would
be prejudiced by a joint trial because each had given a
statement to police that could not be used against the other.
At the joint trial, the two statements were admitted into
evidence, but the trial court instructed the jury that each
defendant's statement was not evidence against the other and
could not be considered in determining the other's guilt or
innocence.
3

On appeal, Pitt contends that his Sixth Amendment right of
confrontation was compromised because Bonds' statement was not
subject to cross-examination.∗ The Commonwealth counters that
Pitt's right of confrontation was not violated because Bonds'
statement was inherently reliable and was fully corroborated by
other evidence, including Pitt's own statement to police. 	In
the alternative, the Commonwealth contends that "any conceivable
error was harmless beyond a reasonable doubt."
We will assume, without deciding, that the admission into
evidence of Bonds' statement in the circumstances of this case
constituted error. 	Our inquiry, then, is whether the error was
harmless.
When a federal constitutional error is involved, a reversal
is required unless the reviewing court determines that the error
is harmless beyond a reasonable doubt. 	Chapman v. California,
386 U.S. 18, 24 (1967). 	The reviewing court must determine
" 'whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction.' " 	Id.
at 23 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)).
In making that determination, the court must consider, among
other factors, "the importance of the tainted evidence in the
∗ Amendment VI to the Constitution of the United States
provides, in pertinent part, that an accused "shall enjoy the
right . . . to be confronted with the witnesses against him."
4

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) (citing Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986)).
To convict Pitt of attempted robbery, the Commonwealth is
required to prove beyond a reasonable doubt that Pitt intended
to steal personal property from Williams, against his will, by
force, violence, or intimidation. 	Additionally, the
Commonwealth must prove beyond a reasonable doubt that Pitt
committed a direct, but ineffectual, act to accomplish the
crime. 	See Johnson v. Commonwealth, 209 Va. 291, 293, 163
S.E.2d 570, 572-73 (1968).
In the present case, Williams, the victim, positively
identified Pitt as his principal assailant a short time after
the offense had been committed, and Pitt was apprehended near
the crime scene. 	More importantly, Pitt's own statement to
police confirmed that he had attacked and struggled with
Williams with intent to steal some personal property from
Williams' mouth. 	Pitt admitted that he had attempted to pry
Williams' mouth open to get what he thought was cocaine. 	On
these material points, Pitt's statement is consistent with
Bonds' statement.
5

Clearly, Bonds' statement was not important to the
Commonwealth's case; it was, at most, merely cumulative.
Moreover, all of the other evidence tended to corroborate,
rather than contradict, Bonds' statement on material points.
Indeed, the evidence as a whole, excluding Bonds' statement,
overwhelmingly proved that Pitt is guilty of attempted robbery.
We conclude, therefore, that there was no reasonable possibility
that Bonds' statement might have contributed to Pitt's
conviction. 	Thus, we hold that, even if the admission of Bonds'
statement compromised Pitt's right of confrontation, the error,
in the circumstances of this case, was harmless beyond a
reasonable doubt.
Accordingly, the Court of Appeals' judgment will be
affirmed.
Affirmed.
6