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COURT OF APPEALS OF VIRGINIA
Present:    Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
RICHARD LAWRENCE RANDOLPH
                                                                                                                 OPINION BY
v.                                                                    Record No.  1383-95-4                      JUDGE JOHANNA L. FITZPATRICK
MARCH  11,  1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Richard J. McCue for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Richard Lawrence Randolph  (appellant) was convicted in a
joint jury trial of grand larceny, credit card theft, and
conspiracy to commit a felony.    On appeal, he argues that the
trial court erred in:                                                 (1) admitting the hearsay statement of a
codefendant and  (2) refusing to sever his trial from that of the
other defendants.    For the reasons that follow, we affirm the
judgments of the trial court.
I.    BACKGROUND
On July  24,  1994, Sergeant Kenneth Hutton  (Hutton) of the
Metropolitan Washington Airport Authority  (MWAA) was on
pickpocket detail at National Airport.    At  7:10 p.m., he saw and
"recognized" appellant, who was walking toward the United
Airlines section of the airport with a green garment bag over his
shoulder.    Hutton followed appellant, lost sight of him, but then
found him in the American Airlines baggage claim area.    As Hutton




watched, appellant approached several people waiting to claim
their baggage, standing inches behind each person for a few
minutes and then moving on to another person.    Appellant never
claimed any baggage.    He then went to the cab stand outside the
Northwest Airlines baggage claim area, where he approached
several people in the same manner.
When appellant left the cab stand, he entered the front
passenger seat of a green Mercury automobile driven by
codefendant, Joyce Chambers  (Chambers), and put the green garment
bag in the backseat.    A few minutes later, Chambers drove toward
the U.S. Air terminal.    Sergeant Alan Pelleranan  (Pelleranan), a
MWAA officer, saw the car arrive with appellant, Chambers, Alice
Coffey  (Coffey), and Linda Williams  (Williams).    Appellant,
Chambers, and Williams went into the terminal.    When Hutton
arrived at the terminal, he saw appellant and Chambers exit the
terminal and walk to the shuttle bus stop.    Appellant again
approached people from behind while Chambers stood about fifteen
feet away, looking around.    Appellant and Chambers returned to
the Mercury, parked nearby.    The police then arrested appellant,
Chambers, Coffey, and Williams, and transported them to the
police station.    After being advised of her Miranda rights,
Chambers told Hutton that she and the others had come to the
airport "to steal  .  .  . to pick pockets."1
1The evidence at trial established that on July  24,  1994,
Jill Rosenfeld  (Rosenfeld) flew from National Airport to Chicago
2




Appellant, Coffey, and Chambers were indicted for grand
larceny, credit card theft, and conspiracy to commit a felony.
Before trial, appellant moved to sever his trial from that of the
other two defendants, arguing that  (1) the Commonwealth had not
established good cause for a joint trial and  (2) a joint trial
would prejudice him.    Appellant specifically alleged that
Chambers' statement about coming to the airport to "steal" and to
"pick pockets" was inadmissible against him and its admission at
a joint trial would constitute prejudice.    The Commonwealth's
attorney stated that he would "not be able to use some of the
Commonwealth's evidence if I try  [the defendants] together," and
told the court, "I think it is unlikely that I'm going to use
on an  8:00 p.m. flight.    After arriving in Chicago, she noticed
that her purse "was lighter than normal" and discovered that her
wallet was missing.    The last time she had seen her wallet was
when she bought a magazine at National Airport twenty minutes
before her flight.    Rosenfeld's wallet was found in Williams'
purse, and her credit cards were found under a floor mat in the
car driven by Chambers.    Rosenfeld identified Coffey and Williams
as having been in the area where she last used her wallet.
Denise Rollabouse  (Rollabouse) testified that she was at
National Airport in the U.S. Air terminal on the evening of July
24,  1994.    She was waiting in the baggage claim area when she
heard something behind her.    She turned around and saw Williams
with her wallet.    Williams asked if the wallet belonged to
Rollabouse, and she took the wallet from her.    The wallet had
previously been in Rollabouse's closed bag.    Rollabouse reported
the incident to airport security, provided a description of
Williams, and later identified her.
3




[the statement].    I certainly will not use it unless I can find
some legitimate case law to back it up."    The court denied the
motion to sever, because "[t]he Commonwealth has stated that they
are not going to use  [the statement] at this time."
At trial, appellant renewed his motion to sever.    The
Commonwealth's attorney represented that "it appears that if the
statement is properly redacted, it can be used."    The trial court
denied appellant's motion, ruling:
[T]he 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.  .  .
The Court will  .  .  . instruct the jury at the
time that that statement or that confession
should be received as evidence of guilt only
to the person who uttered the statement.
Later, appellant renewed his objection to Chambers'
statement and requested a cautionary instruction, arguing that
the statement was inadmissible against him because it was a
statement made by a co-conspirator after the termination of the
conspiracy and would not be admissible against him in a separate
trial.    At trial, the Commonwealth's attorney argued that, even
in a joint trial, the statement was admissible against appellant
under the declaration against penal interest exception to the
hearsay rule.    The trial court agreed with the Commonwealth, but
allowed the statement only in the redacted form.    The court
refused to give a cautionary instruction, because "[t]he
Commonwealth has demonstrated the basis for the application of
the exception to the hearsay rule of declaration against
4




interest.    It think it's proper and it will be admitted  [without
instruction]."
On March  23,  1995, appellant was convicted of grand larceny,
three counts of credit card theft, and conspiracy to commit a
felony.    The trial court sentenced appellant to five consecutive
twelve-month sentences.
II.    ADMISSION OF CODEFENDANT'S CONFESSION
Appellant asserts that his right to confrontation guaranteed
by the Sixth and Fourteenth Amendments to the United States
Constitution was violated.    He argues that the trial court erred
in admitting Chambers' statement because, as the statement of a
co-conspirator made after the termination of the conspiracy, it
was inadmissible hearsay.    Additionally, appellant contends that,
under Richardson v. Marsh,  481 U.S.  200  (1987), and Bruton v.
United States,  391 U.S.  123  (1968), the admission of codefendant
Chambers' statement in a joint trial without proper redaction and
cautionary instruction violated the Confrontation Clause of the
Sixth Amendment.
A.    Right to Confrontation
The Sixth Amendment to the Constitution provides in
pertinent part that "[i]n all criminal prosecutions, the accused
shall enjoy the right  .  .  . to be confronted with the witnesses
against him."    The Confrontation Clause of the Sixth Amendment is
applicable to the States under the Fourteenth Amendment.
5




Additionally, the Sixth Amendment right of an accused in a
criminal case to confront the witnesses against him includes the
right of cross-examination.    See Idaho v. Wright,  497 U.S.  805,
813  (1990); Richardson,  481 U.S. at  206; Dutton v. Evans,  400
U.S.  74,  79  (1970); Pointer v. Texas,  380 U.S.  400,  404  (1965).
The United States Supreme Court recently held that "[w]here
a nontestifying codefendant's confession incriminating the
defendant is not directly admissible against the defendant, the
Confrontation Clause bars its admission at their joint trial,
even if the jury is instructed not to consider it against the
defendant, and even if the defendant's own confession is admitted
against him."    Cruz v. New York,  481 U.S.  186,  193  (1987)
(emphasis added)  (citation omitted); see also Thompson v. State
of South Carolina,  672 F.Supp.  896,  902  (1987).2    Under the
converse of this standard, where the confession is directly
admissible against the defendant, it may be admissible in the
joint trial of the codefendants.    See Wright,  497 U.S. at  814
("'[T]he  [Confrontation] Clause permits, where necessary, the
admission of certain hearsay statements against a defendant
2The Cruz standard modifies the standard previously adopted
in Parker v. Randolph,  442 U.S.  62  (1979), where the Court held
that the Confrontation Clause is violated only when introduction
of the codefendant's confession is "devastating" to the
defendant's case.    See Thompson,  672 F.Supp. at  901.
6




despite the defendant's inability to confront the declarant at
trial.'"); Evans,  400 U.S. at  89  (holding that the right of
confrontation is not absolute and that a statement sufficiently
clothed with indicia of reliability is properly placed before a
jury though there is no confrontation with the declarant).    Thus,
the statement of a non-testifying codefendant "directly
admissible" against another codefendant under an exception to the
hearsay rule may be admitted in a joint trial without violating
the Confrontation Clause.
B.    Declaration Against Penal Interest
We accept for purposes of this opinion appellant's
contention that Chambers' statement would be excluded as the
statement of a co-conspirator made after the termination of the
conspiracy.    See Scaggs v. Commonwealth,  5 Va. App.  1,  4-5,  359
S.E.2d  830,  831-32  (1987)  ("[A] co-conspirator's statements made
in the defendant's absence after the termination of the
conspiracy are inadmissible in evidence at the defendant's trial
because such statements are hearsay.").    However, Chambers'
statement is independently admissible against appellant as a
declaration against penal interest made by an unavailable
witness.    "'[I]t is settled in Virginia that  .  .  . a declaration
against penal interest is recognized as an exception to the
hearsay rule.'"    Id. at  4-5,  359 S.E.2d at  832  (citation
omitted).    See Chandler v. Commonwealth,  249 Va.  270,  455 S.E.2d
219, cert. denied,  116 S. Ct.  233  (1995); Lewis v. Commonwealth,
7




18 Va. App.  5,  8,  441 S.E.2d  47,  49  (1994); Morris v.
Commonwealth,  229 Va.  145,  147,  326 S.E.2d  693,  694  (1985).    See
also Raia v. Commonwealth, Record No.  1950-95-4, slip op. at  6-7
(Va. Ct. App. Nov.  26,  1996)  ("Admissibility into evidence of the
statement against interests of an unavailable witness is a
'firmly rooted' exception to the hearsay rule in Virginia.").3
3In some jurisdictions, the admissibility of this exception,
for Sixth Amendment purposes, is unsettled.    In United States v.
Battiste,  834 F.Supp.  995  (N.D. Illinois, E.D.  1993), the court
disagreed with the Seventh Circuit's decision in United States v.
York,  933 F.2d  1343  (7th Cir.), cert. denied,  502 U.S.  916
(1991), that a declaration against penal interest is a "firmly
rooted" exception to the hearsay rule.    The Battiste court
concluded that this type of statement is "presumably unreliable."
Id. at  1000-02.    As support for this holding, the court referred
to Lee v. Illinois,  476 U.S.  530,  544 n.5  (1986), as revealing
the Supreme Court's unwillingness to hold this exception as
"firmly rooted."    Id. at  1002.    However, in interpreting Lee, the
Seventh Circuit stated that:
The Lee majority did not rule that the
declaration against interest exception to the
hearsay rule was not a firmly-rooted
exception; it held merely that the
accomplice's inculpatory declarations were
presumptively unreliable because they were
not against interest  (it was whether the
inculpatory portions of the confession were
reliable, not whether the declaration against
interest hearsay exception is firmly rooted,
on which the majority and dissent disagreed)
8




In Chandler, the defendant and accomplices robbed a local
convenience store.    During the robbery, defendant shot and killed
the store clerk.    At trial, the court admitted a police officer's
testimony regarding statements made by a codefendant during the
officer's investigation of the case.    Id. at  278,  455 S.E.2d at
224.    Defendant objected to the admission of this statement,
arguing that "portions of  [codefendant's] statement were not
self-inculpatory but rather incriminated  [defendant]."    Id.    The
Virginia Supreme Court affirmed the admissibility of the
statement, based on the statement's reliability, and held that
the statement clearly implicated codefendant as an accomplice and
that "the inherent reliability of her statement is established by
her expressed belief that she could be charged as an accessory to
the crimes."    Id. at  279,  455 S.E.2d at  224.    The Court also
decided that the reliability of the codefendant's statement was
"buttressed" by other evidence presented at trial and concluded
that the codefendant's "entire statement is admissible as a
declaration against penal interest."    Id. at  279,  455 S.E.2d at
225.    Thus, as the Court established in Chandler, a
co-conspirator's statement made after the termination of the
conspiracy may be admissible under the declaration against penal
.  [T]o be admitted under Rule
804(b)(3), the inculpatory portion of a
statement against interest must be
sufficiently reliable  .  .  . to satisfy the
[C]onfrontation  [C]lause.
York,  933 F.2d at  1363-64 n.4  (emphasis added).
9




interest exception to the hearsay rule.4
In Virginia, for a declaration against penal interest to be
admissible, it must meet the following requirements:                    (1) the
declarant must be "unavailable to testify at trial," Lewis,  18
Va. App. at  8,  441 S.E.2d at  49;  (2) the statement must be
against the declarant's interest at the time it was made; see
Boney v. Commonwealth,  16 Va. App.  638,  643,  432 S.E.2d  7,  10
4Additionally, the United States Court of Appeals for the
Fourth Circuit held that the admission of a statement under the
declaration against penal interest exception does not violate the
Confrontation Clause.    See United States v. Workman,  860 F.2d  140
(4th Cir.), cert. denied,  489 U.S.  1078  (1989)  (affirming the
indicia of reliability of this exception).    The court reasoned
that "[a] statement which was at the time of its making so far
contrary to the declarant's pecuniary or proprietary interest, or
so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against
another, that a reasonable person in the declarant's position
would not have made the statement unless believing it to be
true."    Id. at  144-45.    The court concluded that the declaration
against penal interest has indicia of reliability warranting its
admissibility as an exception to the hearsay rule while at the
same time warranting its admission under the Confrontation
Clause.    Id. at  145.
10




(1993); and  (3) the declarant must be aware at the time the
statement is made that it is against his or her interest to make
it.    Id.    See also Raia, Record No.  1950-95-4, slip op. at  4
(Va. Ct. App. Nov.  26,  1996).5    While it is settled in Virginia
that a declaration against penal interest is recognized as an
exception to the hearsay rule, "'such a declaration made out of
court by  .  .  .  [an] unavailable witness is admissible only upon a
showing that the declaration is reliable.'"    Morris,  229 Va. at
147,  326 S.E.2d at  694  (quoting Ellison v. Commonwealth,  219 Va.
404,  408-09,  247 S.E.2d  685,  688  (1978))  (emphasis added).    Thus,
by requiring the statement to be sufficiently reliable, the
exception as recognized in Virginia comports with the standard
articulated in York.
In determining whether a statement is against a declarant's
penal interest, "the inherent reliability of  [the] statement is
5The United States Court of Appeals for the Eleventh Circuit
set forth a similar three-prong test for evaluating whether a
statement is admissible under the declaration against penal
interest exception of Federal Rule of Evidence  804(b)(3):    "[(1)]
[A] statement must be against the penal interest of the
declarant[;]  [(2)] corroborating circumstances must exist
indicating the trustworthiness of the statement; and  [(3)] the
declarant must be unavailable."    United States v. Harrell,  788
F.2d  1524,  1526  (11th Cir.  1986).
11




established by  [the declarant's] expressed belief that she could
be charged as an accessory to the crimes."    Chandler,  249 Va. at
279,  455 S.E.2d at  224.    It is generally recognized that such
"[d]eclarations against interest are admissible as an exception
to the hearsay rule because it is felt that a person will not
usually make statements damaging to his own interests unless such
statements are true."                                                     2 Charles E. Friend, The Law of Evidence
in Virginia  §  18-12  (4th ed.  1996).    Where the evidence shows the
declarant's "knowledge of and complicity in the criminal act and
expose[s]  [declarant] to liability as an accessory to the
crimes," the statement will be admissible as a declaration
against penal interest.    Chandler,  249 Va. at  279,  455 S.E.2d at
225.    Notably, the Virginia Supreme Court has made "'no attempt
.  .  . to delineate the quality or quantity of evidence necessary
to establish reliability; the question must be left to the sound
discretion of the trial court, to be determined upon the facts
and circumstances of each case.'"    Morris,  229 Va. at  147,  326
S.E.2d at  694  (citation omitted).    However, the Court emphasized
that "'in any case, once it has been established that a third-
party confession has been made, the crucial issue is whether the
content of the confession is trustworthy.    And determination of
this issue turns upon whether  .  .  . the case is one where "there
is anything substantial other than the bare confession to connect
the declarant with the crime."'"    Id.  (citations omitted).
Accord Scaggs,  5 Va. App. at  5,  359 S.E.2d at  832.
12




In the instant case, the Commonwealth was not required to
call Chambers as a witness to establish her unavailability
because, as a codefendant in the joint trial, Chambers could not
be compelled to testify.    See Va. Const. art. I,  §  8  (no
defendant shall "be compelled in any criminal proceeding to give
evidence against himself").    See also Harrell,  788 F.2d at  1526
(holding that codefendant declarants were unavailable for
purposes of the declaration against penal interest exception
because "they were on trial and thus were privileged against
testifying").
Codefendant Chambers made the statement after being arrested
for credit card theft.    The other evidence in the case clearly
established the context of her statement and corroborated its
trustworthiness and its reliability, even though reliability was
not raised as an issue.    Thus, in a separate trial, Chambers'
confession that she and the other defendants went to the airport
"to steal  .  .  . to pick pockets" would meet the requirements of
Chandler, and would be admissible against appellant as a
declaration against Chambers' penal interest.    See also Raia,
Record No.  1950-95-4  (Va. Ct. App. Nov.  26,  1996)  (applying
Virginia's three-prong test and holding that an accomplice's
statement against her penal interest was admissible in the
separate trial of the defendant).    It remains for us to determine
whether the same statement would be admissible in a joint trial.6
6"Approximately one-half of all American jurisdictions  .  .  .
13




C.    Joint Trial
Appellant argues that, in the context of a joint trial under
Code  §  19.2-262.1, the admission of Chambers' statement
effectively denied his Sixth Amendment right to confront
Chambers, and the trial court should have excluded her
confession.    Appellant relies on the United States Supreme Court
cases of Bruton v. United States,  391 U.S.  123  (1968), and
Richardson v. Marsh,  481 U.S.  200  (1987), to support this
do not recognize a hearsay exception which would allow the
prosecution to use, under certain circumstances, a codefendant's
confession as evidence against his or her fellow defendant
.  [T]hese jurisdictions do not recognize a hearsay
exception permitting the use of 'third-party inculpatory
declarations against penal interest.'"    James B. Haddad and
Richard G. Agin, A Potential Revolution in Bruton Doctrine:    Is
Bruton Applicable Where Domestic Evidence Rules Prohibit Use of a
Codefendant's Confession as Evidence Against a Defendant although
the Confrontation Clause Would Allow Such Use?,  81 Crim. L. &
Criminology  235,  236-37  (1990).    However, Virginia is not one of
these states, and recognizes the exception.    See, e.g., Chandler,
249 Va.  270,  455 S.E.2d  219; Morris,  229 Va.  145,  326 S.E.2d  693;
Lewis,  18 Va. App.  5,  441 S.E.2d  47; Scaggs,  5 Va. App.  1,  359
S.E.2d  830.
14




argument.
Bruton was a joint trial of two codefendants charged with
armed postal robbery.    The trial court admitted in evidence the
confession of one codefendant implicating the other defendant.
The trial court then gave a "clear, concise and understandable
instruction" that the confession could only be used against the
declarant codefendant, and should be disregarded with respect to
the defendant.    The Court of Appeals for the Eighth Circuit
affirmed the defendant's conviction.    However, the United States
Supreme Court reversed, holding as follows:
[B]ecause of the substantial risk that the
jury, despite instructions to the contrary,
looked to  [declarant's] incriminating
extrajudicial statements in determining
petitioner's guilt, admission of
[declarant's] confession in this joint trial
violated petitioner's right of
cross-examination secured by the
Confrontation Clause of the Sixth Amendment.
391 U.S. at  126  (emphasis added).    The Court further stated that
"limiting instructions  [are not acceptable] as an adequate
substitute for petitioner's constitutional right of
cross-examination."    Id. at  137.    The Court "emphasize[d] that
the hearsay statement inculpating petitioner was clearly
inadmissible against him under the traditional rules of evidence,
the problem arising only because the statement was  .  .  .
admissible against the  [codefendant] declarant."    Id. at  129 n.3
(emphasis added).    Thus, the Court reversed the conviction on the
ground that the admission, in a joint trial, of a statement
15




admissible against the codefendant declarant but inadmissible
against the other defendant violated the other defendant's right
of confrontation.
Richardson, the other case relied on by appellant, dealt
with a similar issue.    In Richardson, also a joint trial, the
trial court admitted over defendant's objection a codefendant's
confession that had been redacted to omit all references to
defendant.    Although the codefendant's statement did not directly
implicate defendant, as did the statement in Bruton, other
evidence properly admitted against defendant at trial connected
him to the codefendant's confession.    The Supreme Court
determined that even when a codefendant's confession is redacted
to delete any reference to the defendant, if other evidence
properly admitted links the defendant to the confession, a
Confrontation Clause violation remains.    The Court specifically
held that "the Confrontation Clause is not violated by the
admission of a nontestifying codefendant's confession with a
proper limiting instruction when  .  .  . the confession is redacted
to eliminate not only the defendant's name, but any reference to
his or her existence."    Richardson,  481 U.S. at  211  (emphasis
added).    The Court distinguished Bruton:
If limited to facially incriminating
confessions, Bruton can be complied with by
redaction  .  .  .                                                     . If extended to confessions
incriminating by connection, not only is that
not possible, but it is not even possible to
predict the admissibility of a confession in
advance of trial.
16




Id. at  208-09.    Thus, in a joint trial where the codefendant's
statement is redacted but other evidence links the defendant to
the statement and indirectly implicates the defendant, Richardson
requires both redaction and a limiting instruction to cure the
prejudice to a defendant and render the statement admissible.
Both Bruton and Richardson involved a joint trial in which a
codefendant's confession implicated the other defendant, but was
otherwise inadmissible against him.    Neither Bruton nor
Richardson addressed a case in which a codefendant's confession
is directly admissible against the other defendant under a
recognized exception to the hearsay rule.    Thus, appellant's
reliance on the rationale of these cases is misplaced.    Unlike
Bruton and Richardson, in the case at bar, Chambers' statement
was independently and directly admissible against appellant under
a recognized exception to the hearsay rule, specifically, the
declaration against penal interest exception.    See Section II.A.
The Bruton Court declined to address the admissibility of
such a statement under "any recognized exception to the hearsay
rule."    See Bruton,  391 U.S. at  128 n.3.    Bruton "suggested that
each jurisdiction can shape its own rules of evidence to admit
some codefendant confessions as evidence against  [another]
defendant, under an exception to the hearsay rule," without
violating the Confrontation Clause, "even where the defendant has
no opportunity to cross-examine the confessing codefendant."
James B. Haddad and Richard G. Agin, A Potential Revolution in
17




Bruton Doctrine:    Is Bruton Applicable Where Domestic Evidence
Rules Prohibit Use of a Codefendant's Confession as Evidence
Against a Defendant although the Confrontation Clause Would Allow
Such Use?,  81 Crim. L. & Criminology  235,  236  (1990)  (citing
Bruton,  391 U.S. at  128 n.3).    See also Evans,  400 U.S. at  81
("[I]t does not follow that because the federal courts have
declined to extend the hearsay exception  .  .  . such an extension
automatically violates the Confrontation Clause.").    Moreover,
"[i]n jurisdictions that admit inculpatory declarations against
penal interest, admission of the codefendant's 'constitutionally
reliable' confession as evidence against a defendant will avoid
Bruton.  .  .                                                            .    The Bruton limiting instruction problem disappears
once such a statement is admitted against the defendant." Haddad,
supra, at  251.7
7The following cases demonstrate that some jurisdictions
recognize the declaration against penal interest as being "firmly
rooted" and/or reliable, and therefore admissible:    United States
v. York,  933 F.2d  1343  (7th Cir.), cert. denied,  502 U.S.  916
(1991); United States v. Workman,  860 F.2d  140  (4th Cir.  1988);
United States v. Harrell,  788 F.2d  1524  (11th Cir.  1986); Farina
v. State,  679 So.2d  1151  (Fla.  1996)  (statement may be admissible
if sufficiently reliable); State v. Nielsen,  853 P.2d  256  (Or.
1993); People v. Drake,  785 P.2d  1253  (Colo.  1989); State v. St.
Pierre,  759 P.2d  383  (Wash.  1988); Commonwealth v. McLaughlin,
303 N.E.2d  338  (Mass.  1973); and People v. Gauthier,  184 N.W.2d
18




In Commonwealth v. McLaughlin, the Supreme Court of
Massachusetts held that, in a joint trial, admission of a
non-testifying codefendant's statement against another defendant
under a recognized exception to the hearsay rule does not violate
the other defendant's Sixth Amendment right to confrontation.    In
addressing the Bruton issue, the court stated:
In deciding the applicability of the Bruton
rule to the present case, it is important to
note that the rule does not purport to hold
that a defendant's right of cross-examination
secured by the Confrontation Clause of the
Sixth Amendment is violated whenever hearsay
evidence is admitted against him and he is
not able to cross-examine the person to whom
the hearsay statement is attributed.
McLaughlin,  303 N.E.2d  338,  345  (Mass.  1973).    The court further
observed that "[a] number of cases decided since the Bruton case
have held that defendants' rights under the Confrontation Clause
.  .  . were not violated where hearsay evidence of a statement of
a co-conspirator inculpating the defendant was admitted without
opportunity by the defendant to cross-examine the
co-conspirator."    Id.    The court explained the grounds for the
admissibility of the statement:
If the defendant had been tried alone, the
same testimony would have been admissible
against him under  [a] hearsay rule exception
.    In such a case the admissibility of
the testimony would not depend on the
availability of  [the codefendant] for
cross-examination by the defendant.
488  (Mich.Ct.App.  1970)  (classifying exception as "long
recognized").
19




Therefore the fact that the defendant did not
have an opportunity to cross-examine  [the
codefendant] did not constitute a violation
of his right under the Confrontation Clause
20




.    For the same reason, there was no
violation of the rule of the Bruton case.
Id. at  347.8
The limited scope of the Bruton holding was further noted in
Cruz.    The Cruz Court held that "where a nontestifying
codefendant's confession incriminating the defendant is not
directly admissible against the defendant, the Confrontation
Clause bars its admission at their joint trial."    Cruz,  481 U.S.
at  194  (emphasis added).    Additionally, the Seventh Circuit
construed the Bruton decision as "predicated upon the
inadmissibility of the statement against the defendant under the
rules of evidence," thus reserving judgment on the admissibility
of the hearsay statement under the rules applicable in the
jurisdiction.    United States v. York,  933 F.2d  1343,  1362  (7th
Cir.), cert. denied,  502 U.S.  916  (1991)  (emphasis added).9    The
8See also State v. St. Pierre,  759 P.2d  383  (Wash.  1988),
where the trial court admitted the declarant's statement in a
joint trial of the defendants as a declaration against penal
interest.    The appellate court agreed that certain of the
contested statements qualified as declarations against penal
interest, holding that the statements possessed "sufficient
'indicia of reliability'" to be directly admissible in the trial
against" a codefendant.    Id. at  388-89.
9The court explained that "Bruton reflected the view that
prevailed prior to the advent of the Federal Rules of Evidence
21




court held that "[w]here the  [evidentiary] rules so permit,
Bruton is inapplicable.    Thus, under Bruton and subsequent cases,
whether an inculpatory hearsay statement violates the
[C]onfrontation  [C]lause turns on the context of the rules of
evidence."    Id. at  1362 n.3.10    Moreover, the Eleventh Circuit
observed that "[c]ases interpreting Bruton have found its holding
inapplicable where the evidence alleged to violate Bruton
principles was properly admissible against the complaining
party."    United States v. Astling,  733 F.2d  1446,  1455  (11th Cir.
1984).11
that an inculpatory hearsay statement was inadmissible against an
accused."    Id. at  1362 n.2  (emphasis added).
10Although York involved a separate trial, the court's
analysis is equally applicable to the joint trial context.
11In certain circumstances, the Supreme Court has declined to
construe the Confrontation Clause literally as a per se bar to
hearsay statements.    The Supreme Court held that "[f]rom the
earliest days of our Confrontation Clause jurisprudence, we have
consistently held that the Clause does not necessarily prohibit
the admission of hearsay statements against a criminal defendant,
even though the admission of such statements might be thought to
violate the literal terms of the Clause."    Idaho v. Wright,  497
U.S.  805,  813  (1990).    "We reaffirmed only recently that '[w]hile
a literal interpretation of the Confrontation Clause could bar
22




The rationale of these cases is persuasive.    Neither the
Virginia nor the United States Supreme Court has addressed the
admissibility in a joint trial of a non-testifying codefendant's
statement inculpating another defendant when a recognized
exception to the hearsay rule rendered the codefendant's
statement admissible against the other defendant.    However, the
Virginia rules of evidence permit a codefendant's statement
against interest to be used against another defendant when the
defendants are separately tried.    We see no reason why the rule
should be different in a joint trial and can find no objection in
any United States Supreme Court case where the codefendant's
confession is admissible against another defendant under an
independent, "firmly rooted" exception to the hearsay rule.
Thus, we hold that the trial court did not err in admitting
Chambers' statement.
III.    MOTION TO SEVER
Appellant next argues that the trial court erred in denying
his motion to sever because the improper admission of Chambers'
the use of any out-of-court statements when the declarant is
unavailable, this Court has rejected that view as "unintended and
too extreme."'"    Id. at  814  (quoting Bourjaily v. United States,
483 U.S.  171,  182  (1987)).    Accord Ohio v. Roberts,  448 U.S.  56,
62-63  (1980).
23




statement prejudiced him.12
Code  §  19.2-262.1 provides, in pertinent part, as follows:
On motion of the Commonwealth, for good cause
shown, the court, in its discretion, may
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.
(Emphasis added).    We have held that "[i]n 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 from a joint trial.'"    Goodson v.
Commonwealth,  22 Va. App.  61,  71,  467 S.E.2d  848,  853  (1996)
(quoting United States v. Reavis,  48 F.3d  763,  767  (4th Cir.),
cert. denied,  115 S. Ct.  2597  (1995))  (emphasis added).
[P]rejudice requiring severance  .  .  . results
only when "there is a serious risk that a
joint trial would compromise a specific trial
right of one of the defendants, or prevent
the jury from making a reliable judgment
about guilt or innocence.  .  .                                          .    The risk of
prejudice will vary with the facts in each
case," and "the determination of the risk of
prejudice  .  .  .  [is left] to the sound
12Appellant also argues prejudice resulted because the three
codefendants were seated together at trial and had antagonistic
defenses.    These arguments were not raised at trial.    The Court
of Appeals will not consider an argument on appeal which was not
presented to the trial court.    Jacques v. Commonwealth,  12 Va.
App.  591,  593,  405 S.E.2d  630,  631  (1991)  (citing Rule  5A:18).
24




discretion of the  [trial] court."
Barnes v. Commonwealth,  22 Va. App.  406,  412,  470 S.E.2d  579,  582
(1996)  (citations omitted).13
We hold that the record in this case shows that appellant,
the party moving for severance, failed to establish that actual
prejudice resulted from the joint trial.    The trial court
properly admitted Chambers' statement under a recognized
exception to the hearsay rule.    See Goodson,  22 Va. App. at  71,
467 S.E.2d at  853.    Accordingly, the judgment of the trial court
is affirmed.
Affirmed.
13Redaction was not required in the instant case.    The
court's redaction of codefendant Chambers' statement did not harm
appellant; rather, it made the statement less harmful to him.
Moreover, appellant requested the redaction and cannot now object
to it.
25

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