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COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

ARTHUR RAMBERT 

v. Record No. 0559-94-2 MEMORANDUM OPINION*

 BY JUDGE MARVIN F. COLE 

COMMONWEALTH OF VIRGINIA DECEMBER 5, 1995 

 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

James F. D'Alton, Jr., Judge 

 John B. Boatwright, III (L.A. Rosenstock, III; 

Boatwright & Linka, on briefs), for appellant. 

 Margaret Ann B. Walker, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Arthur Rambert was tried before a jury and convicted of the 

robbery and first degree murder of Delmar DePriest. He was 

sentenced to life imprisonment for the murder and 15 years for 

the robbery. On appeal, appellant contends that the trial court 

committed reversible error by overruling appellant's objection 

and denying his motion for a mistrial when the Commonwealth 

elicited evidence of appellant's subsequent arrest on unrelated 

charges.1

 We find that any error caused by the court's rulings 

was harmless. Therefore, we affirm appellant's convictions. 

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

designated for publication. 

 1The issue on appeal was limited by order of this Court 

entered on February 3, 1995. 
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 I. 

 There is no dispute in the material facts in the case. On 

February 25, 1993, appellant and four other men were preparing to 

drive to New York. John Henney, the driver, testifying for the 

prosecution, stated that Wilshawn Wright wanted to get marijuana 

and money that was owed to him before going on the trip. 

Appellant agreed to go with Wright, and Henney drove the two by 

the victims' apartment. When Henney and the other two men picked 

up Wright and appellant ten minutes later, Wright told them he 

had shot Sonnet Morrison in the back of the head twice. 

Appellant stated that he had shot Sonnet's roommate, Delmar 

DePriest, in the back of the head. When Wright and appellant 

returned to the car, Wright had a nine millimeter and appellant 

possessed a black automatic handgun. Appellant and Wright 

threatened to kill Henney and the other men if they "said 

anything." 

 On cross-examination by appellant's counsel, Henney 

testified that he had received no promises in return for his 

testimony. He admitted that he had been charged with two capital 

murders, one robbery, and three firearm offenses arising out of 

the incident, and was awaiting trial on them. Defense counsel 

also asked Henney if he had any other charges pending against 

him. He admitted to possession of a firearm while in possession 

of a controlled substance, conspiracy to sell heroin, possession 

with intent to sell heroin and possession of heroin. He stated 
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that these offenses occurred after the murder and had not been 

scheduled for trial. 

 Defense counsel on cross-examination also asked Henney 

whether he saw any guns after he arrived in New York. He 

responded that he had, and that Wilshawn Wright and Lamont had 

them. He stated that he did not possess a gun in New York. The 

following colloquy then occurred between defense counsel and 

Henney. 

 Q. The nine millimeter was taken out 

of your trunk? 

 A. The one in my trunk wasn't mine, 

sir. 

 Q. What happened to those guns? Did 

you see what happened to those 

guns, where they went after you saw 

them in the possession of the two 

gentlemen you talked about? 

 A. No. 

 On redirect examination, the Commonwealth's attorney asked 

Henney whether appellant was with him on April 30th when he was 

arrested on the drug and gun charges. Henney responded that he 

was. Defense counsel objected on the ground that whether 

appellant was arrested at the same time did not have anything to 

do with proving any of the elements of the charges against 

appellant. The Commonwealth's attorney argued that appellant 

brought out the fact that Henney was arrested on April 30th on 

drug and gun charges and that a nine millimeter gun was taken 

from the trunk of Henney's car. The Commonwealth, therefore, 
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claimed that the appellant had "opened the door" to this 

evidence. The trial judge ruled that defense counsel had left 

the jury with the impression that Henney was arrested on the drug 

and gun charges and that a nine millimeter gun was found in the 

trunk of his car and that it did not belong to anybody else 

because no one else was in the car. The trial court admitted the 

testimony limited to the one question that appellant was arrested 

with Henney to show that someone else was present who could have 

possessed the gun.2

 Therefore, the court overruled appellant's 

objection and denied the motion for a mistrial. 

 II. 

 "As a general rule, evidence of other crimes is 

inadmissible." Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 

176 S.E.2d 802, 805 (1970). We assume, without deciding, that 

the prosecution's question was improper and that the trial court 

erred in admitting the other crimes evidence. Nevertheless, we 

find the error was harmless. 

 In Virginia, non-constitutional error is 

harmless "when it plainly appears from the 

record and the evidence given at the trial 

that the parties have had a fair trial on the 

merits and substantial justice has been 

reached." Code § 8.01-678 (emphasis added). 

"[A] fair trial on the merits and substantial 

justice" are not achieved if an error at 

trial has affected the verdict. 

Consequently, under Code § 8.01-678, a 

criminal conviction must be reversed unless 

"it plainly appears from the record and the 

evidence given at the trial that" the error 

 2The evidence clearly established that this nine millimeter 

gun was not the one used as the murder weapon by Wright. 
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did not affect the verdict. An error does 

not affect a verdict if a reviewing court can 

 conclude, without usurping the jury's fact 

finding function, that, had the error not 

occurred, the verdict would have been the 

same. 

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 

911 (1991) (en banc). 

 The evidence of appellant's guilt was overwhelming and 

uncontradicted. Appellant accompanied Wright into the victims' 

apartment with the expressed intention to obtain drugs and money. 

 Appellant and Wright turned up the TV, placed pillows on the 

victims' head and shot them from behind in the head. The other 

passengers in the car testified that appellant admitted he shot 

DePriest, "the roommate." Appellant made incriminating comments 

to Raheem Hayden in a note appellant passed to Hayden while they 

were both in the Dinwiddie County jail. While appellant and Eric 

Smith were in the City of Petersburg jail, appellant admitted to 

Smith that he committed the murder and robbery. Furthermore, the 

jury knew that appellant was involved with drugs because he went 

to their apartment to obtain drugs and money. The statement also 

involved a "prior arrest" and not a "prior crime." Nothing in 

the record suggests that appellant was convicted on the charges. 

 Upon review of the entire record before us, we conclude that 

the other crimes evidence "had little, if any, tendency to 

prejudice the jury against [appellant] because it was so 

inconsequential when viewed in comparison to the overwhelming 

evidence of [appellant's] guilt." Hanson v. Commonwealth, 14 Va. 
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App. 173, 176, 416 S.E.2d 14, 16 (1992). Therefore, it "plainly 

appears . . . that the parties have had a fair trial on the 

merits and substantial justice has been reached." Code 

§ 8.01-678. Accordingly, we find no reversible error by the 

admission of the other crimes evidence. 

 Affirmed.