COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Senior Judge Hodges 

Argued at Richmond, Virginia 

JANNIE BRANT 

 OPINION BY 

v. Record No. 1691-98-2 JUDGE ROBERT P. FRANK 

 APRIL 25, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS 

Timothy J. Hauler, Judge 

William B. Bray (Perry & Bray, on brief), for 

appellant. 

 Michael T. Judge, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

Jannie Brant (appellant) appeals her convictions of armed 

robbery and conspiracy to commit robbery after a bench trial on 

December 9, 1997. On appeal, she contends the trial court erred 

in: 1) admitting hearsay statements of alleged accomplices, 

Mandel Coleman and Algie Harris, 2) limiting her 

cross-examination of prosecution witness Charles Mason, and 3) 

restricting her testimony about statements made by alleged 

co-conspirators during the alleged conspiracy. We agree with 

appellant that the trial court erred in admitting into evidence 

the hearsay statements of the alleged accomplices but find that 

she did not properly preserve the second and third issues. We, 
therefore, reverse and remand for further proceedings if the 

Commonwealth be so advised. 

I. BACKGROUND 

 On June 10, 1997, a McDonald's restaurant in Colonial 

Heights was robbed by two men. One man had a pistol, and the 

other had a shotgun. The two men pointed their guns at the 

restaurant shift manager, threatened to shoot him, and grabbed a 

portion of the night deposit money before leaving the 

restaurant. 

 Officer Earley of the Colonial Heights Police Department 

testified that he identified appellant as a suspect in the 

robbery. Before questioning her at the police station, he 

advised her of her Miranda rights and she signed a waiver form. 

Officer Earley testified that appellant denied driving the 

robbers to the McDonald's restaurant. After Earley told 

appellant she was videotaped in the Golden Corral parking lot 

next to the McDonald's with three men in her car, she admitted 

she drove three men to the Golden Corral parking lot on the 

night of the robbery. She identified two of the men as Charles 

Mason and Algie Harris. She did not know the name of the third 

man. He was later identified as Mandel Coleman. 

 Appellant told Earley that Algie Harris and Mandel Coleman 

exited the car after she drove into the Golden Corral parking 

lot. She did not know where they went. As she started to drive 

out of the Golden Corral parking lot, Mason told her they needed 

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to go back to pick up Harris and Coleman. She made a loop 

around the shopping center where the restaurants were located 

and drove back to the Golden Corral parking lot. The two men 

got into the car. She said she saw Coleman with a bookbag but 

was unaware of what had happened. She told Earley that she did 

not see a shotgun in the car but did see what appeared to be a 

pistol in Coleman's waistband when she took him to Petersburg 

later that evening. 

 Officer Earley also testified about statements made by 

Mandel Coleman: 

[PROSECUTOR]: Okay. At some point in time, 

did you ask him about any participation of 

Jannie Brant, the defendant here in this 

case in that incident? 

[OFFICER]: Yes, I did. 

[PROSECUTOR]: When you made that inquire 

[sic] of him, had you already advised him 

that he was a suspect in the charge also? 

 [OFFICER]: Yes. 

[PROSECUTOR]: And what did you ask him 

about her and what did she tell you -- what 

did he tell you? 

[OFFICER]: He advised me that Jannie –- he 

rode up there with Algie. 

[DEFENSE COUNSEL]: Objection, Your Honor, 

we have hearsay. 

THE COURT: Do we have a Brewton [sic] 

violation here? 

[PROSECUTOR]: Your Honor, actually, we 

don't. What we have here is a case that 

falls under Randolph versus the Commonwealth 

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and Chanaler versus the Commonwealth. The 

Courts in this jurisdiction have set out 

exceptions to the hearsay rule and this 

falls exactly, squarely in that exception. 

The Commonwealth must first show that it was 

a statement made against the person making 

the statements [sic] penal interests; 

therefore, making it a reliable statement. 

We must also show that he is unavailable to 

the Commonwealth and we have done that 

exactly as the case law has described. The 

person making that statement is charged and 

still waiting trial and as such is 

unavailable to the Commonwealth as a 

witness. I have the case for the Court, if 

you like to see it. 

[DEFENSE COUNSEL]: Your Honor, I believe 

they need to have him come in, if they're 

going to prove unavailability, and put him 

on the stand and have him say, "No, I take 

the Fifth," or "I refuse to testify." 

[PROSECUTOR]: Your Honor, the case law 

specifically addresses that question, 

Randolph and Chandler, which Randolph 

addresses the issue of using those 

statements in a joint trial. Chandler 

addresses the issue of using them in 

separate trials. The Court specifically 

said the Commonwealth is not required to do 

that. 

THE COURT: Mr. Paul, do you have any 

comment you want to put on the record? 

[DEFENSE COUNSEL]: Your Honor, they haven't 

pulled in Mr. Coleman. We don't know if he 

is available or not. He is a co-conspirator 

or alleged co-conspirator and is charged 

with these crimes. Also, the –- at the time 

he made his statement, you know, we don't 

know what -- you, what was going on, what 

was said to him or anything else. 

Certainly, no one had a chance to. 

Basically, they're offering this hearsay 

that can't be cross-examined, can't be 

looked at in any way. They're offering it 

for the truth of the matter. They're not 

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offering it for any other reason and I think 

it's inappropriate. 

THE COURT: All right. The defense 

objection is overruled. The Court finds 

specifically pursuant to Randolph versus 

Commonwealth, 24 VA Appellate 345, that this 

co-actor, co-conspirator is reasonably 

unavailable to testify due to his Fifth 

Amendment rights; that there was a statement 

apparently admissible against him that was 

rendered and the Court will find that that 

statement may be properly presented during 

the course of this trial. Defense exception 

to the Court's ruling is noted for the 

record. 

[DEFENSE COUNSEL]: Thank you, Your Honor. 

 Officer Earley then testified that Coleman admitted that he 

robbed the restaurant with Algie Harris. Coleman told Earley 

that appellant drove him, Algie Harris, and Charles Mason to the 

Golden Corral parking lot. After the robbery, appellant drove 

the men back to Petersburg, and Harris gave her some of the 

money taken during the robbery. 

 Officer Earley also testified as to his conversation with 

Algie Harris. Appellant noted her objection for the reasons 

stated in her objection to the hearsay testimony regarding 

Coleman's statements. The court overruled the objection and 

permitted Earley to testify. 

 Officer Earley stated that Algie Harris told him that 

Harris, Coleman, and appellant discussed robbing the restaurant 

prior to the event. Appellant drove Harris, Coleman, and Mason 

to the Golden Corral parking lot. She drove them back to 

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Petersburg after he and Coleman robbed the restaurant. Harris 

told Officer Earley that Coleman paid appellant from the robbery 

proceeds. Officer Earley recovered the shotgun from Harris' 

residence. 

 Charles Mason, the front seat passenger in appellant's 

vehicle, testified at trial. He stated that appellant, Harris, 

and Coleman planned the robbery at a laundromat before going to 

the McDonald's restaurant, and appellant directed Harris to 

bring a gun. He testified that appellant drove Harris and 

Coleman to the McDonald's and was given money after the robbery. 

During cross-examination, defense counsel attempted to impeach 

Mason. 

[DEFENSE COUNSEL]: Okay. Have you ever 

been charged with a felony? 

 

[PROSECUTOR]: Objection. It's improper. 

 

[DEFENSE COUNSEL]: Have you ever been 

convicted of a felony? 

 

[PROSECUTOR]: Objection, Your Honor, he's 

juvenile. Case of Alaska versus United 

States, it's prohibited from asking juvenile 

that question. 

 

 THE COURT: Mr. Paul? 

 

[DEFENSE COUNSEL]: I can't cite the case 

law, Your Honor, but I think that we have 

credibility issues here. Just because he's 

a juvenile, now we're going to embrace him 

and say, yes, he gets these special 

protections and we can't attack his 

credibility. 

 

[PROSECUTOR]: I didn't make the rule, 

Judge, I'm just telling you that's what the 

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case says. It could perhaps be phrased a 

different way. 

 

 THE COURT: Rephrase your question. 

 

[DEFENSE COUNSEL]: Have you ever been 

investigated for a crime that's considered a 

felony? 

 

 [PROSECUTOR]: Objection, Your Honor. 

 

THE COURT: Well, that's objectionable. 

Sustained. 

 

[DEFENSE COUNSEL]: Let me rephrase it. If 

I had the case, it'd be easier. 

 

[DEFENSE COUNSEL]: Are you currently –- how 

old are you right now? 

 

 MASON: Sixteen. 

 

[DEFENSE COUNSEL]: Sixteen. Okay. Have 

you –- are you currently under any 

supervision? 

 

 [PROSECUTOR]: Objection, Your Honor. 

 

 THE COURT: Sustained. 

 

 Appellant testified at trial. On direct examination she 

testified as follows: 

[DEFENSE COUNSEL]: What I'd like you to do 

is tell the Court your first contact with 

Algie Harris and Mandel Coleman on the date 

of June 10th. 

 

[APPELLANT]: Well, my first contact with 

them was in China Kitchen, a Chinese 

restaurant. And it was Johnny and Joe and 

Charlie, Mandel Coleman or Nafece was not 

present. 

 

[DEFENSE COUNSEL]: Okay. Johnny is the 

same person as Algie? 

 

 [APPELLANT]: Yes. 

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[DEFENSE COUNSEL]: Okay. So you met them 

there and what did you all talk about? 

 

[APPELLANT]: He asked me could I give them 

a ride later on that night to go to Golden 

Corral. 

 

[DEFENSE COUNSEL]: And what did you tell 

him? 

 

[APPELLANT]: Yes, but he had to give me 

some gas money. 

 

[DEFENSE COUNSEL]: What was his response? 

 

 [APPELLANT]: He said okay. 

 

[PROSECUTOR]: I'm sorry, Your Honor. I 

have an objection at this point. These are 

out-of-court statements offered for the 

truth of the matter. 

 

[DEFENSE COUNSEL]: It's a conversation, 

Your Honor, that she's in the middle of. It 

is relevant to the fact that the 

Commonwealth has come in and has said, "Hey, 

they talked to Detective Earley and they're 

under interrogation and we're taking all 

their statements in," and now they're saying 

–-- 

 

THE COURT: Yeah, but those were statements 

against interest. This is not a statement 

against interest. Those individuals could 

be called for that testimony. 

 

 [DEFENSE COUNSEL]: Fair enough. 

 

THE COURT: They've got Fifth Amendment 

rights, but their Fifth Amendment rights 

don't exclude them to testify in this 

matter. 

 

 [DEFENSE COUNSEL]: Okay. 

 

 THE COURT: Sustained. 

 

 [DEFENSE COUNSEL]: Okay, Your Honor. 

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II. HEARSAY STATEMENTS 

 Appellant contends the trial court erred in permitting 

Officer Earley to testify as to the statements of Mandel Coleman 

and Algie Harris. We agree. 

 The trial court permitted introduction of the hearsay 

testimony from Officer Earley because the two declarants, Harris 

and Coleman, were unavailable to testify. The trial court ruled 

that under Randolph v. Commonwealth, 24 Va. App. 345, 482 S.E.2d 

101 (1997), Harris and Coleman were unavailable to testify by 

virtue of the Fifth Amendment to the United States Constitution. 

Randolph involved the admissibility of a hearsay statement by a 

co-conspirator where the defendant and the co-conspirator were 

tried jointly at the same trial. See Randolph, 24 Va. App. at 

351, 482 S.E.2d at 103-04. We held that the Commonwealth was 

not required to call the co-conspirator as a witness to 

establish unavailability because the co-conspirator could not be 

compelled to testify as a codefendant in the joint trial. See

id. at 356, 482 S.E.2d at 106. 

 We hold that the trial court erred in its application of 

Randolph. In this case, the alleged co-conspirators were not 

tried jointly with appellant. There was no evidence of their 

unavailability. Therefore, the rule from Randolph is 

inapplicable in this case, and the trial court erred in ruling 

that Harris and Coleman were unavailable. 

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 The Commonwealth argues in its brief that, assuming error 

on the part of the trial court, appellant waived her objection 

to the introduction of Officer Earley's testimony regarding the 

statements made by Harris and Coleman because on 

cross-examination she questioned the officer about the statement 

made by Mason. The Commonwealth argues that because appellant 

introduced evidence of a like nature she waived her objection, 

and, therefore, any error by the trial court was harmless. We 

disagree. 

 An objection to previously introduced 

testimony is not waived by "the mere 

cross-examination of a witness or the 

introduction of rebuttal evidence, either or 

both." Snead v. Commonwealth, 138 Va. 787, 

801, 121 S.E. 82, 86 (1924); Culbertson v.

Commonwealth, 137 Va. 752, 757, 119 S.E. 87, 

88 (1923). A waiver does not result until 

the party objecting to the introduction of 

evidence actually introduces, on his own 

behalf, evidence that is similar to that to 

which the objection applies. Id.

McGill v. Commonwealth, 10 Va. App. 237, 244, 391 S.E.2d 597, 

601 (1990). 

 In this case, appellant questioned Officer Earley on 

cross-examination about the statement Mason made to Earley. 

Mason also testified at trial. We hold that Earley's testimony 

about Mason's statement was not a waiver of the objectionable 

testimony regarding statements made by Harris and Coleman. 

 The Commonwealth also argues that any error committed by 

the trial court was harmless. We disagree. Appellant argued at 

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trial that she was unable to cross-examine the hearsay 

declarants, Harris and Coleman, because their statements came 

into evidence through the testimony of Officer Earley. 

Appellant's argument at trial preserved the constitutional issue 

of right to cross-examination under the Sixth Amendment to the 

United States Constitution. 

 "'[B]efore 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." Lilly v. Commonwealth, 258 Va. 

548, 551, 523 S.E.2d 208, 209 (1999) (quoting 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. (quoting Chapman, 386 U.S. 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. 

Id. (citations omitted). 

 We believe that this case is squarely on point with Lilly. 

In Lilly, the Supreme Court of Virginia held that the 

inadmissible statement of one co-conspirator was the only 

evidence that corroborated the other co-conspirator's in-court 

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testimony that the defendant was the triggerman in the murder. 

See id. at 552-53, 523 S.E.2d at 209. The Court wrote: 

[H]ere the issue is not the credibility of 

the witness, but rather the potential for 

harm caused by the erroneous admission of 

evidence which tends to support the jury's 

credibility determination. In that context 

we must presume that such evidence had the 

potential to influence the jury into 

accepting the properly admitted evidence as 

more credible and, thus, to taint the jury's 

determination of the facts. 

Id. at 553, 523 S.E.2d at 210. 

 In this case, Mason's testimony clearly implicates 

appellant in planning the robbery of the McDonald's restaurant. 

The only evidence that corroborates Mason's testimony about 

appellant's participation in the robbery is the hearsay 

statements of Harris and Coleman. In the absence of the hearsay 

statements, Mason's testimony is supported only by evidence that 

appellant drove the men to the restaurant. We assume that the 

jury weighed Mason's credibility in light of the corroborating 

hearsay evidence. Therefore, we cannot declare beyond a 

reasonable doubt that the admission of the hearsay testimony was 

harmless. We reverse appellant's convictions and remand for 

further proceedings if the Commonwealth be so advised. 

III. CROSS-EXAMINATION OF MASON AND APPELLANT'S HEARSAY 

 Appellant contends that the trial court erred in limiting 

her cross-examination of Charles Mason and in restricting her 

testimony detailing statements made by the co-conspirators. We 

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find that appellant did not properly preserve these issues for 

appellate review. 

 "When testimony is delivered but 

excluded upon objection, an appellate court 

has a record of the content and purport of 

the testimony upon which to determine the 

propriety of the trial court's ruling; when 

testimony is rejected before it is 

delivered, an appellate court has no basis 

for adjudication unless the record reflects 

a proper proffer." 

Whittaker v. Commonwealth, 217 Va. 966, 968-69, 234 S.E.2d 79, 

81 (1977) (quoting Jackson's Case, 98 Va. 845, 846-47, 36 S.E. 

487, 488 (1900)). "The requirement for proffer of testimony is 

to assure that the record will be complete." Wyche v. 

Commonwealth, 218 Va. 839, 843, 241 S.E.2d 772, 775 (1978). 

 Appellant did not proffer the testimony of Mason regarding 

whether he was previously convicted of a felony1 and did not 

proffer her own testimony regarding the statements of the 

co-conspirators. We, therefore, have "no basis for 

adjudication" and affirm the ruling of the trial court on these 

issues. 

 1

 Even had appellant properly proffered the testimony 

regarding Mason's previous conviction of a felony, her 

cross-examination of Mason would have been objectionable under 

Davis v. Alaska, 415 U.S. 308 (1974). The record clearly 

indicates that the purpose of appellant's cross-examination of 

Mason was for general impeachment purposes rather than to show 

specific bias or prejudice. 

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IV. CONCLUSION 

 We hold that appellant did not properly preserve the issue 

of the limitation of Mason's cross-examination and the 

inadmissibility of appellant's testimony as to the statements of 

the alleged co-conspirators. However, because we hold that the 

admission of the officer's hearsay testimony was not harmless 

error, we reverse appellant's convictions and remand for further 

proceedings if the Commonwealth be so advised. 

 Reversed and remanded.

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