UPON A REHEARING EN BANC
The trial judge convicted Hurcus Jerome Williams of capital murder, robbery, and two counts of using a firearm in the commission of a felony. Williams contends the trial judge committed reversible error by (1) admitting in evidence a non-testifying accomplice’s out-of-court confession to police and (2) refusing to provide the accomplice’s confession to Williams’ counsel before ruling on its admissibility. A panel of this
*398
Court, with one judge dissenting, affirmed the convictions.
See Williams v. Commonwealth,
I.
The grand jury indicted Williams for killing Vareck Griffin in the commission of robbery, see Code § 18.2-31 (capital murder), robbery, see Code § 18.2-58, using a firearm in the commission of capital murder, see Code § 18.2-53.1, and using a firearm in the commission of robbery. See id. The evidence at trial proved that early in the morning on December 1, 1996, someone shot and killed Vareck Griffin in Norfolk, Virginia, in an apartment where Griffin and others sold “crack” cocaine. One of the two men who operated the cocaine enterprise testified that he left Griffin alone in the apartment to sell cocaine to any potential customers.
Five and one-half months after Griffin was killed, the police arrested Damyel Harris for “more than 11 charges.” The detective who interrogated Harris was investigating a homicide unrelated to Griffin’s killing and had been searching for Harris in connection with that unrelated homicide. The detective testified that “[w]hen we started asking [Harris] about the [unrelated] homicide, [Harris] started talking about a different homicide and started giving details, and that’s when [the detective] ... realized that [Harris] wasn’t talking about [the unrelated homicide] but another homicide.” During the interrogation, Harris gave an extensive statement in which he confessed to participating in the robbery of Griffin and said Williams killed Griffin.
The Commonwealth called Harris as its witness. When Harris asserted his Fifth Amendment privilege and refused to testify, the trial judge admitted in evidence Harris’ confession and overruled Williams’ objection that use of the confession violated his Sixth Amendment right to confront witnesses against him. In addition to Haras’ confession, the Commonwealth proved through the testimony of three witnesses that *399 Williams had made statements, which the Commonwealth contends linked Williams to the murder and robbery of Griffin.
At the conclusion of the evidence, the trial judge convicted Williams of capital murder, robbery, and using a firearm in the commission of both felonies. Williams contends on appeal that the trial judge committed reversible error by admitting Harris’ confession in evidence and by refusing to provide Harris’ confession to his counsel for review before the judge ruled on its admissibility. In its brief on this rehearing
en banc,
the Commonwealth concedes that the trial judge’s admission of Harris’ confession was error,
see Lilly v. Virginia,
II.
Although Confrontation Clause error is of constitutional magnitude, it is subject to harmless error analysis.
See Delaware v. Van Arsdall,
An “emphasis and perhaps overemphasis, upon the [concept] of ‘overwhelming evidence’ ” has the effect of clouding the relevant question “ Vhether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ ”
Chapman,
Whether such an error is harmless in a particular ease depends upon a host of factors.... These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.
Van Arsdall,
Here we apply a more stringent standard against the government. In a sufficiency analysis we review the evidence to determine whether the government has satisfied the *401 minimum required in order for a reasonable juror to find guilt beyond a reasonable doubt. In performing harmless error analysis, however, the standard cuts more sharply against the government: there must be no reasonable possibility that the unconstitutionally obtained evidence contributed to the conviction.
United States v. Khoury,
Among the verdicts obtained in this case was one finding Williams guilty of capital murder. To support a conviction for capital murder that is predicated upon murder in the commission of robbery,
see
Code § 18.2-31(4), the Commonwealth must prove beyond a reasonable doubt “a killing which takes place before, during, or after the robbery and is so closely related in time, place, and causal connection as to make the killing part of the same criminal enterprise as the robbery.”
George v. Commonwealth,
An application of the
Van Arsdall
factors reveals that the trial judge’s error in admitting Harris’ confession was not harmless beyond a reasonable doubt. Harris’ confession was central to the Commonwealth’s case.
Cf. Timbers v. Commonwealth,
In pertinent part, Harris’ confession recounted the following events:
[M]e and [Williams] met up one night.... He told me that we could do a hit, get some crack, a little bit of money.... I asked him where was it at. He said Park Place. I said no, I’m too hot out here; I been chilling out. I said, do the guys know me? So he was like, no, they don’t know neither one of us. So, we went around to the house, walked up the stairs. I knocked on the door; [Williams] stood on the side.
When the guy opened the door, he had a gun in his hand. [Williams] punched the guy; the gun fell. Both of them went reaching for the gun. I grabbed a bottle and hit the guy in the head. Then [Williams] grabbed the guy. We shut the door; [Williams] grabbed the guy, took him to the back. He told me to look up under the couch and grab the dope and look on the table and grab the scales. So when I was reaching for the scales, I heard a gunshot, one gunshot. And I heard the guy say, please don’t kill me. So then I went up under the couch and found the drugs. That’s when I heard two more gunshots above five seconds later.
Then [Williams] came running out the door. He went straight out the door and I yelled his name. He told me not to yell his name; he kept running across the street. So I ran over there to him, went up in the hallway and he said, we’ll meet ... on the back street and split up everything. So when we got around there on the back street, he counted out ninety some dollars. He said he needed the money for something, like that and told me I could take the high side of the crack and that’s what we did. He told me he’ll sell the scales and give me some money the next day.
*403
Although the Commonwealth produced at trial three witnesses who testified that Williams made statements implicating himself in a killing, we cannot conclude beyond a reasonable doubt that the improperly admitted testimony did not affect the verdict. Indeed, we cannot even conclude that the testimony of those witnesses and the other circumstantial evidence were sufficient, without Harris’ statement, to prove that Williams killed Griffin, that a robbery occurred, or that a robbery bore the essential causal connection to the killing. As to those elements, Harris’ confession was crucial, indeed essential, to the Commonwealth’s case. “There was no physical evidence such as fingerprints ... or human blood evidence to link [Williams to the events that occurred in the apartment].”
Lilly v. Commonwealth,
Harris’ confession was not cumulative of the other evidence the Commonwealth presented at trial. Jesse Keene testified that Williams informed him that he had been “lay[ing] low” because, when Williams and Harris went to the apartment, “the other kid that was there got killed in the process.” Keene further testified as follows:
Q. Did [Williams] tell you anything else about what happened at [the apartment]?
A. Other than that, no.
Q. Did he tell you how the kid that was at [the apartment] got killed?
A. No.
Keene’s testimony clearly is insufficient to prove that Williams shot Griffin or that a robbery occurred. Although the trier of fact arguably might infer from Keene’s testimony that Griffin was shot while Williams and Harris were at the apartment and that either Williams or Harris may have committed the murder, it is impossible to determine from Keene’s testimony who in fact shot Griffin. It is just as likely that Williams was “lay[ing] low” because he was present at the apartment when Harris or someone else shot Griffin (and, *404 therefore, feared being accused of the murder) as that Williams was “lay[ing] low” because he shot Griffin.
Jason Carter testified that while he and Williams were in jail, he overheard Williams tell another prisoner that Williams was in the apartment when Griffin was shot and killed. In pertinent part, he testified as follows:
Q. What did you hear [Williams] say?
A. I heard him say that he went into the house and ... [Griffin] was the only one there, and he went for the gun and he tussled—
Q. Who had the gun originally?
A. [Griffin].
Q. Who went for the gun?
A. [Williams].
Q. Did he say what happened after that?
A. He said he got the gun from him and he was shot.
Q. Who was shot?
A. [Griffin],
Q. Did he say who shot [Griffin]?
A. No. He just say he grabbed the gun from him. I was believing that he had shot him because by the way he was talking.
Q. Did he say why [Griffin] got shot?
A. I guess because he tried to give up the fight.
Q. Did he say why he went to the house where [Griffin] was?
A. No.
Q. Did he say if he went alone or with someone else?
A. It was with someone else.
This testimony does not clearly establish that Williams shot Griffin and clearly fails to prove a robbery occurred. Moreover, because Carter was Griffin’s cousin, and Carter testified to being “close” to Griffin, we cannot conclude that the trier of fact would nonetheless have believed Carter’s testimony, despite his bias, had Harris’ statement been excluded.
*405 Thomas Liggins testified that he met Williams in jail. Liggins admitted to having been convicted of two felonies and of making a false statement. He also testified that other charges were pending against him at the time of Williams’ trial. Admitting further that, in return for his testimony, the Commonwealth agreed to a suspended sentence on his pending felony charge and to other consideration, Liggins testified as follows:
Q. What did [Williams] tell you?
A. That he shot somebody.
Q. Did he tell you where he shot this person?
A. No.
Q. Did he tell you who it was?
A. No.
Q. Did he tell you the circumstances of how he shot this person?
A. No. He just say he ain’t had no mask on, he had to shoot him....
Q. Did he tell you what was happening when he shot the person?
A. No.
Q. Did he tell you whether he was alone or with someone else when he shot this person?
A. He was with someone.
Q. Did he tell you if it was a man or a woman that he shot?
A. He ain’t say.
Q. Did he say whether he did the shooting or the other person did the shooting?
A. He said he did the shooting.
Q. Did he tell you what the other person did?
A. Yeah.
Q. What did he say the other person did?
A. He said he hit him with a bottle.
Q. Did he tell you whether this happened in a house or outside on the street?
*406 A. No, he ain’t say.
Q. Did he tell you about any other crimes besides the shooting?
A. No.
Even if the trier of fact believed Liggins, his testimony established neither that Williams was in the apartment where Griffin was killed nor that a robbery occurred.
Simply put, we cannot conclude beyond a reasonable doubt that, had the trial judge not considered Harris’ confession, he would nonetheless have convicted Williams of the murder of Griffin in the commission of robbery. The effect of Harris’ confession, inculpating Williams, on a trier of fact’s view of the entirety of the evidence .cannot be overstated. When the issue is “the potential for harm caused by the erroneous admission of evidence which tends to support the [fact finder’s] credibility determination^] ... we must presume that such evidence had the potential to influence the [fact finder] into accepting the properly admitted evidence as more credible and, thus, to taint the [fact finder’s] determination of the facts.”
Lilly,
Reversed and remanded.