FROM THE CIRCUIT COURT OF ARLINGTON COUNTY. Benjamin N. A. Kendrick, Judge.
Bobby B. Stafford (Kathryn E. Coward; Raby & Stafford, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff.
MEMORANDUM OPINION [*]
JOHANNA L. FITZPATRICK, JUDGE
Joyce Elaine Chambers (appellant) was tried jointly with Richard Lawrence Randolph (Randolph), and Alice Lavada Coffey (Coffey), and was convicted in a jury trial of grand larceny, credit card theft, and conspiracy to commit a felony. On appeal, she argues that the trial court erred in: (1) denying her motion to sever and (2) limiting her cross-examination of the Commonwealth's witness.  For the reasons that follow, we reverse the convictions.
On the evening of July 24, 1994, Sergeant Kenneth Hutton (Hutton) of the Metropolitan Washington Airport Authority (MWAA) was on pickpocket detail at National Airport. He first observed Randolph, with a green garment bag draped over his shoulder, walking toward the United Airlines section of the airport. In the American Airlines baggage claim area, Hutton saw Randolph approach several people from behind who were waiting to claim their baggage. Randolph stood within inches of each person for a few minutes and then moved on to another person. He never claimed any baggage. Next, he went to the cab stand outside the Northwest Airlines baggage claim area and approached several people in the same manner.
When Randolph left the cab stand, he got into the front passenger seat of a green Mercury automobile driven by appellant and put the green garment bag in the backseat. A few minutes later, Sergeant Alan Pelleranan (Pelleranan), a MWAA officer, saw the car driven by appellant arrive at the U.S. Air terminal with Randolph, Coffey, and Linda Williams (Williams). Appellant, Randolph, and Williams went into the terminal. When Hutton arrived at the terminal, he saw appellant and Randolph exit the terminal and walk over to the shuttle bus stop. Randolph again approached people from behind while appellant stood about fifteen feet away, looking around. Appellant and Randolph returned to the Mercury, which Coffey had parked nearby. Pelleranan apprehended Williams inside the terminal and brought her to the car.
Upon her arrest and after being advised of her Miranda rights, Hutton asked appellant " why she had come to the airport." She answered: " To steal . . . to pick pockets." Hutton wrote in his notes that: " Subject # 3 [appellant] advised us in the interview that on the way over to National Airport from the D.C. Convention Center Subject # 1 [Williams] and Subject # 2 [Randolph] discussed stealing. She further advised us that she knew the reason they were coming to the airport was to steal (pick-pocket)."
Appellant, Randolph, and Coffey were indicted for grand larceny, credit card theft, and conspiracy to commit a felony, and were scheduled to be tried jointly. Prior to trial, Randolph and Coffey objected to the admission of appellant's statement, and all three codefendants requested to be tried separately. The court denied the motions.
On the morning of trial, when the codefendants renewed their motions to sever, the Commonwealth suggested redacting appellant's statement from " we came to steal" to " I came to steal." (Emphasis added). Appellant objected to the redaction and argued that it would negate the conspiracy theory, and that it was prejudicial to her because it gave the other defendants " a license to dump it on her to exonerate" themselves. The trial court ruled that " the motion to sever is denied. The 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."
During the joint trial, codefendant Randolph requested a limiting instruction that would direct the jury to consider the statement only in reference to appellant. The Commonwealth argued that the statement required no such instruction, because it was admissible as a declaration against penal interest. In response, appellant asserted that redacting her statement would be " tantamount to instructing the jury that she is saying that, I came over here to steal." Appellant also contended that the redaction would make cross-examination more difficult because she would not be able to " cross-examine on the 'we, ' the context, who was there, who is included in the statement and so forth." The court held that the statement was " admissible if it's redacted to 'I came to steal.'"
At trial, Hutton testified that appellant told him that she came to the airport " to steal . . . to pick pockets." During cross-examination, appellant questioned Hutton about his written notes, and Hutton admitted that his testimony regarding appellant's confession was not an exact quote. Appellant then asked Hutton: " Isn't it correct that your summary of that statement suggests that they came over here to steal?" (Emphasis added). The trial court sustained codefendant Coffey's objection, and required appellant to question Hutton further regarding his report out of the presence of the jury. Hutton testified that although he wrote " they, " appellant actually used the word " we." The court ruled that appellant could not introduce the reference to " they" because of " the authority [appellant's counsel] relied on [ Berger v. Commonwealth, 217 Va. 332, 228 S.E.2d 559 (1976)]." Appellant argued that she was " not saying in that statement that she came over here to steal, " but " that others came over here to steal." (Emphasis added). In response to Randolph's objection to " anybody asking any question about any of the details of that statement, " the court told appellant's counsel that he would not be allowed to ask questions regarding the written statement as reflected in Hutton's report, and if he did, he would be held in contempt. The court directed:
We spent hours talking about this and [appellant's counsel] asked the question anyway. . . . I am telling [appellant's counsel] in no uncertain terms that if [he] [tries] to deliberately cause a mistrial on areas that [he] knows [he] should not ask, [he] will be held in ...