Jorge Roberto Aguilar v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia
JORGE ROBERTO AGUILAR
MEMORANDUM OPINION* BY
v. 	Record No. 2375-98-4 	JUDGE JAMES W. BENTON, JR.
DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge
John C. Kiyonaga (Kiyonaga & Kiyonaga, on
briefs), for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
The trial judge convicted Jorge Roberto Aguilar of two counts
of malicious wounding by mob in violation of Code § 18.2-41.
Aguilar contends that the judge erred (1) in admitting as evidence
the statement of a non-testifying codefendant and (2) in allowing
a witness to testify from an unauthenticated document created by
another person. 	For the reasons that follow, we reverse the
convictions and remand for a new trial.
I.
The Commonwealth's evidence proved that Jorge Roberto
Aguilar, who is associated with a street gang, and several members

of that street gang fought Selden Najera and Alfie Bacchus, who
are associated with an opposing street gang. 	During the fight,
someone stabbed Najera and Bacchus with a knife. 	Through the
testimony of several associates of Najera's gang, the Commonwealth
proved that Aguilar stabbed Najera and Bacchus.
During the Commonwealth's case-in-chief, a detective
testified and related the details of a statement made by a
non-testifying codefendant, Robin Meadows, implicating Aguilar in
the stabbing incident. 	The trial judge overruled Aguilar's
objection that the testimony was in violation of his right to
confront the witness. 	According to Meadows' statement, she
transported Aguilar and other gang members to the restaurant to
fight the other gang in retaliation for damage done to her
apartment. 	In her statement, she said Aguilar had a knife in her
car that was involved in the fight.
II.
On brief, the Commonwealth concedes that "the United States
Supreme Court has . . . ruled the hearsay exception upon which the
trial [judge] admitted the statements violates the confrontation
clause" of the constitution. 	See Lilly v. Virginia, 119 S. Ct.
1887 (1999). 	The Commonwealth contends, however, that the error
was harmless. 	We conclude that it was not.
Confrontation Clause error is a constitutional error that is
subject to harmless error analysis. 	See Delaware v. Van Arsdall,
475 U.S. 673, 684 (1986). 	Constitutional error is harmless,
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however, only if "the beneficiary of the constitutional error
. . . prove[s] beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained." 	Chapman v.
California, 386 U.S. 18, 24 (1967). 	As the Supreme Court has
stated, "the correct inquiry is whether, assuming that the
damaging potential of the [evidence] were fully realized, a
reviewing court might nonetheless say that the error was harmless
beyond a reasonable doubt." 	Van Arsdall, 475 U.S. at 684; see
also Olden v. Kentucky, 488 U.S. 227, 232 (1988).
"[A] harmless error analysis . . . [is not] simply a
sufficiency of the evidence analysis." 	Hooker v. Commonwealth, 14
Va. App. 454, 458, 418 S.E.2d 343, 345 (1992). 	Even if "the other
evidence amply supports the . . . verdicts, [error is not harmless
when] the disputed testimony may well have affected the . . .
decision." 	Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d
784, 786 (1978). 	Indeed, an "emphasis and perhaps overemphasis,
upon the [concept] of 'overwhelming evidence,'" has the effect of
clouding the relevant question "'whether there is a reasonable
possibility that the evidence complained of might have contributed
to the conviction.'" 	Chapman, 386 U.S. at 23 (footnote and
citations omitted). 	Applying this standard, we hold that the
error was not harmless.
The evidence proved that the fight was between members and
associates of rival gangs. 	The evidence also proved that other
persons in the fight may have also been armed with another knife
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or screwdriver. 	Neither Bacchus nor Najera saw the person who
stabbed them.
Three of the Commonwealth's witnesses were associates of the
gang hostile to the gang with which Aguilar was affiliated. 	The
other eyewitness who testified for the Commonwealth denied being a
member of the gang; however, she admitted that before the fight
she was with Najera and Bacchus. 	She believed Aguilar was named
"Jose Damingas" and testified that Damingas "had a problem . . .
with [her] other friend." 	Thus, all of the eyewitnesses who said
Aguilar had a knife during the fight had a gang connection or bias
that rendered them antagonistic to Aguilar.
Aguilar testified that he did not have a knife during the
fight, and, thus, contradicted the testimony of the opposing gang
members. 	The evidence also proved that Aguilar previously had
given a statement to the police denying he had a knife during the
fight.
By proving Meadows' statement that Aguilar had a knife, the
prosecutor provided evidence that enhanced the credibility of the
opposing gang members. 	At the time of the event, Meadows was
affiliated with the same gang members as Aguilar. 	Her statement
had the tendency to add force to the Commonwealth's case because
she was a witness who had no apparent hostility toward Aguilar.
"[A]ssuming that the damaging potential of [Meadows'
statement was] realized," Van Arsdall, 475 U.S. at 684, it was
significant because the statement provided a version of the
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critical event consistent with the testimony of opposing gang
members whose credibility might otherwise be questioned. 	Given
the degree of antagonism between the Commonwealth's witnesses and
Aguilar, we cannot conclude beyond a reasonable doubt that
Meadows' statement did not sway the trier of fact in giving added
credence to the Commonwealth's witnesses. 	Because the disputed
evidence may have affected the verdict, we hold that the evidence
was not harmless.
III.
Aguilar also contends that the detective testified from
another officer's notes as to matters the detective did not
remember. 	The Commonwealth counters that the objection which was
made at the conclusion of the detective's testimony came too late.
Because we conclude that this matter, if it arises again, will not
occur in the same context, we do not address the claim.
For the reason stated above, we hold that a violation of the
confrontation clause occurred and that the error was not harmless.
Accordingly, we reverse the convictions and remand for a new
trial.
Reversed and remanded.
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