COURT OF APPEALS OF VIRGINIA

Present: Judges McClanahan, Petty and Senior Judge Annunziata Argued by teleconference

HENH CHU NGO MEMORANDUM OPINION * BY v. Record No. 1671-06-4 JUDGE ROSEMARIE ANNUNZIATA JUNE 17, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Jane Marum Roush, Judge Jonathan Shapiro (Peter D. Greenspun; Greenspun, Shapiro, Davis and Leary, P.C., on briefs), for appellant. Joshua M. Didlake, Assistan t Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Henh Chu Ngo appeals his convictions for firs t-degree murder and use of a firearm in the commission of a felony. He argues the trial c ourt erred in admitting into evidence out-of-court statements made by Phuc Nguyen (“Phuc”) and Ho an Minh Le (“Le”) to Officer Cooper and to Detective Allen. The Commonwealth concedes error, but argues the error was harmless. We agree with the Commonwealth and affirm.
BACKGROUND Phuc, Le, and the murder victim, Ngoc Quy Doan Nguyen (“Quy”), left a pool hall and were approached by two men who asked them if they were members of a certain gang. Phuc denied any such membership.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - Phuc, Le, and Quy got into Quy’s car and were about to drive away when Quy returned to the pool hall to retrieve an item. While Q uy was inside the pool hall, a man approached the car and asked Phuc to lower the window. Phuc refused because he saw that the man’s right hand was under his jacket. The man walked to the front of the car and, as Quy re turned to the car, the man again asked Quy about his membership in the gang. Phuc was unable to hear Quy’s response, but immediately hearing gunshots, Phuc ducked inside the car. The shooter then fired twice into the car’s windshield. The police arrived at the scene within minutes of the shooting where Le told Detective Ellis that appellant was the shooter. Phuc also identified appellant as the shooter when he spoke with Officer Cooper at the police station. Phuc testified and identified appellant as the shooter. Over appellant’s objection, Officer Cooper testified that Phuc provided little informati on at the scene, but at the police station Phuc told him appellant was the shooter. Le testif ied that as Quy walked to the car, appellant approached Quy and appellant shot him. Det ective Ellis testified, without objection, that he spoke to Phuc at the scene and Phuc identified appellant as the shooter. 1 Detective Allen testified that he prepared a photo lineup and that Phuc and Le separately identified appellant as the shooter. Over appellant’s obje ction, Detective Allen testified Le told him that appellant shot Quy.

1 At oral argument, a ppellant conceded he failed to obj ect to Detectiv e Ellis’ testimony, but contended it would have been futile given the court’s earlier ruling. Ho wever, the futility of presenting an objection cannot al one constitute cause for a fa ilure to object at trial. See Snurkowski v. Commonwealth , 2 Va. App. 532, 536, 348 S.E.2d 1, 3 (1986) (discussing the good cause exception to Rule 5A:18).- 3 - or

ss. ANALYSIS The Commonwealth concedes the trial cour t erred in admitting th e hearsay testimony by Officer Cooper and Detective Allen. Therefore, th e issue before the Court is whether the err was harmle In Virginia, non-constitutiona l error is harmless “[w]hen it plainly appears from the record and the evidence given at the trial that th e parties have had a fair trial on the merits and substantial justice has been reached.” Code § 8.01-678. “[A] fair trial on the merits and substantial justice” are not achieved if an error at trial has a ffected 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 did not aff ect the verdict. An error does not affect a verdict if a reviewing c ourt 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). In other words: An error is harmless (1) if “other evidence of guilt is ‘so overwhelming and the error so insignificant by comparison that the error could not have affected th e verdict,’” or, “even if the evidence of the defendant’s guilt is not overwhelming, [(2)] if the evidence admitted in error was merely cumulative of other, undisputed evidence.” McLean v. Commonwealth , 32 Va. App. 200, 211, 527 S.E.2d 443, 448-49 (2000) (quoting Ferguson v. Commonwealth , 16 Va. App. 9, 12, 427 S.E.2d 442, 444-45 (1993)). In making this decision with respec t to non-constitutional error, the level of confidence used by a re viewing court is not “beyond a reasonable doubt.” It is, instea d, whether “it plainly appears from the record and the evidence given at trial,” a more absolute measure and one more suitable for application to questions of law. Lavinder , 12 Va. App. at 1006, 407 S.E.2d at 911. “The effect of an error on a verdict varies widely ‘depending upon the circumstances of the cas e.’ Each case must, therefore, be analyzed- 4 - individually to determine if an error has affected the verdict.” Id. at 1009, 407 S.E.2d at 913 (citation omitted). Since no forensic evidence linked appellant to the murder and Phuc and Le, the only eyewitnesses to identify appellant as the shooter, were frie nds of Quy and me mbers of a rival

gang, 2 it cannot be said that the evidence of guilt was overwhelming. Thus, in order for us to conclude the error was harmless, the evidence ad mitted in error must be found to be merely cumulative of other, undisputed evidence. Here, Phuc and Le testified without objection that appellant was the shooter in this case. Detective Allen’s testimony that they identified appellant as the shooter in a photo lineup was also adm itted without objection, as was Detective Ellis’s testimony that Le told him appellant was the shoote r. It follows that th e detectives’ challenged hearsay statements that Phuc and Le identified appellant as the shooter were merely cumulative of other undisputed evidence. 3 Thus, any error in the admission of the evid ence was harmless. Accordingly, appellant’s convictions for first-degree murder and use of a firearm in the commission of a felony are affirmed. Affirmed.

2 The Commonwealth stipulated that Phuc, Le, and Quy were members of a street gang and argued that the killing was motivated by gang ri valries and in retaliation for an earlier attack on appellant.

3 Appellant argues that the admission of the hearsay statements was not harmless because the jury deliberated for more than five hours and recommended a minimal sentence of twenty-three years for the first-degree murder conviction, despite the identification testimony by Phuc and Le. This argument is without merit. Where credible evidence supports the jury’s verdict an appellate court will not speculate on the jury’s reasoning. See Harris v. Commonwealth , 19 Va. App. 518, 522, 452 S.E.2d 292, 295 (1995).