7 Va. App. By definition, when the trial court makes an error of law, an abuse of discretion occurs. The Commonwealth concedes that the trial court erred in admitting Brown's statement. No argument is made that such circumstances are present here. Although Confrontation Clause error is of constitutional magnitude, it is subject to harmless error analysis.
Constitutional error is harmless . . .
The test, therefore, is not whether laying aside the erroneously admitted evidence there was other evidence sufficient to convict beyond a reasonable doubt . . . Malice, an essential element of all grades of murder, distinguishes murder from manslaughter. To sustain a conviction for attempted murder, the evidence must establish a specific intent to kill the victim, as well as an overt but ineffectual act committed in furtherance of this criminal purpose. Finally, to convict an accused of violating Code 18.2-53.1, the Commonwealth must prove that the accused actually had a firearm in his possession and that he used or attempted to use the firearm, or displayed the firearm in a threatening manner, while committing or attempting to commit one of the specified felonies, which include murder. Here, it is clear that Brown's statement was not important to the Commonwealth's case.