Corado v. Com.

• Decision Date: 28 December 2005
• Docket Number: Record No. 1982-04-4.
• Citation: 623 S.E.2d 452,47 Va. App. 315
• Court: Virginia Supreme Court
• Parties: Salvadore M. CORADO, s/k/a Salvador Mauricio Corado v. COMMONWEALTH of Virginia.

623 S.E.2d 452

47 Va. App. 315

Salvadore M. CORADO, s/k/a Salvador Mauricio Corado v. COMMONWEALTH of Virginia.

Record No. 1982-04-4.

Court of Appeals of Virginia, Alexandria.

December 28, 2005.

COPYRIGHT MATERIAL OMITTED

Mark S. Thrash for appellant.

Stephen R. McCullough, Assistant Attorney General (Judith Williams Jadgmann, Attorney General, on brief), for appellee.

Present: Judge CLEMENTS, WILLIS and ANNUNZIATA, S.J.

ANNUNZIATA, Judge.

Salvadore Corado appeals his convictions for lynching, criminal street gang participation, and being a member of a mob that maliciously caused bodily injury by means of a caustic substance.¹ He contends that the trial court erred: (1) by admitting transcripts of grand jury testimony provided by his codefendants; (2) by instructing the jury on the charge of lynching; (3) by admitting the testimony of expert witnesses on gang culture and gang interaction; and (4) by admitting the prior convictions of two codefendants to prove that Corado was a member of a criminal street gang. He also contends that the evidence was insufficient to prove that a caustic substance was used. For the foregoing reasons, we affirm his convictions.

I. Background

We view the evidence and all reasonable inferences flowing from the evidence in a light most favorable to the Commonwealth as the party prevailing below. Garcia v. Commonwealth, 40 Va.App. 184, 189, 578 S.E.2d 97, 99 (2003). So viewed, the evidence establishes that a fight between the South Side Locos gang (SSL) and the Mara Salvatrucha gang (MS-13) broke out during a "sweet fifteen" party at an EconoLodge Hotel in Arlington, Virginia in 2003. The evidence further proved that Corado, Eber "Lalo" Rodriguez, Anthony Paz-Ortiz, Simon Flores-Siliezar, and Victor Menjivar were members of the SSL gang and that they went uninvited and armed to the hotel anticipating a fight with MS-13 members who were already present. During the fight that ensued, Rodriguez stabbed and killed Cesar Rios Garcia, Flores-Siliezar sprayed pepper spray into the crowd as SSL members left the hotel, and Corado brandished and pointed a BB gun to ward off attacking MS-13 members.

II. Admission of Grand Jury Transcripts

Corado contends that the trial court erred in admitting transcripts of the grand jury testimony of codefendants Anthony Paz-Ortiz and Victor Menjivar. Corado confines his claim of reversible error to the charge of lynching under Code § 18.2-39. We limit our analysis accordingly.

To sustain a conviction under the lynching statute, the Commonwealth was required to prove Corado's membership in a mob, defined by Code § 18.2-38 as:

Any collection of people, assembled for the purpose and with the intention of committing an assault or a battery upon any person or an act of violence as defined in § 19.2-297.1, without authority of law, shall be deemed a "mob."

The Commonwealth sought to establish Corado's membership in a mob by proving that SSL was a "collection of people, assembled for the purpose and with the intention of committing an assault and battery on any person . . ." and that Corado was a member of and a leader in the SSL gang.

Corado's argument centers on the following portions of the grand jury transcripts: (1) the admission by Paz-Ortiz and Menjivar that they were members of the SSL gang, and (2) their admission they anticipated a fight with MS-13 before they went to the EconoLodge. The former admissions tended to establish the existence of a "collection of people"; the latter tended to prove the intent with which the "collection of people" was formed. With respect to the group's collective intent, Paz-Ortiz responded in the affirmative to the question, "[Y]ou went there expecting that there was going to be a fight?" He stated, "Oh, yes. For me, yes. I was afraid to go because they were there." He further agreed that, were MS-13 and SSL to meet, "there's probably going to be a fight." Menjivar's grand jury testimony established that he had received a phone call informing him that MS-13 members were at the EconoLodge. He acknowledged that "[I]t was very possible there would be a fight," when the SSL went to the EconoLodge, and he conceded knowing that an MS-13 member named "Diablo" would be there; he stated that Diablo, one of his main rivals, "hated me and wanted to kill me."

Corado's argument is rooted in his Sixth Amendment right to confrontation, which he contends was violated because neither Paz-Ortiz nor Menjivar was available at his trial and because he did not have an opportunity to cross-examine them. Corado relies on the Supreme Court's recent decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), to support his contention that the Sixth Amendment bars the admission of such "testimonial hearsay."

The Commonwealth concedes that their grand jury testimony falls within Crawford's definition of testimonial hearsay and should have been excluded from evidence, but contends the error was harmless beyond a reasonable doubt. The Commonwealth also argues that the issue is procedurally defaulted because Corado failed to preserve his objection in the trial court for appeal.

We assume, without deciding, that the Sixth Amendment issue was preserved, and hold that the admission of the grand jury transcripts was harmless error beyond a reasonable doubt. We begin our analysis by reiterating the heightened standard under which we review constitutional error for harmlessness.

"When a trial court admits evidence in violation of the United States Constitution, the court's error is a constitutional one." Williams v. Commonwealth, 30 Va.App. 378, 383, 517 S.E.2d 246, 249 (1999) (citing Jenkins v. Commonwealth, 254 Va. 333, 336, 492 S.E.2d 131, 132 (1997)). "Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id. (internal quotations and citations omitted). "We decide whether the erroneous admission of evidence was sufficiently prejudicial to require reversal on the basis of our own reading of the record and on what seems to us to have been the probable impact on the fact finder." Id. at 384, 517 S.E.2d 246, 249 (internal quotations and citations omitted).

Green v. Commonwealth, 32 Va.App. 438, 446, 528 S.E.2d 187, 191 (2000). "An error is harmless only when it plainly appears from the record and the evidence that the error has not affected the verdict. Whether an error does not affect the verdict must be determined `without usurping the jury's fact finding function.'" Hooker v. Commonwealth, 14 Va.App. 454, 457, 418 S.E.2d 343, 345 (1992) (citations omitted).

First, our review of the record indicates that Corado's membership in "a collection of people," known as the SSL gang was never seriously contested. Numerous pieces of evidence connected Corado, Paz-Ortiz, Menjivar, Rodriguez, Majano, and Flores-Siliezar with one another and with their participation in SSL. A search of Corado's residence yielded evidence that Corado had written "SSL" in black magic marker on a brick wall. A wooden plaque inscribed with the words "SSL" was found on the premises. A search of Corado's computer revealed an SSL website. The Commonwealth introduced a photo of Rodriguez, Menjivar, and Corado forming the initials SSL with their hands. Detective Rodriguez testified Paz-Ortiz was a member of SSL and he had seen Paz-Ortiz associating with Corado, Majano, and Menjivar. Detective Rodriguez also identified Rodriguez, Majano, and Menjivar as gang members, and similarly testified that they were SSL members who associated with Corado and Paz-Ortiz.

Second, the evidence was overwhelming and, with the exception of Corado's testimony, unrebutted that the SSL gang came to the EconoLodge anticipating a fight with MS-13 gang members. Marisela Mijango, a former member of the SSL who once dated Corado and who knew many of the SSL gang members, had informed SSL members of the MS-13 presence there. She testified that she telephoned Eber Rodriguez and described the threatening encounter she had had with MS-13 members. She specifically informed him that six or seven men, wearing the MS-13 colors and bandanas covering their faces, arrived at the EconoLodge, "cursing," and saying, "Where the fuck is Southside at?" "Where the fuck them niggas at?" So informed, the SSL members came to the hotel together, asking if the "niggas [MS-13 gang members]" were still there. Thomas Bolanos, one of the Commonwealth's witnesses present at the party, heard an SSL member say, "They were getting ready to see what's up," which he understood to mean, "to go see if the other group wanted to fight." As the SSL members proceeded upstairs at the hotel, Bolanos and Romero, another witness who was present, heard them shouting "Fuck MS," signaling their awareness of the presence of MS-13 members and underscoring the hostility between the two gangs. The SSL gang was also heard shouting, "South Side Locos." The witnesses' testimony, in the aggregate, viewed together with evidence that SSL members came armed with pepper spray, a knife, a baseball bat, and a BB gun, leads to the inescapable conclusion that SSL came to the EconoLodge with the intent to fight with MS-13 members.

Third, and finally, Corado himself admitted on cross-examination that he was a member of SSL, that he was at the EconoLodge on the night of the murder, having arrived with the other SSL members, and that he went upstairs anticipating a fight with MS-13 members. He then participated in the brawl that ensued and brandished a BB gun to fend off MS-13 members.

We conclude that, even in the absence of Menjivar's and Paz-Ortiz's grand jury testimony, the jury would have convicted Corado of lynching as defined by Code §§ 18.2-38 and 18.2-39. See also infra Part II. Corado was, beyond any reasonable doubt, a member of a mob that had formed the collective intent to commit an assault and battery upon MS-13 members,...