                               COURT OF APPEALS OF VIRGINIA


Present: Judges Petty, Alston and Senior Judge Coleman
Argued at Alexandria, Virginia


MICHAEL ANGELO LAMBERTI
                                                              MEMORANDUM OPINION * BY
v.     Record No. 2008-10-4                                    JUDGE WILLIAM G. PETTY
                                                                  OCTOBER 11, 2011
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                 Brett A. Kassabian, Judge

                 Paul A. Keats, Assistant Public Defender (Office of the Public
                 Defender, on brief), for appellant.

                 Joshua M. Didlake, Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       Michael Angelo Lamberti was charged with the malicious wounding of Richard Avila. A

jury subsequently convicted Lamberti of the lesser-included offense of unlawful wounding. On

appeal, Lamberti assigns error to the trial court’s decision to refuse to admit the results of a blood

test administered to Avila at the hospital. Lamberti also assigns error to the trial court’s decision

not to allow an expert to testify about the test results. The expert would have testified that

Avila’s blood alcohol content (BAC) of 0.27% indicated that he had consumed twelve alcoholic

beverages. Lamberti argues that the trial court erred when it ruled that the test results were

hearsay not subject to the business record exception. The Commonwealth argues in response

that even if the trial court erred, any error was harmless. For the following reasons, we agree

with the Commonwealth. Therefore, we affirm Lamberti’s conviction.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        Because the parties are fully conversant with the record in this case and this

memorandum opinion carries no precedential value, we recite below only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

this appeal. “On appeal, ‘we review the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).

        In accordance with Code § 8.01-678, we have no authority to reverse a harmless error

made by the trial court. Kirby v. Commonwealth, 50 Va. App. 691, 699, 653 S.E.2d 600, 604

(2007) (noting that Code § 8.01-678 sets forth a “legislative mandate . . . limiting the ad

judicatory power of Virginia appellate courts”). Under that statute, we may not reverse the trial

court for non-constitutional error when “‘it plainly appears from the record and the evidence

given at the trial that the parties have had a fair trial on the merits and substantial justice has been

reached . . . .’” Id. at 698, 653 S.E.2d at 603 (quoting Code § 8.01-678). Here, we are presented

with a non-constitutional error regarding the law of evidence. 1 Such a non-constitutional error is

harmless if it “‘did not influence the jury’” or “‘had but a very slight effect’” on the jury. Id.

(quoting Rose v. Commonwealth, 279 Va. 490, 497, 689 S.E.2d 748, 752 (2005)). Moreover, an

erroneous decision regarding the admissibility of evidence is harmless if the evidence in question

“is merely cumulative of other, properly admitted evidence.” McCary v. Commonwealth, 36

Va. App. 27, 40 n.3, 548 S.E.2d 239, 245 n.3 (2001) (citing Freeman v. Commonwealth, 223 Va.




        1
         At the trial court below, Lamberti merely argued against classifying the test result as
hearsay. He never raised any constitutional objection to the trial court’s decision, nor has he
alleged any constitutional error on appeal. Therefore, we analyze the issue as non-constitutional
harmless error.

                                                 -2-
301, 316, 288 S.E.2d 461, 469 (1982)); see also Charles E. Friend, The Law of Evidence in

Virginia § 1-7(f) (6th ed. 2003).

       Assuming without deciding that the trial court erred when it refused to admit the test

results and refused to allow the expert to testify about those results, we hold that any such error

was harmless. Although Lamberti alleges error from both decisions, we analyze them together,

since their only purpose was to demonstrate that Avila had consumed more alcohol than his

testimony had otherwise indicated. As we explain below, even if that purpose had been fully

realized by the admission of the test results and the expert testimony, it would not have changed

the ultimate factual conclusions drawn by the jury.

       Lamberti sought to introduce the test results and the expert testimony about those results

simply to impeach Avila’s testimony about the incident by demonstrating that Avila was

intoxicated during the incident. However, the evidence already established that Avila was

intoxicated. Avila admitted that he had consumed five to six beers and a shot of liquor between

about 6:00 p.m. and the time of the incident at about 10:00 p.m. Lamberti’s expert testified to

the problems this level of alcohol consumption would have caused, including well-known

problems with perception, memory, behavior, and judgment. As any lay juror would have

recognized—even without the expert testimony—Avila’s consumption of this amount of alcohol

during this period likely affected his memory, perception, behavior, and judgment. Although

Lamberti proffered that his expert would have testified that a BAC of 0.27% is consistent with

the consumption of twelve drinks—not the five or six drinks Avila claimed to have

consumed—we are not persuaded that the precise level of Avila’s intoxication would have

changed the jurors’ perception of the effect the alcohol had on Avila to any appreciable degree.

Lamberti asserts to us that this marginally better indictment of Avila’s credibility could have

caused the jury to discount Avila’s testimony more than it already had (if indeed it had at all),

                                                -3-
but we cannot see how it would have done so. Avila had consumed an excessive amount of

alcohol, and the jury considered that fact to determine his credibility. Thus, whether he

consumed six drinks or twelve drinks does not make a significant difference.

       Moreover, to the extent this difference may have changed the jury’s view of Avila’s

credibility, the jury still would have come to the same factual conclusions regarding what

happened that night. In his argument to this Court, Lamberti overlooks the key testimony of two

disinterested witnesses, both of whom had not consumed any alcohol that night and both of

whom witnessed the incident and confirmed that Avila did not act aggressively toward Lamberti.

Kevin McGillicuddy, the manager of the bar where the incident took place, and Steven Zavosky,

the bar’s bouncer, both provided similar, credible accounts that were largely consistent with

Avila’s account. McGillicuddy and Zavosky both testified that Lamberti was belligerent that

night and that he had gotten into an argument with Darren May, the current boyfriend of

Lamberti’s former girlfriend. After this argument, McGillicuddy asked Lamberti to leave the

bar, and he and Zavosky both escorted Lamberti to Lamberti’s car. Zavosky was so concerned

by Lamberti’s behavior that he double-checked the parking lot to make sure that Lamberti had

actually left. Both Zavosky and McGillicuddy testified that not long thereafter, Lamberti

returned to the bar and began to pound his hands violently on the front window. From there he

yelled profanity-laced threats at May.

       McGillicuddy and Zavosky both went outside to get Lamberti to leave, as did Richard

Avila. Zavosky testified that Avila tried to help diffuse the situation, only to have Lamberti

respond with more profanities. According to McGillicuddy and Zavosky, in a matter of seconds

Lamberti quickly pulled out a knife and thrust it into Avila’s abdomen, concluding the thrust

with a twisting motion. Avila made no threatening movements, and Avila had no weapons in his

possession. Avila did not know Lamberti or May. After Lamberti stabbed Avila, he ran off.

                                               -4-
According to both McGillicuddy and Zavosky, Lamberti was visibly intoxicated that evening.

Whatever effect the admission of the test results would have had on the jury’s assessment of

Avila’s credibility, it had no bearing on the jury’s perception of the convincing, disinterested

testimony of McGillicuddy and Zavosky. The testimony of McGillicuddy and Zavosky verified

Avila’s account, including the fact that Avila did not act in a threatening manner toward

Lamberti.

       Accordingly, we cannot conclude that additional proof of Avila’s alcohol consumption

would have affected the outcome of the trial. Whether Avila consumed six drinks or twelve

drinks is, in this case, a distinction without a difference. In either case, the jury would have most

likely come to the same conclusion—Avila’s perception, memory, and judgment were to some

degree impaired. Moreover, even if the jury had been told that Avila had consumed more

alcohol than he admitted to having consumed, the overwhelming evidence from disinterested and

sober witnesses pointed to Lamberti, not Avila, as the aggressor. Thus, we conclude that the

admission of the test results would not have caused the jury to adopt a different set of facts that

would have changed the outcome of the case. Accordingly, any error by the trial court in

denying the admission of the test results was harmless. Therefore, we affirm Lamberti’s

conviction for unlawful wounding.

                                                                                           Affirmed.




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