Jamal Mahmoudzedeh, s/k/a Jamal Mahmoudzadeh v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Haley and Alston
Argued at Alexandria, Virginia
JAMAL MAHMOUDZEDEH, S/K/A
JAMAL MAHMOUDZADEH
MEMORANDUM OPINION ∗ BY
v. Record No. 2973-07-4 JUDGE JAMES W. HALEY, JR.
JUNE 16, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
W. Mark Dunn (Jennifer J. Flanagin; John A. Boneta & Associates,
on brief), for appellant.
Joanne V. Frye, Assistant Attorney General (Robert F. McDonnell,
Attorney General; Karen Misbach, Assistant Attorney General II, on
brief), for appellee.
I. INTRODUCTION
Appealing his jury convictions for computer solicitation of a minor in violation of Code
§ 18.2-374.3 and attempted indecent liberties with a minor in violation of Code § 18.2-370,
Jamal Mahmoudzedeh argues the trial court erred in precluding him from eliciting testimony
from three witnesses that after Mahmoudzedeh showed them a photograph of the female he
believed he was chatting with on the internet, they told him the female was likely in her
mid-twenties. Mahmoudzedeh contends this testimony would have shown he lacked the
requisite criminal intent. We hold that, assuming without deciding the trial court erred, any error
was harmless since Mahmoudzedeh told the police after his arrest he thought the woman was
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Pursuant to Code § 17.1-413, this opinion is not designated for publication.
fourteen to fifteen years old and the female had advised in email traffic she was thirteen.
Accordingly, we affirm.
II. BACKGROUND
In the fall of 2006, police officer Chris Feltman conducted an undercover investigation of
sexual predators on the internet. He did this by logging into a public internet chat room
identified for romance and, while posing as Brooke Angelo with the screen name
Dreamin2Cheer, waiting for someone to contact him via instant messaging.
Mahmoudzedeh contacted Feltman on November 15, 2006. Feltman told him Angelo
was thirteen years old and living in Arlington, Virginia. Feltman also provided Mahmoudzedeh
photos supposed to represent Angelo. In fact, the photos depicted a female Stafford County
police officer between twenty-eight to thirty years old. During the first discussion and some of
the ensuing chats, Mahmoudzedeh proposed to engage in sexually oriented behavior with
Angelo, aside from actual sexual intercourse. It is unnecessary to repeat the details in this
opinion. We note Mahmoudzedeh was also repeatedly told Angelo was only thirteen years old
during internet conversation and that he acknowledged this in the internet chats.
Mahmoudzedeh requested to meet Angelo in the first chat. He also requested to see her
on November 27 and November 30. Feltman eventually had Angelo agree to meet
Mahmoudzedeh at a pre-determined location and time. When Mahmoudzedeh arrived, he was
arrested.
A grand jury indicted Mahmoudzedeh for computer solicitation of a minor and attempted
indecent liberties with a minor. A jury trial was held on July 30-31, 2007, during which Feltman
testified and the Commonwealth introduced transcripts of the internet chats between Feltman and
Mahmoudzedeh.
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In response, Mahmoudzedeh attempted to have three witnesses testify he showed them a
photo of Angelo, asked how old they believed she was, and that each responded she was in her
mid-twenties. Mahmoudzedeh maintained this would demonstrate his state of mind as lacking a
criminal intent to engage in sexual activity with a minor. However, the Commonwealth objected
that the proposed testimony was irrelevant and hearsay. The trial court held Mahmoudzedeh
could inquire of the witnesses whether he showed them a photo of Angelo and asked how old she
was, but could not ask the witnesses about how they responded. The court held the responses
constituted inadmissible hearsay since “no nexus” existed between the witnesses’ testimony and
Mahmoudzedeh’s “actual state of mind” without prior testimony by Mahmoudzedeh. Yet
Mahmoudzedeh did not wish to testify. Based on the trial court’s ruling, Mahmoudzedeh called
the three witnesses, each of whom confirmed Mahmoudzedeh had shown them a photo and had
inquired about the age of the person depicted in it. Pursuant to the trial court’s instructions,
defense counsel did not elicit how the witnesses responded.
In rebuttal, the Commonwealth recalled Feltman, who testified that after the arrest,
Mahmoudzedeh told him he thought Angelo was fourteen or fifteen years old. This occurred
after Feltman informed Mahmoudzedeh of his Miranda rights and had him sign a form
acknowledging receipt of that information. Feltman also testified that while Mahmoudzedeh is
clearly not a native English language speaker, there were never “any problems during the
interview that were not clarified, nor during any [internet] chats.”
The jury convicted Mahmoudzedeh of both charges. He now appeals the trial court’s
decision to exclude his witnesses’ testimony as to what they told him concerning the probable
age of Angelo.
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III. ANALYSIS
As courts have often stated, a defendant “is entitled to a fair, but not perfect, trial, as there
are no perfect trials.” Blevins v. Commonwealth, 267 Va. 291, 297, 590 S.E.2d 365, 368 (2004).
Where a defendant alleges the trial court erred concerning hearsay testimony, we may assume
without deciding the error occurred, apply a harmless error analysis, and affirm if we conclude
the error was harmless. Adams v. Commonwealth, 275 Va. 260, 277, 657 S.E.2d 87, 97 (2008).
Our Supreme Court has adopted the test of the United States Supreme Court for
determining non-constitutional harmless error. Billips v. Commonwealth, 274 Va. 805, 810, 652
S.E.2d 99, 102 (2007). That test has been stated as follows:
“If, when all is said and done, the conviction is sure that the
error did not influence the jury, or had but slight effect, the verdict
and the judgment should stand . . . . But if one cannot say, with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error, it is impossible to conclude that
substantial rights were not affected. . . . If so, or if one is left in
grave doubt, the conviction cannot stand.”
Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (quoting Kotteakos v.
United States, 328 U.S. 750, 764-65 (1946)). “Under this standard, non-constitutional error is
harmless if other evidence of guilt is so ‘overwhelming’ and the error so insignificant by
comparison that we can conclude the error ‘failed to have any “substantial influence” on the
verdict.’” Schwartz v. Schwartz, 46 Va. App. 145, 159, 616 S.E.2d 59, 66 (2005) (quoting
United States v. Lane, 474 U.S. 438, 450 (1986)).
The Virginia Supreme Court considered harmless error under facts relevant to this case in
Deavers v. Commonwealth, 220 Va. 14, 255 S.E.2d 458 (1979). The prosecution alleged the
defendant, with the help of two accomplices, committed burglary and grand larceny. Id. at 15,
255 S.E.2d at 458. At trial, the court improperly precluded the defendant from questioning one
of the accomplices about whether he had received leniency in exchange for testifying against the
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defendant. Id. at 15-16, 255 S.E.2d at 459. Yet the Court held that given the presence of
statements by the defendant to police whereby the defendant admitted his guilt, the error was
harmless. Id. at 16, 255 S.E.2d at 459.
This Court evaluated another relevant situation in Abney v. Commonwealth, 51 Va. App.
337, 657 S.E.2d 796 (2008). The defendant argued the trial court violated his Confrontation
Clause rights by admitting an autopsy report prepared by a deceased physician and permitting
another physician to testify about the report. Id. at 352-53, 657 S.E.2d at 803-04. The allegedly
improper evidence revealed how the victim, who was the defendant’s wife, died. Id. at 352, 657
S.E.2d at 803. We held any error harmless since the defendant admitted killing his wife; he
simply claimed it was an accident. Id. at 354, 657 S.E.2d at 804. As no dispute existed
concerning the allegedly improper evidence, any error was harmless. Id. at 354-55, 657 S.E.2d
at 804-05.
In this case, a conviction for computer solicitation of a minor under Code
§ 18.2-374.3(B) required the prosecution to prove Mahmoudzedeh acted for “procuring or
promoting the use of a minor for” certain illegal activities. A conviction for attempted indecent
liberties with a minor under Code § 18.2-370 required the Commonwealth to prove
Mahmoudzedeh attempted to commit sexually related acts with a person “under the age of 15
years.”
We conclude that assuming without deciding the trial court erred in precluding
Mahmoudzedeh from inquiring of his three witnesses what they said concerning Brooke
Angelo’s age, any error was harmless since Mahmoudzedeh told the police after his arrest that he
believed Angelo was only fourteen to fifteen years old. Mahmoudzedeh proffered that each
witness would have testified Angelo appeared between twenty-four to twenty-six years old.
Officer Feltman testified that when he interviewed Mahmoudzedeh after the arrest,
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Mahmoudzedeh stated “that he believed that girl to be fourteen or fifteen years old.” While
Officer Feltman conceded it was obvious Mahmoudzedeh was not a native English language
speaker, he also testified he never “encounter[ed] any problems during the interview that were
not clarified, nor during any [prior internet] chats.” This evidence plainly rebutted any inference
that Mahmoudzedeh thought he was pursuing an adult. Furthermore, while Code § 18.2-370
concerns acts with persons under fifteen years old, we have confidence that given
Mahmoudzedeh’s admission that he thought Angelo may have been fourteen, along with the
repeated references during internet chats to Angelo’s age of thirteen, any error did not affect the
jury verdict. Accordingly, any error by the trial court was harmless.
For the foregoing reasons, we affirm the judgment of the trial court.
Affirmed.
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