Brooks v. Com.

• Decision Date: 19 December 2006
• Docket Number: Record No. 2195-05-1.
• Citation: 49 Va. App. 155,638 S.E.2d 131
• Parties: Kellup Lamonte BROOKS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

638 S.E.2d 131

49 Va. App. 155

Kellup Lamonte BROOKS v. COMMONWEALTH of Virginia.

Record No. 2195-05-1.

Court of Appeals of Virginia, Chesapeake.

December 19, 2006.

Charles E. Jenkins, II, Norfolk, for appellant.

Leah A. Darron, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General; Karri B. Atwood, Assistant Attorney General, on brief), for appellee.

Present: ELDER, FRANK and HALEY, JJ.

LARRY G. ELDER, Judge.

Kellup Lamonte Brooks (appellant) appeals from his jury trial conviction for possession of cocaine with intent to distribute. On appeal, he contends the trial court erred in admitting the certificates of analysis establishing that some of the substances seized at the time of his arrest on an unrelated offense were cocaine. He argues the certificates contained hearsay considered testimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and, thus, that admitting them without having the forensic analyst present to testify, although permitted by Code § 19.2-187 as an exception to state hearsay rules, violated his Confrontation Clause rights. Assuming without deciding the certificates contained information considered testimonial under Crawford, we hold the procedure in Code §§ 19.2-187 and 19.2-187.1 adequately protects a defendant's Confrontation Clause rights.¹ Thus, we affirm appellant's conviction.

I. BACKGROUND

On June 16, 2004, narcotics investigators arrested appellant in a motel room in which they found several different quantities of suspected cocaine, cash, and paraphernalia associated with drug distribution. Appellant was charged, inter alia, with possession of cocaine with intent to distribute. Appellant was indicted for that offense on September 1, 2004.

On September 21, 2004, more than seven days prior to trial, as required by the hearsay exception provision of Code § 19.2-187, the Commonwealth filed certificates of analysis confirming that several of the items seized were cocaine or contained cocaine or heroin residue. By letter of October 22, 2004, in response to appellant's motion for discovery and with a copy of the letter to the court, the Commonwealth provided appellant's counsel with copies of those certificates of analysis, expressly indicating they were being "provided in accordance with the Code of Virginia § 19.2-187."

At trial on August 24, 2005, appellant moved to exclude the certificates of laboratory analysis of the drugs,² claiming that the Commonwealth's failure to call the forensic scientist who tested the substances denied him his constitutional right to confrontation under Crawford. The Commonwealth responded that Code § 19.2-187.1 provides a mechanism giving a defendant "the right to call the person performing such analysis ... at the cost of the Commonwealth" but that appellant had not notified the Commonwealth he had an objection to admitting the certificates in the absence of the scientist. The Commonwealth averred that "if defense counsel had told me specifically he had any objection ..., I would have ensured [the analyst's] presence here today; and if [the analyst was] unable to be here, ... I would have requested a continuance." The Commonwealth argued that the provision of Code § 19.2-187.1 allowing a defendant to assert his right of confrontation in a particular manner prevented it from running afoul of Crawford. Appellant argued "the fact that [he] could have subpoenaed somebody because the code allows it doesn't really answer the math because that's shifting the burden of proof to the defendant."

The court denied the motion on two grounds. It reasoned first that Code § 19.2-187.1

provides for a right to call a person who conducted an examination to have them present, if the defense so desires. It does not shift the burden of proof. What it is, is a procedural provision that simply requires that a party do something in a timely manner.

There is no violation of the Confrontation Clause to require a defendant to do something or raise an issue [or] objection in advance of trial because you are balancing the defendant's right to challenge evidence against the right of the public, in effect, to have an efficiently run court system that's not bogged down by late requests and objections to evidence that, for example, leaves a jury sitting in a jury room for 35 minutes or more past lunch because we are resolving something that really should have been resolved in advance of trial, if there was any real meat to the objection ... All you have to do is say, you know, I want these people present for this trial, and the Commonwealth would have been forced to [have them present]. And as [the prosecutor] has said, if [you had made such a request in this case], he would have been forced to request a continuance .... [T]hen if the Court had granted that request for a continuance, the question of whether or not a speedy trial violation would occur and your objection [could have been addressed]. All those procedural rights and everything would be protected. The confrontation clause [rights] would be protected....

The court also concluded that Crawford was inapplicable because it did not cover non-testimonial hearsay and the court found that reports of scientific examination such as the certificates of drug analysis were non-testimonial.

At trial, the certificates of analysis were admitted as part of the Commonwealth's evidence. The jury convicted appellant for possession of cocaine with intent to distribute, and he noted this appeal.

II. ANALYSIS

The Confrontation Clause of the United States Constitution provides that, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. This "procedural guarantee" also "applies to state prosecutions." Michels v. Commonwealth, 47 Va.App. 461, 466, 624 S.E.2d 675, 678 (2006). In its 2004 decision in Crawford, the United States Supreme Court clarified the test for "determining whether the admission of hearsay," an out-of-court statement offered to prove the truth of the matter asserted, "violates the accused's right[s] under the Confrontation Clause." Horton v. Allen, 370 F.3d 75, 83 (1st Cir.2004). "[W]hen the declarant appears for cross-examination at trial," stated the Court, "the Confrontation Clause places no constraints at all on the use of his prior ... statements." Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. at 1369 n. 9, 158 L.Ed.2d at 197 n. 9. However, if the declarant does not appear for trial and the statement is "testimonial" in nature, "the Sixth Amendment demands what the common law required: [proof of the] unavailability [of the declarant] and a prior opportunity for cross-examination." Id. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203.

Appellant avers the trial court erred in admitting the certificates of analysis establishing that the substances seized were cocaine, contending the certificates contained hearsay considered testimonial under Crawford and, thus, that admitting them without having the forensic analyst present to testify, although permitted by Code § 19.2-187 as an exception to state hearsay rules, violated his Confrontation Clause rights. Assuming without deciding the certificates contained information considered testimonial under Crawford, we hold the procedure in Code §§ 19.2-187 and 19.2-187.1 adequately protects a defendant's Confrontation Clause rights.

The applicable version of Code § 19.2-187 provides in relevant part as follows:

In any hearing or trial of any criminal offense ..., a certificate of analysis of a person performing an analysis or examination, performed [in any of several specified laboratories] when such certificate is duly attested by such person, shall be admissible in evidence as evidence of the facts therein stated and the results of the analysis or examination referred to therein, provided (i) the certificate of analysis is filed with the clerk of the court hearing the case at least seven days prior to the hearing or trial and (ii) a copy of such certificate is [provided to counsel of record for the accused upon request made in the manner prescribed by the statute].

2005 Va. Acts, chs. 868, 881.

Code § 19.2-187.1 provides that, "in any hearing or trial in which a certificate of analysis is admitted into evidence pursuant to § 19.2-187," the accused "shall have the right to call the person performing such analysis or examination ... as a witness therein, and examine him in the same manner as if he had been called as an adverse witness." That code section further provides that "[s]uch witness shall be summoned and appear at the cost of the Commonwealth." Code § 19.2-187.1. Manifestly, in order to compel the attendance of a witness at trial via the court's subpoena power, a subpoena for that witness must be issued and served in advance of trial.³

Here, because appellant failed to notify the Commonwealth or the trial court of his desire to confront the preparer of the certificates of drug analysis until the day of trial, appellant failed properly to avail himself of the protections of Code § 19.2-187.1. We hold, as have other courts interpreting similar statutes, that this failure constituted a simultaneous waiver of any right he may have had under the Confrontation Clause to cross-examine the preparer of the certificates.

The right of an accused to confront and cross-examine is "`not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.'" Baugh v. Commonwealth, 14 Va. App. 368, 371, 417 S.E.2d 891, 893 (1992) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297, 309 (1973)). "It has [also] long been recognized that a defendant may voluntarily waive the right to confront[ation]...." State v. Cunningham, 903 So.2d 1110, 1120 (La.2005) (citing Diaz v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 252, 56 L.Ed. 500, 503 (1912)).

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