Cypress v. Commonwealth Of Va.Mark A. Briscoe

• Decision Date: 16 September 2010
• Docket Number: Record No. 070815,070817.
• Citation: 699 S.E.2d 206,280 Va. 305
• Parties: Sheldon A. CYPRESSv.COMMONWEALTH of Virginia.Mark A. Briscoev.Commonwealth of Virginia.
• Court: Virginia Supreme Court

280 Va. 305

699 S.E.2d 206

Sheldon A. CYPRESS

v.COMMONWEALTH of Virginia.

Mark A. Briscoe

v.Commonwealth of Virginia.

Record Nos. 070815, 070817.

Supreme Court of Virginia.

Sept. 16, 2010.

Charles B. Lustig (Thomas B. Shuttleworth; Shuttleworth, Ruloff, Swain, Haddad & Morecock, on brief), Virginia Beach, for appellant Sheldon A. Cypress.

Joseph D. King (King & Campbell, on brief), for appellant Mark A. Briscoe.

Alice T. Armstrong, Assistant Attorney General II; Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General; Stephen R. McCullough, Senior Appellate Counsel, on briefs), for appellee.

Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, and MILLETTE, JJ., and RUSSELL and LACY, S.JJ.

Opinion by Justice CYNTHIA D. KINSER.

These two appeals are before this Court on remand from the Supreme Court of the United States. In a per curiam opinion, the Supreme Court vacated this Court's judgment in Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d 113 (2008), and remanded the cases for further proceedings “not inconsistent with the opinion” in Melendez-Diaz v. Massachusetts, 557 U.S. ----, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). Briscoe v. Virginia, 559 U.S. ----, ----, 130 S.Ct. 1316, 1316, --- L.Ed.2d ----, ---- (2010). The specific legal question we decide on remand is a narrow one: in light of the decision in Melendez-Diaz, did the admission into evidence of certificates of analysis pursuant to former Code §§ 19.2-187 and -187.1 violate rights secured by the Confrontation Clause? We conclude that it did.

PROCEDURAL HISTORY

In Magruder, this Court affirmed the judgments of the Court of Appeals of Virginia upholding the respective convictions of the defendants, Sheldon A. Cypress and Mark A. Briscoe.¹ 275 Va. at 309, 657 S.E.2d at 127. Cypress had been convicted in the Circuit Court of the City of Chesapeake for possession of cocaine with the intent to distribute, second or subsequent offense, in violation of Code § 18.2-248(C). Id. at 291, 657 S.E.2d at 116. Briscoe had been convicted in the Circuit Court of the City of Alexandria for possession with the intent to distribute cocaine, in violation of Code § 18.2-248(C), and unlawful transportation of cocaine into the Commonwealth with the intent to distribute, in violation of Code § 18.2-248.01. Id. at 293, 657 S.E.2d at 117.

In each trial, the Commonwealth introduced, over the respective defendant's objection, a certificate of analysis pursuant to former Code § 19.2-187. ² Id. at 291, 293, 657 S.E.2d at 116, 117. That statute provided that a certificate of analysis was admissible at trial as evidence of the facts stated therein and the results of the analysis if the certificate was duly attested by the person performing the analysis and was filed with the clerk of the trial court at least seven days before trial. Former Code § 19.2-187 (2008). Pursuant to former Code § 19.2-187.1, an accused, however, had the right to call the person performing the analysis as an adverse witness. Former Code § 19.2-187.1 specifically stated:

The accused in any hearing or trial in which a certificate of analysis is admitted into evidence ... shall have the right to call the person performing such analysis or examination or involved in the chain of custody as a witness therein, and

examine him in the same manner as if he had been called as an adverse witness. Such witness shall be summoned and appear at the cost of the Commonwealth.^{[ 3 ]}

Cypress and Briscoe each argued at trial and on appeal that the introduction of a certificate of analysis without any testimony from the forensic analyst who performed the testing and reported the results of the analysis violated his rights guaranteed by the Confrontation Clause. Magruder, 275 Va. at 297, 657 S.E.2d at 120. We disagreed. Assuming that a certificate of analysis is “testimonial” under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and applying then-controlling Supreme Court precedent, this Court held:

Pursuant to [former] Code § 19.2-187.1, the defendants could have insured the physical presence of the forensic analysts at

trial by issuing summons for their appearance at the Commonwealth's cost, or asking the trial court or Commonwealth to do so. At trial, the defendants could have called the forensic analysts as witnesses, placed them under oath, and questioned them as adverse witnesses, meaning the defendants could have cross-examined them.... In short, if the defendants had utilized the procedure provided in [former] Code § 19.2-187.1, they would have had the opportunity to cross-examine the forensic analysts. Contrary to the defendants' position, the Confrontation Clause does not insure that opportunity before a certificate of analysis is admitted into evidence.

Magruder, 275 Va. at 299, 657 S.E.2d at 120-21 (citations omitted). Rejecting the defendants' argument that former Code § 19.2-187.1 impermissibly burdened the exercise of their Confrontation Clause rights by requiring them to take certain actions to preserve those rights, the Court noted that an accused is frequently required to take affirmative steps to assert constitutional rights. Id. at 299-300, 657 S.E.2d at 121.

The defendants also claimed that the provisions of former Code § 19.2-187.1 shifted the burden of producing evidence by requiring them to call the forensic analysts in order to confront those witnesses. Id. at 301, 657 S.E.2d at 122. The Court, however, held the argument “[was] not cognizable under the Confrontation Clause [but rather] raise[d] due process concerns that [were] not properly before [the Court].” Id. We further explained that because the defendants had not exercised their rights under former Code § 19.2-187.1 to have the forensic analysts at trial, “they were never in the position of being forced, over their objection, to call a forensic analyst as a witness.” Id. Thus, “ ‘the trial court never had occasion to address the proper order of proof.’ ” Id. (quoting Brooks v. Commonwealth, 49 Va.App. 155, 168, 638 S.E.2d 131, 138 (2006)).

Finally, the Court concluded that,

[b]ased on the provisions of [former] Code §§ 19.2-187 and 19.2-187.1, no criminal defendant can seriously contend that he is not on notice that a certificate of analysis will be admitted into evidence without testimony from the person who performed the analysis unless he utilizes the procedure provided in [former] Code § 19.2-187.1.

Id. at 304, 657 S.E.2d at 124. Thus, we held “that the procedure in [former] Code § 19.2-187.1 adequately safeguard[ed] a criminal defendant's rights under the Confrontation Clause and that [Cypress' and Briscoe's] failure ... to utilize that procedure waived their right to be confronted with the forensic analysts.” Id. at 305, 657 S.E.2d at 124.

Cypress and Briscoe petitioned the United States Supreme Court for writs of certiorari. Briscoe v. Virginia, 557 U.S. ----, ----, 129 S.Ct. 2858, 2858, 174 L.Ed.2d 600 (2009). Subsequently, the Supreme Court decided Melendez-Diaz. There, the trial court admitted into evidence three certificates of analysis establishing that substances seized by the police and connected to the defendant contained cocaine. 557 U.S. at ----, 129 S.Ct. at 2530-31. Pursuant to Massachusetts General Laws Annotated, Chapter 111, § 13, the certificates served “as prima facie evidence of the composition, quality, and the net weight” of the substances analyzed. 557 U.S. at ----, 129 S.Ct. at 2531 (internal quotation marks omitted). Although the forensic analysts who tested the substances swore to the certificates before a notary public as required by the statute, they did not testify at trial. Id. The defendant objected, claiming that the decision in Crawford required the analysts to testify in person. Id.

The Supreme Court in Melendez-Diaz first held that the certificates of analysis fell within the “ ‘core class of testimonial statements' ” described in Crawford because they were “quite plainly affidavits” and were “incontrovertibly a ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id. at ----, 129 S.Ct. at 2532 (quoting Crawford, 541 U.S. at 51, 124 S.Ct. 1354) (internal quotation marks omitted). Thus, “[a]bsent a showing that the analysts were unavailable to testify at trial and that the petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘be confronted with’ the analysts at trial.” Id. (quoting Crawford, 541 U.S. at 54, 124 S.Ct. 1354) (internal quotation marks omitted). In response to the argument that the forensic analysts were not “accusatory” witnesses and thus not subject to confrontation, the Supreme Court pointed out that the analysts testified against the defendant by proving the substance he possessed was cocaine. Id. at ----, 129 S.Ct. at 2533. Contrasting the Confrontation Clause and the Compulsory Process Clause, the Supreme Court stated: “The text of the [Sixth] Amendment contemplates two classes of witnesses-those against the defendant and those in his favor. The prosecution must produce the former [and] the defendant may call the latter.” Id. at ----, 129 S.Ct. at 2534.

The Supreme Court then addressed the argument relevant to these appeals: whether the defendant's “ability to subpoena the analysts” preserved his confrontation rights. Id. at ----, 129 S.Ct. at 2540. Concluding such power to be “no substitute for the right of confrontation,” the Supreme Court explained:

Unlike the Confrontation Clause, those provisions [of state law or the Compulsory Process Clause] are of no use to the defendant when the witness is unavailable or simply refuses to appear. Converting the prosecution's duty under the Confrontation Clause into the defendant's privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally the Confrontation Clause imposes a burden on the prosecution to present

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