Grant v. Com.

• Citation: 54 Va. App. 714,682 S.E.2d 84
• Decision Date: 01 September 2009
• Docket Number: No. 0877-08-4.,04 August 0877
• Court: Court of Appeals of Virginia
• Parties: Phillip Lawton GRANT v. COMMONWEALTH of Virginia.

682 S.E.2d 84

54 Va. App. 714

Phillip Lawton GRANT v. COMMONWEALTH of Virginia.

Record No. 0877-08-4.

Court of Appeals of Virginia, Richmond.

September 1, 2009.

Patrick M. Blanch, Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.

Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General; William C. Mims, Attorney General, on briefs), for appellee.

Present: FELTON, C.J., and FRANK and PETTY, JJ.

PETTY, Judge.

Appellant, Phillip Lawton Grant, challenges his conviction for driving while intoxicated, in violation of Code § 18.2-266. Grant argues that his conviction should be reversed because the certificate of the results of a chemical analysis of his breath indicating his blood alcohol level was admitted into evidence in violation of his Sixth Amendment right to confront witnesses against him.¹ For the reasons explained below, we agree with Grant and reverse his conviction.

I. Background

Pursuant to Rule 5A:8(c), the parties presented an agreed statement of facts, in lieu of a transcript, of the trial court proceedings. We draw this summary of the facts and incidents of trial from that statement. In accord with our usual standard of review, we view the evidence and all reasonable inferences flowing from the evidence in a light most favorable to the Commonwealth as the party prevailing in the trial court. Garcia v. Commonwealth, 40 Va.App. 184, 189, 578 S.E.2d 97, 99 (2003).

On June 30, 2007, Grant was involved in a minor traffic accident. Approximately five minutes after the accident, Officer Wolfe arrived to investigate. Officer Wolfe testified at trial that he noticed the odor of alcohol on Grant's breath as they interacted and that Grant's eyes were bloodshot. Grant admitted to Officer Wolfe that he had consumed "a couple of beers" over an hour earlier. Officer Wolfe then asked Grant to perform some field sobriety tests, which Grant agreed to do. Grant successfully performed the "one-legged stand," although he did become confused when counting the number of seconds he stood on one leg, and performed the "walk-and-turn test," staggering once. Grant also had some difficulty in reciting the alphabet. At that point, Officer Wolfe asked Grant to take a preliminary breath test. Grant refused to do so.

Based upon these circumstances, Officer Wolfe arrested Grant for driving while intoxicated. The officer took Grant to the Fairfax County Adult Detention Center ("ADC"). After arriving at the ADC, the officer read Grant the implied consent statute, and Grant agreed to provide a sample of his breath in order to determine his blood alcohol concentration ("BAC") by blowing into the Intoxilyzer 5000 machine located at the ADC. According to the certificate of blood alcohol analysis ("certificate"), Grant's BAC at the time of the test was 0.11 grams per 210 liters of breath.

Over two months prior to his circuit court trial, Grant filed a "Notice of Defendant's Exercise of Confrontation Rights Pursuant to Va.Code § 19.2-187.1." The notice stated the following:

The Defendant, Mr. Grant, pursuant to Virginia Code 19.2-187.1, the 6th and 14th Amendments to the United States Constitution, Article I § 8 of the Virginia Constitution, Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and Brooks v. Commonwealth, 49 Va.App. 155, 638 S.E.2d 131 (2006), hereby notifies the Commonwealth of Virginia that he does not stipulate to the admissibility of the contents of any properly filed certificates of analysis in this case. Mr. Grant further notifies the Commonwealth that he desires that the preparer of the certificate, including persons having personal knowledge of information attested to in the certificate, be summoned by the Commonwealth to appear at trial ... at the cost of the Commonwealth to be cross-examined in this matter.

(Emphasis added).

The Commonwealth did not call the breath test operator as a witness at trial. Instead, it relied on the testimony of Officer Wolfe. He testified that he observed Grant for the required twenty-minute time period and that Grant "then blew into the Intoxilyzer 5000 machine. The machine determined that [Grant's] blood alcohol concentration ... was 0.11." The Commonwealth then offered the certificate into evidence. Grant objected, arguing that the certificate should be excluded because the Commonwealth did not summon the person who prepared the certificate to be cross-examined at trial. The trial court overruled Grant's objection and ruled that the certificate was admissible. The trial court held that under Code § 19.2-187.1 the defense must subpoena the breath test operator, even though the statute provides that the cost of bringing the witness be paid by the Commonwealth. Thus, the trial court concluded that Grant had not complied with Code § 19.2-187.1 because he had not subpoenaed the breath test operator to testify to the contents of the certificate.

The trial court found Grant guilty of driving while intoxicated, and this appeal followed. During the pendency of this appeal the United States Supreme Court decided Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), holding that certificates of analysis are testimonial statements, and, "[a]bsent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to `be confronted with' the analysts at trial." Id. at ___, 129 S.Ct. at 2532 (quoting Crawford v. Washington, 541 U.S. 36, 54, 124 S.Ct. 1354, 1365-66, 158 L.Ed.2d 177 (2004)). After the Court released its opinion, we ordered the parties to submit supplemental briefs addressing the effect of the Melendez-Diaz decision on this case.

II. Analysis

A. Admissibility of the Certificate of Analysis²

The Commonwealth conceded in its supplemental brief that the contents of the attestation clause³ contained in the certificate are testimonial in nature, based upon the United States Supreme Court's decision in Melendez-Diaz. The Commonwealth also conceded that Grant's notice pursuant to Code § 19.2-187.1 complied with the requirements of that statute as it was construed in Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d 113 (2008), cert. granted sub nom. Briscoe v. Virginia, ___ U.S. ___, 129 S.Ct. 2858, 174 L.Ed.2d 600 (2009). While we are not obliged to accept the Commonwealth's concession of legal error, see Copeland v. Commonwealth, 52 Va.App. 529, 531, 664 S.E.2d 528, 529 (2008), we agree with the Commonwealth in this case: the attestation clause is testimonial under the holding of Melendez-Diaz,⁴ and Grant complied with the requirements of Code § 19.2-187.1.

Melendez-Diaz is the latest in the Supreme Court's recent line of cases regarding the right of a criminal defendant to confront the witnesses against him, as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution. ___ U.S. at ___ - ___, 129 S.Ct. at 2531-32. In Melendez-Diaz, the Court held that the contents of the certificates of analysis at issue were testimonial in nature in accordance with its earlier decision in Crawford, 541 U.S. at 36, 124 S.Ct. 1354. Id. at ___, 129 S.Ct. at 2532. Thus, the analysts whose conclusions were memorialized in the certificates were "`witnesses' for the purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that the [defendant] had a prior opportunity to cross-examine them, [the defendant] was entitled to `be confronted with' the analysts at trial." Id. (quoting Crawford, 541 U.S. at 54, 124 S.Ct. 1354) (emphasis in original).

The certificates of analysis at issue in Melendez-Diaz recited the results of a laboratory analysis of material that the laboratory concluded was cocaine. ___ U.S. at ___, 129 S.Ct. at 2531. These certificates "were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health, as required under Massachusetts law." Id. (citation omitted). The Supreme Court concluded that "the documents at issue in this case fall within the `core class of testimonial statements'.... The documents at issue here, while denominated by Massachusetts law `certificates,' are quite plainly affidavits: `declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.'" Id. at ___, 129 S.Ct. at 2532 (quoting Crawford, 541 U.S. at 51, 124 S.Ct. 1354; Black's Law Dictionary 62 (8th ed.2004)). The Court went on to explain that the certificates existed to prove that "the substance found in the possession of Melendez-Diaz ... was, as the prosecution claimed, cocaine—the precise testimony the analysts would be expected to provide if called at trial." Id. Thus, the Supreme Court reasoned, "[t]he `certificates' are functionally identical to live, in-court testimony, doing `precisely what a witness does on direct examination.'" Id. (quoting Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 2278-79, 165 L.Ed.2d 224 (2006)).

Virginia law does not require that certificates of blood alcohol analysis be sworn to before a notary public. The law does, however, require that the preparer of the certificate memorializing the results of a chemical analysis of a person's breath for the purposes of prosecution under Code § 18.2-266 sign an attestation clause confirming the accuracy of the test and that the test was conducted pursuant to the regulations of the Department of Forensic Science. Code § 18.2-268.9. Grant argues that this attestation clause is testimonial and that the trial court's failure to subject the preparer of the clause to cross-examination rendered the certificate inadmissible.

The first paragraph of Code § 18.2-268.9—the statute that governs the use of breath-test results as evidence in criminal trials—sets forth factual predicates that must be met before breath-test results are ...