Magruder v. Com.

Citation657 S.E.2d 113,275 Va. 283
Decision Date29 February 2008
Docket NumberRecord No. 070815.,Record No. 070762.,Record No. 070817.
PartiesMichael Ricardo MAGRUDER v. COMMONWEALTH of Virginia. Sheldon A. Cypress v. Commonwealth of Virginia. Mark A. Briscoe v. Commonwealth of Virginia.
CourtSupreme Court of Virginia

Stephen R. McCullough, Deputy State Sol. Gen., Alice T. Armstrong, Asst. Atty. Gen. II, Eugene Murphy, Senior Asst. Atty. Gen. (Robert F. McDonnell, Atty. Gen., William E. Thro, State Sol. Gen., on briefs), for appellee.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS and AGEE, JJ., and STEPHENSON, Senior Justice.

OPINION BY Justice CYNTHIA D. KINSER.

In each of these appeals, the defendant claims that the admission into evidence, pursuant to Code § 19.2-187, of a certificate of analysis in the absence of testimony at trial from the person who performed the particular analysis and prepared the certificate yiolated his rights under the Confrontation Clause of the Sixth Amendment. Because the procedure provided in Code § 19.2-187.1 adequately protects a criminal defendant's rights under the Confrontation Clause and because the defendants in these appeals failed to utilize that procedure, we conclude that they waived the challenges under the Confrontation Clause to the admissibility of the certificates of analysis. We will therefore affirm the judgments of the Court of Appeals upholding the various convictions at issue.

I. RELEVANT FACTS AND PROCEEDINGS

Although these appeals involve a common dispositive question of law, which we review de novo, Torloni v. Commonwealth, 274 Va. 261, 267, 645 S.E.2d 487, 490 (2007), their facts and procedural histories differ. Therefore, we will first summarize the relevant facts of each case and then analyze the dispositive issue that the appeals share. The appeal by Mark A. Briscoe involves one additional issue that we will address separately following the analysis of the dispositive issue.

A. Magruder v. Commonwealth

During a consensual search of Michael Ricardo Magruder, Officer William Catlett of the City of Winchester Police Department discovered an "off-white rock-like substance" in the right front pocket of Magruder's pants. Catlett suspected the substance was' crack cocaine. Catlett took possession of the "rock" and submitted it to a forensic laboratory for testing. A forensic analyst with the Department of Criminal Justice Services, Division of Forensic Science, tested the substance and reported in a certificate of analysis that it was "0.022 gram[s]" of cocaine. In the certificate, the analyst also attested that he had performed the analysis and that the certificate was "an accurate record of the results of that analysis."

Magruder was subsequently indicted in the Circuit Court of the City of Winchester for possession of cocaine, in violation of Code § 18.2-250(A). At a bench trial, the Commonwealth offered into evidence the certificate of analysis. Relying on the decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Magruder objected, asserting that the admission of the certificate of analysis would violate his Sixth Amendment right to confront the witness against him. The circuit court overruled Magruder's objection, stating: "Crawford only applies to testimonial evidence. You have a right to call [the forensic analyst] if you want to." Magruder did not call the forensic analyst to testify and presented no evidence refuting the accuracy of the analysis of the substance seized from him, as reported in the certificate of analysis. The circuit court convicted Magruder of possession of cocaine and sentenced him to a suspended term of one year and six months of incarceration, with two years of supervised probation.

The Court of Appeals affirmed Magruder's conviction in an unpublished opinion. Magruder v. Commonwealth, Record No. 1982-05-4, 2007 WL 737552 (March 13, 2007). Relying on its decision in Brooks v. Commonwealth, 49 Va.App. 155, 638 S.E.2d 131 (2006), the Court of Appeals held that the procedures set forth in Code §§ 19.2-187 and 19.2-187.1 adequately protected Magruder's Confrontation Clause rights and that Magruder's failure to notify the Commonwealth of his desire to cross-examine the forensic analyst at trial waived his right to do so. Magruder, at *1. Thus, the Court of Appeals concluded that the circuit court did not err in admitting the certificate of analysis in the absence of testimony from the person who performed the analysis. Id.

On appeal to this Court, Magruder presents two assignments of error:

I. The Court of Appeals erred in concluding that Code § 19.2-187.1 sets out a reasonable procedure to be followed in order for a defendant to exercise his right to confront a particular limited class of scientific witnesses at trial.

II. The Court of Appeals erred in concluding that a defendant's failure to timely notify the Commonwealth of his desire to confront the forensic analyst at trial constitutes a waiver of that right.

B. Cypress v. Commonwealth

Sheldon A. Cypress was a passenger in an automobile being driven by his cousin when a trooper with the Virginia State Police stopped the vehicle because of its improperly tinted windows. The driver consented to a search of the vehicle. During that search, the trooper found, among other things, two plastic bags — one under the driver's seat and one under the passenger's seat — each containing a "chunky white substance" that the trooper suspected was crack cocaine. Subsequent forensic testing at the Department of Forensic Science revealed that the substance was cocaine, totaling 60.5 grams. A certificate of analysis reporting those results bore the signature of the forensic analyst who conducted the testing and included an attestation that she had performed the analysis.

Cypress was indicted in the Circuit Court of the City of Chesapeake for possession of cocaine with the intent to distribute, having previously committed the offense of distribution or possession with the intent to distribute, in violation of Code § 18.2-248(C). At a bench trial, the Commonwealth moved to admit the certificate of analysis into evidence. Cypress objected, arguing that under the holding in Crawford the certificate fell into a core class of testimonial evidence and was therefore inadmissible in the absence of testimony from the person who performed the analysis of the seized substance. The circuit court overruled the objection, holding that "the scientific results stated in the certificate of analysis are not testimonial statements as that term is defined or described in Crawford v. Washington."1

Cypress did not call the forensic analyst as a witness and presented no evidence. The circuit court convicted Cypress of possession of cocaine with the intent to distribute, second or subsequent offense, and sentenced him to imprisonment for 15 years, with 10 years suspended, and a fine of $1,000.2

The Court of Appeals denied Cypress' appeal in an unpublished per curiam order. Cypress v. Commonwealth, Record No. 1547-06-1 (January 3, 2007). Citing its decision in Brooks, the Court of Appeals stated: "assuming a certificate of analysis constitutes testimonial evidence under Crawford, a defendant's confrontation rights are nonetheless protected by the procedures provided by Code §§ 19.2-187 and 19.2-187.1." Id., slip op. at 2. The Court of Appeals, however, held that Cypress waived his right to confront the forensic analyst who prepared the certificate of analysis because he did not utilize the procedure set forth in Code § 19.2-487.1. Id. For the reasons stated in the January 3, 2007 order, a three-judge panel of the Court of Appeals also denied the petition for appeal. Cypress v. Commonwealth, Record No. 1547-06-1 (March 23, 2007).

Now on appeal to this Court, Cypress raises two assignments of error:

I. The trial court erred by allowing into evidence the certificate of analysis over Defendant's objection that its introduction violated his Sixth Amendment Confrontation Clause rights as articulated in Crawford v. Washington and its progeny; the trial court erred by finding Cypress guilty of possession with intent to distribute cocaine where the only evidence that he possessed cocaine came from this drug certificate which should have been excluded from evidence[.]

II. The Court of Appeals erred by ruling that Defendant waived his Confrontation Clause rights by declining to subpoena the chemist who prepared the certificate and this ruling impermissibly, and unconstitutionally, required Defendant to take affirmative steps to safeguard his Confrontation Clause rights[.]

C. Briscoe v. Commonwealth

Police officers with the City of Alexandria Police Department executed a search warrant for the apartment of Mark A. Briscoe. During the search, the officers seized suspected cocaine scattered about in the apartment's kitchen area, as well as two scales, a razor blade, a 100-gram weight, a box of plastic sandwich bags, and a plate. Many of these items appeared to have deposits of drug residue on them. In a search of Briscoe's person, the police seized a white, rocklike substance wrapped in plastic from the pocket of his shorts.

The police submitted the items of suspected cocaine to the Department of Criminal Justice Services, Division of Forensic Science, for testing. In two certificates of analysis, a forensic analyst reported that the confiscated substances were "solid material" cocaine totaling 36.578 grams. The certificates also contained the analyst's signature and attestation that she performed the analyses and that the certificates accurately reflected the results of those analyses.

Briscoe was...

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