Brian Curtis McCray v. Commonwealth ( 2008 )


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  •                                   COURT OF APPEALS OF VIRGINIA
    Present: Judges Humphreys, Clements and Haley
    Argued at Chesapeake, Virginia
    BRIAN CURTIS McCRAY
    MEMORANDUM OPINION ∗ BY
    v.     Record No. 1781-06-1                                    JUDGE JAMES W. HALEY, JR.
    JANUARY 22, 2008
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
    Everett A. Martin, Jr., Judge
    Christian L. Connell (Christian L. Connell, P.C., on brief), for
    appellant.
    (Robert F. McDonnell, Attorney General; Gregory W. Franklin,
    Assistant Attorney General, on brief), for appellee. Appellee
    submitting on brief.
    I. Introduction
    Brian Curtis McCray appeals from his conviction in the Circuit Court of the City of
    Norfolk for possession of cocaine with intent to distribute in violation of Code § 18.2-248. He
    argues the circuit court erred in admitting a certificate of analysis presented by the
    Commonwealth because the certificate constituted testimonial evidence and its admission
    thereby violated his Sixth Amendment right to confront witnesses. Finding no error, we affirm.
    II. Facts
    Because this case presents a narrow issue for determination, only a short recitation of the
    facts is necessary.
    ∗
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    Officer D.S. Vernon of the Norfolk Police Department saw McCray holding what
    appeared to be drugs in plain view. Officer Vernon seized the evidence and arrested McCray. A
    grand jury subsequently indicted McCray for possession of cocaine with intent to distribute in
    violation of Code § 18.2-248. Prior to trial, the Commonwealth timely filed, and caused to be
    mailed or delivered, a copy of a certificate of analysis, as required by Code § 19.2-187. 1
    McCray did not avail himself of the right to compel the attendance at trial of the person who
    performed the analysis, as granted by Code § 19.2-187.1.
    During a bench trial on November 22, 2005, the Commonwealth offered a certificate of
    analysis from the Department of Forensic Science dated November 7, 2005, showing some of the
    substances taken by Officer Vernon to be cocaine and setting forth their amount. 2 Counsel for
    McCray stated the following objection: “The only objection I would have . . . would be based on
    Crawford v. Washington. . . . I do believe it violates his right to confrontation.” The circuit court
    overruled the objection. Thus generated the question presented here.
    1
    In relevant part, Code § 19.2-187 provides as follows:
    In any hearing or trial of any criminal offense . . . a
    certificate of analysis of a person performing an analysis or
    examination . . . 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 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.
    A copy of such certificate shall be mailed or delivered by
    the clerk or attorney for the Commonwealth to counsel of record
    for the accused at no charge at least seven days prior to the hearing
    or trial upon request made by such counsel to the clerk with notice
    of the request to the attorney for the Commonwealth.
    2
    The certificate also identified a portion of the substances as heroin. Furthermore,
    defense counsel stipulated to the chain of custody.
    -2-
    III. Analysis
    The Sixth Amendment of the United States Constitution provides in what is known as the
    Confrontation Clause that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to
    be confronted with the witnesses against him.” U.S. Const. amend. VI. By virtue of the
    Fourteenth Amendment of the United States Constitution, the Confrontation Clause applies to
    state proceedings. Pointer v. Texas, 
    380 U.S. 400
    , 406 (1965). In Crawford v. Washington, 
    541 U.S. 36
    , 68 (2004), the United States Supreme Court held that to admit testimonial hearsay for
    the truth of the statement against a criminal defendant, “the Sixth Amendment demands what the
    common law required: unavailability [of the declarant] and a prior opportunity for cross-
    examination.” The Court did not specify what constituted testimonial evidence, although it did
    find “it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or
    at a former trial; and to police interrogations.” 
    Id.
    Our decision is controlled by our holding in Brooks v. Commonwealth, 
    49 Va. App. 155
    ,
    
    638 S.E.2d 131
     (2006). In Brooks, we held that “[a]ssuming without deciding the certificates [of
    analysis] contained information considered testimonial under Crawford . . . the procedure in
    Code §§ 19.2-187 and 19.2-187.1 adequately protects a defendant’s Confrontation Clause
    rights.” 3 Id. at 161, 
    638 S.E.2d at 134
    . Code § 19.2-187 provides a certificate of analysis is
    3
    The straightforward application of Brooks to this case becomes evident when the
    question presented here is compared to the holding of Brooks. McCray’s brief states the
    question presented as follows:
    Did the trial judge err when he failed to sustain McCray’s
    objection to the admission into evidence of the certificate of
    analysis, because the certificate of analysis constituted
    “testimonial” evidence under Crawford v. Washington, 
    541 U.S. 36
     (2004) and its admission into evidence therefore violated
    McCray’s constitutional right to confront the witnesses against
    him?
    -3-
    admissible as proof of the contents stated in it. Code § 19.2-187.1 supplements this by stating
    that whenever a certificate of analysis is admitted, a defendant has the right to call the scientist
    who performed the analysis and question him as an adverse witness. The Code gives the
    Commonwealth the obligation to subpoena and produce the scientist. Id. The Brooks Court
    noted the Sixth Amendment’s right of confrontation is not absolute and that defendants may
    waive the right. Brooks, 
    49 Va. App. at 162-63
    , 
    638 S.E.2d at 135
    . It also noted it is well settled
    that states may condition the exercise of federal rights upon following certain procedures. 
    Id. at 164
    , 
    638 S.E.2d at 136
    . Reflecting upon this, the Brooks Court held the Code “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 and that a defendant’s failure to follow this
    procedure amounts to a waiver” of the right of confrontation. 
    Id. at 164-65
    , 
    638 S.E.2d at 136
    .
    On the facts of the case, the Court held that since the defendant neglected to inform the
    Commonwealth of his desire to have the scientist who prepared the certificate of analysis present
    until the day of trial, the defendant waived his Confrontation Clause rights. 
    Id. at 162
    , 
    638 S.E.2d at 135
    .
    Likewise, the defendant in this case gave the Commonwealth no notice of his desire to
    examine the scientist who prepared the certificate of analysis before the day of trial. He
    therefore waived his Confrontation Clause rights. 
    Id.
    Recognizing the force of our holding in Brooks, McCray expends considerable effort in
    his brief arguing Brooks was wrongly decided. Yet as the Commonwealth correctly notes in its
    brief, published panel decisions of this Court bind future panels until modified by this Court
    sitting en banc, the Virginia Supreme Court, or the United States Supreme Court. Armstrong v.
    The question presented tracks the holding of Brooks as quoted in the text of this opinion nearly
    word for word.
    -4-
    Commonwealth, 
    263 Va. 573
    , 581, 
    562 S.E.2d 139
    , 143 (2002). The Court accordingly applies
    Brooks here.
    For the foregoing reasons, we affirm McCray’s conviction.
    Affirmed.
    -5-
    

Document Info

Docket Number: 1781061

Filed Date: 1/22/2008

Precedential Status: Non-Precedential

Modified Date: 4/17/2021