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Criminal – Confrontation Clause – Certificates Of Analysis – Cocaine – Melendez-Diaz

In two consolidated cocaine cases remanded from the U.S. Supreme Court in light of Melendez-Diaz v. Massachusetts, the Supreme Court of Virginia says admission into evidence of certificates of analysis pursuant to former Va. Code §§ 19.2-187 and 187.1 violated only one of the defendant’s rights under the Confrontation Clause.

As in Melendez-Diaz, each certificate contained the forensic analyst’s signature and attestation that she performed the analysis and that the certificate accurately reflected the results of their analysis. In each instance, the certificate established that the substance analyzed was cocaine and the amount of such cocaine. The certificates set forth information akin to the testimony a forensic analyst would be expected to give on direct examination and were functionally identical to live, in-court testimony.

We now hold the procedure in former Code § 19.2-187.1 did not adequately safeguard a criminal defendant’s rights under the Confrontation Clause. The respective circuit courts erred in admitting the certificates.

However, with regard to defendant Briscoe, we agree with the commonwealth that admission of the certificates in his case was harmless error. According to a police officer, Briscoe admitted that everything seized from his apartment, “the coke, the crack, the baggies,” belonged to him as did the item taken from his person. He told the officer the cocaine found in the kitchen sink “should have been around 40 grams.” He provided information about how and where he obtained the drugs. We conclude the evidence proved beyond a reasonable doubt that the substance seized during the execution of the search warrant was cocaine and the amount was one ounce or more.

We affirm Briscoe’s cocaine conviction, but reverse the conviction of defendant Cypress, with directions to remand the latter case to the circuit court for possible retrial.

Cypress v. Commonwealth (Kinser, J.) No. 070815, Sept. 16, 2010; On Remand; Charles B. Lustig, Thomas B. Shuttleworth for Cypress; Joseph D. King for Briscoe; Alice T. Armstrong, AAG II; Eugene Murphy, Sr. AAG; Kenneth T. Cuccinelli II, AG; Stephen R. McCullough, Sr. App. Counsel, for appellee. VLW 010-6-083, 23 pp.

VLW 010-6-083

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