Cypress v. Com.

Present: Hassell, C.J., Koontz, Kinser, Lemons, and Millette,
JJ., and Russell and Lacy, S.JJ.

SHELDON A. CYPRESS

v. Record No. 070815

COMMONWEALTH OF VIRGINIA OPINION BY
JUSTICE CYNTHIA D. KINSER
MARK A. BRISCOE September 16, 2010

v. Record No. 070817

COMMONWEALTH OF VIRGINIA

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

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 (2009). Briscoe v. Virginia, 559 U.S. ___, ___, 130

S.Ct. 1316, 1316 (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

1
We also affirmed the judgment of the Court of Appeals
upholding a conviction of Michael Ricardo Magruder. Magruder,
275 Va. at 309, 657 S.E.2d at 127. That conviction is not at
issue in these appeals.
2
The certificate of analysis admitted into evidence during
Cypress' trial confirmed that the substance at issue was 60.5
grams of cocaine. Magruder, 275 Va. at 290, 657 S.E.2d at 116.
In Briscoe's trial, the Commonwealth introduced two certificates
of analysis, which together established that certain confiscated
substance was "'solid material' cocaine" totaling 36.578 grams.
Id. at 292, 657 S.E.2d at 117.

2
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 ]

3
Shortly after the decision in Melendez-Diaz, the General
Assembly amended former Code §§ 19.2-187 and –187.1. 2009 Acts
chs. 1, 4 (Spec. Sess. I). In pertinent part, the current
version of Code § 19.2-187 states:

In any hearing or trial of any criminal offense
. . . , a certificate of analysis of a person
performing an analysis or examination, 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 . . . (ii) the
requirements of subsection A of § 19.2-187.1 have
been satisfied and the accused has not objected
to the admission of the certificate pursuant to
subsection B of § 19.2-187.1.

Section 19.2-187.1, in turn, now states in relevant
part:

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

A. In any trial and in any hearing other than
a preliminary hearing, in which the attorney for
the Commonwealth intends to offer a certificate
of analysis into evidence pursuant to § 19.2-187,
the attorney for the Commonwealth shall:

1. Provide by mail, delivery, or otherwise, a
copy of the certificate to counsel of record for
the accused, or to the accused if he is
proceeding pro se, at no charge, no later than 28
days prior to the hearing or trial;

2. Attach to the copy of the certificate so
provided under subdivision 1 a notice to the
accused of his right to object to having the
certificate admitted without the person who
performed the analysis or examination being
present and testifying;

. . . .

B. The accused may object in writing to
admission of the certificate of analysis, in lieu
of testimony, as evidence of the facts stated
therein and of the results of the analysis or
examination. . . . If timely objection is made,
the certificate shall not be admissible into
evidence unless (i) the testimony of the person
who performed the analysis or examination is
admitted into evidence describing the facts and
results of the analysis or examination during the
Commonwealth's case-in-chief at the hearing or
trial and that person is present and subject to
cross-examination by the accused, (ii) the
objection is waived by the accused or his counsel
in writing or before the court, or (iii) the
parties stipulate before the court to the
admissibility of the certificate.

4
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 (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.

5
 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

6
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 (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

7
or proving some fact.'" Id. at ___, 129 S.Ct. at 2532 (quoting

Crawford, 541 U.S. at 51) (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) (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

8
 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 its witnesses, not on the defendant
to bring those adverse witnesses into court.
Its value to the defendant is not replaced
by a system in which the prosecution
presents its evidence via ex parte
affidavits and waits for the defendant to
subpoena the affiants if he chooses.

Id. (emphasis added) (citations omitted).

The Supreme Court, nevertheless, made clear that an accused

could waive his confrontation rights "by fail[ing] to object to

the offending evidence" and that "States may adopt procedural

rules governing the exercise of such objections." Id. at ___

n.3, 129 S.Ct. at 2534 n.3. Noting that many States "permit the

defendant to assert (or forfeit by silence) his Confrontation

Clause right after receiving notice of the prosecution's intent

to use a forensic analyst's report," the Supreme Court described

"notice-and-demand statutes":

In their simplest form, notice-and-demand
statutes require the prosecution to provide
notice to the defendant of its intent to use
an analyst's report as evidence at trial,
after which the defendant is given a period
of time in which he may object to the
admission of the evidence absent the
analyst's appearance live at trial.

Id. at ___, 129 S.Ct. at 2540-41.

9
 Such statutes, according to the Supreme Court,

shift no burden whatever [because] [t]he
defendant always has the burden of raising
his Confrontation Clause objection; notice-
and-demand statutes simply govern the time
within which he must do so. States are free
to adopt procedural rules governing
objections. It is common to require a
defendant to exercise his rights under the
Compulsory Process Clause in advance of
trial . . . . There is no conceivable
reason why he cannot similarly be compelled
to exercise his Confrontation Clause rights
before trial.

Id. at ___, 129 S.Ct. at 2541 (citation omitted). The Supreme

Court specifically cited with approval three such "notice-and-

demand" statutes, Georgia Code Annotated § 35-3-154.1, Ohio

Revised Code Annotated § 2925.51(C), and Section 4 of Article

38.41 of the Texas Code of Criminal Procedure Annotated, as well

as the decision in Hinojos-Mendoza v. People, 169 P.3d 662, 670

(Colo. 2007), which approved Colorado's notice-and-demand

statute. 4

In conclusion, the Supreme Court held that "[t]he Sixth

Amendment does not permit the prosecution to prove its case via

ex parte out-of-court affidavits, and the admission of such

evidence against Melendez-Diaz was error." Melendez-Diaz, 557

U.S. at ___, 129 S.Ct. at 2542. Thus, the Supreme Court

4
Colorado Revised Statutes § 16-3-309(5) allows a
laboratory report to be admitted as evidence but permits a
defendant to request that the person performing the analysis
testify live on behalf of the State at a criminal trial.

10
reversed the judgment of the Appeals Court of Massachusetts.

Id.

Following its decision in Melendez-Diaz, the Supreme Court

granted the petitions filed by Briscoe and Cypress, vacated the

judgments, and remanded the cases for further proceedings "not

inconsistent with the opinion." Briscoe, 559 U.S. at ___, 130

S.Ct. at 1316.

ANALYSIS

In light of the decision in Melendez-Diaz, the question now

before us is whether the admission of the certificates of

analysis pursuant to former Code §§ 19.2-187 and -187.1 violated

the rights of Cypress and Briscoe under the Confrontation

Clause. To answer this question, we initially decide an issue

that we did not reach in Magruder: whether the certificates of

analysis that were admitted into evidence in the defendants'

trials were "testimonial." We conclude that they were. 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 the

analysis. Magruder, 275 Va. at 290-92, 657 S.E.2d at 116-17.

In each instance, the certificate established that the substance

analyzed was cocaine and the amount of such cocaine. Id. at

290, 292, 657 S.E.2d at 116-17. Thus, the certificates set

forth information akin to the testimony a forensic analyst would

11
be expected to give on direct examination and were "functionally

identical to live, in-court testimony." Melendez-Diaz, 557 U.S.

at ___, 129 S.Ct. at 2532.

When we previously decided that the provisions of former

Code § 19.2-187.1 adequately safeguarded a criminal defendant's

rights under the Confrontation Clause, we focused on whether

that statutory procedure supplied the "'elements of

confrontation - physical presence, oath, cross-examination, and

observation of demeanor by the trier of fact.'" Magruder, 275

Va. at 298-99, 657 S.E.2d at 120 (quoting Maryland v. Craig, 497

U.S. 836, 846 (1990)). We concluded that it did, primarily

because an accused could have guaranteed the physical presence

of a forensic analyst at trial by issuing a summons for his/her

appearance at the Commonwealth's cost, or by asking the trial

court or the Commonwealth to do so. Id. at 299, 657 S.E.2d at

120-21. The accused then could have called the analyst as a

witness, placed the analyst under oath, and cross-examined

him/her as an adverse witness. Id. at 299, 675 S.E.2d at 121.

We also held that the question whether the procedure set forth

in former Code § 19.2-187.1 shifted the burden of producing

evidence by requiring a defendant to call a forensic analyst was

not cognizable under the Confrontation Clause but rather was a

due process concern. Id. at 301, 657 S.E.2d at 122.

12
 The Supreme Court, however, held that "the ability to

subpoena the analysts[,] whether pursuant to state law or the

Compulsory Process Clause[,] is no substitute for the right of

confrontation" in part because "the Confrontation Clause imposes

a burden on the prosecution to present its witnesses, not on the

defendant to bring those adverse witnesses into court."

Melendez-Diaz, 557 U.S. at ___, 129 S.Ct. at 2540. Examining

the text of the Sixth Amendment, the Supreme Court explained

that an accused's right to be confronted with the witnesses

"'against him'" requires the prosecution to produce such

witnesses. Id. at ___, 129 S.Ct. at 2534 (quoting U.S. Const.

amend. VI.). In short, the Supreme Court held that a

defendant's rights under the Confrontation Clause cannot be

"replaced by a system in which the prosecution presents its

evidence via ex parte affidavits and waits for the defendant to

subpoena the affiants if he chooses." Id. at ___, 129 S.Ct. at

2540.

While former Code § 19.2-187 informed an accused that a

certificate of analysis would be introduced into evidence

without testimony from the forensic analyst, the procedure set

forth in former Code § 19.2-187.1 required the accused to call

the analyst to the witness stand. Specifically, former Code

§ 19.2-187.1 gave a defendant the "right to call" the analyst

"as a witness"; it did not require the Commonwealth to call the

13
forensic analyst. In fact, the language in former Code § 19.2-

187.1 allowing a defendant to examine the forensic analysts "as

if he had been called as an adverse witness" presupposed that

the Commonwealth had in fact not called the analyst as a witness

against the defendant. Although former Code § 19.2-187.1 did

allow a defendant to cross-examine the forensic analyst if the

defendant chose to call him/her, the Supreme Court in Melendez-

Diaz held that such a system runs afoul of a defendant's rights

under the Confrontation Clause. This is so because it

impermissibly relieves the prosecution of its burden to present

its witnesses against a defendant and imposes a burden on the

defendant to bring into court and call those adverse witnesses.

Melendez-Diaz, 557 U.S. at ___, 129 S.Ct. at 2540. Calling

witnesses against the defendant is "the prosecution's duty" and

cannot be "[c]onvert[ed] . . . into the defendant's privilege

under state law." Id.

Former Code §§ 19.2-187 and –187.1 are not analogous to the

type of permissible "notice-and-demand" statutes discussed in

Melendez-Diaz. The three notice-and-demand statutes cited by

the Supreme Court all require the prosecution to give a

defendant pretrial notice of its intent to use a forensic

analyst's report and allow the defendant to object to the use of

the report absent testimony from the analyst. Georgia Code

Annotated § 35-3-154.1 states that a report "of the methods and

14
findings of any examination or analysis conducted by an employee

of the state crime laboratory . . . is prima-facie evidence

. . . of the facts contained therein" and requires the

prosecution to serve a defendant with a copy of the report

"prior to the first proceeding in which the report is to be used

against the defendant." Ga. Code Ann. § 35-3-154.1(a), (c).

The statute further states: "The defendant may object in writing

any time after service of the report, but at least ten days

prior to trial, to the introduction of the report," in which

case "the judge shall require the employee to be present to

testify." Ga. Code Ann. § 35-3-154.1(e).

Similarly, Ohio Revised Code Annotated § 2925.51 makes

certain laboratory reports prima facie evidence and requires the

prosecution to serve a copy of the report on a defendant prior

to its first use at trial against the defendant. Ohio Rev. Code

Ann. § 2925.51(A)-(B). That statute, however, provides that

"[t]he report shall not be prima[]facie evidence . . . if the

accused . . . demands the testimony of the person signing the

report, by serving the demand upon the prosecuting attorney."

Ohio Rev. Code Ann. § 2925.51(C). Finally, Sections 1 and 4 of

Article 38.41 of the Texas Code of Criminal Procedure Annotated

state that a certificate of analysis is admissible evidence

"without . . . the analyst personally appearing in court," but

it must be provided to the defendant at least twenty days before

15
trial commences. "The certificate is not admissible [if] the

opposing party files a written objection to the use of the

certificate" at least ten days before trial. Tex. Code Crim.

Proc. Ann., art. 38.42, § 4.

Although former Code § 19.2-187 allowed an accused to

receive a copy of a certificate of analysis by requesting such

from the clerk of court or the Commonwealth's Attorney, neither

that statute nor former Code § 19.2-187.1 allowed the accused to

object to the admission of the certificate unless the

Commonwealth called the forensic analyst as a witness. In other

words, the former statutory framework did not contain the type

of "notice-and-demand" procedures that the Supreme Court

indicated are sufficient to safeguard an accused's rights under

the Confrontation Clause. As the Supreme Court explained, the

simplest form of "notice-and-demand" statutes "require the

prosecution to provide notice to the defendant of its intent to

use an analyst's report as evidence at trial, after which the

defendant is given a period of time in which he may object to

the admission of the evidence absent the analyst's appearance

live at trial." Melendez-Diaz, 557 U.S. at ___, 129 S.Ct. at

2541. While a defendant "always has the burden of raising his

Confrontation Clause objection," former Code § 19.2-187.1 did

more than merely "govern the time within which he must do so."

Id.

16
 Thus, in light of the decision in Melendez-Diaz, we now

hold that the procedure established in former Code § 19.2-187.1

did not adequately safeguard a criminal defendant's rights under

the Confrontation Clause. Accordingly, in both Cypress' and

Briscoe's trials, the admission into evidence of the

certificates of analysis at issue without testimony from the

forensic analysts violated the Confrontation Clause. The

respective circuit courts erred in admitting the certificates.

Further, because former Code § 19.2-187.1 placed an

impermissible burden on Cypress and Briscoe to call the forensic

analysts as adverse witnesses and did not adequately protect

their Confrontation Clause rights, neither defendant waived his

Confrontation Clause objection by failing to utilize the

statutory procedure. See Magruder, 275 Va. at 294, 657 S.E.2d

at 118 ("The dispositive issue before us is whether . . .

[former] Code § 19.2-187.1 adequately protects a criminal

defendant's rights under the Confrontation Clause of the Sixth

Amendment, and if so, whether [the defendants] waived their

Confrontation Clause challenges.") (emphasis added).

This conclusion, however, does not end our analysis with

regard to Briscoe. The Commonwealth argues that the admission

of the certificates of analysis in Briscoe's trial, if error,

was nevertheless harmless. We agree.

17
 A federal constitutional error can be harmless provided it

is harmless beyond a reasonable doubt. Stevens v. Commonwealth,

272 Va. 481, 486, 634 S.E.2d 305, 308 (2006). In conducting a

federal constitutional harmless error analysis, the Court must

determine " 'whether there is a reasonable possibility that the

evidence complained of might have contributed to the

conviction.' " Chapman v. California, 386 U.S. 18, 23 (1967)

(quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)).

In making that determination, the reviewing court
is to consider a host of factors, including the
importance of the tainted evidence in the
prosecution's case, whether that evidence was
cumulative, the presence or absence of evidence
corroborating or contradicting the tainted
evidence on material points, and the overall
strength of the prosecution's case.

Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209

(1999).

Briscoe was convicted of possession with the intent to

distribute cocaine and unlawful transportation of cocaine into

the Commonwealth with the intent to distribute. Magruder, 295

Va. at 293, 657 S.E.2d at 117. The two certificates of analysis

admitted as evidence in his trial established that the substance

seized by the police during the execution of a search warrant

for Briscoe's apartment and his person was " 'solid material'

cocaine" totaling 36.578 grams. Id. at 292, 657 S.E.2d at 117.

Because the nature and amount of the confiscated substance were

18
elements of the charged offenses, see Code §§ 18.2-248 and –

248.01, this Court must determine whether evidence introduced at

Briscoe's trial, other than the certificates of analysis, proved

those particular facts beyond a reasonable doubt.

During the search of Briscoe's apartment, the police

discovered suspected crack cocaine in Briscoe's kitchen sink.

In the kitchen cabinets next to the sink, the police recovered

two scales, sandwich bags, a 100-gram weight, a razor blade, and

a plate. Several of the objects had what appeared to be crack-

cocaine residue on them, including several tied sandwich bags,

the razor blade, one of the scales, and the plate. On the

counter next to the sink, the police discovered a small rock of

suspected crack cocaine and an ice tray containing additional

rocks. Finally, the police recovered additional suspected crack

cocaine on Briscoe's person.

After the search was completed, the police transported

Briscoe to the police department where he then waived his

Miranda rights and made a statement to the police. The

interviewing police officer testified at trial about the details

of Briscoe's statement. According to the 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 further told the officer that the cocaine

found in the kitchen sink "should have been around 40 grams."

19
When asked where he obtained the cocaine, Briscoe stated:

" '[from] my man in D.C. two weeks ago[;] I brought it over

here.' " Briscoe explained that he typically bought a 62-gram

package of cocaine "almost every day" and the last time he had

purchased that amount was two weeks prior to his arrest. In

response to a question about whether his most recent purchase of

cocaine was "crack or powder," he answered that it was "hard."

He further explained that about half of his purchased cocaine is

powder and the other half is "hard, meaning already crack

cocaine." Briscoe also admitted that he has "three main guys in

D.C." from whom he buys cocaine and that he had made as many as

80 purchases from two of the suppliers.

"[L]ay testimony and circumstantial evidence may be

sufficient, without the introduction of an expert chemical

analysis, to establish the identity of the substance involved in

an alleged narcotics transaction." United States v. Dolan, 544

F.2d 1219, 1221 (4th Cir. 1976); accord Dunaway v. Commonwealth,

52 Va. App. 281, 301, 663 S.E.2d 117, 127 (2008). Even when the

identity of a substance is an element of the charged offense,

courts “will uphold a conviction as long as the evidence that

the substance was illegal is adequate.” United States v.

Uwaeme, 975 F.2d 1016, 1020 (4th Cir. 1992) (citing United

States v. Scott, 725 F.2d 43, 45 (4th Cir. 1984) (upholding a

drug-possession conviction although the prosecution introduced

20
no expert testimony identifying the substance as cocaine but

instead presented lay testimony regarding the nature of the

substance in question)).

Briscoe's numerous and regular purchases of either "powder"

or "crack" cocaine from suppliers in Washington, D.C., as well

as his experience with cocaine distribution, demonstrated his

familiarity with the illegal drug. In his statement, he

repeatedly referred to the substance seized in his apartment as

cocaine and stated that the specific cocaine found in the

kitchen sink was about "40 grams." One ounce is approximately

28.35 grams. In light of his purchasing and distribution

experience, the recovery of scales and drug packaging materials,

and his admissions with respect to the nature and amount of the

confiscated substance, we conclude that the evidence proved

beyond a reasonable doubt that the substance seized during the

execution of the search warrant was cocaine and that the amount

Briscoe transported into the Commonwealth was "one ounce or

more" as required by Code § 18.2-248.01.

When the elements of the charged offenses are established

beyond a reasonable doubt by admissible evidence, the erroneous

admission of evidence probative of the same elements is

harmless. See Mu'Min v. Commonwealth, 239 Va. 433, 446-47, 389

S.E.2d 886, 895 (1990) (holding that any error resulting from

the trial court's admitting into evidence a previous order of

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conviction was rendered harmless by the defendant's own

statement relating the same facts as those contained in the

order). Because a violation of the Confrontation Clause, like

other constitutional violations, is subject to a harmless error

analysis, see United States v. Martinez-Rios, 595 F.3d 581, 587

(5th Cir. 2010); United States v. Caraballo, 595 F.3d 1214, 1229

n.1 (11th Cir. 2010), we hold that the admission of the

certificates of analysis in violation of Briscoe's Confrontation

Clause rights was harmless beyond a reasonable doubt.

CONCLUSION

For these reasons, we will reverse the judgment of the

Court of Appeals affirming Cypress' conviction for possession of

cocaine with the intent to distribute, second or subsequent

offense, vacate the conviction, and remand to the Court of

Appeals with directions that the case be remanded to the Circuit

Court of the City of Chesapeake for a new trial if the

Commonwealth be so advised. 5 We will, however, affirm the

judgment of the Court of Appeals upholding Briscoe's convictions

for possession with the intent to distribute cocaine and

5
Cypress' argument that this Court should not remand his
case for a new trial but should instead vacate his conviction
and dismiss the indictment to avoid "manifest injustice" because
he has already served 5 years in confinement is without merit.
As the Commonwealth notes, Cypress was actually sentenced to 15
years of incarceration, with 10 years suspended and supervised
probation for an indeterminate period.

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unlawful transportation of cocaine into the Commonwealth with

the intent to distribute.

Record No. 070815 – Reversed, vacated, and remanded.
Record No. 070817 - Affirmed.

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