VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 28th day of December, 2010.
Demetrius Lamar Farmer, Appellant,
against Record No. 1694-08-3
Circuit Court Nos. CR08000257-00 through CR08000259-00
and CR08000301-00
Commonwealth of Virginia, Appellee.
Upon a Rehearing
Before Judges Beales, Powell and Alston
On February 16, 2010, a panel of this Court granted appellant’s petition for rehearing in this case
and suspended the briefing schedule pending a decision of the Supreme Court of Virginia on the remand
from the Supreme Court of the United States in Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d
113 (2008), vacated and remanded sub nom. Briscoe v. Virginia, 559 U.S. ____, 130 S.Ct. 1316 (2010).
On September 16, 2010, the Supreme Court of Virginia rendered its opinion in that matter,
Cypress v. Commonwealth, Record No. 070815 (Va. Sept. 16, 2010), and on October 7, 2010, that
Court’s mandates were certified to this Court.
On October 8, 2010, this Court set a briefing schedule for the panel rehearing of this case.
On October 20, 2010, this Court granted the appellee’s request to suspend the briefing schedule
pending the Court’s consideration of the Commonwealth’s confession of error filed in this case on
October 18, 2010.
Upon consideration of the said confession of error, and the Commonwealth’s consent to reversal
of that portion of the September 25, 2008 judgment of the trial court convicting the appellant of
possession of cocaine (Circuit Court Record No. CR08-257), possession of a firearm while possessing
drugs (Circuit Court Record No. CR08-258), and possession of marijuana, first offense (Circuit Court
Record No. CR08-301), the opinion previously rendered by this Court on January 12, 2010 is
withdrawn, the mandate entered on that date is vacated, the said convictions are reversed and annulled,
and the case is remanded to the trial court for further proceedings consistent with this order.
The Court previously denied the petition for appeal in this case with regard to the appellant’s
conviction of possession of a firearm under age twenty-nine with prior juvenile convictions (Circuit
Court No. CR08-259). Accordingly, this Court’s decision in that regard is undisturbed by this order and
remains in effect.
This order shall be published and certified to the trial court.
A Copy,
Teste:
original order signed by the Clerk of the
Court of Appeals of Virginia at the direction
of the Court
Clerk
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VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 16th day of February, 2010.
Demetrius Lamar Farmer, Appellant,
against Record No. 1694-08-3
Circuit Court Nos. CR08000257-00 through CR08000259-00 and
CR08000301-00
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing
Before Judges Beales, Powell and Alston
On January 26, 2010 came Demetrius Lamar Farmer, by court-appointed counsel, and filed a
petition praying that the Court set aside the judgment rendered herein on January 12, 2010, and grant a
rehearing thereof.
Upon consideration whereof, the petition for rehearing is granted, the mandate entered herein on
January 12, 2010 is stayed pending the decision of the Court, and the appeal is reinstated on the docket
of this Court.
Upon further consideration whereof, the briefing schedule in this rehearing proceeding hereby is
suspended pending a decision of the Supreme Court of Virginia on the remand from the Supreme Court
of the United States in Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d 113 (2008), vacated and
remanded sub nom. Briscoe v. Virginia, 559 U.S. ____ (January 25, 2010) (per curiam).
A Copy,
Teste:
original order signed by the Clerk of the
Court of Appeals of Virginia at the direction
of the Court
Clerk
COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Powell and Alston
Argued at Richmond, Virginia
DEMETRIUS LAMAR FARMER
OPINION BY
v. Record No. 1694-08-3 JUDGE CLEO E. POWELL
JANUARY 12, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
David A. Melesco, Judge
Jessica M. Bulos, Assistant Appellate Defender (Office of the
Appellate Defender, on briefs), for appellant.
Stephen R. McCullough, State Solicitor (William C. Mims,
Attorney General; Virginia B. Theisen, Senior Assistant Attorney
General, on brief), for appellee.
Demetrius Lamar Farmer (appellant) appeals his convictions for possession of cocaine, in
violation of Code § 18.2-250; possession of a firearm while in possession of cocaine, in violation
of Code § 18.2-308.4; possession of a firearm by a person under age 29 with a prior juvenile
conviction, in violation of Code § 18.2-308.2; and misdemeanor possession of marijuana, in
violation of Code § 18.2-250.1. On appeal, appellant contends the trial court erred in ruling the
admission of the certificate of drug analysis did not violate appellant’s right of confrontation and
that Virginia’s statutory provision allowing him to call the analyst did not cure the Confrontation
Clause or due process violations because the statute caused impermissible burden-shifting. We
agree that the certificate contained testimonial hearsay but hold that appellant waived his right to
confront the preparer of the certificate.
I. BACKGROUND
At his bench trial, appellant objected to the admission of the laboratory certificate of
analysis for the cocaine and marijuana that he was charged with possessing. He alleged that the
admission of this certificate violated his due process and Confrontation Clause rights because he
was denied the opportunity to cross-examine the forensic analyst who performed the tests. The
appellant neither subpoenaed the forensic analyst who prepared the laboratory certificate nor did
he request that either the Commonwealth or the trial court subpoena the analyst under Code
§ 19.2-187.1. The trial court, relying on Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d
113 (2008), cert. granted sub nom. Briscoe v. Virginia, 129 S. Ct. 2858 (2009), overruled
appellant’s objections. At the conclusion of the trial, the court convicted appellant of all charged
offenses.
II. ANALYSIS
Appellant argues that Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), controls
this case and requires that his convictions be reversed and the matter remanded for a new trial.
Specifically, he asserts that, under Melendez-Diaz, laboratory certificates are testimonial and that
the provision in Code § 19.2-187.1 that requires an accused to subpoena the preparer of the
laboratory certificate impermissibly places the burden on the accused to provide evidence in
order to maintain his right to confront. 1 The Attorney General counters that Magruder controls
and, therefore, appellant waived his right to confrontation and due process challenges by failing
to invoke the provisions of Code § 19.2-187.1. Moreover, the Attorney General asserts that the
Supreme Court of the United States approved notice-and-demand statutes, like the Virginia
1
Essentially, he asks this Court to overrule our Supreme Court’s decision in Magruder,
275 Va. 283, 657 S.E.2d 113, simply because it is has been granted certiorari by the Supreme
Court of the United States. He contends that Melendez-Diaz supports the proposition that Code
§ 19.2-187.1 as it existed when he was convicted is unconstitutional.
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statute in place at the time of appellant’s trial. Appellant responds that his argument is not
waived and Virginia’s then-in-effect statutes placed an unconstitutional burden on him and,
therefore, were not notice-and-demand statutes as contemplated by Melendez-Diaz.
It is unquestionable that the laboratory certificate of drug analysis was testimonial under
Crawford v. Washington, 541 U.S. 36 (2004). Melendez-Diaz, 129 S. Ct. at 2531-32; see Grant
v. Commonwealth, 54 Va. App. 714, 719-20, 682 S.E.2d 84, 87 (2009) (applying Melendez-Diaz
to hold that the attestation clause on a certificate of breath analysis is testimonial in nature and
that its admission in the face of a proper objection, without providing an opportunity for
cross-examination of the attestor, constituted a violation of the Confrontation Clause).
That said, under the facts of this case, appellant waived any Confrontation Clause or Due
Process Clause violation that may have occurred by the admission of the laboratory certificate of
drug analysis. As our Supreme Court has recognized, “it is undisputed that a criminal defendant
can waive the right to confrontation,” and “[t]he decision in Crawford did not alter that fact.”
Magruder, 275 Va. at 302, 657 S.E.2d at 122-23; see Melendez-Diaz, 129 S. Ct. at 2534 n.3.
“‘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’” and this
procedure “adequately safeguards a criminal defendant’s rights under the Confrontation Clause.”
Magruder, 275 Va. at 301, 305, 657 S.E.2d at 122, 124 (quoting Brooks v. Commonwealth, 49
Va. App. 155, 164, 638 S.E.2d 131, 136 (2006)). A “defendant’s failure . . . to utilize that
procedure waive[s] [the] right to be confronted with the forensic analyst[], i.e., to enjoy the
elements of confrontation.” Id. at 305, 657 S.E.2d at 124; see Grant, 54 Va. App. at 724, 682
S.E.2d at 89 (quoting Magruder for the proposition that “a criminal defendant [can] ‘insur[e] the
physical presence of the forensic analyst at trial’ under Code § 19.2-187.1 ‘by issuing a
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summons for their appearance at the Commonwealth’s cost, or asking the trial court or
Commonwealth to do so” (emphasis added in Grant)).
Here, appellant objected at trial to the admissibility of the laboratory certificate. He did
not subpoena the forensic analyst prior to trial nor did he request that the court or
Commonwealth do so. Thus, appellant waived his confrontation right by not securing the
forensic analyst’s presence at trial. Cf. Grant, 54 Va. App. at 724, 682 S.E.2d at 89 (where this
Court held “[w]e also agree with the Commonwealth that Grant complied with the requirement
of Code § 19.2-187.1 and did not waive his right to confront the person who prepared the
certificate” (emphasis added)). Therefore, the trial court correctly ruled that the laboratory
certificate of drug analysis was admissible.
Farmer further contends that the statutory scheme impermissibly shifted the burden of
producing evidence by requiring him to call the forensic analyst in order to exercise his right to
confront that witness. “This argument is not cognizable under the Confrontation Clause.”
Magruder, 275 Va. at 301, 657 S.E.2d at 122 (quoting United States v. Owens, 484 U.S. 554,
559 (1988), for the proposition that “the Confrontation Clause guarantees only ‘an opportunity
for effective cross-examination’”). This burden-shifting argument raises due process, not
Confrontation Clause, concerns that appellant failed to properly preserve for appeal to this Court.
Because the defendants did not avail themselves of the opportunity
to require the presence of a particular forensic analyst at trial, they
were never in the position of being forced, over their objection, to
call a forensic analyst as a witness. In other words, no defendant
said to the respective circuit court, “the forensic analyst is here to
testify but the Commonwealth must first call the witness.” Like
the situation in Brooks, “the trial court never had occasion to
address the proper order of proof.” 49 Va. App. at 168, 638 S.E.2d
at 138; but see Belvin v. State, 922 So. 2d 1046, 1054 (Fla. Dist.
Ct. App. 2006) (“[S]tatutory provision, [providing defendant with
the opportunity to subpoena breath test operator,] does not
adequately preserve the defendant’s Sixth Amendment right to
confrontation” because it impermissibly shifts the burden to the
defendant to produce evidence.); State v. Birchfield, 157 P.3d 216,
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220 (Or. 2007) (“[I]t is clear that the transfer of legal responsibility
to secure the attendance of the declarant from the state to the
defendant cannot withstand constitutional scrutiny.”).
Magruder, 275 Va. at 301-02, 657 S.E.2d at 122.
Here, as in Magruder, appellant failed to request the forensic analyst’s presence during
the trial and, thus, he was “never in the position of being forced, over [his] objection, to call a
forensic analyst as a witness.” Id. at 301, 657 S.E.2d at 122. Having failed to secure the
analyst’s presence, appellant was never in a position to demand that the Commonwealth be
required to call the forensic scientist as a witness and “the trial court never had occasion to
address the proper order of proof.” Id. Thus, appellant failed to satisfy the contemporaneous
objection requirement of Rule 5A:18.
Because we may not invoke the ends of justice exception to Rule 5A:18 sua sponte and
appellant does not ask us to do so, we hold that appellant waived his due process objection and
decline to consider this argument on appeal. Edwards v. Commonwealth, 41 Va. App. 752, 761,
589 S.E.2d 444, 448 (2003) (en banc), aff’d by unpub’d order, No. 040019 (Va. Oct. 15, 2004).
III. CONCLUSION
For the foregoing reasons, we affirm.
Affirmed.
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