COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia
STEPHEN DOUGLAS PAYNE
MEMORANDUM OPINION * BY
v. Record No. 2870-95-4 JUDGE RICHARD S. BRAY
MARCH 25, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
(Exequiel R. Sevilla, Jr., on brief), for
appellant. Appellant submitting on brief.
(Kathleen B. Martin, Assistant Attorney
General; James S. Gilmore, III, Attorney
General, on brief), for appellee. Appellee
submitting on brief.
Stephen Douglas Payne (defendant) was convicted by a jury
for possession of cocaine. On appeal, he asserts that the trial
court erroneously admitted hearsay evidence, a certificate of
analysis which did not comport with the provisions of Code
§ 19.2-187. We agree and reverse the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
During trial, the Commonwealth offered the disputed
certificate into evidence, and defendant objected, arguing that
it constituted hearsay. Although the legislature has excepted a
certificate of analysis prepared in accordance with Code
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
§ 19.2-187 from the disability of hearsay, a certificate lacking
the requisite attestation clause or otherwise not in "strict
compliance" with the statute remains "subject to a valid hearsay
objection." Frere v. Commonwealth, 19 Va. App. 460, 463-65, 452
S.E.2d 682, 685-86 (1995); Myrick v. Commonwealth, 13 Va. App.
333, 337-38, 412 S.E.2d 176, 178 (1991). The Commonwealth does
not contend that the disputed certificate included a proper
attestation clause. Thus, confronted with defendant's proper
objection in this instance, the Commonwealth was unable to
establish a statutory or other exception to the hearsay rule,
leaving the certificate inadmissible evidence. See, e.g., Neal
v. Commonwealth, 15 Va. App. 416, 420-22, 425 S.E.2d 521, 523-25
(1992).
The Commonwealth, nevertheless, urges that we affirm the
conviction, contending that the improper evidence was harmless.
Non-constitutional error is harmless if "'it plainly appears from
the record and the evidence given at the trial that' the error
did not affect the verdict." Lavinder v. Commonwealth, 12 Va.
App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting
Code § 8.01-678); see id. at 1009, 407 S.E.2d at 913. "An error
does not affect a verdict if a reviewing court can conclude,
without usurping the jury's fact finding function, that, had the
error not occurred, the verdict would have been the same." Id.
at 1005, 407 S.E.2d at 911; see Woodward v. Commonwealth, 16 Va.
App. 672, 675, 432 S.E.2d 510, 512 (1993) (inadmissible evidence
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which is "merely cumulative of other, undisputed evidence" does
not affect the verdict). Whether an error at trial has affected
the verdict is necessarily case specific. See Lavinder, 12 Va.
App. at 1009, 407 S.E.2d at 913.
We acknowledge that "lay 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.
Scott, 725 F.2d 43, 45 (4th Cir. 1984) (quoting United States v.
Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976)). However, Castillo
v. Commonwealth, 21 Va. App. 482, 465 S.E.2d 146 (1995), teaches
that oftentimes the prejudicial effect of inadmissible evidence
impairs an independent assessment of the admissible evidence by
the fact finder, thereby infecting the verdict with error.
In this instance, we are "'unable to say what effect the
[inadmissible] evidence had on the [fact finder's] decision,'"
despite "independent evidence [of the nature of the substance]."
Id. at 490, 465 S.E.2d at 150 (quoting Durant v. City of
Suffolk, 4 Va. App. 445, 449, 358 S.E.2d 732, 734 (1987)); see
also Cartera v. Commonwealth, 219 Va. 516, 248 S.E.2d 784 (1978)
(physician's testimony detailing victims' statements and his
opinion that each had been raped found not harmless).
Accordingly, we reverse the conviction and remand to the trial
court for further proceedings consistent with this opinion, if
the Commonwealth be so advised.
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Reversed and remanded.
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