Magruder v. Com.

Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons,
and Agee, JJ., and Stephenson, S.J.

MICHAEL RICARDO MAGRUDER

v. Record No. 070762

COMMONWEALTH OF VIRGINIA OPINION BY
JUSTICE CYNTHIA D. KINSER
SHELDON A. CYPRESS February 29, 2008

v. Record No. 070815

COMMONWEALTH OF VIRGINIA

MARK A. BRISCOE

v. Record No. 070817

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In each of these appeals, the defendant claims that

the admission into evidence, pursuant to Code § 19.2-187,

of a certificate of analysis in the absence of testimony at

trial from the person who performed the particular analysis

and prepared the certificate violated his rights under the

Confrontation Clause of the Sixth Amendment. Because the

procedure provided in Code § 19.2-187.1 adequately protects

a criminal defendant’s rights under the Confrontation

Clause and because the defendants in these appeals failed

to utilize that procedure, we conclude that they waived the

challenges under the Confrontation Clause to the

admissibility of the certificates of analysis. We will
therefore affirm the judgments of the Court of Appeals

upholding the various convictions at issue.

I. RELEVANT FACTS AND PROCEEDINGS

Although these appeals involve a common dispositive

question of law, which we review de novo, Torloni v.

Commonwealth, 274 Va. 261, 267, 645 S.E.2d 487, 490 (2007),

their facts and procedural histories differ. Therefore, we

will first summarize the relevant facts of each case and

then analyze the dispositive issue that the appeals share.

The appeal by Mark A. Briscoe involves one additional issue

that we will address separately following the analysis of

the dispositive issue.

A. Magruder v. Commonwealth

During a consensual search of Michael Ricardo

Magruder, Officer William Catlett of the City of Winchester

Police Department discovered an “off-white rock-like

substance” in the right front pocket of Magruder’s pants.

Catlett suspected the substance was crack cocaine. Catlett

took possession of the “rock” and submitted it to a

forensic laboratory for testing. A forensic analyst with

the Department of Criminal Justice Services, Division of

Forensic Science, tested the substance and reported in a

certificate of analysis that it was “0.022 gram[s]” of

cocaine. In the certificate, the analyst also attested

2
that he had performed the analysis and that the certificate

was “an accurate record of the results of that analysis.”

Magruder was subsequently indicted in the Circuit

Court of the City of Winchester for possession of cocaine,

in violation of Code § 18.2-250(A). At a bench trial, the

Commonwealth offered into evidence the certificate of

analysis. Relying on the decision in Crawford v.

Washington, 541 U.S. 36 (2004), Magruder objected,

asserting that the admission of the certificate of analysis

would violate his Sixth Amendment right to confront the

witness against him. The circuit court overruled

Magruder’s objection, stating: “Crawford only applies to

testimonial evidence. You have a right to call [the

forensic analyst] if you want to.” Magruder did not call

the forensic analyst to testify and presented no evidence

refuting the accuracy of the analysis of the substance

seized from him, as reported in the certificate of

analysis. The circuit court convicted Magruder of

possession of cocaine and sentenced him to a suspended term

of one year and six months of incarceration, with two years

of supervised probation.

The Court of Appeals affirmed Magruder’s conviction in

an unpublished opinion. Magruder v. Commonwealth, Record

No. 1982-05-4 (March 13, 2007). Relying on its decision in

3
Brooks v. Commonwealth, 49 Va. App. 155, 638 S.E.2d 131

(2006), the Court of Appeals held that the procedures set

forth in Code §§ 19.2-187 and 19.2-187.1 adequately

protected Magruder’s Confrontation Clause rights and that

Magruder’s failure to notify the Commonwealth of his desire

to cross-examine the forensic analyst at trial waived his

right to do so. Magruder, slip op. at 1. Thus, the Court

of Appeals concluded that the circuit court did not err in

admitting the certificate of analysis in the absence of

testimony from the person who performed the analysis. Id.

On appeal to this Court, Magruder presents two

assignments of error:

I. The Court of Appeals erred in concluding
that . . . 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.

II. The Court of Appeals erred in concluding
that a defendant’s failure to timely notify
the Commonwealth of his desire to confront
the forensic analyst at trial constitutes a
waiver of that right.

B. Cypress v. Commonwealth

Sheldon A. Cypress was a passenger in an automobile

being driven by his cousin when a trooper with the Virginia

State Police stopped the vehicle because of its improperly

tinted windows. The driver consented to a search of the

4
vehicle. During that search, the trooper found, among

other things, two plastic bags – one under the driver’s

seat and one under the passenger’s seat – each containing a

“chunky white substance” that the trooper suspected was

crack cocaine. Subsequent forensic testing at the

Department of Forensic Science revealed that the substance

was cocaine, totaling 60.5 grams. A certificate of

analysis reporting those results bore the signature of the

forensic analyst who conducted the testing and included an

attestation that she had performed the analysis.

Cypress was indicted in the Circuit Court of the City

of Chesapeake for possession of cocaine with the intent to

distribute, having previously committed the offense of

distribution or possession with the intent to distribute,

in violation of Code § 18.2-248(C). At a bench trial, the

Commonwealth moved to admit the certificate of analysis

into evidence. Cypress objected, arguing that under the

holding in Crawford the certificate fell into a core class

of testimonial evidence and was therefore inadmissible in

the absence of testimony from the person who performed the

analysis of the seized substance. The circuit court

overruled the objection, holding that “the scientific

results stated in the certificate of analysis are not

5
testimonial statements as that term is defined or described

in Crawford v. Washington.” 1

Cypress did not call the forensic analyst as a witness

and presented no evidence. The circuit court convicted

Cypress of possession of cocaine with the intent to

distribute, second or subsequent offense, and sentenced him

to imprisonment for 15 years, with 10 years suspended, and

a fine of $1,000. 2

The Court of Appeals denied Cypress’ appeal in an

unpublished per curiam order. Cypress v. Commonwealth,

Record No. 1547-06-1 (January 3, 2007). Citing its

decision in Brooks, the Court of Appeals stated: “assuming

a certificate of analysis constitutes testimonial evidence

under Crawford, a defendant’s confrontation rights are

nonetheless protected by the procedures provided by Code

§§ 19.2-187 and 19.2-187.1.” Id., slip op. at 2. The

Court of Appeals, however, held that Cypress waived his

right to confront the forensic analyst who prepared the

1
Cypress renewed his Confrontation Clause challenge to
the admissibility of the certificate of analysis again in
motions to strike the Commonwealth’s evidence, in a post-
trial motion, and at sentencing. The circuit court denied
the renewed motions for the reasons originally stated.
2
There appears to be a discrepancy between the
conviction order of April 19, 2006 and the sentencing order
of June 26, 2006. The conviction order states that Cypress
was convicted of distributing cocaine, a second or

6
certificate of analysis because he did not utilize the

procedure set forth in Code § 19.2-187.1. Id. For the

reasons stated in the January 3, 2007 order, a three-judge

panel of the Court of Appeals also denied the petition for

appeal. Cypress v. Commonwealth, Record No. 1547-06-1

(March 23, 2007).

Now on appeal to this Court, Cypress raises two

assignments of error:

I. The trial court erred by allowing into
evidence the certificate of analysis over
Defendant’s objection that its introduction
violated his Sixth Amendment Confrontation
Clause rights as articulated in Crawford v.
Washington and its progeny; the trial court
erred by finding Cypress guilty of
possession with intent to distribute cocaine
where the only evidence that he possessed
cocaine came from this drug certificate
which should have been excluded from
evidence[.]

II. The Court of Appeals erred by ruling that
Defendant waived his Confrontation Clause
rights by declining to subpoena the chemist
who prepared the certificate and this ruling
impermissibly, and unconstitutionally,
required Defendant to take affirmative steps
to safeguard his Confrontation Clause
rights[.]

C. Briscoe v. Commonwealth

Police officers with the City of Alexandria Police

Department executed a search warrant for the apartment of

subsequent offense. The sentencing order, however, states
that he was convicted of distributing cocaine.

7
Mark A. Briscoe. During the search, the officers seized

suspected cocaine scattered about in the apartment’s

kitchen area, as well as two scales, a razor blade, a 100-

gram weight, a box of plastic sandwich bags, and a plate.

Many of these items appeared to have deposits of drug

residue on them. In a search of Briscoe’s person, the

police seized a white, rock-like substance wrapped in

plastic from the pocket of his shorts.

The police submitted the items of suspected cocaine to

the Department of Criminal Justice Services, Division of

Forensic Science, for testing. In two certificates of

analysis, a forensic analyst reported that the confiscated

substances were “solid material” cocaine totaling 36.578

grams. The certificates also contained the analyst’s

signature and attestation that she performed the analyses

and that the certificates accurately reflected the results

of those analyses.

Briscoe was indicted 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), unlawful

transportation of cocaine into the Commonwealth with the

intent to distribute, in violation of Code § 18.2-248.01,

and conspiracy to distribute cocaine, in violation of Code

§§ 18.2-248 and 18.2-256. During a bench trial, the

8
Commonwealth sought to admit into evidence the two

certificates of analysis. Briscoe objected, arguing that

their admission, without the forensic analyst present to

testify, violated his confrontation rights under the Sixth

Amendment. Relying on the decision in Crawford, Briscoe

asserted that the certificates were testimonial because

they contained solemn declarations or affirmations that the

Commonwealth sought to use in order to establish an element

of the charged offenses. Briscoe also claimed that the

procedure provided in Code § 19.2-187.1 permitting a

defendant to call a forensic analyst as an adverse witness

does not protect his confrontation rights and actually

imposes an unconstitutional affirmative step that he must

take in order to assert his Sixth Amendment right of

confrontation.

The circuit court overruled Briscoe’s objection,

holding that the procedure in Code § 19.2-187.1 preserved

his right to cross-examine the forensic analyst. In

response to the circuit court’s ruling, Briscoe further

argued that the statutory right to call the forensic

analyst as an adverse witness does not satisfy his

constitutional right to confront the Commonwealth’s witness

and also impermissibly shifts the burden to produce

9
evidence to a criminal defendant. The circuit court did

not change its ruling.

Briscoe did not call the forensic analyst to testify

and presented no evidence. The circuit court convicted

Briscoe of possession with the intent to distribute cocaine

and transportation of cocaine into the Commonwealth with

the intent to distribute. The court sentenced Briscoe to a

total of 20 years of incarceration, with all but 5 years

and 8 months suspended.

The Court of Appeals denied Briscoe’s appeal in an

unpublished per curiam order. Briscoe v. Commonwealth,

Record No. 1478-06-4 (January 18, 2007). Assuming, without

deciding, that the certificates of analysis constituted

“testimonial” evidence under Crawford, the Court of Appeals

held that Briscoe’s right to confront the forensic analyst

was protected by the procedure provided in Code § 19.2-

187.1. Id., slip op. at 2 (citing Brooks, 49 Va. App. at

161, 638 S.E.2d at 134). The court further held that, by

failing to follow that statutory procedure, Briscoe waived

his constitutional right to confront the forensic analyst

who prepared the certificates. Id. Briscoe sought review

of the Court of Appeals per curiam order, and a three-judge

panel denied that petition for appeal for the reasons

10
stated in the January 18, 2007 order. Briscoe v.

Commonwealth, Record No. 1478-06-4 (March 26, 2007).

On appeal to this Court, Briscoe raises this

assignment of error with regard to the certificates of

analysis: 3

I. The Court of Appeals erred in upholding the
trial court’s finding that Defendant’s
constitutional right to confront and cross-
examine adverse witnesses was not violated
by the admission of the certificates of drug
analysis into evidence.

II. ANALYSIS

A. Confrontation Clause

The dispositive issue before us is whether the

procedure set forth in Code § 19.2-187.1 adequately

protects a criminal defendant’s rights under the

Confrontation Clause of the Sixth Amendment, and if so,

whether Magruder, Cypress, and Briscoe (collectively, the

defendants) waived their Confrontation Clause challenges to

the admissibility of the respective certificates of

analysis by failing to utilize that procedure. Before

resolving that issue, we first turn to the decision of the

Supreme Court of the United States in Crawford v.

Washington, since the defendants relied on it in claiming

3
Briscoe presents an additional, unrelated assignment
of error that the Court will address in a separate section
of this opinion.

11
that admission into evidence of the certificates of

analysis violated their confrontation rights. Prior to

that decision, the Confrontation Clause had not been

construed to bar the admission of an unavailable witness’

hearsay statement against a criminal defendant if the

statement bore sufficient “indicia of reliability” either

by falling within a “firmly rooted hearsay exception” or by

“a showing of particularized guarantees of

trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66 (1980).

In Crawford, the Supreme Court rejected the Roberts

analysis and held that “[w]here testimonial evidence is at

issue, . . . the Sixth Amendment demands what the common

law required: unavailability [of the witness] and a prior

opportunity for cross-examination.” 541 U.S. at 68; accord

Hodges v. Commonwealth, 272 Va. 418, 428-29, 634 S.E.2d

680, 685 (2006).

Now, under Crawford, the question whether admission of

a hearsay statement against a criminal defendant violates

the Confrontation Clause turns on whether the statement is

“testimonial” in nature. See Anderson v. Commonwealth, 274

Va. 469, 478, 650 S.E.2d 702, 707 (2007) (in Confrontation

Clause challenges since Crawford, the inquiry has been

whether a hearsay statement is testimonial); Riner v.

Commonwealth, 268 Va. 296, 322, 601 S.E.2d 555, 570 (2004)

12
(to decide whether admission of a hearsay statement

violates the Confrontation Clause, the Supreme Court

distinguished between “testimonial” and “non-testimonial”

hearsay). The Supreme Court declined to provide a

comprehensive definition of the term “testimonial” in

Crawford, but it did state that the term “applies at a

minimum to prior testimony at a preliminary hearing, before

a grand jury, or at a former trial; and to police

interrogations.” 541 U.S. at 68; see also Davis v.

Washington, 547 U.S. 813, ____ (2006) (holding that

“[s]tatements are nontestimonial when made in the course of

police interrogation under circumstances objectively

indicating that the primary purpose of the interrogation is

to enable police assistance to meet an ongoing emergency

[but] [t]hey are testimonial when the circumstances

objectively indicate that there is no such ongoing

emergency, and the primary purpose of the interrogation is

to establish or prove past events potentially relevant to

later criminal prosecution”).

In these appeals, it is not necessary to decide

whether a certificate of analysis is “testimonial.” Even

if we assume the certificates in the cases at bar are

testimonial, the decision in Crawford did not address the

issues before us, i.e., whether a prescribed statutory

13
demand procedure adequately protects a criminal defendant’s

rights under the Confrontation Clause and whether failure

to follow that procedure waives the right to confront a

particular witness. See Brown v. State, 939 So.2d 957, 960

(Ala. Crim. App. 2005) (“Crawford speaks to the issue of

the meaning and scope of the Confrontation Clause; it does

not, however, speak to the issues of preservation and

waiver of a criminal defendant’s confrontation right.”);

Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo. 2007)

(“Crawford did not alter the fact that the right to

confrontation can be waived.”).

We now begin our analysis by examining the two

relevant statutes, Code §§ 19.2-187 and 19.2-187.1. The

first statute permits a certificate of analysis, when “duly

attested” by the “person performing an analysis or

examination” in certain laboratories, to be admitted into

evidence “[i]n any hearing or trial of any criminal offense

. . . as evidence of the facts therein stated and the

results of the analysis or examination referred to

therein.” Code § 19.2-187. The only proviso is the

requirement that the certificate of analysis be “filed with

the clerk of the court hearing the case at least seven days

prior to the hearing or trial.” Id. The second statute,

Code § 19.2-187.1, establishes a procedure that presents an

14
accused with the opportunity to question the person

performing the analysis or examination as an adverse

witness. That statute states:

The accused in any hearing or trial in which
a certificate of analysis is admitted into
evidence pursuant to § 19.2-187 or § 19.2-187.01
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.

Code § 19.2-187.1.

In each of the cases before us, the Court of Appeals

relied on its decision in Brooks to hold that the

defendants waived their right to confront the forensic

analysts who prepared the certificates of analysis admitted

into evidence at their respective trials because they

failed to utilize the statutory procedure available to

them. In Brooks, the accused objected to the introduction

of certificates of analysis into evidence on the basis that

“the Commonwealth’s failure to call the forensic scientist

who tested the substances denied him his constitutional

right to confrontation under Crawford.” 49 Va. App. at

158, 638 S.E.2d at 133. The Court of Appeals rejected that

argument, holding that “Code § 19.2-187.1 sets out a

reasonable procedure to be followed in order for a

15
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 constitutional right to confront such

witnesses.” Id. at 164-65, 638 S.E.2d at 136.

Noting that an accused can voluntarily waive the right

of confrontation and that reasonable requirements may be

attached to the assertion of federal constitutional rights,

the Court of Appeals reasoned that, in light of the

decision in Crawford, “Code §§ 19.2-187 and 19.2-187.1[]

are merely a request to the defendant to stipulate to the

admissibility of the contents of any properly filed

certificates of analysis” and that when an accused “waits

until trial to assert his right to cross-examine the

analyst who prepared a particular certificate, he accepts

the request to stipulate and waives his right to confront

that witness.” Id. at 167, 638 S.E.2d at 137; see also

State v. Cunningham, 903 So.2d 1110, 1119 (La. 2005)

(holding such statutes “are a formalized means of

effectuating a stipulation to the admissibility of matters

which often are not in dispute”). Continuing, the Court of

Appeals explained that, if an accused does not wish to

accept the requested stipulation, “Code § 19.2-187.1

provides the mechanism by which he may reject the request

16
and have the analyst summoned to appear at trial at the

cost of the Commonwealth in order to be subject to cross-

examination.” Brooks, 49 Va. App. at 167-68, 638 S.E.2d at

138.

Finally, the Court of Appeals held that the argument

claiming the procedure in Code § 19.2-187.1

unconstitutionally places the burden on an accused to

present evidence in order to exercise his confrontation

rights was not before it because the defendant did not

summon the forensic analyst or ask the Commonwealth to do

so. Id. at 168, 638 S.E.2d at 138. Thus, according to the

Court of Appeals, the trial court never had the occasion to

rule on any challenge regarding the order of proof. Id.

The defendants here assert that Brooks was wrongly

decided and argue that they did not waive their Sixth

Amendment right to confront the forensic analysts by

failing to call those persons as adverse witnesses under

the provisions of Code § 19.2-187.1. According to the

defendants, the procedure provided in Code § 19.2-187.1

does not adequately protect the Sixth Amendment right of

confrontation for several reasons: (1) the statute requires

an accused to take impermissible affirmative steps to

secure the right to confront the forensic analyst; (2) the

statute does not provide any notice that failure to utilize

17
its provisions will automatically waive the right to

confront the forensic analyst; (3) the statute does not

insure that a waiver of the Sixth Amendment right to

confront the forensic analyst is knowing, voluntary, and

intelligent; (4) the statute by its terms addresses the

order of proof and impermissibly requires an accused to

present evidence in order to preserve confrontation rights;

and (5) the statute allows an accused to cross-examine the

forensic analyst only after a certificate of analysis has

already been admitted into evidence. 4

The Confrontation Clause of the Sixth Amendment to the

Constitution of the United States provides 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. This guarantee is enforced against

the states through the Fourteenth Amendment. Pointer v.

Texas, 380 U.S. 400, 401 (1965). The Confrontation Clause

4
Additionally, Magruder claims that the Court of
Appeals re-wrote Code § 19.2-187.1 because its provisions
do not mention a stipulation or require notice by an
accused to the Commonwealth or trial court that he wishes
to have the forensic analyst present at trial.

Cypress also asserts that the Court of Appeals erred
by addressing the waiver issue sua sponte. That alleged
error is not, however, the subject of an assignment of
error. See Rule 5:17(c).

18
secures the “literal right to ‘confront’ the witness at the

time of trial.” California v. Green, 399 U.S. 149, 157

(1970). “The substance of the constitutional protection is

. . . seeing the witness face to face, and . . . subjecting

him to the ordeal of a cross-examination.” Mattox v.

United States, 156 U.S. 237, 244 (1895); see also United

States v. Owens, 484 U.S. 554, 559 (1988) (“[t]he

Confrontation Clause guarantees only ‘an opportunity for

effective cross-examination’”) (quoting Kentucky v.

Stincer, 482 U.S. 730, 739 (1987) (emphasis in original));

James v. Commonwealth, 254 Va. 95, 98, 487 S.E.2d 205, 207

(1997) (“The Confrontation Clause . . . grants a criminal

defendant the right to cross-examine witnesses called by

the prosecution.”).

The right to confront “(1) insures that the witness

will give his statements under oath . . . ; (2) forces the

witness to submit to cross-examination . . . ; [and] (3)

permits the jury that is to decide the defendant’s fate to

observe the demeanor of the witness in making his

statement.” Green, 399 U.S. at 158. “The combined effect

of these elements of confrontation – physical presence,

oath, cross-examination, and observation of demeanor by the

trier of fact – serves the purposes of the Confrontation

Clause by ensuring that evidence admitted against an

19
accused is reliable and subject to the rigorous adversarial

testing that is the norm of Anglo-American criminal

proceedings.” Maryland v. Craig, 497 U.S. 836, 846 (1990);

see also Crawford, 541 U.S. at 61 (the “ultimate goal” of

the Confrontation Clause “is to ensure reliability of

evidence . . . by testing in the crucible of cross-

examination”).

With this understanding of the Confrontation Clause,

the question whether the procedure provided in Code § 19.2-

187.1 adequately protects a criminal defendant’s right to

confront the forensic analyst turns on whether the statute

supplies the “elements of confrontation – physical

presence, oath, cross-examination, and observation of

demeanor by the trier of fact.” Craig, 497 U.S. at 846.

We conclude that it does. Pursuant to 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. See Teleguz v. Commonwealth, 273 Va. 458, 479, 643

S.E.2d 708, 721-22 (2007) (noting that a witness called as

20
an adverse witness can be subjected to cross-examination);

Smith v. Lohr, 204 Va. 331, 335, 130 S.E.2d 433, 436 (1963)

(same). The trier of fact would then have had the

opportunity to observe the demeanor of the witnesses. In

short, if the defendants had utilized the procedure

provided in Code § 19.2-187.1, they would have had the

opportunity to cross-examine the forensic analysts. See

Owens, 484 U.S. at 559 (the Confrontation Clause guarantees

opportunity for cross-examination). Contrary to the

defendants’ position, the Confrontation Clause does not

insure that opportunity before a certificate of analysis is

admitted into evidence. See Crawford, 541 U.S. at 59 n.9

(the Confrontation Clause “does not bar admission of a

statement so long as the declarant is present at trial to

defend or explain it”).

Nevertheless, the defendants argue that this statutory

procedure impermissibly burdens the exercise of their right

under the Confrontation Clause by requiring them to take

certain affirmative steps in order to assert that right.

While “[m]ost . . . Sixth Amendment rights arise

automatically on the initiation of the adversary process

and no action by the defendant is necessary to make them

active in his or her case,” Taylor v. Illinois, 484 U.S.

400, 410 (1988), “the right to confront and to cross-

21
examine is not absolute and may, in appropriate cases, bow

to accommodate other legitimate interests in the criminal

trial process.” Chambers v. Mississippi, 410 U.S. 284, 295

(1973); see also Mattox, 156 U.S. at 243 (noting that the

right to confront a witness “must occasionally give way to

considerations of public policy and the necessities of the

case”). For example, “‘trial judges retain wide latitude’

to limit reasonably a criminal defendant’s right to cross-

examine a witness ‘based on concerns about, among other

things, harassment, prejudice, confusion of the issues, the

witness’ safety, or interrogation that is repetitive or

only marginally relevant.’” Michigan v. Lucas, 500 U.S.

145, 149 (1991) (quoting Delaware v. Van Arsdall, 475 U.S.

673, 679 (1986)); see also James, 254 Va. at 98, 487 S.E.2d

at 207 (“The Confrontation Clause . . . does not grant a

defendant an unlimited right to cross-examination.”). Even

after Crawford, the Confrontation Clause does not bar the

admission of testimonial hearsay statements if the

declarant is unavailable, so long as the accused had a

prior opportunity to cross-examine the witness. 541 U.S.

at 68.

Moreover, “[a] state procedural rule which forbids the

raising of federal questions at late stages in the case, or

by any other than a prescribed method, has been recognized

22
as a valid exercise of state power.” Williams v. Georgia,

349 U.S. 375, 382-83 (1955). Virginia has adopted several

provisions that require criminal defendants to take certain

procedural steps in order to exercise or vindicate a myriad

of constitutional rights. Pursuant to Code § 19.2-266.2,

an accused must file a written motion to suppress evidence

allegedly obtained in violation of the Fourth, Fifth, or

Sixth Amendments no later that seven days before trial.

See also Rule 3A:9. Failure to follow this statutory

requirement results in a waiver of an accused’s

constitutional challenge to the admissibility of the

evidence. Schmitt v. Commonwealth, 262 Va. 127, 145-46,

547 S.E.2d 186, 199 (2001). Similarly, the provisions of

Code § 18.2-67.7 impose notice-and-hearing requirements in

order to introduce evidence concerning a victim’s past

sexual conduct with a person other than the accused. Such

requirements are not unconstitutional but “serve[]

legitimate state interests in protecting against surprise,

harassment, and undue delay.” Lucas, 500 U.S. at 152-53.

An accused must also, upon request of the

Commonwealth, disclose whether he intends to introduce

evidence to establish an alibi. Rule 3A:11(c)(2). In

Williams v. Florida, 399 U.S. 78 (1970), the Supreme Court

held that a similar alibi-notice rule did not violate the

23
Fifth Amendment. Id. at 85. The Court observed that the

rule, “[a]t most, . . . only compelled [the defendant] to

accelerate the timing of his disclosure, forcing him to

divulge at an earlier date information that the [defendant]

from the beginning planned to divulge at trial.” Id.; see

also United States v. Sanchez, 361 F.2d 824, 825 (2nd Cir.

1966) (the Sixth Amendment right to a speedy trial attaches

upon arrest or the filing of formal charges but failure to

demand a speedy trial waives the constitutional right);

State v. Jestes, 448 P.2d 917, 920 (Wash. 1968) (same).

“The test is whether the defendant has had ‘a

reasonable opportunity to have the issue as to the claimed

right heard and determined by the state court.’” Michel v.

Louisiana, 350 U.S. 91, 93 (1955) (quoting Parker v.

Illinois, 333 U.S. 571, 574 (1948)). The provisions of

Code § 19.2-187.1 pass this test. We agree with the

holding of the Court of Appeals in Brooks: “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.”

49 Va. App. at 164, 638 S.E.2d at 136.

Legislatures may pass laws regulating,
within reasonable limits, the mode in which
rights secured to the subject by bills of right
and constitutions shall be enjoyed, and if the

24
 subject neglects to comply with these regulations
he thereby waives his constitutional privileges.

State v. Berg, 21 N.W.2d 777, 780 (Iowa 1946).

Furthermore, nothing in the records before us suggest that

any defendant was somehow precluded from utilizing the

procedure provided in Code § 19.2-187.1 or that the

procedure was unduly burdensome.

The defendants do, however, claim that the statutory

procedure, by its terms, shifts the burden of producing

evidence and requires a criminal defendant to call the

forensic analyst in order to exercise his right to confront

that witness. This argument is not cognizable under the

Confrontation Clause. See Owens, 484 U.S. at 559 (“[T]he

Confrontation Clause guarantees only ‘an opportunity for

effective cross-examination.’”) (alterations and emphasis

in original). Instead, it raises due process concerns that

are not properly before us in these appeals. 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.”

25
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, 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.”).

Finally, it is undisputed that a criminal defendant

can waive the right to confrontation. See Taylor v. United

States, 414 U.S. 17, 19 (1973) (confrontation rights waived

by voluntary absence from the trial); Illinois v. Allen,

397 U.S. 337, 342-43 (1970) (loss of confrontation rights

through misconduct in the courtroom); Boykin v. Alabama,

395 U.S. 238, 243 (1969) (confrontation rights waived by a

guilty plea); Diaz v. United States, 223 U.S. 442, 450-51

(1912) (waiver by consent to admission of absent witness’s

testimony); United States v. Carlson, 547 F.2d 1346, 1359-

60 (8th Cir. 1976) (a defendant’s intimidation of a grand

26
jury witness waived confrontation rights). The decision in

Crawford did not alter that fact. Hinojos-Mendoza, 169

P.3d at 668. Indeed, a criminal defendant can waive a

panoply of constitutional rights. See Muhammad v.

Commonwealth, 269 Va. 451, 507, 619 S.E.2d 16, 48 (2005)

(the right to present mitigating testimony “may be as

venerated as the right to a jury, the right to counsel, the

right against self-incrimination, and the right to

exclusion of evidence seized in an unconstitutional

manner,” all which are “within the panoply of

constitutional rights that may be waived by the accused”);

Fails v. Virginia State Bar, 265 Va. 3, 8, 574 S.E.2d 530,

533 (2003) (noting that a criminal defendant may waive the

right to demand counsel or a jury trial); Commonwealth v.

Washington, 263 Va. 298, 304-05, 559 S.E.2d 636, 639 (2002)

(double jeopardy rights can be waived expressly or by

implication); see also Code § 19.2-266.2 (an accused waives

his right to challenge the admission of evidence allegedly

obtained in violation of the Fourth, Fifth and Sixth

Amendments if he does not file a written motion to suppress

at least seven days before trial); Code § 18.2-67.7(B)

(rape shield statute imposes notice-and-hearing

requirements in order to secure the right to present

certain evidence); Rule 3A:11(c)(2) (requiring defendant to

27
disclose intent to present alibi evidence prior to trial or

risk waiving the right to do so).

The defendants, however, contend that any waiver of

confrontation rights cannot be presumed from a silent

record and that, given the absence of any notice of a

waiver in Code § 19.2-187.1, they did not knowingly,

intelligently, and voluntarily waive their Sixth Amendment

right to confront the forensic analysts. This Court,

however, has never held that the record, in all

circumstances, must affirmatively reveal that a criminal

defendant personally waived his right to confrontation. In

Bilokur v. Commonwealth, 221 Va. 467, 474, 270 S.E.2d 747,

752 (1980), we concluded that a defendant’s “silence was

tantamount to assent” that an incriminating extrajudicial

statement would be admitted by stipulation. Id. We held

“that the defendant, acting through counsel, waived his

right to invoke the constitutional guarantee of

confrontation.” Id.; see also United States v. Stephens,

609 F.2d 230, 232-33 (5th Cir. 1980) (counsel in a criminal

case may waive a defendant’s right of confrontation by

stipulating to the admission of evidence); cf. Washington,

263 Va. at 304-05, 559 S.E.2d at 639 (“defendant implicitly

consented to the [trial] court’s declaration of a mistrial

[and thereby] waived his double jeopardy rights”).

28
 We recognize that “[w]aiver is ordinarily an

intentional relinquishment or abandonment of a known right

or privilege.” Allen v. Commonwealth, 252 Va. 105, 111,

472 S.E.2d 277, 280 (1996). “What suffices for waiver

depends on the nature of the right at issue.” New York v.

Hill, 528 U.S. 110, 114 (2000). As the Supreme Court

explained:

“Whether the defendant must participate
personally in the waiver; whether certain
procedures are required for waiver; and whether
the defendant’s choice must be particularly
informed or voluntary, all depend on the right at
stake.” United States v. Olano, 507 U.S. 725,
733 (1993). For certain fundamental rights, the
defendant must personally make an informed
waiver. See, e.g., Johnson v. Zerbst, 304 U.S.
458, 464-465 (1938) (right to counsel); Brookhart
v. Janis, 384 U.S. 1, 7-8 (1966) (right to plead
not guilty). For other rights, however, waiver
may be effected by action of counsel. “Although
there are basic rights that the attorney cannot
waive without the fully informed and publicly
acknowledged consent of the client, the lawyer
has -- and must have -- full authority to manage
the conduct of the trial.” Taylor v. Illinois,
484 U.S. 400, 417-418 (1988). As to many
decisions pertaining to the conduct of the trial,
the defendant is “deemed bound by the acts of his
lawyer-agent and is considered to have ‘notice of
all facts, notice of which can be charged upon
the attorney.’” Link v. Wabash R. Co., 370 U.S.
626, 634 (1962) (quoting Smith v. Ayer, 101 U.S.
320, 326 (1880)). Thus, decisions by counsel are
generally given effect as to what arguments to
pursue, see Jones v. Barnes, 463 U.S. 745, 751
(1983), what evidentiary objections to raise, see
Henry v. Mississippi, 379 U.S. 443, 451 (1965),
and what agreements to conclude regarding the
admission of evidence, see United States v.
McGill, 11 F.3d 223, 226-227 (CA1 1993). Absent

29
 a demonstration of ineffectiveness, counsel’s
word on such matters is the last.

Id. at 114-15.

The provisions of Code §§ 19.2-187 and 19.2–187.1

adequately inform a criminal defendant of the consequences

of the failure to exercise the right to have a forensic

analyst present at trial for cross-examination. Pursuant

to Code § 19.2-187, a “duly attested” certificate of

analysis that has been timely filed with the appropriate

clerk of court is “admissible in evidence as evidence of

the facts therein stated and the results of the analysis or

examination referred to therein.” The provisions of Code

§ 19.2-187.1 then inform a criminal defendant about what

steps to take in order to secure the physical presence of

the forensic analyst and subject that person to an oath,

cross-examination, and a credibility determination by the

trier of fact - the elements of confrontation. Once the

forensic analyst appears at trial for cross-examination,

any Confrontation Clause problem disappears. See Crawford,

541 U.S. at 59 n.9 (“[W]hen the declarant appears for

cross-examination at trial, the Confrontation Clause places

no constraints at all on the use of his prior testimonial

statements.”).

30
 Based on the provisions of 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 Code § 19.2-187.1. Failure to use the

statutory procedure obviously waives the opportunity to

confront the forensic analyst. Additionally, “everyone is

conclusively presumed to know the law – that is, he is

estopped from denying such knowledge.” King v. Empire

Collieries Co., 148 Va. 585, 590, 139 S.E. 478, 479 (1927).

Thus, we reject not only the defendants’ contention that

the statutes need to contain an explicit notice outlining

the consequences of failing to utilize the procedure set

forth in Code § 19.2-187.1, but also the assertion that

their waiver of confrontation rights was not voluntary,

intelligent, and knowing. Confrontation Clause rights are

waived every day in this Commonwealth when a criminal

defendant’s attorney chooses not to object to the admission

of hearsay evidence or stipulates to the admission of

evidence. See, e.g., People v. Campbell, 802 N.E.2d 1205,

1213 (Ill. 2003) (holding that “defense counsel may waive a

defendant’s right of confrontation as long as the defendant

does not object and the decision to stipulate is a matter

31
of trial tactics and strategy”); Waldon v. State, 749 So.2d

262, 265-66 (Miss. Ct. App. 1999) (same); Carr v. State,

829 S.W.2d 101, 102-03 (Mo. Ct. App. 1992) (same); State v.

Bromwich, 331 N.W.2d 537, 540 (Neb. 1983) (same). We have

never required, nor should we, that the record

affirmatively reflect a defendant’s knowing, voluntary, and

intelligent agreement to such waivers. See Bilokur, 221

Va. at 474, 270 S.E.2d at 752.

Thus, we hold that the procedure in Code § 19.2-187.1

adequately safeguards a criminal defendant’s rights under

the Confrontation Clause and that the defendants’ failure

in these cases to utilize that procedure waived their right

to be confronted with the forensic analysts, i.e., to enjoy

the elements of confrontation. 5 Other courts have reached

5
In light of our holding, Cypress’ argument that there
was insufficient evidence to sustain his conviction because
the only evidence proving he possessed cocaine was the
“inadmissible” certificate of analysis is without merit.

We are also not persuaded by the defendants’ argument
that, if the procedure in Code § 19.2-187.1 adequately
protects a criminal defendant’s confrontation rights, the
Commonwealth could present all its evidence by affidavit
and require a defendant to subpoena the witnesses in order
to cross-examine them. We are not willing to engage in the
sort of speculation urged by the defendants. Furthermore,
the provisions of Code § 19.2-187 obviate the need for the
Commonwealth to call one of the limited number of forensic
analysts to testify in every case in which a certificate of
analysis is being offered into evidence if the defendant
chooses not to exercise his confrontation rights by
utilizing the procedure provided in Code § 19.2-187.1.

32
similar conclusions. For example, in Hinojos-Mendoza, the

court addressed a Colorado statute that makes “ ‘[a]ny

report . . . of the criminalistics laboratory’ ” admissible

into evidence “ ‘in the same manner and with the same force

and effect as if the employee or technician . . . had

testified in person.’ ” 169 P.3d at 665 (quoting Colo.

Rev. Stat. § 16-3-309(5)). The court noted that pursuant

to the statute, “ ‘[a]ny party may request that such

employee or technician testify in person at a criminal

trial on behalf of the state . . . by notifying the witness

and other party at least ten days before the date of such

criminal trial.’ ” Id. (quoting Colo. Rev. Stat. § 16-3-

309(5)). Failure to make a timely request was held to

amount to a waiver of the right to confront the technician.

Id. at 668. In concluding that the statute does not run

afoul of the Confrontation Clause, the court explained that

the statutory procedure “for ensuring the presence of the

lab technician at trial does not deny a defendant the

opportunity to cross-examine the technician, but simply

requires that the defendant decide prior to trial whether

he will conduct a cross-examination. The statute provides

the opportunity for confrontation – only the timing of the

defendant’s decision is changed.” Id.

33
 The court further noted that when “a defendant chooses

not to take advantage of the opportunity to cross-examine a

witness, the defendant has not been denied his

constitutional right to confrontation.” Id. Thus, the

court held that, “where a defendant . . . is represented by

counsel, the failure to comply with the statutory

prerequisites . . . waives the defendant’s right to

confront the witness just as the decision to forgo cross-

examination at trial would waive that right.” Id. at 670;

see also Brown, 939 So.2d at 961 (failure to make a timely

objection in accordance with statutory requirements to the

admissibility of a certificate of analysis waived the issue

for appeal); Cunningham, 903 So.2d at 1121 (finding that

the defendant’s failure to follow statutory procedure and

subpoena the person who performed the analysis waived his

right of confrontation and explaining that, “[f]rom a

practical standpoint, these statutes are no different from

a situation in which the State offers hearsay evidence at

trial [in that if the] defendant does not contemporaneously

object, the hearsay is allowed into evidence”); City of Las

Vegas v. Walsh, 124 P.3d 203, 209 (Nev. 2005) (holding that

statutory scheme adequately preserved the right of the

accused under the Confrontation Clause and that “[f]ailure

to exercise confrontation rights [under the statute] will

34
act as a waiver of those rights with regard to the

affidavits”); State v. Campbell, 719 N.W.2d 374, 378 (N.D.

2006) (criminal defendant’s failure to subpoena forensic

scientist as provided by statute and to avail himself of

opportunity to cross-examine the witness waived any Sixth

Amendment violation); Deener v. State, 214 S.W.3d 522, 528

(Tex. App. 2006) (“Because [defendant] did not file a

written objection to the use of the affidavits and

certificate of analysis at least ten days before trial, his

objection at trial was not timely and he forfeited his

right of confrontation.”).

We recognize that some courts have reached contrary

conclusions, but we are not persuaded by their rationales.

See e.g., Thomas v. United States, 914 A.2d 1, 20 (D.C.

Cir. 2006) (holding that confrontation rights may be waived

if record shows constitutionally valid waiver); People v.

McClanahan, 729 N.E.2d 470, 478 (Ill. 2000) (“[S]tatute

impermissibly requires a defendant to take a procedural

step to secure his confrontation rights or be deemed to

have waived them, and does not require that the waiver of

this fundamental constitutional right be a knowing,

intelligent, and voluntary act.”); State v. Laturner, 163

P.3d 367, 377 (Kan. Ct. App. 2007) (The statute in question

violated a defendant’s confrontation rights because “the

35
defendant is deemed to have waived the Sixth Amendment

confrontation right if the defendant fails to take

affirmative steps to assert it.”); State v. Caulfield, 722

N.W.2d 304, 313 (Minn. 2006) (“At a minimum, any statute

purporting to admit testimonial reports without the

testimony of the preparer must provide adequate notice to

the defendant of the contents of the report and the likely

consequences of his failure to request the testimony of the

preparer” in order for the defendant to make a knowing,

intelligent, and voluntary waiver of his confrontation

rights.).

Therefore, we hold that the Court of Appeals did not

err in affirming the judgments of the circuit courts

admitting into evidence the respective certificates of

analysis at issue in these appeals. We turn now to the

unrelated issue raised by Briscoe.

B. Sufficiency of Evidence to Prove Corpus Delicti

In his remaining assignment of error, Briscoe asserts

that “[t]he Court of Appeals erred in upholding the trial

court’s finding the evidence was sufficient to prove the

corpus delicti of the offense of transporting cocaine into

the Commonwealth.” He argues that his uncorroborated

confession was not sufficient to prove an essential element

36
of this crime, specifically that he brought cocaine into

the Commonwealth in violation of Code § 18.2-248.01. 6

In any criminal prosecution, the Commonwealth must

prove the corpus delicti, “that is, the fact that the crime

charged has been actually perpetrated.” Cherrix v.

Commonwealth, 257 Va. 292, 305, 513 S.E.2d 642, 651 (1999).

However, when an accused has fully confessed to commission

of the crime, “only slight corroboration of the confession

is required to establish corpus delicti beyond a reasonable

doubt.” Id. (emphasis added); accord Clozza v.

Commonwealth, 228 Va. 124, 133, 321 S.E.2d 273, 279 (1984);

Campbell v. Commonwealth, 194 Va. 825, 833, 75 S.E.2d 468,

473 (1953). While an accused cannot be convicted based

solely on his or her confession, “[i]t is not necessary,

however, that there be independent corroboration of all the

contents of the confession, or even of all the elements of

the crime. The requirement of corroboration is limited to

the facts constituting the corpus delicti.” Watkins v.

Commonwealth, 238 Va. 341, 348, 385 S.E.2d 50, 54 (1989).

In addition, “corroborative facts supporting the corpus

6
In relevant part, the provisions of Code § 18.2-
248.01 make it “unlawful for any person to transport into
the Commonwealth by any means with the intent to sell or
distribute one ounce or more of cocaine, coca leaves or any
salt, compound, derivative or preparation thereof.”

37
delicti may be furnished by circumstantial evidence as

readily as by direct evidence.” Id. at 349, 385 S.E.2d at

54 (citing Epperly v. Commonwealth, 224 Va. 214, 229, 294

S.E.2d 882, 891 (1982)).

Following his arrest and being advised of his Miranda

rights, Briscoe told police that everything taken from his

apartment during the search, including the cocaine, the

crack, and the plastic bags, belonged to him. He stated

that the cocaine found in the kitchen sink should have been

about 40 grams and that he got it from “[his] man in

[Washington,] D.C. two weeks ago” and brought it back to

Alexandria. Briscoe confessed that his most recent

purchase consisted of approximately 62 grams of cocaine and

that the cocaine was hard, not powder, when he bought it.

When asked where he obtained cocaine, Briscoe named “three

main guys” in Washington, D.C. as his sources. He also

named five dealers to whom he sells the cocaine and

explained the frequency of those sales and the profit he

makes from the cocaine he buys. All of these statements

were admitted into evidence during Briscoe’s trial.

We agree with the Court of Appeals’ holding that

“[Briscoe’s] confession that he brought the [cocaine] from

D.C. to Alexandria, along with the evidence seized from his

person and his apartment, sufficiently established the

38
corpus delicti of the transportation offense.” Briscoe v.

Commonwealth, Record No. 1478-06-4, slip op. at 4 (January

18, 2007). The “solid material” cocaine seized from

Briscoe’s apartment was consistent with the type of cocaine

he admittedly purchased two weeks before the search and the

remaining 36.578 grams was consistent with the amount he

purchased and the frequency of his sales during a two-week

period. The presence of the cocaine, scales, weights, and

plastic bags inside Briscoe’s apartment provided more than

the slight evidence necessary to corroborate Briscoe’s

confession and establish the corpus delicti beyond a

reasonable doubt. See Cherrix, 257 Va. at 305, 385 S.E.2d

at 651.

Contrary to Briscoe’s argument, the Court’s decision

in Phillips v. Commonwealth, 202 Va. 207, 116 S.E.2d 282

(1960), is distinguishable. There, the defendant confessed

to the crime of sodomy. Id. at 209, 116 S.E.2d at 283. We

held that, while the victim’s possession of the defendant’s

vehicle corroborated the defendant’s statement that he and

the victim were in each other’s presence at a particular

time, “it furnishe[d] no corroboration that the actual

crime of sodomy for which [the defendant] was convicted was

committed.” Id. at 211, 116 S.E.2d at 285. The victim’s

possession of the vehicle neither established the

39
commission of the crime nor corroborated the defendant’s

confession that he committed the crime of sodomy. Id. at

212, 116 S.E.2d at 285. As we have already explained, the

items seized during the search of Briscoe’s apartment

provided the necessary corroboration to establish the

corpus delicti.

III. CONCLUSION

For these reasons, we will affirm the judgment of the

Court of Appeals in each of these appeals.

Record No. 070762 – Affirmed.
Record No. 070815 – Affirmed.
Record No. 070817 – Affirmed.

JUSTICE KEENAN, with whom CHIEF JUSTICE HASSELL and JUSTICE
KOONTZ join, dissenting.

Today the majority holds that a defendant’s failure to

exercise a statutory right under Code § 19.2-187.1 results

in the forfeiture of his Sixth Amendment right “to be

confronted with the witnesses against him.” In my view,

this analysis confuses the waiver of a statutory right with

the waiver of a constitutional right. Because the

certificates of analysis at issue were “testimonial”

hearsay, within the meaning of Davis v. Washington, 547

U.S. 813 (2006), and Crawford v. Washington, 541 U.S. 36

(2004), their admission into evidence under Code § 19.2-187

in the prosecution’s cases in the absence of supporting

40
testimony from certificates’ authors, violated the

defendants’ Confrontation Clause rights. Thus, I disagree

with the majority’s holding that Code § 19.2-187.1

preserves a defendant’s Confrontation Clause rights, or

that a defendant’s failure to exercise rights accorded

under that statute results in the surrender of

Confrontation Clause rights.

I. “TESTIMONIAL” CHARACTER OF EVIDENCE

I would hold that the certificates of analysis are

“testimonial” hearsay based on the Supreme Court’s analysis

of that term in Davis and Crawford. In particular, the

analysis in Davis instructs us to examine the purpose for

which a non-testifying witness initially made the

statements that were later introduced in evidence at a

criminal trial, and to inquire whether the person making

the hearsay statements was “testifying” and “acting as a

witness.” See Davis, 547 U.S. at ___, 126 S.Ct. at 2277.

In Crawford, the Supreme Court held that the Sixth

Amendment forbids the admission in a criminal trial of

“testimonial” hearsay statements made against an accused by

a witness who does not testify at the trial, unless the

witness is unavailable or the defendant had a prior

opportunity to cross examine that witness. 541 U.S. at 68.

At the defendant’s criminal trial in Crawford, the trial

41
court admitted in evidence a tape-recorded statement that

the defendant’s wife made to police officers during a

police investigation of the crime for which the defendant

was charged. Id. at 38-39, 68-69. The Supreme Court held

that the defendant’s confrontation rights were violated by

admission of his wife’s tape-recorded statement because the

statement was “testimonial” in nature and the wife did not

testify at trial. Id. Although the Supreme Court in

Crawford declined to provide a comprehensive definition of

the term “testimonial,” the Court indicated that some

statements would always be categorized as “testimonial,”

including ex parte testimony given at a preliminary hearing

and statements taken by police officers during the course

of a police interrogation. Id. at 52, 68.

In Davis, the Supreme Court revisited the definition

of “testimonial” hearsay. The Court held that:

Statements are nontestimonial when made in the course
of police interrogation under circumstances
objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet
an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose
of the interrogation is to establish or prove past
events potentially relevant to later criminal
prosecution.

547 U.S. at ___, 126 S.Ct. at 2273-74.

42
 In Davis, the Court considered two separate situations

in which the statements of a witness, who did not testify

at trial, were admitted in evidence concerning a

defendant’s illegal conduct. Id., 547 U.S. at ___, 126

S.Ct. at 2271-73. In the first situation, the Court held

that statements made to law enforcement personnel during a

“911” emergency telephone call were not “testimonial” in

nature because the purpose of the statements was to elicit

assistance during an ongoing emergency. Id. at ___, 126

S.Ct. at 2277. The Court reasoned that the speaker was not

“acting as a witness” or “testifying” because, unlike a

witness, she was describing events “as they were actually

happening, rather than describ[ing] past events.” Id. at

___, 126 S.Ct. at 2276-77 (emphasis and internal quotation

marks omitted).

The second situation in Davis concerned statements

recorded in an affidavit obtained by police following a

domestic dispute. Id., 547 U.S. ___, 126 S.Ct. at 2272-73.

The Court concluded that these statements were

“testimonial” in character because the declarant’s purpose

in making the statements was not to describe an ongoing

emergency situation, but to supply information in a police

investigation about past criminal conduct. Davis, 547 U.S.

at ___, 126 S.Ct. at 2278. The Court concluded that the

43
statements were “inherently testimonial” because they were

“an obvious substitute for live testimony,” and they did

“precisely what a witness does on direct examination.” Id.

(emphasis omitted).

Based on the holdings in Davis and Crawford, I would

conclude that a certificate of drug analysis, in function,

“acts as a witness” against an accused. See Davis, 547

U.S. at ___, 126 S.Ct. at 2277; Crawford, 541 U.S. at 51.

Much like any other expert witness, the scientist preparing

a certificate of analysis does so based on a factual

foundation supplied from past events. See Santen v.

Tuthill, 265 Va. 492, 498, 578 S.E.2d 788, 792 (2003);

Countryside Corp. v. Taylor, 263 Va. 549, 553, 561 S.E.2d

680, 682 (2002). Thus, the certificate admitted under Code

§ 19.2-187.1 functions in the same manner as expert witness

testimony because the certificate describes the scientist’s

procedures and conclusions concerning the material

submitted for analysis. See Thomas v. United States, 914

A.2d 1, 12-13 (D.C. App. 2006).

The holding in Davis further reinforces the

“testimonial” nature of a certificate of analysis, because

the certificate is created “to establish or prove past

events potentially relevant to later criminal prosecution.”

See Davis, 547 U.S. at ___, 126 S.Ct. at 2274; Thomas, 914

44
A.2d at 12-13; Belvin v. State, 922 So.2d 1046, 1050-51

(Fla. Dist. Ct. App. 2006). A forensic scientist prepares

the certificates in these cases for the purpose of proving

a critical element of a criminal offense, namely, that the

chemical sample submitted for analysis is an illegal

substance. See Davis, 547 U.S. at ___, 126 S.Ct. at 2274-

76; Crawford, 451 U.S. at 51; Commonwealth v. Allen, 269

Va. 262, 274, 609 S.E.2d 4, 12 (2005); Santen, 265 Va. at

498, 578 S.E.2d at 792; Countryside Corp., 263 Va. at 553,

561 S.E.2d at 682; Thomas, 914 A.2d at 12-13; Belvin, 922

So.2d 1046, 1050-51; State v. Laturner, 163 P.3d 367, 376-

77 (Kan. Ct. App. 2007); State v. March, 216 S.W.3d 663,

666 (Mo. 2007); State v. Miller, 144 P.3d 1052, 1058 (Or.

Ct. App. 2006). In the parlance of Davis, the certificates

of analysis in the present cases functioned as “an obvious

substitute for live testimony,” because the Commonwealth

introduced them in lieu of the scientists’ testimony, and

otherwise would have been required to establish the illegal

nature of the substances by presenting actual testimony

from the scientists themselves. See Davis, 547 U.S. at

___, 126 S.Ct. at 2278; Thomas, 914 A.2d at 12-13; State v.

Caulfield, 722 N.W.2d 304, 309 (Minn. 2006); March, 216

S.E.3d at 666; State v. Berezansky, 899 A.2d 306, 312 (N.J.

Super. Ct. App. Div. 2006).

45
 Applying additional rationale employed by the Supreme

Court in Davis, I also observe that the forensic

scientists’ analyses were not performed under circumstances

of an emergency or contemporaneously with the commission of

the crimes, but were accomplished well after the criminal

events had transpired. See Davis, 547 U.S. at ___, 126

S.Ct. at 2276-77, 2278; Thomas, 914 A.2d at 12-13; Hinojos-

Mendoza v. People, 169 P.3d 662, 667 (Colo. 2007);

Caulfield, 722 N.W.2d at 309; March, 216 S.W.3d at 666;

Berezansky, 899 A.2d at 312; City of Las Vegas v. Walsh,

124 P.3d 203, 208 (Nev. 2005); People v. Rogers, 780

N.Y.S.2d. 393, 397 (N.Y. App. Div. 2004); Miller, 144 P.3d

at 1060. In fact, the scientists prepared the certificates

in response to police investigations. See Davis, 547 U.S.

at ___, 126 S.Ct. at 2276-79; Crawford, 541 U.S. at 52, 68;

Thomas, 914 A.2d at 12-13; Hinojos-Mendoza, 169 P.3d at

667.

Moreover, the certificates fall into the category of

“formalized testimonial materials, such as affidavits,”

which the Supreme Court in Crawford included in its

examples of the types of statements that would be

considered testimonial. See Crawford, 541 U.S. at 51-52.

The certificates contain a “solemn declaration or

affirmation” by the forensic scientists who prepared them,

46
in conformance with the requirement of Code § 19.2-187 that

such certificates be “duly attested” before being admitted

in evidence. See id., 541 U.S. at 51.

Based on the holdings in Davis and Crawford, I would

conclude that the certificates of analysis admitted in

evidence in the present cases served to “bear testimony”

against the defendants and, therefore, were “testimonial”

evidence within the meaning of those holdings. I would

further conclude that the defendants in these cases had a

Sixth Amendment right to be confronted with the testimony

of the forensic scientists who prepared the certificates,

because the Commonwealth failed to demonstrate that the

scientists were unavailable or that the defendants had a

prior opportunity to cross-examine them. See Crawford, 541

U.S. at 68. ∗

II. VIOLATION OF CONFRONTATION CLAUSE RIGHTS

I would further hold that the defendants’

Confrontation Clause rights were violated when the

certificates of analysis were admitted in evidence under

Code § 19.2-187. The Confrontation Clause is worded in the

passive, rather than in the active, voice. See U.S.

Const., amend. VI. Thus, under that constitutional

guarantee, an accused enjoys the right “to be confronted”

by the prosecution with the witnesses against him. Id.

47
 As the majority correctly observes, the Sixth

Amendment confrontation right has long been held to include

a defendant’s “opportunity for effective cross-

examination.” See United States v. Owens, 484 U.S. 554,

559-60 (1988)(quoting Kentucky v. Stincer, 482 U.S. 730,

739 (1987)); Pointer v. Texas, 380 U.S. 400, 404 (1965);

Mattox v. United States, 156 U.S. 237, 242-43 (1895). This

opportunity is “one of the safe-guards essential to a fair

trial,” and is “a right long deemed so essential for the

due protection of life and liberty that it is guarded

against legislative and judicial action by provisions in

the Constitution.” Pointer, 380 U.S. at 404 (quoting Kirby

v. United States, 174 U.S. 47, 55-56 (1899); and Alford v.

United States, 282 U.S. 687, 692 (1931)). The

Confrontation Clause “ensure[s] that evidence admitted

against an accused is reliable and subject to the rigorous

adversarial testing that is the norm of Anglo-American

criminal proceedings.” State v. Craig, 497 U.S. 836, 846

(1990).

This Court consistently has recognized that in

criminal trials, the Confrontation Clause preserves for a

defendant the right to cross-examine prosecution witnesses.

See Bilokur v. Commonwealth, 221 Va. 467, 470, 270 S.E.2d

747, 750 (1980); Moore v. Commonwealth, 202 Va. 667, 669,

48
119 S.E.2d 324, 327 (1961). The opportunity for effective

cross-examination of prosecution witnesses, however,

presupposes that a defendant has an opportunity to cross-

examine those witnesses during the prosecution’s case.

Thus, preservation of the Sixth Amendment confrontation

right requires that the prosecution call a defendant’s

accusers as witnesses to actively confront the defendant.

See Owens, 484 U.S. at 557, 559; Kirby, 174 U.S. at 55-56;

Thomas, 914 A.2d at 16; Lowery v. Collins, 988 F.2d 1364,

1369-70 (5th Cir. 1993); State v. Snowden, 867 A.2d 314,

332-33 & n.23 (Md. 2005).

Code § 19.2-187 forces a defendant to relinquish his

right “to be confronted” in the prosecution’s case in

chief, because the statute permits a timely-filed

certificate of analysis to be admitted automatically in the

absence of testimony from the scientist who prepared the

certificate. See id. That statute allows admission of the

certificate irrespective whether a defendant chooses to

call the forensic scientist to testify in his own case

under the provisions of Code § 19.2-187.1. Thus, I would

conclude that a Confrontation Clause violation occurred in

the present cases because the defendants were not able to

subject the contents of the certificates of analysis to

49
adversarial scrutiny before the prosecution concluded its

cases in chief.

III. WAIVER INAPPLICABLE

The provisions of Code § 19.2-187.1 did not remedy

this Confrontation Clause violation. That section provides

a criminal defendant the statutory right to call the

forensic scientist who prepared a certificate of analysis

as a witness in the defendant’s own case. See id. Thus,

Code § 19.2-187.1 merely provides a criminal defendant the

opportunity to seek evidence in his favor by questioning

the scientist who prepared the certificate that has already

been admitted in evidence against him.

The majority asserts, however, that the present cases

are analogous to other situations in which we have held

that criminal defendants are required to take “certain

procedural steps” in order to preserve their constitutional

rights. In my opinion, this argument misconstrues the very

nature of Code § 19.2-187.1. No “procedural step” under

Code § 19.2-187.1 will preserve a defendant’s Sixth

Amendment confrontation right, because that section merely

establishes a separate, statutory right for a defendant to

call the forensic scientist as a witness in a defendant’s

own case. Thus, Code § 19.2-187.1 does not impact a

defendant’s Sixth Amendment right “to be confronted” by the

50
witnesses against him, because the statute cannot revive a

defendant’s right to be confronted by the prosecution with

the scientist’s evidence. See Belvin, 922 So.2d at 1054;

State v. Birchfield, 157 P.3d 216, 220 (Or. 2007).

The majority seeks to avoid this dilemma by stating

that the defendants failed to raise a due process challenge

alleging that Code § 19.2-187.1 impermissibly shifted the

burden of producing evidence to the defendants, which is a

claim not cognizable under the Sixth Amendment. This

argument, however, is unavailing because the majority

confuses the issue whether a defendant may be required to

produce evidence in a criminal trial with the issue whether

the statutory mechanism at issue in this case, which

requires a defendant to produce evidence, is capable of

preserving his Confrontation Clause rights.

A defendant’s constitutional right to be confronted

with the witnesses against him arises automatically, and

the state may not require a defendant to take an

affirmative action to preserve this right. See Taylor v.

Illinois, 484 U.S. 400, 410, & n.14 (1988); People v.

McClanahan, 729 N.E.2d 470, 475 (Ill. 2000); Birchfield,

157 P.3d at 219-20. While a defendant’s failure to act

under Code § 19.2-187.1 may constitute a waiver of his

statutory right under that Code section to call the

51
forensic scientist in the defendant’s case, the fact that

he chooses not to exercise this statutory right is

insufficient to establish a waiver of his separate

constitutional confrontation right that is guaranteed to

him throughout his criminal trial. See City of S. Boston

v. Halifax County, 247 Va. 277, 282, 441 S.E.2d 11, 14

(1994); Thomas, 914 A.2d at 16; Collins, 988 F.2d at 1369-

70; Snowden, 867 A.2d at 332-33.

A defendant cannot waive a right that he has already

been denied. The extent of a defendant’s waiver of a right

under Code § 19.2-187.1 necessarily is limited to rights he

possesses under the statute. See Barber v. Page, 390 U.S.

719, 725 (1968); Brookhart v. Janis, 384 U.S. 1, 4 (1966);

Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Thus, the

defendants in these cases could not have waived under Code

§ 19.2-187.1 rights that had already been denied by

operation of Code § 19.2-187.

Even if the majority were correct, however, that Code

§ 19.2-187.1 offers a defendant the protection of a

confrontation right, the record does not support a

conclusion that these defendants waived that right. A

waiver of a constitutional right requires a clear showing

that there was an “intentional relinquishment or

abandonment of a known right or privilege.” Barber, 390

52
U.S. at 725; Brookhart, 384 U.S. at 4; Zerbst, 304 U.S. at

464; Allen v. Commonwealth, 252 Va. 105, 111, 472 S.E.2d

277, 280 (1996). The record fails to establish a “knowing

and intelligent” waiver under Code § 19.1-187.1 because

that Code section does not provide a defendant with notice

that if he fails to avail himself of the statute’s

provisions, he waives his Sixth Amendment right. See

Brookhart, 284 U.S. at 4. This Court should not presume a

defendant’s waiver of his Confrontation Clause rights from

a silent record. See Boykin, 395 U.S. at 242; Laturner,

163 P.3d at 377; cf. Barber, 390 U.S. at 725.

I would hold that a constitutional application of Code

§ 19.2-187 requires that if the prosecution wishes to

introduce in evidence a certificate of analysis

contemplated by Code § 19.2-187, the prosecution must

obtain from a defendant a stipulation regarding the

admissibility of the contents of that certificate, or an

affirmative waiver by a defendant of his Confrontation

Clause rights regarding the certificate. In the absence of

such a stipulation or affirmative waiver, the Sixth

Amendment requires that the prosecution call in its case in

chief the forensic scientist who prepared the certificate

to present this “testimonial” evidence. See Davis, 547

U.S. at ___, 126 S.Ct. at 2277; Crawford, 541 U.S. at 68;

53
Boykin, 395 U.S. at 243; Laturner, 163 P.3d at 377; cf.

Barber, 390 U.S. at 725. Because there were no such

affirmative waivers or stipulations in the cases before us,

and the forensic scientists did not testify regarding the

contents of the certificates in the prosecution’s cases in

chief, I would hold that the certificates of analysis in

these cases were admitted in violation of the defendants’

Confrontation Clause rights. Therefore, I would reverse

the defendants’ convictions and remand the cases for new

trials, if the Commonwealth be so advised.

∗
In reaching this conclusion, I recognize that courts
in various jurisdictions have reached differing results in
deciding the question whether certificates of scientific
analysis are “testimonial” in character, within the meaning
of Davis and Crawford. Compare, Thomas v. United States,
914 A.2d 1, 12-13 (D.C. App. 2006) (holding that chemist’s
report was testimonial because it was akin to expert report
and primary purpose was to substitute for chemist’s
testimony in prosecution of accused); Hinojos-Mendoza v.
People, 169 P.3d 662, 665-66 (Colo. 2007) (holding that
laboratory report was testimonial because it was prepared
at direction of police, solely for purposes of prosecution,
and introduced in evidence to establish element of
offense); Martin v. State, 936 So.2d 1190, 1192 (Fla. Dist.
Ct. App. 2006) (holding that drug certificate was
testimonial because it was created for criminal
prosecution); Belvin v. State, 922 So.2d 1046, 1050 (Fla.
Dist. Ct. App. 2006) (deciding that breath test affidavits
were testimonial because they were generated by law
enforcement for later use at criminal trial); State v.
Laturner, 163 P.3d 367, 376-77 (Kan. Ct. App. 2007)
(holding that laboratory report was testimonial because
scientist was witness, statements in report were testimony,
and scientist knew statements would be used in later trial
against accused); People v. Lonsby, 707 N.W.2d 610, 619-21
(Mi. 2005) (concluding that crime lab report was

54
testimonial because person preparing report would
reasonably expect it to be used in prosecution); State v.
Caulfield, 722 N.W.2d 304, 309 (Minn. 2006) (deciding that
laboratory report was testimonial because analyst attested
to findings, report was equivalent of testimony, and report
was prepared at police request for purpose of prosecution);
State v. March, 216 S.W.3d 663, 666 (Mo. 2007) (holding
that laboratory report was testimonial because it was
prepared at request of law enforcement, created for
purposes of prosecution, intended to prove element of
offense, and offered in lieu of testimony); State v.
Berezansky, 899 A.2d 306, 312 (N.J. Super. Ct. App. Div.
2006) (concluding that blood test analysis was testimonial
because it was prepared to prove element of offense in lieu
of calling technician to testify); City of Las Vegas v.
Walsh, 124 P.3d 203, 208 (Nev. 2005) (holding that nurse’s
affidavit stating name, time, and manner of blood
withdrawal was testimonial because it was made for later
use at trial); People v. Rogers, 780 N.Y.S.2d. 393, 396-97
(N.Y. App. Div. 2004) (holding that blood test report was
testimonial because it was initiated by prosecution to
discover evidence against the accused); State v. Crager,
844 N.E.2d 390, 396 (Ohio App. 2005) (holding that DNA
analysis was testimonial because it was prepared as part of
police investigation and reasonable people would conclude
that report would later be used at trial); State v. Miller,
144 P.3d 1052, 1058 (Or. Ct. App. 2006) (concluding that
laboratory report was testimonial because it contained
solemn declarations produced in response to police inquiry
for purpose of establishing critical element at later
criminal prosecution); Deener v. State, 214 S.W.3d 522, 526
(Tex. Ct. App. 2006) (deciding that certificates of
analysis were core testimonial evidence); with, United
States v. Washington, 498 F.3d 225, 230-32 (4th Cir. 2007)
(holding that report of data analyzing blood sample was not
testimonial statement of lab technician because statement
was generated by machine); United States v. Ellis, 460 F.3d
920, 926-27 (7th Cir. 2006) (holding that certificates of
blood and urine analysis were non-testimonial even though
person creating records knew records may be used for
criminal prosecution, because records were created in
ordinary course of business and technicians were not
testifying and were not acting as witnesses); Pruitt v.
State, 954 So.2d 611, 617 (Ala. Crim. App. 2006)
(concluding that certificate of analysis was non-
testimonial because it was created by inherently

55
trustworthy and reliable scientific testing rather than
opinionated assertions, speculation, or guesswork);
Bohsancurt v. Eisenberg, 129 P.3d 471, 475-78 (Ariz. App.
2006) (holding that record of regular testing of
breathalyzer equipment was non-testimonial business record
because it was kept in ordinary course of business and not
for purposes of litigation); People v. Geier, 161 P.3d 104,
140 (Ca. 2007) (concluding that DNA report was not
testimonial because observations in report were
contemporaneous recordations rather than documentation of
past events); People v. Johnson, 18 Cal. Rptr. 3d 230, 233
(Cal. Ct. App. 2004) (deciding that laboratory report was
not testimonial because it did not function as equivalent
of in-court testimony); State v. Musser, 721 N.W.2d 734,
753-54 (Iowa 2006) (stating that HIV test performed two
years prior to trial and not for purposes of prosecution
was non-testimonial); Commonwealth v. Verde, 827 N.E.2d
701, 705 (Mass. 2005) (holding that laboratory report was
merely report of scientific data and therefore was non-
testimonial business record); Rollins v. State, 897 A.2d
821, 837-46 (Md. 2006) (concluding that factual, routine,
and non-analytical findings in autopsy report were non-
testimonial); State v. Forte, 629 S.E.2d 137, 144 (N.C.
2006) (holding that blood sample analysis was not
testimonial because it did not “bear witness” against
accused and was not prepared exclusively for trial); State
v. Dedman, 102 P.3d 628, 635-36 (N.M. 2004) (concluding
that blood alcohol report was not testimonial because not
prepared for purpose of prosecution); Commonwealth v.
Carter, 932 A.2d 1261, 1268 (Pa. 2007) (holding that blood
alcohol tests were not testimonial because they were basic,
routine, and contained precise calculations).

56