Abney v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges McClanahan, Petty and Senior Judge Fitzpatrick
Argued at Alexandria, Virginia

WILBERT ABNEY, JR.
OPINION BY
v. Record No. 1366-06-4 JUDGE ELIZABETH A. McCLANAHAN
MARCH 4, 2008
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge

Dawn M. Butorac, Assistant Public Defender (Whitney E. Minter,
Assistant Public Defender; Office of the Public Defender, on
brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General
(Robert F. McDonnell, Attorney General, on brief), for appellee.

A jury convicted Wilbert Abney, Jr., of first-degree murder (Code § 18.2-32). On

appeal, Abney contends the trial court committed reversible error in admitting certain evidence

in violation of the hearsay rule and/or his Sixth Amendment right to confront witnesses. For the

following reasons, we affirm Abney’s conviction.

I. BACKGROUND

On appeal, we review the evidence in the light most favorable to the Commonwealth, as

the prevailing party at trial. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786

(2003). That principle requires us to “discard the evidence of the accused in conflict with that of

the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth

and all fair inferences that may be drawn therefrom.” Kelly v. Commonwealth, 41 Va. App. 250,

254, 584 S.E.2d 444, 446 (2003) (en banc) (internal quotation marks and citations omitted).
 It is undisputed that Abney killed his wife, Mona, by strangling her with a belt wrapped

around her neck. The issue at trial was whether Abney murdered her or killed her by accident.

Abney’s wife was found dead in a hotel room in Fairfax County in January 1978. Her

body was on the floor, unclothed from the waist down, with multiple abrasions on the neck.

Police suspected her death was a homicide, involving sexual assault. Dr. James Beyer, a medical

examiner, conducted an autopsy and concluded the cause of death was “asphyxiation secondary

to strangulation (ligature),” as stated in his autopsy report. During the autopsy, Dr. Beyer took

vaginal swabs from the victim, which revealed the presence of semen in the victim’s vaginal

area. At that time, however, DNA analysis on the semen (which would later be conducted and

identify Abney as the donor) was not available to the police. Throughout this initial

investigation, Abney represented to police that his wife had traveled alone to Fairfax County for

an overnight shopping trip and that he was at their home in Richmond at the time of her death.

He also claimed he had not engaged in sexual intercourse with his wife in several weeks due to

her recent gynecological problems. Though Abney was a suspect, the police eventually closed

the investigation of the case as an unsolved homicide.

Shortly after Mona’s death, Abney filed a claim for benefits under a large life insurance

policy on her. Abney had made an application for the policy less than two months prior to her

death. When the insurance company refused to pay, Abney sued the company. The case was

dismissed on the ground that the policy never went into effect due to questions regarding Mona’s

health in the application process. In defending the case, the company obtained an affidavit from

L. Davis, who was Abney’s girlfriend around the time of his wife’s death. Davis’ affidavit,

which she executed in November 1978, set forth details of her relationship with Abney. She also

testified about their relationship at a hearing in the case.

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 In 2004, twenty-six years after Mona’s death, the cold case unit of the Fairfax County

Police Department re-opened the homicide case. At that time, DNA analysis was available, and

was conducted on both the semen sample that had been retained from the original investigation

and a current buccal sample from Abney. The DNA analysis resulted in a match of the DNA

profile of both samples.

During Abney’s first meeting with Fairfax County Police Detectives Steven Milefsky and

Robert Murphy, in September 2004, Abney stated he could not remember if he and his wife had

engaged in sexual intercourse around the time of her death. In April 2005, the detectives met

again with Abney and advised him of the results of the DNA analysis. He then finally admitted

that he had sex with his wife shortly before her death and that he lied about it to the police during

the initial investigation and during his testimony in the trial on his claim to the life insurance

benefits. However, he still denied he had been in his wife’s hotel room or had anything to do

with her death.

Detectives Milefsky and Murphy then met with Abney in May 2005, at which time he

admitted to killing his wife, but claimed it was an accident. According to Abney at this meeting,

Mona called and asked him to come to her hotel room. When he arrived, she wanted to engage

in “what [Abney] described as kinky sexual intercourse, that she would be choked while [they

were] having sex, and her preference was even further that she wanted him to be behind her”

while engaged in the act. Abney also told the detectives that, because he was not able to use his

hands to choke her when they had sexual intercourse in that manner, he choked her with his belt.

In the past, she would “tap him on the leg if it got too tight.” This time, however, “she just went

limp” and died. Abney gave the same explanation for his wife’s death during his testimony at

trial, adding that they were engaged in what is known as “erotic asphyxiation” at the time of her

death.

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 Abney was indicted on the charge of first-degree murder. His jury trial was in March

2006. The Commonwealth prosecuted its case against Abney on the theory that his motive for

murdering his wife was to collect proceeds from the large life insurance policy on her, and to

enable him to pursue his obsessive relationship with his girlfriend at that time, L. Davis.

At trial, Abney objected to, inter alia, the Commonwealth’s introduction of: (i) Davis’

testimony in the form of past recollection recorded, consisting of her recitation of portions of her

affidavit given during the 1978 litigation over the subject life insurance policy; (ii) the autopsy

report and accompanying expert testimony based on the report; and (iii) a request for analysis

and two certificates of analysis offered to establish the chain of custody of the vaginal swabs

taken during the victim’s autopsy. The trial court overruled Abney’s objections and admitted the

evidence.

The jury convicted Abney of first-degree murder as charged. This appeal followed in

which Abney challenges the trial court’s evidentiary rulings.

II. ANALYSIS

“Decisions regarding the admissibility of evidence ‘lie within the trial court’s sound

discretion and will not be disturbed on appeal absent an abuse of discretion.’” Michels v.

Commonwealth, 47 Va. App. 461, 465, 624 S.E.2d 675, 678 (2006) (quoting Breeden v.

Commonwealth, 43 Va. App. 169, 184, 596 S.E.2d 563, 570 (2004)). “Only when reasonable

jurists could not differ can we say an abuse of discretion has occurred.” Tynes v.

Commonwealth, 49 Va. App. 17, 21, 635 S.E.2d 688, 689 (2006) (citation and internal quotation

marks omitted). However, to the extent the trial court makes an error of law in the admission of

evidence, “an abuse of discretion occurs.” Bass v. Commonwealth, 31 Va. App. 373, 382, 523

S.E.2d 534, 539 (2000). Furthermore, such evidentiary issues presenting a “question of law” are

“reviewed de novo by this Court.” Michels, 47 Va. App. at 465, 624 S.E.2d at 678 (whether

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certificates from governmental agency were “testimonial hearsay” implicating the Confrontation

Clause was subject to de novo review).

A. Davis’ Affidavit

Davis reviewed her 1978 affidavit arising from the litigation involving the subject life

insurance policy, and the transcript of her testimony in that case, to refresh her memory in

preparation for her testimony at Abney’s criminal trial. Having done so, Davis, based on her

independent recollection, testified at trial to a number of details regarding her relationship with

Abney during the period of December 1977 through February 1978 (a period both before and

after the time of Mona’s death). There were other details in her affidavit, however, which she

could not independently recall after reviewing the affidavit. Consequently, the Commonwealth

introduced Davis’ recitation of those portions of her affidavit. The Commonwealth based the

introduction of this part of her testimony on the “past recollection recorded” exception to the

hearsay rule. See Scott v. Greater Richmond Transit Co., 241 Va. 300, 305, 402 S.E.2d 214, 218

(1991) (“When a witness reads a record of past recollection to a jury, he merely is telling the jury

what he knew and recorded at a prior time, but has since forgotten.”).

Abney contends this testimony did not qualify under the “past recollection recorded”

hearsay exception. Alternatively, Abney argues the testimony consisted of “testimonial hearsay”

prohibited under the Confrontation Clause of the Sixth Amendment, as interpreted in Crawford

v. Washington, 541 U.S. 36 (2004).

(i)

“The general rule of past recollection recorded allows, over a hearsay objection, a witness

with no independent recollection of an incident to testify directly from [some form of written

document] if certain requirements are met.” Bailey v. Commonwealth, 20 Va. App. 236, 240,

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456 S.E.2d 144, 146 (1995). The foundational requirements for this hearsay exception are as

follows:

“(1) the witness must have had firsthand knowledge of the event;
(2) the written statement must be an original memorandum made at
or near the time of the event, when the witness had a clear and
accurate memory of it; (3) the witness must lack a present
recollection of the event; and (4) the witness must vouch for the
accuracy of the written memorandum.”

Id. at 240-41, 456 S.E.2d at 146 (quoting James v. Commonwealth, 8 Va. App. 98, 102, 379

S.E.2d 378, 380-81 (1989)). Furthermore, ‘“it is not essential that the record of past recollection

shall have been made by the witness, if he knows that it is true as written. It is sufficient if the

memorandum was made by someone else but has been examined by the witness and is known by

him to be correct.’” Id. at 241, 456 S.E.2d at 146 (quoting 81 Am. Jur. 2d Witnesses § 783

(1992)).

Abney acknowledges that Davis “had first hand knowledge of the events for which she

testified,” i.e., the events involving her relationship with him, and that she “lacked a present

recollection of [some of those] events.” Abney contends, however, in reference to foundational

requirements two and four of the above-stated rule, that Davis’ affidavit was not timely when

given in November 1978 and that she did not adequately vouch for its accuracy during her

testimony at Abney’s criminal trial. Thus, Abney argues, the trial court erred in allowing Davis

to read portions of her affidavit to the jury on the basis of the “past recollection recorded”

hearsay exception. We disagree.

Abney contends the affidavit was not timely because Davis executed the affidavit ten

months after the occurrence of the “events” she described in it. The trial court rejected this

argument, finding that this foundational requirement was met. Given the nature of the events set

forth in the affidavit, we cannot say the trial court abused its discretion in making that finding.

See Stevens v. Commonwealth, 46 Va. App. 234, 246, 616 S.E.2d 754, 760 (2005) (“[W]hether
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[an evidentiary] foundation is sufficient is a question within the sound discretion of the trial

judge.” (citation and internal quotation marks omitted)). What Davis recounted from memory in

her affidavit was not some highly technical information or some incident of which she had only

been a disinterested and casual observer. Rather, Davis recited facts about her intimate

relationship with Abney over a period of approximately two-and-a-half months, including places

they went, things they did, and conversations they had, which were “events” she reasonably

could have accurately recalled ten months later. See United States v. Williams, 571 F.2d 344

(6th Cir. 1978) (affirming admission of statement given by witness to Secret Service agent six

months after the events recited in the statement, under past recollection recorded rule); see

generally, Kent Sinclair, Joseph C. Kearfott, Paul F. Sheridan, & Edward J. Imwinkelried,

Virginia Evidentiary Foundations § 9.6[A] (2007) (characterizing the timeliness requirement in

terms of whether the witness made or adopted a record of the facts “when the matter was fresh in

the witness’s memory”).

We further find no merit in Abney’s argument that Davis did not adequately vouch for

the accuracy of her affidavit. Davis testified that she went to an attorney’s office in 1978, in

conjunction with the litigation involving the insurance policy on Mona, and gave a statement in

the presence of two lawyers and a court reporter. Davis was “sure” that she then reviewed her

affidavit containing the information from her recorded statement. She stated unequivocally that

the information she provided in her statement, as subsequently set forth in her affidavit, was

“[t]rue.” In terms of her recollection of that information at the time she gave her statement, she

considered it “[p]robably crystal clear on many points.” Davis also identified her affidavit, dated

November 14, 1978, and remembered signing it before a notary public, and, as indicated on the

affidavit, it was both “[s]ubscribed and sworn to” by Davis. Finally, the trial court found Davis

to be a credible witness. Based on these facts, viewed in the light most favorable to the

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Commonwealth, we find no abuse of discretion in the trial court’s determination that the

vouching foundation requirement to the “present recollection recorded” doctrine was met.

(ii)

We also reject Abney’s alternative argument, as did the trial court, that the portion of

Davis’ testimony admitted as a “past recollection recorded” hearsay exception violated his Sixth

Amendment right to confront witnesses against him, as a matter of law, based on the Crawford

decision.

In Crawford, the United States Supreme Court held that the Confrontation Clause

prohibits the introduction of “testimonial hearsay” in a criminal trial where the declarant is

unavailable to testify and the defendant had no prior opportunity to cross-examine the declarant.

Crawford, 541 U.S. at 68. Abney asserts that Davis’ affidavit constituted testimonial hearsay, as

defined in Crawford, and that he had no prior opportunity to cross-examine her on it. He then

asserts that, because Davis did not have an independent recollection of the events she read into

evidence from her affidavit, she was effectively “unavailable for purposes of the Sixth

Amendment.” Thus, Abney argues, he was “denied his constitutional right to fully

cross-examine the witnesses against him” at trial. 1

We find no support for Abney’s argument in Crawford. The Supreme Court made clear

in Crawford that the Confrontation Clause applies only to “testimonial statements of witnesses

absent from trial.” Crawford, 541 U.S. at 59. “[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. It is therefore irrelevant that the reliability of some out-of-court

1
For purposes of this argument, we assume without deciding that Davis’ affidavit
constituted “testimonial hearsay” under Crawford. We need not decide that issue because we
conclude that Davis was available for cross-examination in accordance with the Confrontation
Clause and, thus, on this basis alone, Abney’s argument fails.

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statements cannot be replicated, even if the declarant testifies to the same matters in court.” Id.

at 59 n.9 (citations and internal quotation marks omitted). See Blackman v. Commonwealth, 45

Va. App. 633, 644, 613 S.E.2d 460, 466 (2005) (“For all its novelty, . . . Crawford confirms the

traditional view that the Confrontation Clause ‘does not bar admission of a statement so long as

the declarant is present at trial to defend or explain it.’” (quoting Crawford, 541 U.S. at 59 n.9)).

This explanation in Crawford is consistent with previous pronouncements by the

Supreme Court on the scope of the Confrontation Clause, as it relates to Abney’s argument. In

Delaware v. Fensterer, 474 U.S. 15, 21-22 (1985) (per curiam), the Court stated: “The

Confrontation Clause includes no guarantee that every witness called by the prosecution will

refrain from giving testimony that is marred by forgetfulness, confusion, or evasion.” Similarly,

in United States v. Owens, 484 U.S. 554 (1988), the Court explained that “the Confrontation

Clause guarantees only an opportunity for effective cross-examination, not cross-examination

that is effective in whatever way, and to whatever extent, the defense might wish.” Id. at 559

(citations and internal quotation marks omitted). In short, as the Supreme Court stated in

California v. Green, 399 U.S. 149, 157 (1970), “it is this literal right to ‘confront’ the witness at

the time of trial that forms the core of the values furthered by the Confrontation Clause.”

(Emphasis added.) 2

2
Issues regarding memory loss for hearsay purposes and what constitutes availability for
cross-examination for purposes of the Confrontation Clause are subject to distinct
considerations; and the overriding constitutional consideration in this context is that the lack of
memory of a witness at trial does not necessarily implicate the Confrontation Clause. See
Owens, 484 U.S. 554 (holding Confrontation Clause not violated by admission of testimony
concerning prior, out-of-court identification where the identifying witness/victim was unable,
because of memory loss, to explain at trial the basis for identifying defendant to an FBI agent
while witness was being hospitalized for his injuries); Fensterer, 474 U.S. 15 (holding
Confrontation Clause not violated where expert witness testified as to what opinion he had
formed, but could not recollect the basis on which he had formed it). As explained in Owens, the
fact that a witness’ testimony is “‘marred by forgetfulness, confusion, or evasion’” does not
mean that the defendant has not been given his right to cross-examine the witness as guaranteed
by the Confrontation Clause. Owens, 484 U.S. at 558 (quoting Fensterer, 474 U.S. at 22). “‘To
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 Accordingly, courts in a number of other jurisdictions, both before and after Crawford,

have held that the past recollection recorded hearsay exception does not violate the

Confrontation Clause where the declarant, despite his or her memory loss, was subject to

cross-examination as a witness at trial. See, e.g., pre-Crawford cases: Isler v. United States, 824

A.2d 957, 961 (D.C. App. 2003); United States v. Picciandra, 788 F.2d 39, 42-43 (1st Cir. 1986);

United States v. Riley, 657 F.2d 1377, 1385-86 (8th Cir. 1981); United States v. Marshall, 532

F.2d 1279, 1285-86 (9th Cir. 1976); United States v. Kelly, 349 F.2d 720, 770-71 (2d Cir. 1965);

post-Crawford cases: State v. Real, 150 P.3d 805, 806-09 (Ariz. App. 2007); People v. Linton,

800 N.Y.S.2d 627, 628 (N.Y. App. Div. 2005); State v. Gorman, 854 A.2d 1164 (Me. 2004);

Clark v. State, 808 N.E.2d 1183, 1189-90 (Ind. 2004). See also Advisory Committee Notes to

Fed. R. Evid. 803(5) (“Recorded Recollection”) (explaining that courts accept the hearsay

exception for recorded recollection despite Confrontation Clause challenges, citing Kelly, 349

F.2d at 770). 3

Here, Davis was available at trial and extensively cross-examined by the defense.

Among other things, defense counsel closely questioned Davis regarding the circumstances

under which she gave her affidavit, even though she did not independently recall certain portions

the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and
fair opportunity to probe and expose these infirmities through cross-examination, thereby calling
to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.’”
Id. Thus, the Supreme Court further stated: “The weapons available to impugn the witness’
statement when memory loss is asserted will of course not always achieve success, but
successful cross-examination is not the constitutional guarantee.” Id. at 560. As indicated
above, Crawford did not change the applicability of these principles.
3
See also United States v. Ghilarducci, 480 F.3d 542, 548-49 (7th Cir. 2007); State v.
Rockette, 718 N.W.2d 269, 275-77 (Wisc. App. 2006); State v. Pierre, 890 A.2d 474, 495-502
(Conn. 2006); State v. Price, 146 P.3d 1183, 1186-93 (Wash. 2006); People v. Sharp, 825 N.E.2d
706, 710-15 (Ill. App. Ct. 2005); and People v. Candelaria, 107 P.3d 1080, 1086 (Colo. Ct. App.
2004) (all addressing similar issues under Crawford, and holding that Confrontation Clause was
not violated by introduction of witness’ prior out-of-court statement).

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of the information in it. She was nevertheless extensively cross-examined as to both what she

could and could not presently recall, as well as the details of what she did remember. Davis was

also subject to cross-examination regarding any bias she may have had against Abney at the

times in question. We thus conclude that Abney’s constitutional right to confront witnesses

against him was met here, where he had “‘an opportunity, not only of testing the recollection and

sifting the conscience of [this] witness, but of compelling [her] to stand face to face with the jury

in order that they [could] look at [her], and judge by [her] demeanor upon the stand and the

manner in which [she gave her] testimony whether [she was] worthy of belief.’” Green, 399

U.S. at 157-58 (quoting Mattox v. United States, 156 U.S. 237, 242-43 (1895)).

B. The Autopsy Report and Accompanying Expert Testimony

Dr. James Beyer performed the autopsy and prepared the autopsy report on the victim.

Dr. Beyer was deceased, however, at the time of Abney’s criminal trial. The Commonwealth

introduced the autopsy report at trial through Dr. Frances Field, an assistant chief medical

examiner for the Commonwealth. Dr. Field testified, as an expert in forensic pathology, that the

cause of the victim’s death was “[a]sphyxiation secondary to strangulation by ligature,” the same

cause of death stated in the autopsy report. Dr. Field reached this conclusion, as she explained,

based on her “review of Dr. Beyer’s autopsy report and the photographs taken at the autopsy.”

Dr. Field then described the features on the victim’s body, as noted in the autopsy report and as

shown in the autopsy photographs, all of which, according to Dr. Field, were consistent with

strangulation of the victim by ligature—a ligature being “an article put around the neck to cause

strangulation.”

Abney argues the admission of the autopsy report, along with Dr. Field’s testimony as to

the cause of death, violated his Sixth Amendment right to confront witnesses against him, based,

again, on Crawford. More specifically, Abney argues that the autopsy report was testimonial

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hearsay. Thus, according to Abney, because Dr. Beyer was not available to testify at trial

regarding the autopsy report, Abney “must have been given a prior opportunity to cross-examine

Dr. Beyer,” but “he was not given that opportunity.” Consequently, Abney argues, this

“testimonial” evidence was inadmissible, as the “two prong Crawford test” of “unavailability”

and a “prior opportunity to cross-examine the declarant” was not met. For the same reasons,

Abney argues that Dr. Field’s testimony as to the cause of the victim’s death was inadmissible,

because that opinion was, in turn, based on inadmissible evidence under Crawford, i.e., the

autopsy report. Abney further asserts that Code § 19.2-188, which provides for the admissibility

of an autopsy report made by a medical examiner without requiring the examiner to testify, was

rendered unconstitutional under the holding in Crawford. The Commonwealth argues that

Abney’s contentions are without merit because the autopsy report was not testimonial evidence

for purposes of the Confrontation Clause, as defined in Crawford and its progeny.

It is a well established principle of appellate review that this Court should not decide

constitutional questions “‘if the record permits final disposition of a cause on non-constitutional

grounds.’” Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (en

banc) (quoting Keller v. Denny, 232 Va. 512, 516, 352 S.E.2d 327, 329 (1987)). Similarly, we

should decide cases “‘on the best and narrowest ground available.’” Id. (quoting Air Courier

Conference v. Am. Postal Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring)).

We thus assume without deciding, for purposes of this appeal, that the admission of both

the autopsy report and Dr. Field’s testimony as to the cause of death based on that report was

prohibited under the Confrontation Clause. We do so because it is unnecessary for us to decide

that issue. In light of Abney’s confession as to the cause of death, as adduced at trial, we

conclude that any error in the admission of the autopsy report and Dr. Field’s subject testimony

was harmless beyond a reasonable doubt. See Luginbyhl, 48 Va. App. at 64, 628 S.E.2d at 77

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(violations of the Confrontation Clause are subject to harmless error review (citing United States

v. McClain, 377 F.3d 219, 222 (2d Cir. 2004))).

“When a federal constitutional error is involved, a reviewing court must reverse the

judgment unless it determines that the error is harmless beyond a reasonable doubt.” Clay v.

Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001). “‘We decide whether the

erroneous admission of evidence was sufficiently prejudicial to require reversal on the basis of

our own reading of the record and on what seems to us to have been the probable impact on the

fact finder.’” Corado v. Commonwealth, 47 Va. App. 315, 323, 623 S.E.2d 452, 456 (2005)

(quoting Green v. Commonwealth, 32 Va. App. 438, 446, 528 S.E.2d 187, 191 (2000)). “‘An

error is harmless only when it plainly appears from the record and the evidence that the error has

not affected the verdict. Whether an error does not affect the verdict must be determined without

usurping the jury’s fact finding function.’” Id. (quoting Hooker v. Commonwealth, 14 Va. App.

454, 457, 418 S.E.2d 343, 345 (1992)).

In this case, Abney confessed to Detectives Milefsky and Murphy, as they testified at

trial, that he strangled his wife to death with a ligature, his belt. Abney claimed it was an

accident, however, that occurred when he and his wife were engaged in what he described as

“kinky” sex. Abney made the same admission when he testified at trial, while still claiming he

killed her by accident. He further described the act of strangling her with his belt wrapped

around her neck, while they were engaged in sexual intercourse, as “erotic asphyxiation.” 4

Given Abney’s own testimony, as well as his admission to police, there was no dispute

whatsoever at trial as to (a) the fact that Abney killed his wife, and (b) the manner in which he

killed her, which was precisely the stated cause of death in the autopsy report and by Dr. Field in

4
In response to defense counsel’s questions on cross-examination, Dr. Field explained
that “erotic asphyxiation” is the act of one person cutting off the supply of blood to the head of
another by “put[ting] something around her neck in order to heighten sexual response.”
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her testimony at trial: asphyxiation secondary to strangulation by ligature. The issue at trial was,

instead, whether Abney, in strangling his wife to death with his belt, intended to kill her, or

killed her by accident. Therefore, any error in the admission of the autopsy report, and

Dr. Field’s testimony as to the cause of death based on that report, was harmless beyond a

reasonable doubt, as “‘it plainly appears from the record’” that such error “‘has not affected the

verdict.’” Corado, 47 Va. App. at 323, 623 S.E.2d at 456 (quoting Hooker, 14 Va. App. at 457,

418 S.E.2d at 345).

C. Request for Analysis and Certificates of Analysis on Vaginal Swabs

Finally, Abney challenges the trial court’s admission of three documents introduced by

the Commonwealth pertaining to the chain of custody and analysis of the vaginal swabs taken

from the victim’s body at the autopsy. The first of these documents is a “Request for Laboratory

Examination,” dated January 29, 1978, indicating Dr. Beyer’s transfer of the swabs to the

Commonwealth’s forensic laboratory for analysis. The second document is a “Certificate of

Analysis,” dated March 2, 1978, consisting of the first page of what appears to be a three-page

report, which indicates the return of the swabs from the laboratory to the Fairfax County Police

Department. The third document is a “Certificate of Analysis,” dated October 28, 2004,

consisting of a duly certified two-page report summarizing the DNA analysis of the semen

sample on the swabs and Abney’s buccal sample, which resulted in matching DNA profiles.

Abney argues that the documents were admitted into evidence in violation of the hearsay rule,

the Confrontation Clause, as applied in Crawford, and/or other evidentiary principles specifically

governing chain of custody issues.

We dispose of these arguments in the same way and for the same reasons that we

dispensed with Abney’s arguments regarding the admission of the autopsy report and Dr. Field’s

testimony. Assuming without deciding that admitting Dr. Beyer’s request for analysis and the

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two certificates of analysis was constitutional error, we conclude that such error was harmless

beyond a reasonable doubt.

Absent this documentary evidence, Abney asserts, there would have been no DNA

evidence against him, and, without it, the Commonwealth would not have been able to establish

his guilt. More specifically, Abney contends that, without such evidence, the Commonwealth

could not have “impeach[ed] [his] 1978 statement to the police regarding his prior sexual contact

with his wife,” nor could the Commonwealth have “establish[ed] [his] presence in the hotel room

on the night of [his wife’s] death.” The DNA evidence was, no doubt, significant in aiding the

police in their investigation, and in leading to Abney’s indictment. The obvious fallacy in

Abney’s contention, however, is that, at trial, there was no dispute about the fact that he killed

his wife, as well as the fact that he had sexual intercourse with her shortly before her death,

based on his confession to the police and his own testimony at trial. The record thus clearly

establishes that any error in admitting the DNA evidence was harmless beyond a reasonable

doubt.

III. CONCLUSION

For these reasons, we affirm Abney’s conviction.

Affirmed.

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