Stephen Douglas Payne v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: March 25, 1997
• Docket: 2870954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bray and Senior Judge Hodges Argued at Alexandria, Virginia

STEPHEN DOUGLAS PAYNE MEMORANDUM OPINION * BY v. Record No. 2870-95-4 JUDGE RICHARD S. BRAY MARCH 25, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Benjamin N. A. Kendrick, Judge (Exequiel R. Sevilla, Jr., on brief), for appellant. Appellant submitting on brief.

(Kathleen B. Martin, Assistant Attorney General; James S. Gilmore, III, Attorney General, on brief), for appellee. Appellee submitting on brief.

Stephen Douglas Payne (defendant) was convicted by a jury

for possession of cocaine. On appeal, he asserts that the trial

court erroneously admitted hearsay evidence, a certificate of

analysis which did not comport with the provisions of Code

§ 19.2-187. We agree and reverse the conviction.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

During trial, the Commonwealth offered the disputed

certificate into evidence, and defendant objected, arguing that

it constituted hearsay. Although the legislature has excepted a

certificate of analysis prepared in accordance with Code * Pursuant to Code § 17-116.010 this opinion is not designated for publication. § 19.2-187 from the disability of hearsay, a certificate lacking

the requisite attestation clause or otherwise not in "strict

compliance" with the statute remains "subject to a valid hearsay

objection." Frere v. Commonwealth, 19 Va. App. 460, 463-65, 452

S.E.2d 682, 685-86 (1995); Myrick v. Commonwealth, 13 Va. App.

333, 337-38, 412 S.E.2d 176, 178 (1991). The Commonwealth does

not contend that the disputed certificate included a proper

attestation clause. Thus, confronted with defendant's proper

objection in this instance, the Commonwealth was unable to

establish a statutory or other exception to the hearsay rule,

leaving the certificate inadmissible evidence. See, e.g., Neal

v. Commonwealth, 15 Va. App. 416, 420-22, 425 S.E.2d 521, 523-25

(1992).

The Commonwealth, nevertheless, urges that we affirm the

conviction, contending that the improper evidence was harmless.

Non-constitutional error is harmless if "'it plainly appears from

the record and the evidence given at the trial that' the error

did not affect the verdict." Lavinder v. Commonwealth, 12 Va.

App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting

Code § 8.01-678); see id. at 1009, 407 S.E.2d at 913. "An error

does not affect a verdict if a reviewing court can conclude,

without usurping the jury's fact finding function, that, had the

error not occurred, the verdict would have been the same." Id.

at 1005, 407 S.E.2d at 911; see Woodward v. Commonwealth, 16 Va.

App. 672, 675, 432 S.E.2d 510, 512 (1993) (inadmissible evidence

- 2 - which is "merely cumulative of other, undisputed evidence" does

not affect the verdict). Whether an error at trial has affected

the verdict is necessarily case specific. See Lavinder, 12 Va.

App. at 1009, 407 S.E.2d at 913.

We acknowledge that "lay testimony and circumstantial

evidence may be sufficient, without the introduction of an expert

chemical analysis, to establish the identity of the substance

involved in an alleged narcotics transaction." United States v. Scott, 725 F.2d 43, 45 (4th Cir. 1984) (quoting United States v.

Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976)). However, Castillo

v. Commonwealth, 21 Va. App. 482, 465 S.E.2d 146 (1995), teaches

that oftentimes the prejudicial effect of inadmissible evidence

impairs an independent assessment of the admissible evidence by

the fact finder, thereby infecting the verdict with error.

In this instance, we are "'unable to say what effect the

[inadmissible] evidence had on the [fact finder's] decision,'"

despite "independent evidence [of the nature of the substance]." Id. at 490, 465 S.E.2d at 150 (quoting Durant v. City of

Suffolk, 4 Va. App. 445, 449, 358 S.E.2d 732, 734 (1987)); see

also Cartera v. Commonwealth, 219 Va. 516, 248 S.E.2d 784 (1978)

(physician's testimony detailing victims' statements and his

opinion that each had been raped found not harmless).

Accordingly, we reverse the conviction and remand to the trial

court for further proceedings consistent with this opinion, if

the Commonwealth be so advised.

- 3 - Reversed and remanded.

- 4 -