COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphreys and Alston Argued at Richmond, Virginia
TERRY MONTAIN MILLER MEMORANDUM OPINION * BY v. Record No. 1353-08-2 JUDGE LARRY G. ELDER SEPTEMBER 22, 2009 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Clarence N. Jenkins, Jr., Judge
Elliott B. Bender (Elliott B. Bender, PLLC, on briefs), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.
Terry Montain Miller (appellant) appeals from his jury trial convictions for two counts of
robbery, one count of attempted robbery, three counts of using a firearm in the commission of a
robbery or attempted robbery, and possession of a firearm by a convicted felon. On appeal, he
contends the trial court erred in permitting the Commonwealth to use its four peremptory strikes
against African-American venirepersons given that the Commonwealth’s only explanation for
three of the strikes was based on alleged facts known only to the Commonwealth and not on any
information elicited during voir dire of the venire panel. Appellant also contends the trial court
erred in ruling the admission of the firearms and ballistics examination certificate did not violate
appellant’s right of confrontation and that Virginia’s statutory provision allowing him to call the
analyst did not alleviate the Confrontation Clause violation because it constituted impermissible
burden-shifting.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. We hold appellant failed to present an adequate record from which we might determine
whether the trial court erred in denying appellant’s challenge to the racial composition of the
jury. We also hold that although the ballistics certificate contained testimonial hearsay, appellant
waived his right to confront the preparer of the certificate or, in the alternative, that if appellant
did not waive this right, any error in admitting the ballistics certificate was harmless on the facts
of this case, in which the certificate was never actually marked as an exhibit or published to the
jury. Thus, we affirm appellant’s convictions.
I.
A.
JURY SELECTION AND PEREMPTORY STRIKES
The appellate courts of this Commonwealth
have many times pointed out that on appeal the judgment of the lower court is presumed to be correct and the burden is on the appellant to present to us a sufficient record from which we can determine whether the lower court has erred in the respect complained of. If the appellant fails to do this, the judgment will be affirmed.
Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961).
Here, appellant challenges the Commonwealth’s stated basis for peremptorily striking
four potential jurors, whom appellant contends were all African-American. However, the partial
transcript of the jury selection and trial before us on appeal contains conflicting information
about which jurors were struck and how many of the stricken jurors were African-American, and
it does not include the Commonwealth’s individual voir dire of any of the venire members. It
contains only the trial court’s voir dire of the panel, appellant’s Batson challenge to the
Commonwealth’s peremptory strikes, the Commonwealth’s recitation of its reasons for the
strikes, and the trial court’s ruling on the Batson motion. It does not contain the questions
appellant’s counsel and the prosecutors asked the potential jurors or the responses they received. -2- Appellant contends that because he argued his objections on the record “with no objections or
corrections by the Commonwealth,” his averments amounted to a “proffer” and the “fact that the
court reporter failed to transcribe the voir dire examination should be of no significance.” We
disagree.
“[P]roffers and statements do not constitute evidence from which this Court can make a
determination as to whether the trial court erred in reaching its judgment.” Crawley v. Ford, 43
Va. App. 308, 315-16, 597 S.E.2d 264, 268 (2004) (emphasis added). A proffer is proper when a
party seeks the admission of certain testimony or other evidence and the trial court rules that
evidence inadmissible. Id. at 316, 597 S.E.2d at 268. A proffer of the actual or expected
testimony or exhibit is necessary to permit appellate review of the ruling excluding the evidence.
Id.
Here, by contrast, the voir dire of the potential jurors actually occurred but was not
transcribed. Appellant may not now rely upon his unilateral assertions concerning what
transpired simply because the Commonwealth did not object to each of the factual assertions he
made to support his argument in the trial court. Id. (discussing what is required to constitute a
stipulation, judicial admission or evidential admission); see Smith v. Commonwealth, 16
Va. App. 630, 635, 432 S.E.2d 2, 6 (1993) (“An appellate court must dispose of the case upon
the record and cannot base its decision upon appellant’s petition or brief, or statement of counsel
in open court.”); see also Rule 5A:8(c) (permitting a party to submit a written statement of facts,
expressly approved by the trial judge, in lieu of or in conjunction with a transcript).
In sum, “‘A proffer is not evidence, ipso facto.’ Without such evidence, or a proper
record of the proceedings during which the [challenged action occurred], this Court simply
cannot conduct an examination of the circumstances in order to determine whether the trial court
erred . . . .” Crawley, 43 Va. App. at 316-17, 597 S.E.2d at 268-69 (quoting United States v.
-3- Reed, 114 F.3d 1067, 1070 (10th Cir. 1997)). Accordingly, we may not consider appellant’s
Batson claim.
B.
ADMISSION OF THE BALLISTICS CERTIFICATE
Appellant contends on appeal that the ballistics certificate was testimonial under
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), that the trial
court’s ruling admitting the ballistics certificate without requiring the Commonwealth to call the
preparer of the certificate violated his Confrontation Clause rights, and that the provision of
Code § 19.2-187.1 permitting him to call the ballistics analyst as a witness did not alleviate this
violation because this mechanism amounted to unconstitutional “burden shifting.”
We agree that the ballistics certificate was testimonial under Crawford. See
Melendez-Diaz v. Massachusetts, 557 U.S. ___, ___, 129 S. Ct. 2527, 2531-32, 174 L. Ed. 2d
314, 320-22 (2009) (holding certificates of drug analysis were affidavits that qualified as
testimonial under Crawford, triggering the defendant’s right to confront the preparers); see also
Grant v. Commonwealth, __ Va. App. ___, ___, ___ S.E.2d ___, ___ (Sept. 1, 2009) (applying
Melendez-Diaz to hold that the attestation clause on a certificate of breath analysis is testimonial
in nature and that its admission in the face of a proper objection, without providing an
opportunity for cross-examination of the attestor, constituted a violation of the Confrontation
Clause).
Nevertheless, we conclude the admission of the ballistics certificate did not violate
appellant’s Confrontation Clause rights under the facts of this case. As our Supreme Court has
recognized, “it is undisputed that a criminal defendant can waive the right to confrontation,” and
“[t]he decision in Crawford did not alter that fact.” Magruder v. Commonwealth, 275 Va. 283,
302, 657 S.E.2d 113, 122-23 (2008), cert. granted sub nom. Briscoe v. Virginia, ___ U.S. ___,
-4- 129 S. Ct. 2858, 174 L. Ed. 2d 600 (2009); see Melendez-Diaz, 557 U.S. at ___ n.3, 129 S. Ct. at
2534 n.3, 174 L. Ed. 2d at 323 n.3. The Court has held 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’” and that this procedure “adequately
safeguards a criminal defendant’s rights under the Confrontation Clause.” Magruder, 275 Va. at
301, 305, 657 S.E.2d at 122, 124 (quoting Brooks v. Commonwealth, 49 Va. App. 155, 164, 638
S.E.2d 131, 136 (2006)). Finally, the Court has concluded “that [a] defendant[’s] failure . . . to
utilize that procedure waive[s] [the] right to be confronted with the forensic analyst[], i.e., to
enjoy the elements of confrontation.” Id. at 305, 657 S.E.2d at 124; see Grant, ___ Va. App. at
___, ___ S.E.2d at ___ (applying Magruder to hold the defendant preserved his right of
confrontation by “notify[ing] the Commonwealth [in a timely fashion] ‘that he desire[d] that the
preparer of the certificate . . . be summoned by the Commonwealth to appear at trial . . . at the
cost of the Commonwealth to be cross-examined in this matter’” (emphasis added in Grant)).
Here, the trial court ruled, consistent with Virginia Supreme Court precedent, see
Magruder, 275 Va. at 305, 657 S.E.2d at 124, that appellant waived his confrontation right by
failing to call the analyst. Further, appellant did not contend in the trial court, as he now argues
on appeal, that Virginia’s statutory scheme impermissibly shifted to him the burden of calling the
analyst. See id. at 301, 657 S.E.2d at 122 (concluding that “[t]his burden shifting argument is
not cognizable under the Confrontation Clause [and] [i]nstead . . . raises due process concerns
that are not properly before us [on] appeal[] [b]ecause the defendants did not avail themselves of
the opportunity to require the presence of a particular forensic analyst at trial [and, thus,] . . .
were never in the position of being forced, over their objection, to call a forensic analyst as a
witness” (citation omitted)); see also Brooks, 49 Va. App. at 168-69 & n.6, 638 S.E.2d at 138 &
n.6 (suggesting how Virginia’s statutory scheme might be construed so as to avoid any allegation
-5- of impermissible burden-shifting). Thus, appellant failed to satisfy the contemporaneous
objection requirement of Rule 5A:18. He also does not seek application of Rule 5A:18’s ends of
justice exception, which we may not invoke sua sponte. Edwards v. Commonwealth, 41
Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc), aff’d by unpub’d order, No. 040019
(Va. Oct. 15, 2004); see also Melendez-Diaz, 557 U.S. at ___ & n.12, 129 S. Ct. at 2541 & n.12,
174 L. Ed. 2d at 332 & n.12 (without “pass[ing] on the constitutionality of every variety of
statute commonly given the notice-and-demand label,” holding that “the simplest form [of]
notice-and-demand statutes” is constitutional because a “defendant always has the burden of
raising his Confrontation Clause objection” and “notice-and-demand statutes simply govern the
time within which he must do so,” and observing further that “[s]tates are free to adopt
procedural rules governing objections”).
Finally, even if the trial court erred in concluding that appellant waived his right of
confrontation and, thus, erred in admitting the certificate of analysis into evidence, we
nevertheless conclude any such error was harmless on the facts of this case.
Error involving the Confrontation Clause is subject to constitutional harmless error
analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674,
686 (1986). “The correct inquiry is whether, assuming that the damaging potential of the
[evidence] were fully realized, a reviewing court might nonetheless say that the error was
harmless beyond a reasonable doubt.” Id. Thus, “a harmless error analysis . . . [is not] simply a
sufficiency of the evidence analysis.” Hooker v. Commonwealth, 14 Va. App. 454, 458, 418
S.E.2d 343, 345 (1992). Whether an error is harmless must be “determined ‘without usurping
the jury’s fact finding function.’” Corado v. Commonwealth, 47 Va. App. 315, 323, 623 S.E.2d
452, 456 (2005) (quoting Hooker, 14 Va. App. at 457, 418 S.E.2d at 345).
“Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. -6- These factors include the importance of the [evidence] in the prosecution’s case, whether the [evidence] was cumulative, the presence or absence of evidence corroborating or contradicting the [erroneously admitted evidence] on material points, the extent of [confrontation] otherwise permitted, and, of course, the overall strength of the prosecution’s case.”
Dearing v. Commonwealth, 260 Va. 671, 673, 536 S.E.2d 903, 904 (2000) (quoting Van Arsdall,
475 U.S. at 684, 106 S. Ct. at 1438, 89 L. Ed. 2d at 686-87).
This case involves a somewhat unique twist in that, although the trial court ruled the
challenged ballistics certificate would be admitted as Commonwealth’s Exhibit Number 4, the
document so marked was actually a duplicate of a different certificate of analysis, one involving
DNA, which was subsequently admitted without objection as Commonwealth’s Exhibit Number
5. As a result, although the document labeled Commonwealth’s Exhibit Number 4 was
published to the jury, the exhibit as published contained none of the ballistics information
appellant had sought to exclude. Thus, the admission of the exhibit itself caused no direct harm
to appellant, and we turn to an examination of any indirect harm that may have resulted from
references made about the exhibit by the witnesses in their testimony and by counsel in
argument.
Appellant’s theory of the case was that he did not attempt to rob Gillings, Ray, and
Windley and that he did not possess a weapon at the scene of their encounter. He contended
instead that Gillings accosted him, that Gillings was the only person who possessed and fired a
weapon, and that Gillings and his companions were lying to keep Gillings from getting into
trouble for discharging his weapon without cause. The Commonwealth’s theory of the case was
that appellant robbed Gillings, Ray, and Windley 1 at gunpoint, that Gillings discharged his own
1 The Commonwealth admitted the evidence proved that appellant only attempted to rob Windley, and the trial court agreed, striking the evidence as to the indictment for robbery of Windley. Appellant was convicted of attempted robbery of Windley.
-7- firearm, a .357 caliber weapon, in an attempt to protect his property, and that appellant fired at
least two shots at the scene after Gillings began to discharge his weapon. Gillings testified that
he fired his weapon “maybe about nine times” in all from his position between two cars and that
after Gillings fired his first shot, appellant fired once, fell backward, and then fired two more
shots, for a total of three shots. Sergeant House testified that he recovered an unattended .40
caliber firearm at the scene and that Gillings relinquished his own .357 caliber firearm to House
at the scene. House testified that he collected two different “bunches” of shells at the scene, for a
total of nine, but he gave no further testimony describing the quantity of shells in each group or
indicating the caliber of the weapon any of the shells was designed to be used in. Sergeant
House also testified he did not recall whether he sent the spent shell casings “to the lab for
comparison to the two firearms.” The ballistics certificate—which indicated that two of the
shells were .40 caliber shells that had been fired from the unattended .40 caliber weapon seized
at the scene and that the other seven shells were .357 caliber shells that had been fired from
Gillings’ .357 caliber weapon—was the only evidence affirmatively linking the shells to the two
weapons or even to weapons of their caliber. The record indicates that, despite the court’s ruling
admitting the ballistics certificate, it was never published to the jury, and all proceedings related
to the admission of the certificate were held outside the hearing of the jury.
In argument, the Commonwealth contended that if the victims had fabricated their story
about what happened, they would have to have planted their belongings in the road, planted the
unattended firearm, “and then they would have had to have fired it, because remember there are
spent shell casings that go along with that gun. You have seen the ballistics report and you can
take it back with you into [the jury room].” The Commonwealth also later argued that “the gun
that [appellant] held when he left the DNA, the gun that left the gunshot primer residue on his
-8- hand, the gun that three people saw him holding, pointing at them, demanding their stuff, that
gun had spent shell casings in the road where the robbery occurred.”
Appellant contends that although a duplicate DNA certificate rather than the ballistics
certificate was published to the jury, he was still prejudiced by the trial court’s ruling that the
ballistics certificate was admissible because the jury was aware such a certificate existed, the
Commonwealth argued its contents, and he, himself, was thus “unable to argue in closing that
there was no evidence inconsistent with one gun being fired and where each shell casing might
have originated.”
Despite appellant’s contentions, the record indicates the Commonwealth’s arguments to
the jury about the ballistics certificate were very general. The Commonwealth did not mention
the caliber of the weapons or the casings and argued merely that “there are spent shell casings
that go along with that gun,” “spent shell casings in the road where the robbery occurred.”
Although the ballistics certificate indicated two of the shells had been fired from the unattended
.40 caliber weapon, neither the Commonwealth’s evidence, other than the ballistics certificate
never published to the jury, nor the Commonwealth’s argument mentioned this fact. Further,
appellant expressly argued in closing that Gillings “clear[ly] . . . stated . . . he shot nine times,”
that “the evidence [showed] [o]nly nine shell casings [were] found,” and, thus, that “the evidence
you have before you” showed Gillings “shot all of them. . . . That’s what the proof is.” The
Commonwealth, in rebuttal argument, made no specific reference at all to the ballistics report or
the shell casings, saying only that “[Mr. Gillings] doesn’t have to frame [appellant] to cover [his]
behavior. [Mr. Gillings] didn’t do what [appellant] did. He didn’t run away. The evidence
doesn’t create an elaborate evidence planting.” Thus, although appellant was not able to argue a
complete lack of ballistics evidence, he was able to argue, without any attempt by the
Commonwealth to use the ballistics evidence to refute his argument, that Gillings must have
-9- fired the only gunshots at the scene because he said he fired nine times and nine shell casings
were found at the scene.
In sum, we conclude from examining the parties’ treatment of the ballistics evidence, in
conjunction with the record as a whole, that any error in admitting the certificate was harmless
on the facts of this case. The Commonwealth did not argue the specific contents of the ballistics
certificate and did not rely heavily on it, and appellant was able to rely on other evidence in the
record—Gillings’s testimony that he fired nine times—to challenge the Commonwealth’s
argument that some of the nine shells found at the scene came from the unattended .40 caliber
weapon.
The overall strength of the Commonwealth’s case also supports the conclusion that the
error, if any, was harmless. The three victims, although acquaintances, were interviewed
separately at the scene and gave consistent reports about appellant’s attempts to rob them at
gunpoint. The evidence established that Gillings operated an auto repair shop and that Windley
worked for him at that time. At trial, neither of the female victims was impeached with prior
convictions, and Gillings was impeached only by a prior conviction for utility theft. The
physical evidence at the scene was consistent with the three victims’ testimony concerning
appellant’s taking their property and dropping it as he fled. It was undisputed Gillings remained
at the scene and cooperated with the efforts of the police to take custody of his gun and swab his
hands for gunshot residue. Appellant, by contrast, attempted to leave the scene and to decline
the efforts of police to obtain a DNA swab from him, consenting only after being told the police
had a search warrant and that he had no choice. Further, the DNA evidence from the unattended
.40 caliber gun at the scene, although not conclusive in establishing appellant had held it, could
not exclude him as a contributor to the DNA on it. The results of the gunshot residue tests on
appellant’s hands showed he had two of the three particles that comprise gunshot primer residue
- 10 - on his hands and that the particles were in the proper shape to have come from firing a weapon.
Appellant’s only explanation for why he might have had such residue on his hands was that it
could have been transferred to both of his hands by the officers who arrested him, a result the
gunshot residue expert testified was difficult to achieve even in controlled laboratory testing.
Finally, appellant testified in his own defense and admitted he had numerous prior convictions
for felonies of moral turpitude. He claimed Gillings initiated the confrontation because appellant
had the name of a rival area of Richmond written on his shoes, but the evidence failed to support
appellant’s claim. The shoe appellant left at the scene did not bear any notation, “Highland
Park” or “HP,” and his second shoe was never found.
Based on the strength of the Commonwealth’s case as compared to the error, if any,
resulting from the admission of the ballistics certificate, we conclude beyond a reasonable doubt
that any error was harmless.
II.
For these reasons, we hold appellant failed to present an adequate record from which we
might determine whether the trial court erred in denying appellant’s challenge to the racial
composition of the jury. We also hold that although the ballistics certificate contained
testimonial hearsay, appellant waived his right to confront the preparer of the certificate or, in the
alternative, that if appellant did not waive this right, any error in admitting the ballistics
certificate was harmless on the facts of this case, in which the certificate was never actually
marked as an exhibit or published to the jury. Thus, we affirm appellant’s convictions.
Affirmed.
- 11 -