                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Petty and Beales
Argued at Richmond, Virginia


GLENN ANTOINE HARRISON, JR., A/K/A
 GLENN HARRISON, JR.
                                                               MEMORANDUM OPINION * BY
v.     Record No. 1256-09-1                                      JUDGE LARRY G. ELDER
                                                                   DECEMBER 21, 2010
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                              H. Thomas Padrick, Jr., Judge

                 James O. Broccoletti (Zoby & Broccoletti, P.C., on brief), for
                 appellant.

                 Alice T. Armstrong, Assistant Attorney General II (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       Glenn Antoine Harrison, Jr., (appellant) appeals his jury trial convictions for first-degree

murder, in violation of Code §§ 18.2-32 and -10, and robbery, in violation of Code § 18.2-58.

On appeal, he contends that the trial court erred by admitting the autopsy report into evidence

when the performing medical examiner did not testify. We assume without deciding that the

admission of the autopsy report violated appellant’s constitutional right to confront witnesses,

and hold that any error was harmless beyond a reasonable doubt. Therefore, we affirm the

convictions.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                                 I.

                                           ANALYSIS

       Appellant contends that the trial court violated his constitutional right to confront

witnesses against him by admitting the autopsy report and that the error was not harmless. The

Sixth Amendment provides a criminal defendant the right to confront the witnesses “‘who bear

testimony’ against him.” Melendez-Diaz v. Massachusetts, __ U.S. __, __, 129 S. Ct. 2527,

2531, 174 L. Ed. 2d 314, 320 (2009) (quoting Crawford v. Washington, 541 U.S. 36, 51, 124

S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 192 (2004)). Testimonial statements are the “sort [that]

cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Davis v.

Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224, 237 (2006). As the

Supreme Court has explained:

               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.

Id. at 822, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.

       Although the Virginia Code reveals the General Assembly’s intent for autopsy records

and reports to be used as evidence against one accused of a homicide, see Code §§ 19.2-188(A),

32.1-283, this Court has not previously been called upon to determine whether an autopsy report




                                                -2-
is testimonial. 1 Because we find that any error in allowing the report was harmless, we need not

resolve this question in order to dispose of this appeal. 2

       In considering whether an error is harmless, we apply the following framework:

                        The Supreme Court, in Chapman v. California, 386 U.S.
               18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), held that “before a
               federal constitutional error can be held harmless, the court must be
               able to declare a belief that it was harmless beyond a reasonable
               doubt.” As the Supreme Court stated in Delaware v. Van Arsdall,
               475 U.S. 673, 681, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986), “an
               otherwise valid conviction should not be set aside if the reviewing
               court may confidently say, on the whole record, that the
               constitutional error was harmless beyond a reasonable doubt.”
                        A court, when determining whether federal constitutional
               error is harmless, must consider several factors, including the
               importance of the tainted evidence in the prosecution’s case,
               whether the evidence was cumulative, the presence or absence of
               evidence corroborating or contradicting the tainted evidence on
               material points, and, of course, the overall strength of the
               prosecution’s case.

Dearing v. Commonwealth, 259 Va. 117, 123, 524 S.E.2d 121, 124-25 (2000) (citation omitted).

The Commonwealth bears the burden of proving that a constitutional error was harmless beyond

a reasonable doubt. Chapman, 386 U.S. at 24, 87 S. Ct. at 828, 17 L. Ed. 2d at 710-11; Joyner v.

Commonwealth, 192 Va. 471, 477, 65 S.E.2d 555, 558-59 (1951); Beverly v. Commonwealth,

12 Va. App. 160, 163-64, 403 S.E.2d 175, 177 (1991).


       1
          In cases following Melendez-Diaz, most jurisdictions that have considered the issue
concluded that autopsy reports are testimonial. See Commonwealth v. Avila, 912 N.E.2d 1014,
1029 (Mass. 2009) (holding that the autopsy report was testimonial hearsay); State v. Locklear,
681 S.E.2d 293, 305 (N.C. 2009) (holding that the trial court erred by admitting “forensic
analyses performed by a forensic pathologist and a forensic dentist who did not testify”); Wood
v. State, 299 S.W.3d 200, 209-10 (Tex. Crim. App. 2009) (holding the autopsy report was
testimonial where police suspected the death was a homicide). But see People v. Cortez, 931
N.E.2d 751, 756 (Ill. App. Ct. 2010) (holding that autopsy reports are non-testimonial business
records).
       2
         “An appellate court decides cases ‘on the best and narrowest ground available.’”
Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (en banc) (quoting
Air Courier Conf. v. Am. Postal Workers Union, 498 U.S. 517, 531, 111 S. Ct. 913, 922, 112
L. Ed. 2d 1125, 1139 (1991) (Stevens, J., concurring)).
                                              -3-
        This case stems from the murder of a woman this opinion refers to as “A.S.” Ultimately,

the only issue at trial for the fact finder to resolve was whether the Commonwealth properly

identified appellant as the perpetrator. The other elements of the crime were not contested:

whether A.S. was killed; whether the killing was malicious; and whether the killing was willful,

deliberate, and premeditated. See Code § 18.2-32; see also Epperly v. Commonwealth, 224 Va.

214, 229, 294 S.E.2d 882, 891 (1982) (explaining that the Commonwealth must prove the fact of

a death at the hand of another in order to prove a homicide, but does not need to establish the

cause of death). The autopsy report tended to show that A.S.’s cause of death was drowning,

with sharp and blunt force trauma contributing to her death. The report also tended to show that

her assailant stabbed her numerous times and that she and her assailant struggled. The report

opined that someone attempted to cleanse the scene of the murder with bleach. In sum, the

autopsy report had no bearing on the determination of the perpetrator’s identity.

        The information in the autopsy report was largely cumulative of other evidence in the

record. At trial, the Commonwealth introduced evidence that blood was spilled in the stair

landing, on the walls, and in the bathroom. One investigator found a loose earring in the landing

area. A.S.’s blood was found on a serrated knife blade. Photographs of the apartment showed

blood on the couch, on the kitchen and living room walls, and on the floor and wall in the

stairwell landing. The kitchen table was knocked over, and broken dishes lay on the kitchen

floor. The photograph of A.S.’s body in the bathtub showed blood in the bathroom and darkened

water in the tub with her body. This evidence independently indicated that A.S. struggled with

her assailant.

        The Commonwealth introduced evidence that A.S.’s apartment smelled strongly of

chemicals. The couch had numerous stains and was missing a cushion, and investigators found

numerous open or empty bottles of cleaning products throughout the residence. This evidence

                                               -4-
established, separately and apart from the autopsy report, that the assailant attempted to clean the

scene after the murder.

       The parties stipulated that A.S. was the deceased and the subject of the autopsy in

question. The photographs of the body, admitted without objection, provided independent

graphic depictions of many of the injuries merely described in the autopsy report. There was no

evidence contradicting the information found in the autopsy report.

       Appellant’s brief contends that the Confrontation Clause error was not harmless because

(a) the death of the victim is an element of homicide that the Commonwealth must prove;

(b) cross-examination of the examining doctor could have uncovered helpful information, such

as whether the manner of A.S.’s death contributed to other forensic evidence found at the scene,

could have indicated the assailant’s size and strength, or explained weapons used or the location

of blood in the home; (c) cross-examination could have exposed possible fraud or lack of

training; and (d) appellant was unable to ask what constituted signs of drowning. Again,

appellant stipulated at trial that A.S. was deceased. Nothing in the record indicates that the type

of A.S.’s injuries suggested any physical attributes of the attacker. We perceive no way in which

appellant’s other hypothetical questions could have helped him avoid conviction. Even if, for

example, cross-examination of the examining physician uncovered that she lacked the requisite

training, the autopsy report was superfluous to the trial, because the bulk of information in the

report was established by other evidence at trial.

       Further, nothing in the report pertained to the assailant’s identity, the only issue contested

at trial. Indeed, some members of the jury may have considered the autopsy report to favor

appellant’s argument, due to the fact that the autopsy did not uncover any DNA evidence

pointing to appellant. For these reasons, we hold that any error of admitting the autopsy report

was harmless beyond a reasonable doubt as to appellant’s convictions. See People v. Pitchford,

                                                -5-
929 N.E.2d 655, 664 (Ill. App. Ct. 2010) (holding that the defendant “utterly failed to show any

resulting prejudice” from the medical examiner’s testimony about the manner of death because

the manner of death was not in dispute at trial).

       We must next determine whether the error was harmless as to appellant’s sentence. See

Zektaw v. Commonwealth, 278 Va. 127, 140, 677 S.E.2d 49, 56 (2009). At the sentencing

hearing, the Commonwealth did not revisit the details of A.S.’s death, but did urge the jury to

“go back and look at the picture of where [A.S.] was left, go back and remind yourself of the

autopsy report.” The jury fixed appellant’s sentence at life imprisonment for the murder and

twenty-five years for the robbery. The trial court sentenced appellant in keeping with the jury’s

recommendation. In doing so, the court explained:

               This case is one of the worst I’ve ever seen. This lady was
               strangled, smothered, stabbed, beaten, and she had defensive
               wounds that literally almost cut her hand off defending all that; and
               then she was put in a bathtub and drowned. I can’t think of a much
               worse case that I’ve seen in at least ten years.

       The other evidence in the record extensively established the violent and brutal nature of

A.S.’s death, which appellant never contested. Although the autopsy report provided some

information that was not elsewhere available in the record, the details of A.S.’s injuries and that

her ultimate cause of death was drowning, these particulars have little impact in light of the sum

of the evidence describing A.S.’s horrific death that was available to the jury even without the

autopsy report. Under these circumstances, we “conclude beyond a reasonable doubt that there

is no reasonable probability” that the error contributed to the severity of appellant’s punishment.

Id.




                                                -6-
                                               II.

       For these reasons, we hold that any error in admitting the autopsy report into evidence

was harmless. We therefore affirm the convictions.

                                                                                       Affirmed.




                                              -7-
