                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia


JAMARRIAN CHANRELLE WINGFIELD
                                        MEMORANDUM OPINION * BY
v.       Record No. 3000-95-2        JUDGE JOHANNA L. FITZPATRICK
                                             APRIL 1, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Walter W. Stout, III, Judge
           David P. Baugh for appellant.

           Leah A. Darron, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



     On November 13, 1995, Jamarrian C. Wingfield (appellant) was

found guilty in a bench trial of possession of cocaine with

intent to distribute.    The sole issue on appeal is whether the

procedure for admission of the certificate of drug analysis

provided by Code §§ 19.2-187 and 19.2-187.1 violates appellant's

right to confrontation guaranteed by the Sixth Amendment of the

United States Constitution and Article I, Section 8 of the

Virginia Constitution.   Finding no error, we affirm.

     On May 12, 1995, at approximately 5:00 p.m. Richmond Police

Officer O'Kleasky (O'Kleasky) observed appellant participating in

a drug transaction.   After witnessing an exchange of money and a

white substance, O'Kleasky saw appellant place the remainder of

the drugs down the front of his pants.     He radioed a description
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
of appellant to his "take-down team," and Officers Corrigan and

Williams (Williams) located and arrested appellant.   At that time

they recovered a bag containing a white substance from the front

of his pants, a pager and $1,489 in U.S. currency.    The drugs

were forwarded to the Division of Forensic Science.

     At trial on November 13, 1995, the Commonwealth moved

pursuant to Code §§ 19.2-187 and 19.2-187.1, to introduce the

certificate of analysis of the white substance taken from

appellant at the time of his search and arrest.   The Commonwealth

sought to use the certificate to show that Williams submitted one

plastic bag containing caked tan powder for analysis, and that

Robert R. Steiner, a forensic scientist, analyzed the substance

and determined it to be 23.99 grams of cocaine.   Appellant

objected to the admission of the certificate; however, the trial

court overruled appellant's "confrontation . . . as to the

certificate" objection, noted appellant's continuing objection,

and admitted the certificate.
     Appellant contends that because Code §§ 19.2-187 and

19.2-187.1 permit the introduction of an affidavit (i.e., the

certificate of analysis) without requiring a face-to-face

confrontation with the person who performed the chemical

analysis, these sections violate his confrontation rights.

Appellant argues that Code §§ 19.2-187 and 19.2-187.1 are

unconstitutional because they allow the government to conduct a

trial by affidavit.




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     It is well established that the admissibility of evidence

lies within the broad discretion of the trial court, whose ruling

will not be disturbed on appeal absent a clear abuse of

discretion.   Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820,

823 (1986).   The Sixth Amendment Confrontation Clause, made

applicable to the States through the Fourteenth Amendment,

provides that "'[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against

him.'"   Ohio v. Roberts, 448 U.S. 56, 62 (1980).   However, an

accused's right to confront and cross-examine is "'not absolute

and may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process.'"     Baugh v.

Commonwealth, 14 Va. App. 368, 371, 417 S.E.2d 891, 893 (1992)

(quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)); see

also Maryland v. Craig, 497 U.S. 836 (1990).   Additionally, a

confrontation claim presupposes the denial of a request to

confront and cross-examine witnesses.   See United States v.
Inadi, 475 U.S. 387, 393-94 (1986); Evans v. Thompson, 881 F.2d

117, 123 (4th Cir. 1989), cert. denied, 497 U.S. 1010 (1990).

     The rights granted to a defendant under the Confrontation

Clause are not violated by admitting into evidence against him

the certificate of analysis which falls within a "firmly rooted"

hearsay exception.   See Raia v. Commonwealth, 23 Va. App. 546,

551-52, 478 S.E.2d 328, 331 (1996) (citing White v. Illinois, 502

U.S. 346, 356-57 (1992)); see also Bourjaily v. United States,



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483 U.S. 171 (1987); Roberts, 448 U.S. at 66.      Moreover,

laboratory analyses identifying controlled substances have long

been admissible as a business record under Federal Rule of

Evidence 803(6).       See United States v. Roulette, 75 F.3d 418,

421-22 (8th Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct.

147, 136 L.E.2d 93 (1996).      In the instant case, the certificate

of drug analysis was admitted under Code §§ 19.1-187 and

19.2-187.1, Virginia's statutory equivalent to FRE 803(6).
     Code § 19.2-187 provides, in part:
               In any hearing or trial of any criminal
          offense . . . a certificate of analysis of a
          person performing an analysis or examination,
          . . . when such certificate is duly attested
          by such person, shall be admissible in
          evidence as evidence of the facts therein
          stated and the results of the analysis or
          examination referred to therein, provided (i)
          the certificate of analysis is filed with the
          clerk of the court hearing the case at least
          seven days prior to the hearing or trial and
          (ii) a copy of such certificate is mailed or
          delivered by the clerk or attorney for the
          Commonwealth to counsel of record for the
          accused at least seven days prior to the
          hearing or trial upon request of such
          counsel.

                   *      *    *    *    *    *    *

               Any such certificate of analysis
          purporting to be signed by any such person
          shall be admissible as evidence in such
          hearing or trial without any proof of the
          seal or signature or of the official
          character of the person whose name is signed
          to it.


Code § 19.2-187.1 provides:

               The accused in any hearing or trial in
          which a certificate of analysis is admitted


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             into evidence pursuant to § 19.2-187 . . .
             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.

     In Winston v. Commonwealth, we held as follows:

                  The contents of a "written report
             offered to prove the results of testing or of
             an analysis would generally be inadmissible
             hearsay evidence," absent authentication and
             verification by "the person who conducted the
             testing or prepared the report." However,
             Code § 19.2-187 "imposes a condition for the
             exoneration of an otherwise hearsay document
             from the application of the hearsay rule,
             thus making the document admissible."
             Because this statute "deals with criminal
             matters, and it undertakes to make admissible
             evidence which otherwise" might be
             objectionable, it "should be construed
             strictly against the Commonwealth and in
             favor of the accused."

16 Va. App. 901, 904, 434 S.E.2d 4, 5 (1993) (quoting Gray v.

Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705, 706 (1980))

(other citations omitted).    Thus, it is generally recognized that

"Code § 19.2-187 creates an exception to the hearsay rule and

permits the written analysis to be admitted into evidence without

requiring the in-court presence of the person who prepared the

document."     Allen v. Commonwealth, 3 Va. App. 657, 662-63, 353

S.E.2d 162, 165 (1987) (citation omitted).

     "Since the statute authorizes the admission into evidence of

documents whose reliability had not been independently proven,

the requirement that the certificate be filed seven days in




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advance provides some guarantee of trustworthiness in that it

gives an accused an opportunity to verify the results or to

subpoena and challenge those who constructed the analysis, should

that be a contested issue."   Myrick v. Commonwealth, 13 Va. App.

333, 337, 412 S.E.2d 176, 178 (1991) (emphasis added).    See also

Kay v. United States, 255 F.2d 476, 479-80 (4th Cir. 1958)

(holding that then Code § 18.2-75.2 did not violate the

Confrontation Clause); United States v. Farmer, 820 F.Supp. 259

(W.D. Va. 1993) (holding that certificate of blood alcohol

analysis did not violate Confrontation Clause and was admissible

under the business records exception to the hearsay rule).
     No violation of appellant's right of confrontation occurred.

Appellant had the express statutory right pursuant to Code

§ 19.2-187.1 to subpoena the chemist performing the analysis or

the person involved in the chain of custody to testify at trial

and be available for his examination.   Appellant's choice not to

avail himself of that process does not constitute a denial of his

confrontation right.   Virginia's statutory scheme provides a

mechanism for governmental and judicial economy by obviating the

need for the prosecution to call the preparer and chain of

custody witness.   The statutes provide a defendant with adequate

notice that the prosecution intends to rely on the certificate

and affords a defendant the absolute right to call the preparer

or chain of custody witness as an adverse witness should he so

desire.   Thus, no violation of either the United States or



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Virginia Constitution occurs by use of the statutory procedure

authorized by Code §§ 19.2-187 and 19.2-187.1.

     For the foregoing reasons, we affirm the conviction.

                                             Affirmed.




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