Jurisdictional Statement — Hamilton v. Virginia

82-482

IN THE SUPREME COURT

of the

UNITED STATES

October Term, 1982

WILLIAM L. HAMILTON

JUANITA S. MEAD, APPELLANTS

Vv.

COMMONWEALTH OF VIRGINIA

APPELLEE

ON APPEAL FROM THE SUPREME COURT OF VIRGINIA

JURISDICTIONAL STATEMENT

Malcolm G. Crawford, Esquire

Counsel of Record for the

Appellants

15 South Jefferson St.

Lexington, Virginia 24450

(703) 463-9796"

i

QUESTIONS PRESENTED BY APPEAL

1. Do §19.2-187 and §19.2-187.1 of

the Code of Virginia 1950, as amended, as

applied by the trial court and approved

by the Supreme Court of Virginia, violate

the Confrontation Clause of the Sixth

Amendment of the Constitution of the

United States and the Due Process Clause

of the Fourteenth Amendment in that said

statutes authorized an objected to

Certificate of Analysis to be admitted

into evidence when:

(A) Neither the person who performed

the analysis nor anyone else who had

knowledge of the opinion expressed therein

was available for cross-examination

even though Appellants had caused a

summons to be issued to secure the presence

of stid analyst;

(B) The certificate contained no

“

« he fe

raised?

ii

indicia of reliability on its face;

(C) The certificate reportedly

connects Appellants with the commission

of the crime;

(D) The prosecution made no showing

as to the unavailability of the analyst

or even his whereabouts, and

(E) The prosecution failed to produce

said certificate although all relevant

scientific reports were specifically

requested by Appellants and ordered to be

produced by the trial court.

2. Does Rule 5:20 of the Rules of the

Supreme Court of Virginia authorizing denial

of a Petition for Appeal by "Notice" violate

the Due Process Clause of the Fourteenth

Amendment to the United States Constitution

since Appellants’ felony convictions are

predicated on evidence allegedly admitted

in violation of their constitutional rights,

but said convictions are not supported by

any opinion that effectively addresses and

properly resolves the constitutional issues

iii

TABLE OF CONTENTS

Questions Presented by Appeal

Table of Contents

Table of Authorities

Reports of Lower Court Opinions

Statement of Grounds Invoking

Jurisdiction

Nature of Proceedings

Constitutional Provisions and

Statutes Involved

Statement of the Case

Statement of Reasons Why Questions

are Substantial

APPENDIX

Argument and Ruling on Appellants'

Objection

Order of Conviction frem Trial

Court

Order of Supreme Court of Virginia

Notice of Appeal

Certificate of Analysis

Discovery Order

3 iv

APPENDIX continued

Letter requesting presence of

Analyst

Summons for Analyst

United States Constitutional

Amendments VI and XIV

§19.2-187 and §19.2-187.1 of the

Code of Virginia 1950, as

amended

Rule 5:29 of the Supreme Court

of Virginia

A47-48

A48-49

Page(s)

Constitution

Constitution of the mitted States

Amendment VI 2, 35 OF.

Constitution of the United States

Amendment XIV y ee Se a

Statutes

28 U.S.C. §1257 (2) 2

19.2-187, Code of Virginia 1950,

as amended , i

19.2-187.1, Code of Virginia 1950,

as amended A Ne

Rule

Rule 5:29 of the Rules of the Supreme

Court of Virginia 3

U.S. Supreme Court Cases

Barber v. Page, 390 U.S. 719, 88 S.Ct.

T3518, 20 fa. 2d 255 (1968) 7, 9, 10

Brady v. land, 373 U.S. 83, 83 S.Ct.

Brattoe- TOLEd”’ 24 215° (i963 _

California v. Green, 399 U.S. 149, 90

Ot. 30,26 L.Ed. 2d 1489

(1970) S, Ose, ae 83

Dutton v. Evans, 400 U.S. 74, 91 S.Ct.

—“JI0, 27° L.8d. 2d 213 (1970) 8, 10

U.S. eme Cont

Page(s)

Mange Ys ‘ee 4. 38° 253 "

(1972) 8, 10

Mattox v. United States, 156 U.S. 237,

~ 14 $.tte. 337, 39 L.Ed. 409

(1895) a ih ts

Pointer v. Texas, 380 U.S. 400, 85

S.tt. 1065, 13 L.Ed. 2d 923

(1965) 7, 9, 13

United Sea Spates 307 e. ld U.S. 97

2d 342

(1976).

Federal Cases

Kay v. United States, 255 F 2d 476 (4th

Cir.) cert. ed 358 U.S. 825, 79

S.Ct. 47, 3 L.Ed. 2nd 65 (1958) 14

Phillips v. Neil, 452 F 2d 337, cert.

, ; 409 U.S. 884, 93 S.Ct. 96,

-Ed. 2d 141 (1972) 14

Reardon v. Manson, 491 F. Supp. 982,

remanded on other ames” 644 F

2d 122 (1981) 15

Ro . , 320 F. § . 900

CW D vi 1 w 14

rel v. Johnson,

we Sepp sie DY a

(1974) 14

DOES TTF ee Sates, 760 F 2d 45 +.

United States v. , 476 F. 2d 1900

gait dented 414 U8. 844,

94 8.08, . 2d 82 (1973)’ 14

oe ee a,

— We

211 VA

70) 14

, 554 S.W. 2d 117

: 15

“|e Gen”

om

1

REPORTS OF OPINIONS DELIVERED

IN THE COURTS BELOW

No written opinion was delivered by

the Supreme Court of Virginia or by the

trial Court. The order of the Supreme

Court dated June 4, 1982, “finding no

reversible error..." is set forth in

the Appendix, infra at A-3l and the

order of the trial Court is is set forth

in the Appendix, infra at A7-30.

The overruling of Appellants’ objection

by the trial Judge and the argument preceed-

ing the ruling are set forth in the Appendix,

infra at Al-6.

STATEMENT OF GROUNDS INVOKING

JURISDICTION

This is an appeal from the order

dated June 4, 1982 of the Supreme Court

of Virginia which refused Appellants’

Petition for Appeal. The Petition for

Appeal, filed on November 9, 1981, prayed

that an Appeal be granted from their

all

convictions on July 9, 1981 in the Circuit

Court of Bath County of breaking and entering

and grand larceny. Your Appellants filed

their Notice of Appeal in the Supreme

Court of Virginia on August 30, 1982. Said

Notice of Appeal is set forth in the Appendix,

infra at A32-33. Jurisdiction of this court

is invoked pursuant to 28 U.S.C. §1257(2).

This appeal challenges the constitutionality

of §19.2-187 and 19.2-187.1 of the Code of

Virginia 1950, as amended, on the grounds they

are repugnant to the Constitution of the

United States, Amendments VI and XIV, in

that said statutes, as applied by the lower

courts, denied your Appellants the right to

(1} confront and cross-examine the analyst

who prepared the Certificate of Analysis

in violation of the Sixth and Fourteenth

Amendments and (2) discovery of the Cert-

ificate of Analysis which was material

and had been specifically requested by

Appellants and ordered to be produced

=e —_—s

ee

3

by the trial Court. This appeal also

challenges the constitutionality of Rule

5:29 of the Rules of the Supreme Court of

Virginia to the extent that said rule

authorizes the Supreme Court of Virginia

to dispose of Constitutional Rights, the

violation of which was alleged by Appellants,

without any written opinion in the record

effectively addressing and properly resolv-

ing the issues raised.

a AND

This case involves Amendments VI

and XIV of the Constitution of the United

States, Sections 19.2-187 and 19.2-187.1

of the Code of Virginia 1950, as amended,

and Rule 5:29 of the Rules of the Supreme

Court of Virginia. Said constitutional

amendments, statutes and rule are set

forth in the Appendix, infra A45-49.

STATEMENT OF THE CASE

On August 17, 1980, an automobile

4

was reported stolen from a store house in

Bath County, Virginia. A cannibalized

automobile with a corresponding I.D. Number

was found in West Virginia. Pursuant to a

search warrant, a right and left valve cover

were seized in an outbuilding located on

Appellants’ premises. These valve covers

and the right and left engine heads of the

vehicle found in West Virginia were sent

to the Western Laboratory of the Commonwealth

of Virginia's Division of Consolidated

Laboratory Services, Bureau of Forensic

Science, locited in Roanoke, Virginia where

they were apparently examined by James E.

Hamby, hereinafter referred to as “analyst”.

A Certificate of Analysis, hereinafter

referred to as “certificate”, (a copy of

which is contained in the Appendix, infra at A34-36)

purportedly signed by the analyst before a

Notary Public, was filed on September 10,

1980, in the General District Court of Bath

County. No notice of said filing was given

to the defense. Subsequent to this filing

5

but prior to any preliminary hearirg in said

court, the Commonwealth's Attorney nolle

prossed the original arrest warrants.

Appellants were indicted on identical charges

in the Circuit Court of Bath County. The

trial Judge pursuant to Appellants’ Motion

for Discovery ordered on October 17, 1980,

that the Commonwealth produce all relevant

scientific reports. Said Discovery Order

is set forth in the Appendix infra at A37-41.

On June 20, 1981, the Commonwealth's

Attorney filed said certificate in the

Clerk's Office of the Circuit Court of Bath

County, but again no notice was given to

your Appellants of the filing. Your

Appellants learned of the certificate on

July 2, 1981. Pursuant to §19.2-187.1

of the Code of Virginia 1950, as amended,

the defense requested the Clerk to summons

the analyst. (See Appendix, infra at A-42)

Apparently because of the Fourth of July

holiday, the summons was not issued until

tia

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en & 7 2 Wel ‘a Soe .

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6

July 6, 1981. The summons does not show

whether service was effected. At the

trial held on July 8 and 9, 1981, Appellants

objected to the introduction of the cert-

ificate because the analyst was not present

to be cross-examined by your Appellants,

and Appellants were wnaware of the existence

of the certificate until July 2, 1982.

The prosecution never stated any reasons

why the analyst was not available at trial.

The trial Court overruled Appellants’

objection stating without explanation:

“the defense has not used due diligence to

acquire his presence here." (contained

in Appendix, infra at Al-6)

REASONS WHY QUESTIONS PRESENTED

ARE SUBSTANTIAL

l. The decision below implicity

sustaining the statutes in question directly

conflicts with the Sixth and Fourteenth

Amendments of the Constitution of the

7

United States and the decisions of this

Court.

The right granted to an accused by

the Sixth Amendment to confront the wit-

nesses against him, which includes the

right to cross-examination, is a fund-

amental right essential to a fair trial

and is made obligatory on the states by

the Fourteenth Amendment. Pointer v. Texas,

380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed. 2d

923 (1965). In 1895, this Court stated that

"the pr object of the (Con-

frontation Clause of the Sixth

Amendment)...was to prevent

depositions or ex parte affidavits

... being used against the prisoner

in lieu of a personal examination

and cross-examination of the

witnesses in which the accused has

an opportunity not only of testing

the recollection and sifting the

conscience of the witness, but of

compelling him to stand face to

face with the j in order that

they may look at him, and judge by

his demeanor the stand whether

he is worthy of belief." Mattox v.

ree stares, 156 U.S. 237, 242-

409° (1895) peas 39 spy

, e also Barber v. Page,

390 U.S. 719, 721, 88 S.Ct. 1318,

20 L.Ed. 2d 255 (1968).

8

The certificate was simply an ex parte

affidavit and clearly hearsay, but the

trial Judge apparently concluded that

§19.2-187 of the Code of Virginia 1950,

as amended, authorized the introduction of

such hearsay in the instant case.

It is conceded that the Confrontation

Clause en been interpreted to bar

all hearsay evidence in a criminal trial.

Mattox v. United States, supra, Mancusi

v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308,

33 L.Ed. 2d 293 (1972), Du_ton v. Evans,

400 U.S. 74, 91 S.Ct. 210,27 L.Ed. 2d 213

(1970). Om the other hand, no particular

declaration is necessarily free from a con-

stitutional violation of the right to con-

frontation simply because it is admissible

under a hearsay exception in the state's

rules of evidence. Dutton v. Evans, id.

Speaking for the Court in California v.

Green, 399 U.S. 149, 155-56, 90 S.Ct.

1930, 26 L.Ed. 2d 489 (1970), Mr. Justice

ei a a ee

White said:

While it may readily be conceded

that hearsay rules and the Con-

frontation Clause are generall

designed to protect similar values,

it is quite a different thing to

suggest that the overlap is com-

lete and that the Confrontation

lause is not more or less than

a codification of the rules of

hearsay and their vs Ha, ge as

they existed historically at

common law. Our decisions have

never established such a con-

gruence; indeed, we have more

than once found a violation of

confrontation values even though

the statements in issue were

admitted under an arguably

recognized hearsay exception.

See ber v. Page, 390 U.S. 719

(88 S.Ct. 1318, L.Ed. 2d 255);

Pointer v. Texas, 380 U.S. 400

CS S.Ct. 1065, 13 L.Ed. 2d 923.)

It is respectfully submitted that

previous cases of this Court hold there

is no violation of a defendant's right to

confront the witnesses against him if

-gejectes to hearsay is admitted when:

First: The declarant is present at

trial to be cross-examined on his state-

ment. California v. Green, supra.

Second: The evidence offered under

Y

i

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* — ane 4 n ¥ +. . -

10

the hearsay exception bears its own "indicia

of reliability" Dutton v. Evans, supra

400 U.S. at 89, California v. Green, supra

399 U.S. at 149, Mancusi v. Stubbs, 408 U.S.

at 216, and either:

A. The hearsay is not offered to

prove an essential element of the crime

or to connect the defendant directly

to the commission of the crime, or in other

words, the statement is neither "crucial"

to the prosecution nor "devastating" to the

defense, Dutton v. Evans, 400 U.S. at 87, or

B. The declarant is legally "unavail-

able", i.e. (1) the prosecution has made

a good faith effort to secure the witness,

Barber v. Page, supra 390 U.S. at 724, 725 or

(2) the declarant cannot be produced,

Mancusi v. Stubbs, supra, Mattox v. United

States, supra.

Addressing the facts in the instant

case, it is clear that none of the criteria

mentioned are present.

i»

' E lass = : i f a a

S tas ~ 2 -— ae el OP. % - a Cae Z

e

+ .

11

First: The witness was not present at

trial although summoned by the defense.

Second: There are no indicia of

reliability contained in the analysis.

There is nothing to indicate that this

particular employee of the state was any

more honest, reliable or correct in his

opinion than any other witness. Opinion

testimony has normally been excluded unless

provided by an expert, but no qualifications

are evident from the certificate itself.

Regardless, no cross-examination was possible

concerning whether the analyst was qualified,

what procedures, mechanical devices, chemical

tests, etc. he used to reach his opinion,

nor to test his degree of certainty.

Quoting from Wigmore §1357, this court has

stated: "Confrontation...forces the witness

to submit to cross-examination, the greatest

legal engine ever invented for the discovery

of the truth." California v. Green,

supra 399 U.S. at 158.

Ree

12

Third: The certificate was crucial to

the prosecution and devastating to the defense

because it opines that the valve covers

found on the premises of the defendants were

removed from the stolen car.

Fourth: The Commonwealth did not make

a good faith effort to obtain the presence

of the desired witness, and apparently made

no effort other than preparing a summons

that was never served or attempted to be

served on the analyst. There is nothing in

the record to establish that the witness was

unavailable. As an employee of the State,

a simple phone call might have secured his

presence.

In conclusion, the certificate was

simply an ex parte affidavit, the admission

of which has been condemned by this court

as early as 1895, U.S. v. Mattox, supra

156 U.S. at 242-43. It denied to your

defendants the right to cross-examine the

witness, thereby denying them the Fourteenth

Amendment's guarantee of due process of

13

law. Pointer v. Texas, supra, 380 U.S. at

405.

This case is of substantial interest

in that it involves statutes that modified

the hearsay rules of the Commonwealth and

those of the common law. The creation of

a new hearsay exception for the admission

of evidence against a defendant, raises

"...questions of compatibility with the

defendant's constitutional right to con-

frontation. Such questions require attention

to the reasons for, and the basic scope of,

the protections offered by the Confrontation

Clause." California v. Green, 399 U.S. at

156. Furthermore, various State and Federal

Courts have greatly differed on their

interpretations of whether lab reports

viclate the Confrontation Clause. For

example, Virginia apparently still adheres

to the rule that the right to be confronted

with one's accusers and witnesses does not

]

| Pe

Be sie. ee _- 2, ou B \

14

operate to exclude proper laboratory reports

especially if such evidence contains “no

opinion." Robertson v. Commonwealth, 211

VA 62, 175 S.E. 2d 260 (1970). The same

case was similarly decided in the Federal

District Court for the Western District

of Virginia. Robertson v. Cox, 320 Supp.

900 (W.D. VA 1970), citing with approval

Kay v. United States, 255 F2d 476 (4th Cir.)

cert. denied, 358 U.S. 825, 795 Ct. 42,

2 L.Ed. 2nd 65 (1958). See also United

States ex rel Lurry v. Johnson, 378 F. Supp.

818 (E.D. Pa. 1974). It is respectfully

submitted these cases are in conflict with

the decision of the Courts of Appeal for

the Sixth Circuit, Phillips v. Neil, 452

F 2d 337, cert. denied 409 U.S. 884,

935 S.Ct. 96, 34 L.Ed. 2d 141 (1972), and

the Second Circuit, United States vy. Oates,

560 F. 2d 45 (1977). See also United

States v. Puco, 476 F 2d 1099 (2d Cir.)

cert. denied 414 U.S. 844, 94 S.Ct. 106,

%

, q

K, ™

a

Pee (tee eae. cia ae ote eae ee. Te SS tres i parte.

15

38 L.Ed. 2d 82 (1973), Reardon v. Manson,

491 F. Supp. 982, remanded on other grounds,

644 F. 2d 122 (1981). For a state case

supporting the position of your Appellants,

see te v. Henderson, 554 S.W. 2d 117

(Tenn. 1977); for a state case, factually

distinguishable from the instant case

admitting a lab report, see State v. Krek,

86 Wash., 2d 112, 542 P 2d 782, 784 (1975).

The Virginia statutes as interpreted

by the ‘vial Court and Virginia Supreme

Court are unconstitutional in that they requir-

ed that Appellants produce the witness.

The statute provides that the defendant

has the “right to call the person performing

such analysis or examination...as a witness

therein and examine him in the same manner

as if he had been called as an adverse

witness." This right is meaningless, however,

if even though the defense has the person

summoned as soon as it learns of the

| Ty ae oe

16

existence of the analysis, the constitutional

right can be subverted if for some unknown

reason the analyst fails to appear. In

fact, the failure to produce the witness

violated your Appellants’ constitutional

right also guaranteed under the Sixth

Amendment "...to have compulsory process

for obtaining witnesses...."

They are further unconstitutional in

that they did not provide that the certificate

was inadmissible if not disclosed pursuant

to a specific discovery request order. The

failure on the part of the Commonwealth's

Attorney to furnish the requested material

was prejudicial to Appellants. It effective-

ly prevented them from securing the attendance

of the analyst which Virginia Statutes, as

interpreted by the Court below, required.

Appellants contend that the evidence produced

by having the analyst present at trial would

have been material and exculpatory. They

believe, and therefore allege, that doubt

would have been cast upon his opinion and

‘ay

17

conclusion expressed therein. In this

case, as in Brady v. Maryland, 373 U.S.

83 (1963), the request for the scientific

report was specific. Mr. Justice Stevens

in the majority opinion of United States

v. Agurs, 427 U.S. 97 at 106 (1975) stated:

It gave the prosecutor notice

of exactly t the defense

desired. Although there is,

of course, no duty to provide

seenes oo hick teow

scovery of every

by che prosecutor, if the sub-

ect matter is material, or

deed if a substantial basis

for claiming materiality exists,

it is reasonable to require the

osecutor to res either by

ishing the ormation or

by submitting the problem to the

trial Judge. When the prosecutor

receives a specific and relevant

request, pe ng make any

response is se " every,

excusable.

The report was clearly material,

and Appellants were prejudiced by the

inexcusable failure of the Commonwealth's

Attorney to disclose it. Im addition to

the failure to produce the aforesaid

certificate, the Commonwealth's Attorney,

en

18

as alleged in Appellants’ Petition for

Appeal to the Supreme Court of Virginia,

failed to produce other scientific reports,

e.g. a Certificate of Analysis that no

fingerprints were on the valve covers, and

an exculpatory statement by Ed Cook, an

alibi witness for the defense, which was

effectively but improperly used by the

Commonwealth at trial to cross-examine

said witness. In light of the fact that

the Commonwealth's Attorney failed to

produce certain material required by the

Discovery Order and the Constitution, it

is respectfully requested that this Court

require the Commonwealth's Attorney to

file with this court all scientific reports

and, as requested in Appellants’ Petition

for Appeal, the Prosecutor's report pre-

pared by Officer Chapman.

With regard to the second question

presented, Appellants contend that the failure

a

19

of either the trial court or the Supreme

Court of Virginia to prepare a written

opinion concerning Appellants’ allegations

of denial of Constitutional rights places

on them an unconstitutional burden on

appeal. This in turn denies them th,

right of due process of law guaranteed

under the Fourteenth Amendment. Due

process necessarily means the right to

review the actions of trial Court and lower

Appellate Courts. Since Appellants con-

victions did not include confinem nt, they

are precluded from raising the constitutional

issues by haveas corpus. Thus, this court

is the sole forum for any relief to

Appellants. It is respectfully submitted

that without a written opinion this Court

has the difficult burden of determining

the facts found, and the law applied by

the lower Courts. It is respectfully

submitted that this Court should hold that

20

a state felony conviction predicated upon

material evidence the admission of which is

alleged to have violated a right guaranteed

by the Constitution, must be supported

by a written opinion that effectively

addresses and properly reso.ves the

Constitutional issue.

For the foregoing reasons, the question

presented is so substantial as to require

plenary consideration, with briefs on the

merits and oral argument, for its resolution.

aubnded

Mp hata H Conf