*1 S.E.2d LUGINBYHL, Luginbyhl Alan Alan Kurt s/k/a Virginia.
COMMONWEALTH of Record No. 1333-04-4. Appeals Virginia, Court of
Richmond. April *2 (Devine Michael F. Connell, P.L.C., Devine briefs), & on appellant.
Stephen (Judith R. McCullough, Assistant Attorney General Jagdmann, General, Williams Attorney brief), on for appellee. FELTON,* C.J., BENTON, Present: and ELDER, FRANK, HUMPHREYS, CLEMENTS, KELSEY, McCLANAHAN, HALEY, JJ., FITZPATRICK, Ret. J.**
UPON REHEARING EN BANC HALEY, Judge.
I.
PROCEDURAL HISTORY
This matter comes before the Court from a
panel
divided
30, 2005,
decision rendered on August
and reported as Lugin-
Commonwealth,
byhl
(2005).
46 Va.App.
Upon of, panel than, independent narrow more grounds decision.
II.
FACTS agreed an 5A:8(c), parties presented Pursuant to Rule trial court facts, transcript, in lieu of statement contains summary of the evidence following The proceedings. from statement. quotations on patrol on 25, 2003, Day Darren was Officer
On November County. in Fairfax Highway Richmond abruptly, in front of him brake the three cars observed [H]e Day noticed white Officer in order to avoid accident. from Highway onto Richmond pulled had wagon station of travel. to the lanes perpendicular lot and was parking and then road a few seconds That vehicle remained weaving, wagon turn. The station a slow made by approximately the curb hitting missed point and at one into a left turn made a slow two inches. The vehicle it center, approaching the vehicles causing shopping *4 their Those vehicles flashed avoid a collision. brake horns. and honked their lights the driver a traffic and identified Day stop effected
Officer appellant. as the beverage alcoholic odor of Day strong detected
Officer
glassy
eyes appeared
defendant. The defendant’s
about the
and bloodshot. Mr. Luginbyhl’s red, face was and he sluggish exhibited motor skills. When asked how much he drink, had to Mr. Luginbyhl responded, “I had a lot.” He indicated that he had had approximately six to eight vodka drinks. The defendant began to fall forward as he stepped vehicle, from his so Officer Day put his hand on defendant’s chest to steady him. The officer directed Mr. Luginbyhl to against lean the car for support. The defendant stated “6, he had consumed 7 or 8 vodka drinks” which were size of a 12-ounce cup inside the vehicle. The defendant was cooperative in performing sobriety field tests. In per- forming finger-to-nose test, the defendant attempted to touch his nose four times. time, He succeeded one touched his cheek and forehead on other attempts. Which attempting perform a one-legged test, stand the defen- dant stopped, began cry, drunk; and stated: “I’m I’m an alcoholic.”
Officer Day conducted a preliminary breath test at the scene. Subsequently, Mr. Luginbyhl agreed to take a breath analysis at the police Caine, station. Officer who was not present trial, performed that analysis while Day Officer observed.
The analysis showed blood alcohol concentration of 0.24%. Officer Caine executed the accompanying certificate. The certificate read:
ATTEST:
I CERTIFY THAT THE ABOVE IS AN ACCURATE CONDUCTED; RECORD OF THE TEST THAT THE TEST WAS CONDUCTED THE WITH TYPE OF EQUIPMENT AND IN ACCORDANCE THE WITH METHODS APPROVED BY THE DEPARTMENT OF SERVICES, CRIMINAL JUSTICE OF DIVISION FO- SCIENCE; RENSIC THAT THE TEST WAS CON- IN DUCTED ACCORDANCE WITH THE DIVISION’S SPECIFICATIONS; THAT EQUIPMENT THE ON WHICH THE BREATH TEST WAS CONDUCTED HAS BEEN TESTED WITHIN THE PAST SIX MONTHS *5 TO ACCURATE; THAT PRIOR BE TO AND FOUND THE ACCUSED THE TEST OF ADMINISTRATION THE TO OBSERVE RIGHT OF HIS ADVISED WAS READ- ALCOHOL THE BLOOD AND SEE PROCESS PERFORM THE TO USED EQUIPMENT THE ING ON LI- A VALID TEST, AND THAT I POSSESS BREATH TEST, UNDER GIVEN SUCH TO CONDUCT CENSE NOVEMBER, 2003. DAY 25TH OF HAND THIS MY analysis admitted the trial court objection, Over The trial § 18.2-268.9.2 to Code pursuant and certificate in intoxicated viola while driving appellant court convicted jail in days him to 180 and sentenced § 18.2-266 tion Code of the days 170 of the fine and The entire and a fine $350. suspended.3 jail sentence were
III. BASIS DECISIONAL substantively address should maintains we Appellant decline to do opinion. We panel decided issue so. certifícate, part: when § relevant "This 18.2-268.9 states in
2. Code test, conducting shall be admissible by the breath attested the individual evidence of the facts any proceeding as any criminal ... court analysis.” of the results of such therein stated and time that the appellant for the first argument maintained 3. At oral may the trial court have caused breath test 0.24% days. jail sentence of 10 appellant’s punishment to an effective enhance 2003, offense, penally provisions of day November On 18.2-266, 18.2-270, provided § for a applicable to Code as Code days. mandatory of 5 minimum incarceration and, accordingly, was presented to the trial court was not That issue Also, by appellant does required Rule 5A:18. preserved appeal as 5A:18, justice exception to Rule ends of this Court to invoke the not ask consider, ends-of-justice "[tjhis sponte, will not sua and Commonwealth, Va.App. argument under Rule 5A:18.” Widdifield Moreover, banc). (2004) (en 559, 564, if the even 600 S.E.2d below, question present it was not preserved this issue appellant had 12(c), nor was the appeal required Rule 5A: petition for as ed in the Accordingly, the issue required Rule 5A:20. issue briefed defaulted, Commonwealth, 46 Gregoryv. See we do not consider it. S.E.2d “It is a well recognized principle appellate review questions constitutional should not decided if permits record final of a disposition cause on non-constitution *6 Denny, Keller v. 516, al grounds.” 512, 232 Va. 352 S.E.2d Smit, 327, Volkswagen See also v. America 329 266 454, (2003) 444, 526, (“[A] Va. 587 532 S.E.2d court will not rule upon constitutionality a statute unless such a determination is absolutely to necessary decide the merits of case.”). A congruent is an principle appellate one that court decides cases “on ground the best and narrowest avail Union, able.” Air Courier v. Am. Postal Workers Conference 517, 531, 913, (1991) 922, 498 U.S. 111 112 L.Ed.2d 1125 (Stevens, J., concurring).
Coupled with these principles judicial prudence is the proposition that an court appellate may structure a deci upon sion “assuming deciding” but basis. Such a basis does and, not foreclose future of a review constitutional issue moreover, those—here, does not potentially bind the Common wealth—subject jurisdiction to the court’s to the effect of a Finally, decision. “assuming deciding” but not is basis useful for a analysis. “harmless error” as specifically applicable case, and to the instant McClain, in United States v. (2d 219, 377 222 F.3d Cir.2004), held:
It is well established that violations of the Confrontation Clause, if preserved appellate review, subject are to' review, however, error harmless does not Crawford See, e.g., Iowa, Coy v. suggest 1012, otherwise. 487 U.S. (1988) 1021, 2798, [2803,] 101 L.Ed.2d 857 (holding subject denial face-to-face confrontation is harm- v. review); Tropeano, United States less 252 error F.3d (2d Cir.2001) (“[H]armless applies 659 error evidentiary errors and to violations of Confrontation Clause.”).
See Crawford, (Rehnquist, U.S. C.J., concurring judgment) (noting that “implicitly] majority recogniti[zed] applica- that the mistaken toas guess wrong which rule courts tion its new analysis”); subject rule to harmless-error is scope Cir.2005) (8th Williams, 429 F.3d United States occurred,” error but “that a Confrontation Clause (assuming statement hearsay] admitting the error in holding [the “that doubt,” reasoning that beyond a reasonable was harmless overwhelming” was so independent “[t]he inad- [the cannot be attributed the defendant’s “conviction omitted)); see (internal also quotations statement” missible] Commonwealth, Pitt 260 Va. S.E.2d (2000) decision to admit the (assuming that the trial court’s the defendant’s hearsay co-conspirator of a violated statement holding then that the error was Amendment but rights, Sixth doubt because “the evidence beyond harmless reasonable statement, hearsay] overwhelmingly whole, excluding [the and, therefore, “there guilty,” proved defendant] that [the *7 possibility might no statement have reasonable [the] v. conviction”); Dearing Com- defendant’s] contributed [the (2000) monwealth, 674, 671, 260 536 S.E.2d Va. that, (holding the trial court violated the defendant’s although hearsay statement rights admitting Sixth Amendment a beyond of a that error was harmless reason- co-conspirator, doubt). able (1) the
Therefore, deciding assume without breath we (2) certificate were accompanying result evidence, despite “testimonial” and their introduction Code 18.2-268.9, § under was constitutional error Our Crawford. “harmless error” applicable decision thus relies upon alone. standard of review
IV.
ANALYSIS Commonwealth, 315, In Corado v. Va.App. 47 623 (2005), standard of review for we addressed the S.E.2d constitutional error. harmless stan- analysis by reiterating heightened our begin
We
for harm-
dard
which we review constitutional error
under
a
lessness.
trial court
“When
admits evidence
violation
Constitution,
the United States
the court’s
is
error
a consti-
tutional one.” “Before a federal constitutional error can be
harmless,
held
the court must
able to
declare a belief
it was harmless
beyond
reasonable doubt.” “We
decide whether the erroneous admission of evidence was
sufficiently prejudicial
require
reversal on the
basis
our
reading
own
and on
record
what seems to us to
have
the probable
been
on the fact
impact
finder.”
323,
Id. at
Upon assuming this but not trial deciding court by admitting committed constitutional error the breath certificate, test accompanying its we conclude error beyond was harmless a reasonable doubt. is affirmed. conviction appellant’s
Affirmed.
BENTON, J., dissenting. Commonwealth, 46 gave Luginbyhl reasons I
For the J., (2005)(Benton, 460, 478-85, 618 S.E.2d 357-60 violat- I hold that admission evidence would dissenting), protected by Confrontation Luginbyhl’s rights Alan ed and, further, that the error not harmless. Clause
I. admissibility certificate challenges appeal This of a analysis containing government attestation breath testify Luginbyhl trial. contends who did employee evidence, judge certificate the trial into admitting his Sixth Amendment confrontation. violated judge trial analysis, which the admitted The certificate test hearsay objection, signed over a a “breath following under the attestation: operator” AN I THAT THE ABOVE IS ACCURATE CERTIFY CONDUCTED; THE OF THE TEST THAT RECORD THE TYPE OF TEST WAS CONDUCTED WITH THE IN EQUIPMENT AND ACCORDANCE WITH OF BY THE DEPARTMENT METHODS APPROVED SERVICES, OF FO- DIVISION CRIMINAL JUSTICE SCIENCE; CON- THAT THE TEST WAS RENSIC THE IN WITH DIVISION’S DUCTED ACCORDANCE SPECIFICATIONS; EQUIPMENT THAT ON THE HAS THE BREATH CONDUCTED TEST WAS WHICH PAST SIX MONTHS TESTED THE BEEN WITHIN ACCURATE; THAT PRIOR TO BE AND FOUND TO THE ACCUSED OF THE TEST ADMINISTRATION THE ADVISED OF HIS RIGHT TO OBSERVE WAS READ- THE ALCOHOL PROCESS AND SEE BLOOD THE TO PERFORM EQUIPMENT THE USED ING ON LI- TEST, I A BREATH AND THAT POSSESS VALID *9 TEST, CENSE TO CONDUCT SUCH GIVEN UNDER MY 25TH NOVEMBER, HAND THIS DAY OF 2003. satisfy These assertions were made to Code 18.2-268.9. establishes, however, The record Luginbyhl did not have opportunity the the test operator cross-examine breath veracity test the of his statements. dispute, Without the operator’s attestation hearsay. statements constitute The is- sue this case is hearsay whether that was testimonial and thus barred the Sixth Amendment.
The Sixth Amendment the Constitution of the United provides, pertinent part, prose States all criminal “[i]n cutions, the accused enjoy shall the to be confronted with the witnesses him.” The against Supreme United States Washington, Court 541 U.S. (2004),
Examining historical of the Sixth background Amend- Clause, ment’s Confrontation “history held that supports meaning two inferences about Sixth Amendment.” at 1363. U.S. The Court identified those inferences as follows:
First, principal evil at which the Confrontation Clause was directed the civil-law mode of criminal procedure, particularly its use ex examinations parte as evidence accused____ against The Sixth Amendment must be interpreted with this focus in mind.
The historical record also supports proposition: second the Framers would not have allowed admission testimonial statements of a witness appear who did he trial unless was to testify, unavailable and the defendant had prior had a The opportunity cross-examination. text of Sixth suggest any open- Amendment does not from the confrontation exceptions requirement ended developed by the courts. In this view of 50, 53-54,
Id. at reliability Court overruled analysis, Supreme historical *10 Roberts, 56, 100 S.Ct. 448 U.S. forth in Ohio test set (1980), capacity of “its demonstrated 65 L.Ed.2d because the Confrontation that core statements to admit testimonial at Crawford, to exclude.” U.S. meant plainly Clause test accepted reliability previously at The 1371. it had long to as be admitted hearsay allowed evidence ” witness was unavail reliability’ of and the ‘indicia “adequate Roberts, 66, 100 As the Court at at 2539. 448 U.S. S.Ct. able. at are in testimonial statements “Where explained Crawford: satisfy sufficient to issue, only reliability the indicium actually is the the Constitution constitutional one demands 68-69, at confrontation.” S.Ct. prescribes: U.S. a criminal gives the Amendment defendant Sixth Id. the to confront testimonial evidence. “core class terms,
In of ‘testimo plain describes Crawford “affidavits,” any “similar including pretrial nial’ statements” as reasonably expect would to be used statements declarants made cir that were under prosecutorially,” and “statements objective reasonably cumstances which lead an witness would available for use at a to believe the statement would be 51-52, 124 govern later trial.” at 1364. When Id. S.Ct. involved, heightened. As agents mental are this concern is “[ijnvolvement noted, of government Court Crawford an testimony eye officers in the with toward trial production fact unique potential prosecutorial abuse—a presents throughout history time with again out and which borne at 56 n. keenly Framers were familiar.” 541 U.S.
at 1367. operator analysis prepared
The conducted the breath in court prove attestation evidence solely provide fairly This cannot necessary Luginbyhl. facts to convict Indeed, asserts the exis- disputed. attestation statement or said to be true tence seven facts circumstances Simply test the certificate of blood operator.” put, “breath in in this case is testimo- was admitted and, nial under the thus, narrowest definitions Crawford falls squarely within the bar.
Luginbyhl accurately asserts “certificate was a formalized, ex parte statement a government agent made for the purpose being prosecutorially sole used court in lieu of his live testimony.” It seems me that the use of this type of statement was the paradigmatic violation the Supreme Court emphasized in theAs discussed its Crawford. historical analysis, the judges against at a treason trial Sir Raleigh permitted Walter the prosecution to to a jury read or Cobham, affidavit letter from an alleged co-conspirator, most “[t]he notorious instance of civil-law examination” in a criminal trial. 541 U.S. 1360. This was an abuse the Confrontation Clause enacted to end.
The itself Raleigh trial very involved sorts reliabili- *11 ty determinations Roberts authorizes. In the face of Raleigh’s repeated confrontation, for prosecu- demands responded many tion with of arguments a court applying might today: Roberts invoke that Cobham’s statements were self-inculpatory, they were not in the made heat of passion, and that they were not from “extracted [him] upon any hopes or promise plausible of Pardon.” It not only objection the Framers’ to the trial was that judges not Raleigh’s properly weigh did these factors before sentencing Rather, him to death. problem was that the judges refused to allow to Raleigh confront Cobham in court, where he him try could cross-examine to expose and his accusation as a lie. (citations omitted).
Id.
at
at
S.Ct.
1370-71
The
Supreme Court observed that
freedom
despite Raleigh’s
to
letter,
confront in court
who
those
read Cobham’s
this was an
of
protection
insufficient
a
right
confrontation because
“[l]eaving regulation
out-of-court statements
the law
of evidence would render the Confrontation
powerless
Clause
to prevent even the most flagrant inquisitorial practices.” Id.
words,
In
protect
at 1364.
other
confrontation,
letter
Cobham’s
would be inadmissible under
the Sixth Amendment because the Confrontation Clause “re-
desirability
of reliable
judgment,
only
a
not
about
fleets
dissent),
(a
little
there
be
but
point on which
could
61, can
be determined.” Id.
reliability
how
best
about
at 1370.
not
the certificate is
suggests
The Commonwealth
of “testi-
limits the definition
because
“testimonial”
“(1)
testimony
‘prior
preliminary
statements to
monial”
and-(2)
trial,’
or at a former
grand jury,
a
hearings, before
‘police interroga-
during
from witnesses
garnered
statements
”
however,
includes
formula-
Crawford,
expressly
other
tions.’
statements,
“extrajudicial
as
state-
of “testimonial”
such
tions
materials,
... contained in formalized testimonial
such
ments
affidavits,
confessions,
or
prior testimony,
depositions,
that were
under circumstances which
statements
made
[and]
reasonably
an
to believe that
objective
would lead
witness
a later trial.” 541 U.S.
statement would
available
use at
(citations omitted).
51-52, 124
at 1364
As
noted,
a
formulations all share
common nucleus”
“[t]hese
used
they
reasonably expected
are statements
to be
because
The
at trial. See id. at
Assertions that the breath test not an that is somehow “neutral” presupposes er” and this evidence operator that cross-examination of the blood test could when, fact, there were any purpose, serve valid in a number operator effective means to concerning cross-examine the each of the attestations in the certificate. The pro- certificate claimed the record it equipment, generated, the test, operator breath and the of the equipment yielded all result requirements conformed and that statutory cross-examination, incriminated Luginbyhl. Without the cer- had of reinforcing tificate the effect the Commonwealth’s of prosecution. theory The “crucible of cross-examination” any have exposed operator’s could weaknesses in the qualifica- tions, his perception, state of the or the equipment, test protocol.
The Commonwealth’s characterizations of operator’s “non-accusatory” statements “neutral” and also suggest type safeguard that is intended render the statements or trustworthy Nothing more reliable as evidence. in Craw hearsay declares statement must accuse Lugin ford byhl of or wrongdoing to be testimonial which statements appear Indeed, neutral in character are nontestimonial. noth ing meaning within the equates “testimonial” with “accusa Furthermore, tory.” it is a dubious conclusion that evidence created use at by prosecutor trial could ever be “neutral” the context in a system adversarial criminal proceeding. “The Framers would to learn that be astounded parte ex testimony against could be admitted a criminal defen dant because it was elicited government ‘neutral’ officers.” 1373. Crawford, U.S. S.Ct. at a trial Giving the discretion to whether a judge determine “accusatory” statement or “neutral” smacks of the “open reliability rejected ended balancing” Court evidence, “The test a jury Roberts allows to hear Crawford: adversary judicial untested based on process, a mere determination of reliability replaces the constitution- [and] ally prescribed reliability method with assessing wholly Supreme one.” Id. at 1370. The foreign very “vague” Court warned that these were the kinds of loath to leave ... “manipulable” standards Framers “were judicial hands.” Id. rejected concept “replacing categorical the general *13 balancing tests” open-ended with guarantees constitutional Framers’] violence [the tests “do that those and held to the According 67-68, 124 at 1373. Id. at S.Ct. design.” “commands, not Court, Clause the Confrontation Supreme in a assessed rehable, reliability that be but that evidence crucible of cross-exami- in the by testing manner: particular Supreme at 1370. Id. nation.” the view rejected] again and “once explicitly only to in-court its own force applies Clause Confrontation statements to out-of-court application its testimony, and for the ‘the law of Evidence upon trial depends introduced at ” (citation omit- 50-51, 124 at 1364 Id. time being.’ ted). injecting manipulable reject rulings perforce These constitutional command to avoid the evidentiary standard characterizing the evidence guise under Crawford accusatory.” “not “neutral” or aby statements deemed rehable “[admitting
Simply put, of confronta- fundamentally at odds with judge is the evidence tion.” Id. S.Ct. at 1370. Whether Id. neutral, testimony.” it does “bear accusatory or at trial aby govern- for use prepared at 1364. It was witness; it was for an actual it was a substitute agent; ment of cross-exami- opportunity admitted evidence without are relevant factors under nation. The to discover generated in the certificate accused, and was later against Luginbyhl, report evidence of cross- opportunity purpose for that without used at trial examination. courts that have appellate cites several
The Commonwealth courts, appehate nontestimonial. Other ruled affidavits to be issue, ruled that similar however, this have addressing precise See, e.g., and barred affidavits are testimonial Crawford. State, (holding (Fla.App.2005) Shiver 900 So.2d one rea- “contained statements would test affidavit breath under ... was made prosecutorially, expect to be used sonably witness to rea- objective which would lead circumstances trial,” available for would be sonably believe the statements Walsh, 120 Nev. Vegas Las testimonial); City and was (2004) 91 P.3d that an affidavit “offered (holding prove certain facts concerning use certain devices *14 to determining presence related of is prepared alcohol” one testimonial); trial 888, use at and is v. People Rogers, 8 A.D.3d (2004) 393, 780 N.Y.S.2d 397 (holding a blood test report “generated by the desire to discover evidence defen- against testimonial). dant” was event, case, any beyond
In this go decide we need not the understood, Plainly text of the language Craw- Crawford. leads to the conclusion that this certificate of is ford just testimonial as “affidavits ... the defendant was unable to 51, cross-examine.” 541 U.S. at As S.Ct. 1364. the noted, Supreme Court testimonial statements are “[w]here involved, we do ... protec- not leave the Sixth Amendment’s 61, the vagaries tion to of the rules of evidence.” Id. words, In 1370. other “[dispensing with confronta- tion testimony because is reliable is obviously dispens- akin to ing jury with trial is obviously guilty. because defendant prescribes.” This is what the Id. at Sixth Amendment
II.
addressing
Without
substantive issue on
appeal,
majority
any
concludes that
error in
alleged
admitting the
certificate was harmless. The
on
majority
Lugin-
bases this
byhl’s statement
he
the officer that
was “drunk” and an
alcoholic and on
the officer’s observations
his demeanor and
hold,
I
however,
conduct.
would
the record fails to
trial judge’s
demonstrate that the
was not affected by
decision
statutory presumption
of intoxication
triggered
18.2-269(A)(3).
of analysis.
certificate
See Code
Commonwealth,
succinctly
v.
We
addressed Williams
(2000),
the relevant have contribut complained might bility that the evidence ” 23[, 87 Chapman, 386 U.S. at S.Ct. conviction.’ ed the omitted). (footnote Supreme As the citations at and 827] whether, stated, assuming inquiry “the correct Court has fully were of the damaging potential [evidence] that that say nonetheless realized, might court reviewing [Delaware doubt.” beyond a reasonable error was harmless 1438, Arsdall, [673,] 684[, 1431, 106 Van 475 U.S. S.Ct. v.] (1986) ]; Kentucky, also v. 488 see Olden L.Ed.2d 674 89 (1988). 232[, 480, 483, L.Ed.2d 227, 513] 109 102 S.Ct. U.S. simply analysis [is not] “a harmless error v. analysis.” Hooker Common sufficiency of the evidence (1992). wealth, 343, 454, 458, 345 Va.App. 14 418 S.E.2d (altera- Williams, 399-400, at 168-69 528 S.E.2d Va.App. 32 original). tions in its analysis, certificate of trial admitted the judge
When the reached .24% alcohol level Luginbyhl’s that blood statement of intoxication. Code statutory presumption triggered the 18.2-269(A)(3) analysis if a chemical provides .08% or alcohol level was shows that the blood accused’s blood the accused was under more, presumed “it shall be reasonably judge that the possible alcohol.” It is influence of 76 significant
attached to the weight incriminating evidence in the in spite independent certificate evidence of strong Lugin Marion, v. See Thomas Town byhl’s intoxication. 226 Va. 251, 254, 120, (1983); Castillo Common 308 S.E.2d 122 wealth, 482, 487-91, 146, 21 465 S.E.2d 148-50 Thomas, in
Indeed,
judge
where
trial
erred
admitting
into evidence a
showing
certificate
accused had
volume,
blood alcohol content of .17%
weight
feet,
proved
on his
unsteady
accused
“had a
strong odor
alcohol about his
his
person,
speech was
flushed,”
slurred,
and, further,
his
face was
the accused
consuming
“admitted
two
and a
whiskey.”
beers
shot of
226
253,
Nonetheless,
Va. at
308 S.E.2d at
the Supreme
Court ruled
the non-constitutional
error was
harmless
it was
“probable”
because
trier of fact “attached great
Id.
weight to the
incriminating information
the certificate.”
77
case,
judge
psycholo-
In that
the trial
allowed a clinical
well.4
on his ten
with a child that
gist
testify
meetings
to
that based
”
Id. 336,
492 S.E.2d
sexually
“the child ‘had been
abused.’
sexual
jury
aggravated
at 132. The
convicted the defendant
sentence,
battery, recommending
twenty-year
a
the maximum
Id. 335,
Although
under the statute.
at 132.
S.E.2d
this
the trial
the defendant of
judge deprived
Court ruled that
by allowing
his constitutional
to a
trial
jury
expert
issue,
on
testify
the ultimate
this Court held the error
Id. The
harmless
confession.
light
defendant’s
and reversed the conviction. Id. Supreme
disagreed
Supreme
S.E.2d
133. The
Court held
al-
though the
admission of a
single episode
defendant’s
abuse
sufficiently supported
finding
guilt,
expert testimony
prejudicial
purposes
“was
fixing
quantum punish-
imposed”
testimony
ment
because the
to re-
expert
alluded
Id. The
peated abuse.
not find that
trial
Court could
judge’s error
beyond
was harmless
reasonable doubt and
5A:18, 5A:12(c),
disagree
majority’s
I4.
with the
assertion that Rules
preclude
alleged
and 5A:20
consideration of whether the
error could
Luginbyhl’s
supra
Luginbyhl
have affected
sentence. See
note 3.
properly objected
Luginbyhl
when the evidence was offered at trial.
obligation
judge
had no
to ask the
trial
conduct
harmless error
judge's
judge
review of the
own error when the
admitted the evidence.
Commonwealth,
288, 295-96,
Hackney
See
v.
504 S.E.2d
385,
(1998) (holding
judge may
possible
that a trial
not consider the
improper
harm of
as a
an error
basis of an initial decision to admit
evidence).
inquiry
process
reviewing
The harmless error
is the
which a
court
identifies trial error and then determines whether that error affected
Florida,
527, 539-40,
judgment.
See Sochor v.
504 U.S.
2114, 2122-23,
Illinois,
497,
(1992); Pope
Significantly, psychologist directly testify did not Jenkins that the or ongoing particularly abuse was otherwise Yet, the fact possibilities severe. the trier of inferred the severity testimony of the abuse from the inappropriate could verdict have been affected that inference enough keep being were the error from harmless. The Luginbyhl’s error case is more harmful than the error 18.2-269(A)(3) Jenkins because Code essentially required judge the trial consider the certificate of as In presumptive guilt. statutory presumption view this guilt, merely this record this case does more than raise the the fact possibility swayed by possible finder was drawn from the improperly inference admitted evidence. I we cannot from circum- reasonably believe conclude government stances of this case that the has met its burden of proving beyond a reasonable that the error could not doubt reasons, have or For affected verdict the sentence. these I would hold that the admission of the document violated Luginbyhl’s rights protected by Confrontation Clause possibility and that a reasonable exists that the error did affect the verdict and the sentence.
628S.E.2d84 Stephen PALMER A. Virginia MARINE COMMONWEALTH RESOURCES COMMISSION.
Record No. 2546-05-1. Virginia, Appeals Chesapeake. April 2006.