HUFF, Judge.
Latoya Mrytrise Robertson ("appellant") appeals her conviction of felony shoplifting, in violation of Code § 18.2-103. Following a bench trial in the Circuit Court of Pittsylvania County ("trial court"), appellant was sentenced to two years' incarceration, with all but sixty days suspended. On appeal, appellant argues that the trial court violated her right to confrontation when it admitted two exhibits to establish the value of the shoplifted merchandise without providing her an opportunity to cross-examine the exhibits' author. Appellant further argues that the trial court erred in finding the evidence sufficient to convict her of felony shoplifting in that the improperly admitted exhibits constituted the sole basis for finding that the merchandise had a value of at least $200. For the following reasons, we reverse the trial court's judgment and dismiss appellant's conviction of felony shoplifting.
"Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below." Banks v. Commonwealth, 41 Va.App. 539, 543, 586 S.E.2d 876, 877 (2003). So viewed, the evidence established that on January 7, 2010, Malinda Holcomb ("Holcomb"), the manager of a Family Dollar Store in Brosville, observed appellant enter the check-out line at the store. After appellant purchased a large opaque storage bin and a small drink, appellant kept the storage bin in her shopping cart and traveled back down the store aisles.
Based on appellant's behavior, Holcomb grew suspicious and followed appellant to the back of the store. Holcomb saw appellant speaking to another female shopper who had a plastic storage bin in a shopping cart that was identical to the storage bin appellant had just purchased. Holcomb observed the female shopper placing merchandise into the unpurchased storage bin. At that point, Holcomb offered to hold appellant's purchased storage bin at the front of the store. Appellant, however, replied that she was preparing to leave, and so Holcomb returned to the front of the store.
Approximately twenty minutes later, Holcomb saw appellant hurriedly approach the store exit. Holcomb told appellant, "I need to check your tote" to "make sure it's still empty." Holcomb then lifted the lid of the storage bin and found numerous unpurchased items inside. After telling appellant to leave the store, Holcomb instructed a cashier, Ashley Henderson, to contact the police. The other female shopper left the store shortly thereafter.
Taking appellant's storage bin back to a cash register, Holcomb and another employee, Cynthia Dishman ("Dishman"), conducted an inventory of the unpurchased items in the bin. To do so, Holcomb first took each item out of the bin and placed it on the counter. Dishman then prepared a handwritten list identifying each item of merchandise, and beside each entry she recorded the price that showed on the cash register's screen when she scanned each item. When Dishman had scanned all of the items and recorded them on the paper, Holcomb totaled the prices to obtain a sum of $235.10. Although Holcomb
On April 23, 2011, Marcus Jones, an investigator for the Pittsylvania County sheriff's office who had initially responded to the 9-1-1 call from the store, requested confirmation of the value of the merchandise recovered from the storage bin. To confirm the value of the items, Holcomb supervised Dishman as Dishman generated a voided receipt on the cash register, using the handwritten inventory of items for reference. The total value on the receipt reflected reduced prices on various discontinued items, which Holcomb circled on the receipt and noted at trial.
Appellant objected at trial to the admission of the handwritten inventory (admitted as Exhibit 1) on the ground that the person who had prepared the document was not subject to cross-examination. Appellant also objected to the admission of the voided receipt (admitted as Exhibit 2) on the same ground because the receipt had been generated using the handwritten inventory as a reference. The trial court allowed voir dire on the admissibility of both exhibits, the pertinent parts of which follow:
At the conclusion of the voir dire, the trial court overruled appellant's objection and determined that the evidence was admissible, but noted "[Holcomb] admits she didn't look every time ... [Dishman] wrote it down to make sure it [the handwritten list] was accurate." The trial court also overruled appellant's
Appellant contends that the trial court violated her right to confrontation when it admitted two of the Commonwealth's exhibits, a handwritten inventory and a voided store receipt, to prove the value of the merchandise. Appellant further contends that the trial court erred in finding the evidence sufficient to convict her of felony shoplifting on the basis that the evidence proving the items' value was $200 or more was unlawfully admitted.
Appellant first contends that the trial court violated her right to confrontation when it admitted the handwritten inventory and the voided store receipt.
Where there is "a question of law as to the admissibility of evidence, we apply a de novo standard of review." Walker v. Commonwealth, 281 Va. 227, 230, 704 S.E.2d 124, 126 (2011) (citation omitted).
"The Confrontation Clause of the Sixth Amendment to the United States Constitution mandates that `in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.'" Wimbish v. Commonwealth, 51 Va.App. 474, 480, 658 S.E.2d 715, 718 (2008) (quoting U.S. Const. amend. VI). "[T]his bedrock procedural guarantee applies to both federal and state prosecutions." Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 1359, 158 L.Ed.2d 177 (2004) (citing Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923 (1965)).
However, "a defendant's right to confrontation only applies to testimonial hearsay...." Wilder v. Commonwealth, 55 Va.App. 579, 589, 687 S.E.2d 542, 547 (2010). "`Testimony'... is typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Crawford, 541 U.S. at 51, 124 S.Ct. at 1364 (citation omitted). "Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. at 59, 124 S.Ct. at 1369.
The Commonwealth bears the burden to show that the evidence it offers meets constitutional requirements. "Generally, when a specific objection is made to evidence or when inquiry is made by the trial judge concerning the purpose of evidence, the proponent of the evidence has the burden of establishing its admissibility." Neal v. Commonwealth, 15 Va.App. 416, 420, 425 S.E.2d 521, 523 (1992). This principle certainly applies when a party raises a constitutional objection to proffered evidence. See, e.g., Shell v. Commonwealth, 11 Va.App. 247, 251, 397 S.E.2d 673, 675 (1990) (noting that in the Fifth Amendment context, "[i]n order for a confession to be admissible, the Commonwealth bears the burden of proving the defendant voluntarily made a knowing and intelligent waiver of his constitutional privilege against self-incrimination and his right to counsel").
In addition, "error involving the Sixth Amendment's Confrontation Clause is subject to constitutional harmless error analysis." Crawford v. Commonwealth, 281 Va. 84, 101, 704 S.E.2d 107, 117 (2011) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986)); see Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438 ("The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt."). "[I]n conducting a constitutional harmless error analysis, `[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.'" Crawford, 281 Va. at 100, 704 S.E.2d at 117 (citation omitted). "`Whether ... an error is harmless in a particular case depends upon a host of factors ... [including] whether [that evidence] was cumulative, [and] the presence or absence of evidence corroborating or contradicting the [tainted evidence] on material
We note at the outset that the two exhibits which were admitted to prove the value of the items constituted testimonial evidence. Dishman, with Holcomb's assistance and supervision, prepared the handwritten inventory immediately following appellant's attempt to leave the store with unpurchased items in her shopping cart. Dishman, the author of the handwritten list, was the declarant of the testimonial hearsay which was offered into evidence. The primary purpose of the handwritten inventory was to prove the value of the items appellant had attempted to take. Holcomb and Dishman subsequently created a voided store receipt to confirm the value of the items. Both the handwritten inventory and the voided store receipt established that the value of the items was at least $200, which was relevant to appellant's prosecution for felony, rather than misdemeanor, shoplifting. As such, the evidence was testimonial in nature so as to fall within the purview of the Confrontation Clause.
In turning to whether the admission of the evidence violated appellant's right to confrontation, Holcomb testified that she supervised Dishman, who recorded the handwritten inventory and "rang up" the voided receipt. With regard to the handwritten inventory, Holcomb testified that she "removed [the items] from the tote to the buggy," but that Dishman recorded the items along with their quantity and prices on the piece of paper. Holcomb also admitted that she did not verify that Dishman wrote down the correct item and price for each item scanned, nor did she confirm that the correct quantity of each item was recorded. In ruling on the evidence, the trial court found that "[Holcomb] didn't look every time ... to make sure it [the handwritten list] was accurate."
Also, with regard to the voided receipt, Holcomb testified that she and Dishman referenced the handwritten inventory for a list of the items. Based on the list of items that Dishman had recorded by hand, Holcomb and Dishman conducted a new price inquiry for each item. The cash register then computed the total value of the merchandise, which included the discounts for various discontinued items. Although Holcomb "was with" Dishman and "signed off" on the completed receipt, Holcomb did not personally create the receipt. Furthermore, the printed cash register receipt was derived from Dishman's handwritten list, and showed that the total value of the merchandise was at least $200. Holcomb testified that she neither created nor confirmed the accuracy of the handwritten inventory and the voided receipt, and appellant was not given a previous opportunity to cross-examine Dishman, the exhibits' declarant, regarding the evidence of the value of the items.
The exhibits establish two discrete propositions. The first proposition the exhibits establish is that a particular set of items was stolen. The second proposition is that those items had a particular value. It is impossible to prove the value of stolen items unless one knows what the items are. There was no witness at trial who actually testified as to what items were stolen or what their value was. The two exhibits were introduced as the only evidence to prove both of these crucial facts. In order for the exhibits to pass constitutional muster, the requirements of the Confrontation Clause must be satisfied as to both of these testimonial propositions.
However, the person making these testimonial statements in the exhibits was not the person who testified at trial. The record does not support the supposition that Holcomb was the declarant of these statements in the exhibits. In her direct testimony, Holcomb stated that she participated in taking the stolen items out of the buggy and putting them on the counter, but that it was Dishman who actually ran the price inquiry on the register and "wrote it down." On cross-examination, Holcomb expressly stated regarding Exhibit 1, "That's [Dishman's] handwriting." Furthermore, regarding the prices recorded beside each of the items listed, Holcomb could not testify that she personally knew each of those entries was
This testimony demonstrates that the individual making the testimonial statements contained in the exhibits was Dishman and not Holcomb. Holcomb did not testify as to what the specific items were that were stolen, nor did she testify that she knew each of the items on the list was properly recorded by someone she observed accurately making each entry. Furthermore, she did not recite the prices of the items listed based on her own personal knowledge, nor did she testify that she observed Dishman accurately recording each price as it was shown on the register screen. Her testimony was limited to establishing how Dishman created the documents; she did not verify the contents and accuracy of the documents, and they were not offered as Holcomb's past recollection recorded.
In the wake of Crawford v. Washington and its progeny, the Supreme Court of Virginia has instructed that the Sixth Amendment's right to confrontation requires an opportunity for cross-examination of any witness whose "`declaration[s] or affirmation[s] made for the purpose of establishing or proving some fact'" are being offered into evidence. Aguilar v. Commonwealth, 280 Va. 322, 333, 699 S.E.2d 215, 220 (2010) (citation omitted); see Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006) ("[Statements] are testimonial when ... the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."); see also Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705, 2717, 180 L.Ed.2d 610 (2011) ("A document created solely for an `evidentiary purpose,'... made in aid of a police investigation, ranks as testimonial." (citation omitted)). While the requirement of an opportunity for cross-examination does not extend to every incidental participant who assisted in the process or analysis culminating in the testimony being offered, such requirement is mandated as to the declarant of the testimonial evidence.
This case is controlled by Bullcoming, not by Aguilar. In Bullcoming, the United States Supreme Court reaffirmed the general principle that "[a]s a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness." 131 S.Ct. at 2713. The Court held that "the testimonial statement of one witness ... [cannot] enter into evidence through the in-court testimony of a second [person]." Id. at 2715. The Court noted that the analyst in that case had "certified to more than a machine-generated number," id., and that the representations contained in his certification were "meet for cross-examination," id. at 2714.
Similarly, the testimonial exhibits in this case constituted more than simply machine-generated numbers. As explained above, the exhibits contained testimonial assertions both as to what items were in fact stolen and as to what the value of those particular items was. The assertion that "this is an accurate list and valuation of what the defendant stole" is most emphatically "meet for cross-examination." See id. Accordingly, the testimonial statement of Dishman should not have entered into evidence through the in-court testimony of Holcomb. See id. at 2713.
It is true that the individual who provided in-court testimony in Bullcoming "did not sign the certification or personally perform or observe the performance of the test reported in the certification." Id. As the dissent points out, Holcomb did exercise some degree of observation over Dishman's activities in this case. See infra at 20. However, this is a superficial and immaterial distinction on the facts of this case. The Court in Bullcoming noted that the person who testified in court "acknowledged that `you don't know unless you actually observe the analysis that someone else conducts, whether they [sic] followed th[e] protocol in every instance.'" 131 S.Ct. at 2715 n. 8 (alteration in original).
This case is simply not analogous to Aguilar. In Aguilar, "the only `declaration[s]' or `affirmation[s]' contained in the admitted certificates of analysis were [those of the person who actually testified in court]." 280 Va. at 333, 699 S.E.2d at 220 (first two alterations in original). In concluding there was no Confrontation Clause violation in that case, the Supreme Court noted that the certificates of analysis that were admitted "did not contain the results of [the first non-testifying examiner's] work product in any form, much less her `declaration[s]' or `affirmation[s].'" Id. at 333, 699 S.E.2d at 221 (second and third alterations in original). Nor did they "contain any notes or reports [the second non-testifying technician] might have generated during the course of her work; and they did not report any factual findings [she made] about the DNA analysis." Id. at 334, 699 S.E.2d at 221. Simply put, the testimony presented in Aguilar was solely that of the witness, not that of the absent parties. Here, in contrast, the challenged exhibits are the "work product," "notes," "reports," and "factual findings" of Dishman, not Holcomb. Thus, under the standard set forth in Bullcoming, Dishman's live testimony in court was necessary to render the exhibits admissible under the Sixth Amendment.
The dissent quotes the United States Supreme Court's statement in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n. 1, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009), that "we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." Infra at 18. However, this case is not about establishing chain of custody, showing authenticity of material used, or proving accuracy of a device or machine. Rather, this case is about the personally prepared documents of an out-of-court declarant that contain testimony regarding what items were stolen and what their value was.
Since Holcomb did not prepare either of the exhibits or testify that she observed Dishman accurately preparing either exhibit, Holcomb's testimony and presence in court was inadequate to satisfy the requirements of the Confrontation Clause of the Sixth Amendment. Accordingly, both of the exhibits were improperly admitted.
Having determined that the trial court erred in admitting the evidence in violation of appellant's confrontation right, we next consider whether that error was harmless. Crawford, 281 Va. at 101, 704 S.E.2d at 117. The Commonwealth argues that any error occurring as a result of the admission of the handwritten list was cured by the admission of the voided receipt, which relied on the cash register to generate the value of the merchandise. However, as we addressed above, the receipt was derived from the handwritten list of items and thus suffers from the same constitutional defect. Furthermore, these two exhibits together constituted the only evidence proving the value of what appellant stole. Thus, their admission was not harmless error.
Appellant also contends that the trial court erred in finding the evidence sufficient to convict her of felony shoplifting on the basis
In a challenge to the sufficiency of the evidence on appeal, "we determine whether the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the reasonable inferences fairly deducible from that evidence support each and every element of the charged offense." Haskins v. Commonwealth, 31 Va.App. 145, 149-50, 521 S.E.2d 777, 779 (1999). "Furthermore, `we presume the judgment of the trial court to be correct,' and `will not set it aside unless it is plainly wrong or without evidence to support it.'" Davis v. Commonwealth, 39 Va.App. 96, 99, 570 S.E.2d 875, 876-77 (2002) (citations omitted).
Code § 18.2-103 provides, in relevant part, that
We note at the outset that the Supreme Court of Virginia has limited the quantum of evidence that we may consider in reviewing sufficiency of the evidence claims to "`[a]ny evidence properly admitted at trial.'" Crawford, 281 Va. at 112, 704 S.E.2d at 123 (citation omitted). Under this standard, "an appellate court may not consider evidence illegally admitted at trial. To hold otherwise would circumvent on appeal the Constitutional protections provided to a defendant at trial." Id. at 112, 704 S.E.2d at 123-24; see Rushing v. Commonwealth, 284 Va. 270, 726 S.E.2d 333 (2012) (applying the standard articulated in Crawford to non-constitutional error).
Applying these principles, the evidence was insufficient to prove that the value of the merchandise was at least $200 in absence of the erroneously admitted exhibits. Because no other evidence was admitted to prove the value of the merchandise, the Commonwealth has not proved a requisite element of felony shoplifting under Code § 18.2-103. Thus, we hold that the evidence properly admitted at trial was insufficient to support appellant's conviction.
For the foregoing reasons, we reverse the judgment of the trial court and dismiss appellant's conviction of felony shoplifting, entering final judgment here.
Reversed and final judgment.
HUMPHREYS, J., dissenting.
I do not agree that the admission of the two challenged exhibits during Holcomb's testimony violated Robertson's Sixth Amendment right of confrontation, and because I also conclude that the exhibits in question provide sufficient evidence from which the jury could reasonably conclude that Robertson feloniously shoplifted over $200 in merchandise, I respectfully dissent from the analysis and judgment of the majority.
At its essence, the issue upon which the majority and I disagree is whether or not the Confrontation Clause of the Sixth Amendment can ever be satisfied when fewer than every single person involved in the joint preparation of an exhibit provides the evidentiary
"`[T]he principal evil at which the Confrontation Clause was directed' ... `was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.'" Williams v. Illinois, ___ U.S. ___, 132 S.Ct. 2221, 2242, 183 L.Ed.2d 89 (2012) (quoting Crawford v. Washington, 541 U.S. 36, 50, 124 S.Ct. 1354, 1363, 158 L.Ed.2d 177 (2004)). "`[I]n England, pretrial examinations of suspects and witnesses by government officials were sometimes read in court in lieu of live testimony.' The Court has thus interpreted the Confrontation Clause as prohibiting modern-day practices that are tantamount to the abuses that gave rise to the recognition of the confrontation right." Id. (quoting Michigan v. Bryant, ___ U.S. ___, 131 S.Ct. 1143, 1152, 179 L.Ed.2d 93 (2011)). No such abuse of the right to confront witnesses occurred here.
I do agree with the majority that the two exhibits introduced against appellant are testimonial in nature and thus Robertson had a right under the Sixth Amendment to confront the source of those exhibits. Where I part from my colleagues is that, given the collaborative nature of the way both Holcomb and Dishman jointly prepared these exhibits, I would hold that Robertson had the opportunity to and did confront Holcomb as a source of these exhibits and thus no violation of Robertson's right to confront the evidence against her occurred.
Clearly Holcomb and Dishman jointly created the two exhibits in this case for the express purpose of establishing the total value of the stolen items at the later prosecution of Robertson for felony shoplifting, and thus I agree with the majority that they are testimonial in nature and subject to the protection afforded by the Sixth Amendment.
However, while exhibits may constitute testimonial evidence, there is no violation of the Confrontation Clause as long as the accused is confronted with "a live witness competent to testify to the truth of the statements made in the [exhibit]." Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705, 2709, 180 L.Ed.2d 610 (2011) (emphasis added) (citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009)). That is precisely what occurred here. In Melendez-Diaz, the United States Supreme Court held that a defendant is entitled to confront the analysts who prepared affidavits pertaining to substance analyses that were introduced against him at trial. Melendez-Diaz, 557 U.S. at 311, 129 S.Ct. at 2532. However, the Court specified,
Id. at 311 n. 1, 129 S.Ct. at 2532 (internal quotations and citations omitted).
In Aguilar v. Commonwealth, 280 Va. 322, 699 S.E.2d 215 (2010), the Virginia Supreme Court held that the Confrontation Clause was satisfied when the supervising analyst who prepared the certificates of DNA analysis testified at a rape trial, even though an assistant analyst upon whose work he relied did not testify. Id. at 337, 699 S.E.2d at 222. While the supervisor relied on the assistant's DNA extraction, the supervisor was directly involved in the entire DNA analysis at issue and he was the person who drew the conclusions expressed in the certificates of analysis. Id. at 335, 699 S.E.2d at 221. The Court relied on the Melendez-Diaz footnote reproduced above, and quoted the Seventh Circuit, "`the Sixth Amendment does not demand that a chemist or other testifying expert have done the lab work himself.'" Id. at 335, 699 S.E.2d at 222 (quoting United States v. Turner, 591 F.3d 928, 933 (7th Cir.2010)). The Court further stated, "the Sixth Amendment does not require that every person who had some role in performing a forensic analysis,
In the present case, Holcomb, the store manager, testified at trial regarding the preparation of the handwritten list of stolen merchandise with their corresponding prices and the generation of the receipt from the cash register.
The United States Supreme Court's decision in Bullcoming and its most recent decision in Williams do not change this conclusion. The majority relies upon Bullcoming as authority for the majority's holding in this case. However, in Bullcoming, the Supreme Court specifically noted that it was dealing with a very narrow issue not factually replicated here. Bullcoming was arrested for driving while intoxicated and the principal evidence against him was a lab report certifying his blood alcohol concentration (BAC). Bullcoming, S.Ct. at 2709. At trial, the prosecution did not call the analyst who signed the certification, but instead called another analyst who was familiar with the lab's testing procedures and who had not participated in or observed the test on Bullcoming's sample. Id. The testifying analyst had not even reviewed the analysis of the performing analyst that was introduced at
Id. at 2713 (emphasis added). The Court rejected the reasoning of the New Mexico Supreme Court that the testifying analyst could substitute for the performing analyst because he was qualified as an expert with respect to the testing device used in the analysis and the lab procedures employed. The Court noted that the performing analyst was more than a "mere scrivener" and denounced such "surrogate testimony," as the testifying analyst could not convey what the performing analyst knew or observed about the particular test the certification concerned. Id. at 2714. "These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross examination." Id. Further, the testifying analyst conceded that he played no role in producing the BAC report and did not observe any portion of the performing analyst's conduct of the testing. Id. at 2722 (Sotomayor, J., concurring) (also noting that the court below recognized the witness' total lack of connection to the test at issue).
In Williams, a four justice plurality plus Justice Thomas, for differing reasons, found that third-party evidence relied upon by an expert to formulate his opinion expressed at trial was not testimonial in nature and therefore did not violate the Confrontation Clause. Williams, 132 S.Ct. at 2228.
In my view, neither Williams nor Bullcoming are applicable to the case before us. I agree with the majority that Williams is inapplicable to this case, because the exhibits here are unquestionably testimonial. The majority's analysis regarding Bullcoming and his conclusion that it controls the outcome of this appeal flows from an initial premise that "the only evidence establishing the identity and value of the stolen items consisted of written testimonial statements made not by the person testifying in court." However, Bullcoming is also inapplicable since Holcomb only testified to what she did and what she observed Dishman do under her direct observation and supervision. In the present case and unlike the situation in Bullcoming, Holcomb was present while the list was prepared and handed the stolen items to Dishman who did nothing but scan the items into the register and record the item description and price including sales tax as reported by the register. Holcomb superintended the preparation of the list of stolen merchandise, spot checked the accuracy of "most" of the items, apparently finding no discrepancies, and herself generated the second exhibit, a register receipt to establish the total value of the items stolen less the sales tax previously included. Therefore, unlike in Bullcoming, I would hold that Dishman was a "mere scrivener" of machine-generated data since, also unlike the situation in Bullcoming, Dishman did nothing beyond a recordation function, supervised and observed by a competent witness who did testify subject to cross-examination. Dishman's additional testimony was unnecessary as foundation for the admission of either exhibit. Holcomb signed the receipt attesting to the accuracy of the information recorded by Dishman, signifying her agreement with the information contained therein. Thus, I believe that the analysis in this case is more correctly governed by the analyses of Melendez-Diaz and Aguilar.
The majority relies principally upon Holcomb's concession on cross-examination, that she did not verify that Dishman wrote down the correct item and price for every single item scanned or specifically confirm that the correct quantity of each item was recorded. However, given the totality of her testimony regarding her involvement in the preparation of these exhibits, I see no significant constitutional impact on Robertson's ability to confront her accuser. Holcomb testified that she observed the cash register display as the items were scanned and in the light most favorable to the Commonwealth, "observed that the prices were correct as [Dishman]
Thus, I disagree with the majority's analysis since there was no "surrogate testimony" in this case, which would implicate the holding in Bullcoming. On the other hand, Melendez-Diaz and our Supreme Court's decision in Aguilar are directly on point and ought to control this analysis. Similar to the facts in the record before us, in Aguilar, the supervisor who testified at trial was directly involved in the entire DNA analysis at issue and he was the one who made the conclusions expressed in the certificates of analysis that were introduced against the appellant, whereas in Bullcoming the testifying analyst played no role in the certificate introduced at trial and had not even reviewed the analysis. Any deficiencies in Holcomb's testimony regarding what she may or may not have overlooked in observing and supervising Dishman's recordkeeping goes to the weight the fact-finder may choose to assign to the evidence, and does not implicate a violation of the Confrontation Clause.
For these reasons, I would hold that the trial court did not err by admitting the exhibits based upon the foundation laid by Holcomb concerning which she was cross-examined, thereby honoring Robertson's Sixth Amendment right to confrontation.
I also respectfully dissent from the holding and judgment of the majority with regard to Robertson's second assignment of error. Because I find no error on the part of the trial court regarding the admission of the exhibits, they are sufficient to establish the value of the property taken by Robertson. I would therefore hold that the evidence was sufficient to support Robertson's conviction for felony shoplifting and Rushing v. Commonwealth, 284 Va. 270, 726 S.E.2d 333 (2012), is inapplicable.
With respect to the judgment of the majority applying our Supreme Court's recent decision in Rushing, and dismissing the indictment rather than remanding this case for a new trial if the Commonwealth is so advised,
Id. (emphasis in original).
The precise question presented in Lockhart was "whether the Double Jeopardy Clause allows retrial when a reviewing court determines that a defendant's conviction must be reversed because evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction." Lockhart, 488 U.S. at 40, 109 S.Ct. at 290. In answering that question unequivocally in the affirmative, the Supreme Court of the United States noted in Lockhart,
Id. at 41-42, 109 S.Ct. at 291 (emphasis added). See also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 672, 175 L.Ed.2d 582 (2010) ("To `make the analogy complete' between a reversal for insufficiency of the evidence and the trial court's granting a judgment of acquittal, Lockhart, 488 U.S. at 42 [109 S.Ct. at 291-92] `a reviewing court must consider all of the evidence admitted by the trial court,' regardless whether that evidence was admitted erroneously, id., at 41, 109 S.Ct. at 294.").
Put another way, while our Supreme Court was not specific as to which "Constitutional protections" it was referring to, it does not violate the Double Jeopardy Clause of the Sixth Amendment to remand a case for a new trial provided that the evidence presented to the fact-finder at the original trial was sufficient as a matter of law. The Supreme Court of the United States should have the last word on that subject if the issue is the application of the Sixth Amendment. Moreover, to the extent that Rushing might be construed as an implicit application of the Double Jeopardy Clause of the Constitution of Virginia, the holding in Rushing is internally inconsistent and confusing when considered against the long line of cases in which the Supreme Court of Virginia has expressly interpreted the constitutional rights embodied in Article I, Section 8 of the Constitution of Virginia in an entirely congruent manner with the identical language of the Bill of Rights as construed by the Supreme Court of the United States. See, e.g., Lowe v. Commonwealth, 230 Va. 346, 348 n. 1, 337 S.E.2d 273, 274 n. 1 (1985); Walton v. City of Roanoke,
If our Supreme Court has departed from its plentiful prior jurisprudence finding no difference in the application of the double jeopardy protections provided by the identical language of both constitutions, it has not said so. On the other hand, if Virginia has simply adopted "a different standard of appellate review," there is no constitutional or statutory bar to a retrial limited to properly admitted evidence. By dismissing the indictment, as it did in Rushing, rather than remanding for a new trial on the original charge when there is no constitutional or statutory impediment to one, our Supreme Court appears to have assumed and exercised what amounts to legislative authority where none exists. Nevertheless, until either the General Assembly or the Supreme Court itself remedies this confusion, I concede that if the exhibits had been improperly admitted, this Court is compelled to follow the precedent of Rushing.
However, this leaves open the question of how to apply Rushing to this particular case. Having found the admissible evidence insufficient as a matter of law through the application of Rushing, the majority dismisses the indictment rather than remanding for a new trial on a charge of misdemeanor shoplifting, a charge clearly supported by the admissible evidence in this record. If there is no constitutional or statutory bar to a retrial on the original felony shoplifting charge, an application of Rushing creates the unresolved issue of the collateral consequences of the Supreme Court's holding in that case. If the federal and state constitutions and the Code of Virginia impose no bar to retrial on the original felony charge then, notwithstanding the decision of the majority, there is nothing to prevent the Commonwealth from re-indicting Robertson on the original charge of felony shoplifting and proceeding to trial on properly admitted evidence. On the other hand, if the Supreme Court of Virginia in Rushing has implicitly imposed what amounts to a judicial sanction on trial courts for improperly admitting evidence, it remains an undecided question as to whether such sanction bars reprosecution altogether or would permit retrial on a lesser-included offense for which the evidence was both admissible and sufficient. For this reason and in the absence of any further guidance from our Supreme Court regarding the rationale for its confusing holding in Rushing, the majority's decision to dismiss the indictment altogether thereby deferring the effect of any collateral consequences that may arise from an election by the Commonwealth to pursue this matter further, is the more prudent course.
Nevertheless, for all of the reasons previously stated, I would affirm the judgment of the trial court.