COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Senior Judge Hodges 

Argued at Alexandria, Virginia 

STEPHEN DOUGLAS PAYNE 

 MEMORANDUM OPINION* BY 

v. Record No. 2870-95-4 JUDGE RICHARD S. BRAY 

 MARCH 25, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N. A. Kendrick, Judge 

 (Exequiel R. Sevilla, Jr., on brief), for 

appellant. Appellant submitting on brief. 

 (Kathleen B. Martin, Assistant Attorney 

General; James S. Gilmore, III, Attorney 

General, on brief), for appellee. Appellee 

submitting on brief. 

 Stephen Douglas Payne (defendant) was convicted by a jury 

for possession of cocaine. On appeal, he asserts that the trial 

court erroneously admitted hearsay evidence, a certificate of 

analysis which did not comport with the provisions of Code 

§ 19.2-187. We agree and reverse the conviction. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

 During trial, the Commonwealth offered the disputed 

certificate into evidence, and defendant objected, arguing that 

it constituted hearsay. Although the legislature has excepted a 

certificate of analysis prepared in accordance with Code 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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§ 19.2-187 from the disability of hearsay, a certificate lacking 

the requisite attestation clause or otherwise not in "strict 

compliance" with the statute remains "subject to a valid hearsay 

objection." Frere v. Commonwealth, 19 Va. App. 460, 463-65, 452 

S.E.2d 682, 685-86 (1995); Myrick v. Commonwealth, 13 Va. App. 

333, 337-38, 412 S.E.2d 176, 178 (1991). The Commonwealth does 

not contend that the disputed certificate included a proper 

attestation clause. Thus, confronted with defendant's proper 

objection in this instance, the Commonwealth was unable to 

establish a statutory or other exception to the hearsay rule, 

leaving the certificate inadmissible evidence. See, e.g., Neal 

v. Commonwealth, 15 Va. App. 416, 420-22, 425 S.E.2d 521, 523-25 

(1992). 

 The Commonwealth, nevertheless, urges that we affirm the 

conviction, contending that the improper evidence was harmless. 

Non-constitutional error is harmless if "'it plainly appears from 

the record and the evidence given at the trial that' the error 

did not affect the verdict." Lavinder v. Commonwealth, 12 Va. 

App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting 

Code § 8.01-678); see id. at 1009, 407 S.E.2d at 913. "An error 

does not affect a verdict if a reviewing court can conclude, 

without usurping the jury's fact finding function, that, had the 

error not occurred, the verdict would have been the same." Id.

at 1005, 407 S.E.2d at 911; see Woodward v. Commonwealth, 16 Va. 

App. 672, 675, 432 S.E.2d 510, 512 (1993) (inadmissible evidence 
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which is "merely cumulative of other, undisputed evidence" does 

not affect the verdict). Whether an error at trial has affected 

the verdict is necessarily case specific. See Lavinder, 12 Va. 

App. at 1009, 407 S.E.2d at 913. 

 We acknowledge that "lay testimony and circumstantial 

evidence may be sufficient, without the introduction of an expert 

chemical analysis, to establish the identity of the substance 

involved in an alleged narcotics transaction." United States v. 

Scott, 725 F.2d 43, 45 (4th Cir. 1984) (quoting United States v. 

Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976)). However, Castillo 

v. Commonwealth, 21 Va. App. 482, 465 S.E.2d 146 (1995), teaches 

that oftentimes the prejudicial effect of inadmissible evidence 

impairs an independent assessment of the admissible evidence by 

the fact finder, thereby infecting the verdict with error. 

 In this instance, we are "'unable to say what effect the 

[inadmissible] evidence had on the [fact finder's] decision,'" 

despite "independent evidence [of the nature of the substance]." 

Id. at 490, 465 S.E.2d at 150 (quoting Durant v. City of 

Suffolk, 4 Va. App. 445, 449, 358 S.E.2d 732, 734 (1987)); see

also Cartera v. Commonwealth, 219 Va. 516, 248 S.E.2d 784 (1978) 

(physician's testimony detailing victims' statements and his 

opinion that each had been raped found not harmless). 

Accordingly, we reverse the conviction and remand to the trial 

court for further proceedings consistent with this opinion, if 

the Commonwealth be so advised. 
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 Reversed and remanded.