Terence L. Hill, s/k/a Terrence L. Hill v. CW ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank
Argued at Norfolk, Virginia
TERENCE L. HILL, S/K/A
TERRENCE L. HILL
MEMORANDUM OPINION * BY
v. Record No. 2336-98-1 JUDGE DONALD W. LEMONS
NOVEMBER 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge
James L. Grandfield, Assistant Public
Defender, for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Terrence L. Hill appeals his conviction of possession of a
firearm after having been convicted of a felony, a violation of
Code § 18.2-308.2. On appeal, he argues that the trial court
erred in overruling his "chain of custody" objection to the
admission of a gunshot residue kit and that the evidence was
insufficient to prove that he possessed a firearm. We disagree
and affirm the conviction.
I. BACKGROUND
On January 30, 1998, Officer J.L. Naylor, of the City of
Suffolk Police Department, responded to a call at the five
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
hundred block of Causey Avenue to investigate reported gunfire.
Upon her arrival, Naylor observed Terrence L. Hill walking in an
area posted with "No Trespassing" signs. Naylor called for Hill
to stop, but Hill began running.
Naylor chased Hill, and observed him stumble, fall, use his
hands to break his fall, get up, and continue running. Naylor
apprehended Hill approximately one block from where Hill had
fallen. Naylor advised Hill that he was under arrest, and
ordered him to place his hands behind his back. Naylor told
Hill that she would "cap stun" him if he continued struggling.
Hill refused to comply, so Naylor stunned him, and subsequently
handcuffed him.
Officer C.A. Fellers of the City of Suffolk Police
Department arrived at the scene. Fellers and Naylor walked to
the location where Hill had fallen, and discovered a
nine-millimeter Kel-Tek handgun. The gun was discovered within
two minutes of Hill's apprehension.
Thirty to forty minutes after Hill's arrest, a gunshot
residue test was conducted on Hill's hands. At Hill's trial,
Naylor testified that she placed the sample obtained from Hill's
hands inside an envelope, sealed it, and kept it in her custody
and control at all times until she transported it to the
Commonwealth of Virginia, Division of Forensic Science,
Tidewater laboratory.
- 2 -
Douglas H. DeGaetano, an expert in the field of gunshot
residue employed at the Division of Forensic Science central
laboratory in Richmond, testified that he received and analyzed
Hill's gunshot residue test kit, stating that he recognized it
by its "unique forensic science case number" and his "initials
where [he] sealed [the kit] after analyzing the samples."
DeGaetano testified that his examination revealed a particle of
gunshot residue on the sample taken from Hill's right hand, plus
a particle which was "indicative" of primer residue on the
sample taken from Hill's left hand. DeGaetano stated that
primer residue can be deposited on a person's hands primarily in
three ways: if the person fired the gun, if the person was
present in the area when the gun was fired, or if the person
handled a dirty weapon.
Hill objected to the admission of the gunshot residue kit
(GSR) into evidence and to DeGaetano's testimony on the grounds
that the Commonwealth failed to establish a sufficient chain of
custody. Acknowledging that the GSR was delivered to the
required lab in Norfolk by Naylor, Hill argues that the chain of
custody is broken because there was no evidence concerning how
the kit was transported from Norfolk to Richmond.
In addition, Hill testified that he did not have a firearm
in his possession when Naylor chased him. He offered no
explanation for the gunshot residue on his hands, and claimed
that he had not been in close proximity to a weapon.
- 3 -
II. CHAIN OF CUSTODY
The GSR and DeGaetano's testimony were admitted into
evidence over Hill's objection. Inexplicably, the Commonwealth
did not offer the certificate of analysis for the GSR into
evidence. 1 Hill argues that the failure to introduce the
certificate removes any benefit of prima facie evidence of the
establishment of chain of custody. 2 While correct concerning the
lack of any benefits conferred by Code § 19.2-187.01, the
Commonwealth did not rely upon the certificate of analysis and
its accompanying attestation. Instead, the Commonwealth relied
upon Naylor's and DeGaetano's testimony to establish the chain
of custody.
"Establishing a chain of custody of exhibits is necessary
to afford reasonable assurance that the exhibits at trial are
the same and in the same condition as they were when first
obtained." Horsley v. Commonwealth, 2 Va. App. 335, 338, 343
S.E.2d 389, 390 (1986). Although the burden of proving chain of
custody rests with the Commonwealth, "[t]he Commonwealth is not
required to exclude every conceivable possibility of
1
The certificate of analysis for the GSR is in the record
of the case having been lodged with the court as an exhibit to
discovery responses by the Commonwealth. It was not offered in
evidence.
2
The Commonwealth argues that Hill failed to present this
objection to the trial court, and it is therefore barred on
appeal. Upon review of the record, we find that the objection
was sufficiently stated to be preserved for review on appeal.
- 4 -
substitution, alteration, or tampering." Pope v. Commonwealth,
234 Va. 114, 121, 360 S.E.2d 352, 357 (1987). Rather, the
Commonwealth is required to establish with "reasonable
assurance" that the evidence presented and analyzed at trial was
the same evidence, in the same condition, as when it was
obtained by the police. However, "[w]here there is mere
speculation that contamination or tampering could have occurred,
it is not an abuse of discretion to admit the evidence and let
what doubt there may be go to the weight to be given the
evidence." Reedy v. Commonwealth, 9 Va. App. 386, 391, 388
S.E.2d 650, 652 (1990).
Here, the evidence established that the GSR was taken from
appellant by Officer J.L. Naylor at approximately 1:31 a.m. on
January 30, 1998. Naylor placed the samples into an envelope,
which she immediately sealed. Naylor kept the envelope in her
possession until she delivered it to the Division of Forensic
Science's Norfolk regional laboratory on January 30, 1998.
Naylor assigned Case Number 9800585 to the GSR that she turned
over to the Norfolk lab.
Douglas H. DeGaetano, a forensic scientist employed by the
Division of Forensic Science at the central laboratory in
Richmond, testified that he analyzed the GSR containing Case
Number 9800585 and identified by Naylor as the GSR that she
turned over to the Norfolk lab. The GSR contained the lab
number T98-1015 and DeGaetano's initials where he sealed it
- 5 -
after analyzing the samples. Appellant presented no evidence
tending to show that the GSR had been altered, substituted, or
tampered with after it was delivered to the Norfolk lab. "There
is a presumption of regularity in handling of exhibits by public
officials." Smith v. Commonwealth, 219 Va. 554, 559, 248 S.E.2d
805, 808 (1978). In proving the chain of custody, the
Commonwealth "'is not required to exclude every conceivable
possibility of substitution, alteration or tampering.' Instead,
the Commonwealth was required to establish with 'reasonable
assurance' that the evidence analyzed and presented at trial was
in the same condition as it was when obtained by police."
Robertson v. Commonwealth, 12 Va. App. 854, 857, 406 S.E.2d 417,
419 (1991) (quoting Pope v. Commonwealth, 234 Va. 114, 129, 360
S.E.2d 352, 357 (1987)). Based upon this record, the trial
court did not err in overruling appellant's objection to
DeGaetano's testimony regarding the results of his analysis of
the GSR.
III. POSSESSION OF A FIREARM
Hill argues that the evidence was insufficient to support
his conviction for possession of a firearm by a convicted felon,
a violation of Code § 18.2-308.2. On appeal, Hill argues that
the Commonwealth failed to prove either that he actually or
constructively possessed a firearm. Hill also argues that the
Commonwealth did not prove that the object introduced as
Exhibit #2 was actually a firearm, "capable of expelling a
- 6 -
projectile by action of an explosion" as defined in Code
§ 18.2-308.2:2(G).
A. Actual or Constructive Possession
Because the police never saw him holding the handgun, Hill
contends that the circumstantial evidence supporting his
conviction was insufficient to support his conviction. Hill
argues that the Commonwealth's evidence "in its most favorable
light" establishes only that Officer Fellers recovered the
pistol "near where [Hill] had stumbled."
On appeal, we review the evidence in the
light most favorable to the Commonwealth,
granting to it all reasonable inferences
fairly deducible therefrom. Moreover,
[c]ircumstantial evidence is as competent
and is entitled to as much weight as direct
evidence, provided it is sufficiently
convincing to exclude every reasonable
hypothesis except that of guilt.
McBride v. Commonwealth, 22 Va. App. 730, 733, 473 S.E.2d 85, 87
(1996) (citations and internal quotations omitted).
"'Circumstantial evidence . . . is evidence of facts or
circumstances not in issue from which facts or circumstances in
issue may be inferred.'" Byers v. Commonwealth, 23 Va. App.
146, 151, 474 S.E.2d 852, 854 (1996) (quoting 1 Charles E.
Friend, The Law of Evidence in Virginia § 12-1 (4th ed. 1993)).
However, "[w]hen the Commonwealth relies solely upon
[circumstantial evidence] it bears the burden of excluding every
reasonable hypothesis of innocence, that is those which flow
from the evidence itself, and not from the imagination of
- 7 -
defendant's counsel." Tyler v. Commonwealth, 254 Va. 162, 166,
487 S.E.2d 221, 223 (1997) (citations omitted).
To support a conviction for possession of a firearm after
having been convicted of a felony, the Commonwealth must prove
beyond a reasonable doubt that a defendant knowingly and
intentionally possessed the firearm. See Blake v. Commonwealth,
15 Va. App. 706, 427 S.E.2d 219 (1993). Proof of the
defendant's knowledge of the "presence and character" of a
weapon is necessary to show that the defendant consciously
possessed it, just as such proof is required to show possession
of illegal drugs. See id. at 708, 427 S.E.2d at 220.
Possession of illegal drugs "may be proved by evidence of acts,
declarations or conduct of the accused from which the inference
may be fairly drawn that he knew of the existence of narcotics
at the place where they were found." Andrews v. Commonwealth,
216 Va. 179, 182, 217 S.E.2d 812, 814 (1975).
In the same way, possession of a firearm can be inferred by
the surrounding circumstances. Here, Naylor responded to a call
about reported gunfire. Upon her arrival, Naylor saw Hill and
called to him, and Hill began running. Naylor chased Hill,
observed him fall, use his arms to break his fall, get up, and
continue running. After Hill had been apprehended, Fellers went
to the area that Naylor identified as where he had fallen.
Fellers recovered a handgun from that area. The gun was
recovered within minutes of Hill's fall.
- 8 -
Although "mere proximity to contraband is insufficient to
[prove] possession . . . [it is a] factor [which may] be
considered . . . ." Lane v. Commonwealth, 223 Va. 713, 716, 292
S.E.2d 358, 360 (1982). Flight may also be considered as a
factor in determining guilt. See Langhorne v. Commonwealth, 13
Va. App. 97, 102, 409 S.E.2d 476, 480 (1991) (citation omitted).
An object which is "of significant value," such as a weapon, is
unlikely to have been intentionally or carelessly discarded.
See Powell v. Commonwealth, 27 Va. App. 173, 178, 497 S.E.2d
899, 901 (1998).
DeGaetano testified that "primer residue [from a weapon]
can be deposited on your hands by either firing a weapon, being
in the close proximity to the discharge of a weapon or by
handling a dirty weapon." DeGaetano identified a "single
particle of gunshot residue on [Hill's] right hand sample and
. . . found a particle that was indicative of primer residue on
[Hill's] left hand sample." On cross-examination, DeGaetano
testified that although there are other ways for primer residue
to be deposited on hands, the three examples he gave are "the
most typical ways."
Viewing the facts in the light most favorable to the
Commonwealth, we hold that the evidence was sufficient to find
that Hill had been in actual possession of the handgun recovered
by Fellers from the area where he had fallen.
- 9 -
B. Rule 5A:18
On appeal, Hill argues that "the Commonwealth failed to
establish that Commonwealth's Exhibit #2 was in fact a
'firearm,' capable of expelling a projectile by action of
explosion." Code § 18.2-308.2:2(G) defines a firearm as "any
handgun, shotgun, or rifle which expels a projectile by action
of an explosion." Because Hill failed to raise this issue
before the trial court, we are barred from considering it on
appeal. See Rule 5A:18. See Dickerson v. Commonwealth, 29 Va.
App. 252, 256, 511 S.E.2d 434, 436 (1999).
IV. CONCLUSION
We hold that the trial court did not err in overruling
Hill's "chain of custody" objection to the admission of the GSR
and DeGaetano's testimony concerning the test results and that
the evidence was sufficient to prove that Hill actually
possessed the handgun in question after having been convicted of
a felony.
Affirmed.
- 10 -