Irvin Stevens v. Commonwealth of Virginia ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Clements
Argued by teleconference
IRVIN STEVENS
MEMORANDUM OPINION * BY
v. Record No. 1465-07-2 JUDGE LARRY G. ELDER
SEPTEMBER 2, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAROLINE COUNTY
Horace A. Revercomb, III, Judge
Russell E. Booker, III, for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(Robert F. McDonnell, Attorney General, on brief), for appellee.
Irvin Stevens (appellant) appeals from his bench trial conviction for distributing cocaine
in violation of Code § 18.2-248. On appeal, he contends the trial court erroneously admitted into
evidence a certificate of analysis confirming the substance he distributed on May 19, 2004, was
cocaine because the certificate was improperly filed in a related case charging distribution on
May 20, 2004, and was provided to him in response to his request for a copy of the certificate
relevant to the May 20 offense rather than the May 19 offense. We hold the admission of the
challenged certificate was not error, and we affirm the conviction.
I.
BACKGROUND
On May 19, 2004, Detective Travis Christian and Corporal Joseph Patterson met with a
confidential informant, searched her, gave her $50, and observed her meet with the appellant
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
outside his residence for the purpose of purchasing crack cocaine. The informant then turned
over to Detective Christian an off-white, rock-like substance that they suspected was crack
cocaine. Detective Christian put the rock in a plastic bag, which he sealed and labeled with the
transaction date, and he then gave the bag to Officer Robert Jones, who transported it to the state
laboratory for analysis.
On May 20, 2004, a similar transaction occurred except that the detectives gave the
informant $100, and she returned from her meeting with appellant with two rocks of suspected
crack cocaine. Again, Detective Christian put the suspected drugs in a plastic bag, which he
sealed and labeled with the transaction date, and he turned the bag over to Officer Jones, who
transported it to the state laboratory for analysis.
In 2006, appellant was indicted for both offenses, and his attorney filed a timely request
for copies of the certificates for the two cases. The clerk’s office provided counsel with copies
of two certificates. The certificate he received in response to his request for the one relating to
the May 19 offense bore FS Lab Number C04-13405. The certificate he received in response to
his request for the one relating to the May 20 offense bore FS Lab Number C04-14124.
The May 19 and May 20 offenses were tried together on March 14, 2007. Appellant also
was indicted for two other offenses, but appellant was not tried for those in the same proceeding.
The Commonwealth offered testimony about the two controlled purchases that occurred
on May 19 and May 20 and chain-of-custody evidence for the rocks of suspected crack cocaine
received in those transactions. It then moved to admit into evidence what it averred were the
certificates of analysis showing the results from the testing of substances received on each of
those two days. The prosecutor offered the certificate bearing lab number C04-13405 into
evidence as proof that the substance obtained in the May 19, 2004 transaction was 0.613 gram of
cocaine. The trial court observed that the certificate bearing that lab number, C04-13405, was
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“in the file with the indictment alleging an offense on May 20th” but that “it really doesn’t
matter if it was misfiled.” The prosecutor then said, “Well, let me just offer both of them in. . . .
[O]ne is lab number C04[-]13405 and the other one is [13404].” Appellant’s attorney inquired,
“What’s . . . the other lab report [number], Judge?” The trial court said, “the other one,” which
was in the file for the May 19, 2004 offense, “is C04-14124,” to which appellant’s attorney
responded, “Yeah, that’s . . . what I have[, but] [i]t’s not what [the prosecutor] has.”
Counsel for appellant stated he would like an opportunity to further voir dire Officer
Jones, the evidence custodian, before the certificates were admitted because “he didn’t think that
. . . [their] being in the wrong file is necessarily harmless, given that we’re talking about different
amounts of money.”
Additional examination of Officer Jones confirmed that the certificate bearing FS Lab
Number C04-13405, which was filed in the case file for the May 20 offense, related to the May
19 offense and that the certificate for the May 20 offense bore FS Lab Number C04-13404. The
certificate for the May 20 offense was not contained in either the May 19 or May 20 file and also
was not contained in the files for the other two offenses then pending against appellant but not
set for trial in that proceeding. Although the prosecutor produced a copy of the certificate for the
May 20 charge indicating it had been filed in the circuit court on January 28, 2005, additional
evidence established “[i]t’s not in the court’s file” and “the defense was not given a copy of it.”
The trial court ruled that the certificate for the May 20 offense was inadmissible.
As to the certificate for the May 19 offense, FS Lab Number C04-13405, which had been
erroneously filed in the May 20 case file, appellant argued it was inadmissible because “the
notice [he] was given was that that was for a transaction on a different day,” May 20 rather than
May 19. The trial court ruled:
I don’t think that would defeat its admissibility. . . . I’m going to
overrule the objection with regard to the admissibility of FS Lab
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Number C04-13405 . . . [a]s to the case alleging an offense on May
the 19th, because that’s what the evidence ties that to. . . . And . . .
you’ve acknowledged you received[] that[,] albeit [for] a different
case number.
Thereafter, the trial court granted appellant’s motion to strike as to the May 20 offense,
for which no certificate of analysis was admitted, but convicted appellant for distributing cocaine
on May 19, the date for which the improperly filed certificate had been admitted. After
sentencing, appellant noted this appeal.
II.
ANALYSIS
On appeal, “we view the evidence in the ‘light most favorable’ to the Commonwealth.”
Bolden v. Commonwealth, 49 Va. App. 285, 288, 640 S.E.2d 526, 528 (2007) (quoting
Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003)).
Code § 19.2-187 provides in relevant part as follows:
In any hearing or trial of any criminal offense . . . , a
certificate of analysis of a person performing an analysis or
examination, performed in [any of the enumerated state or federal
laboratories] when such certificate is duly attested by such person,
shall be admissible in evidence as evidence of the facts therein
stated and the results of the analysis or examination referred to
therein, provided the certificate of analysis is filed with the clerk of
the court hearing the case at least seven days prior to the hearing or
trial.
A copy of such certificate shall be mailed or delivered by
the clerk or attorney for the Commonwealth to counsel of record
for the accused at no charge at least seven days prior to the hearing
or trial upon request made by such counsel [in the manner
prescribed by the statute] . . . . If, upon proper request made by
counsel of record for the accused, a copy of such certificate is not
mailed or delivered by the clerk or attorney for the Commonwealth
to counsel of record for the accused in a timely manner in
accordance with this section, the defendant shall be entitled to
continue the hearing or trial.
2006 Va. Acts ch. 294.
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Under established principles, “the filing requirements of Code § 19.2-187 must ‘be
strictly construed against the Commonwealth and in favor of the accused,’” Waller v.
Commonwealth, 27 Va. App. 71, 76, 497 S.E.2d 508, 510 (1998) (quoting Gray v.
Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705, 706 (1980)), because the statute “‘deals with
criminal matters[] and . . . undertakes to make admissible evidence which otherwise might be
subject to a valid hearsay objection,’” Stokes v. Commonwealth, 11 Va. App. 550, 552, 399
S.E.2d 453, 454 (1991) (quoting Gray, 220 Va. at 945, 265 S.E.2d at 706). “We have repeatedly
explained that the purpose of the statute ‘is to ensure that the certificate to be used in evidence is
lodged timely in a secure and appropriate place, accessible to the accused, and available to him
on request.” Waller, 27 Va. App. at 76, 497 S.E.2d at 510 (quoting Stokes, 11 Va. App. at 552,
399 S.E.2d at 454).
In examining the filing requirement in numerous cases, we have held that the statute
“does not require that the certificates must be filed according to any particular system,” id. at 77,
497 S.E.2d at 511, as long as the certificate is filed in a way that is “‘accessible to the accused,
and available to him on request,’” id. at 76, 497 S.E.2d at 510 (quoting Stokes, 11 Va. App. at
552, 399 S.E.2d at 454). In Harshaw v. Commonwealth, 16 Va. App. 69, 427 S.E.2d 733 (1993),
for example, the certificate relating to an offense occurring on October 30, 1990, was filed in the
clerk’s office in a timely fashion, but instead of being placed in the file for the offense to which it
pertained, it was “lodged with another certificate which related to simultaneously tried offenses”
that occurred two days later, on November 1, 1990. Id. at 72, 427 S.E.2d at 735. On those facts,
we held the certificate was “thereafter accessible and available to [the] defendant,” thereby
satisfying “both the letter and spirit” of the statute. Id.Similarly in appellant’s case, the certificate of analysis for the May 19 offense was
lodged in the file for a “simultaneously tried offense[],” id., of a nearly identical nature that was
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committed one day later. Thus, the certificate was “accessible and available to [the] defendant,”
satisfying “both the letter and spirit” of the statute. Id.Further, in response to appellant’s simultaneous request for certificates of analysis
pertaining to both those offenses, submitted in compliance with the terms of the second
paragraph of the statute, the clerk provided appellant with a copy of the certificate at issue.
Although appellant may erroneously have believed, due to the misfiling of the certificate at issue,
that it applied to the May 20 offense rather than the May 19 offense, he made no effort to
subpoena the preparer of either certificate as he was permitted to do under Code § 19.2-187.1.
On brief on appeal, the only prejudice appellant alleges is that the certificate at issue provided
the evidence used to convict him. He does not allege that he was prejudiced in any way in the
preparation of his case for trial by the improper filing of the certificate. Even if he had alleged
such prejudice, the applicable version of the statute expressly provides that the remedy for failure
to provide counsel with a requested certificate of analysis “in a timely manner in accordance
with [the statute]” is that “the defendant shall be entitled to continue the hearing or trial.” 2006
Va. Acts ch. 294. Here, however, appellant sought only to have the evidence excluded and did
not request a continuance.
On these facts, we hold the trial court did not err in refusing to exclude the challenged
certificate of analysis.
III.
For these reasons, we hold the admission of the certificate of analysis was not error, and
we affirm appellant’s conviction.
Affirmed.
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