Bradford W Cephas, Jr v. Commowealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued at Alexandria, Virginia
BRADFORD W. CEPHAS, JR.
MEMORANDUM OPINION * BY
v. Record No. 3359-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 4, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Frank A. Hoss, Jr., Judge Designate
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on briefs), for
appellant.
Amy L. Marshall, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
In a bench trial, the trial court convicted Bradford W.
Cephas, Jr. (appellant) of driving under the influence (DUI)
(third offense) and driving after having been declared an habitual
offender (second offense). 1 Appellant contends that the trial
court erred in admitting the breath test certificate of analysis.2
For the reasons that follow, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant challenges only the DUI conviction on appeal.
2
Appellant also contends that the evidence, without the
improperly admitted certificate of analysis, was insufficient to
support his DUI conviction. Because we hold that the certificate
of analysis was properly admitted, we do not address this issue.
I.
On the evening of February 10, 2001 Sergeant George
Southard (Southard) of the Warrenton Police Department arrested
appellant for DUI. Southard took appellant to the magistrate's
office, where appellant elected to take a breath test that
reflected a blood alcohol content of 0.15.
A certificate of analysis (certificate) for the breath test
was filed in the general district court prior to appellant's
preliminary hearing. 3 The general district court certified
appellant to the circuit court grand jury on April 12, 2001 and
ordered that all the original papers in the case be forwarded to
the Clerk of the Circuit Court. This order was stamped "filed"
in the circuit court on April 13, 2001. None of the other
papers forwarded to the circuit court were stamped "filed" in
the circuit court. 4 Appellant was tried in a bench trial on
August 16, 2001. At trial, appellant objected to admission of
the certificate of analysis on the basis that the Commonwealth
failed to file the certificate in the circuit court seven days
prior to trial as required by Code § 19.2-187.
3
The record does not reveal whether appellant requested and
was mailed a copy of the certificate and that issue is not
before us.
4
The record reflects that pages 1-17 arrived as a group
from the general district court. The next page, page 18, begins
with documents that originated in the trial court.
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The trial court, after reviewing the court file, overruled
appellant's objection, finding that the certificate was "filed"
along with all of the papers from the district court with the
Clerk of the Circuit Court on April 13, 2001. Appellant was
convicted of DUI (third offense) and driving after having been
declared an habitual offender (second offense).
II.
Appellant contends that the trial court erred in admitting
the certificate of analysis into evidence because the
Commonwealth did not prove the certificate was filed seven days
prior to trial with the Clerk of the Circuit Court as required
by Code § 19.2-187. The record shows otherwise.
"Generally, a court has discretion to determine whether
evidence is admissible." Waller v. Commonwealth, 27 Va. App.
71, 74, 497 S.E.2d 508, 509 (1998). Nevertheless, "[a]
certificate of analysis is not admissible if the Commonwealth
fails strictly to comply with the provisions of Code
§ 19.2-187." Woodward v. Commonwealth, 16 Va. App. 672, 674,
432 S.E.2d 510, 512 (1993). Code § 19.2-187 provides:
In any hearing or trial of any criminal
offense . . . a certificate of analysis of a
person performing an analysis or
examination, performed in any laboratory
operated by the Division of Consolidated
Laboratory Services or the Division of
Forensic Science or authorized by such
Division to conduct such analysis or
examination, . . . when such certificate is
duly attested by such person, shall be
admissible in evidence as evidence of the
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facts therein stated and the results of the
analysis or examination referred to therein,
provided (i) 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 and (ii) a copy of such
certificate is mailed or delivered by the
clerk or attorney for the Commonwealth to
counsel of record for the accused at least
seven days prior to the hearing or trial
upon request made by such counsel to the
clerk with notice of the request to the
attorney for the Commonwealth.
"The purpose of the [statute] is plain. It 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 upon request." Stokes v. Commonwealth, 11 Va.
App. 550, 552, 399 S.E.2d 453, 454 (1991). "This statute 'sets
forth a specific statement of admissibility of certificates' and
once its 'provisos are satisfied, the statement . . . is
complete, and a certificate thus qualified is properly received
into evidence.'" Harshaw v. Commonwealth, 16 Va. App. 69, 71,
427 S.E.2d 733, 735 (1993) (quoting Stokes, 11 Va. App. at 552,
399 S.E.2d at 454).
Appellant relies upon Allen v. Commonwealth, 3 Va. App.
657, 353 S.E.2d 162 (1987), to support his contention that the
certificate was erroneously admitted into evidence. In Allen,
we held that
[t]he statute does not authorize filing in
the general district court as a substitute
for the proviso that the certificates be
filed in the circuit court at least seven
days prior to the hearing in the circuit
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court; rather it specifically requires the
certificate to be filed with the clerk of
the court hearing the case at least seven
days prior to the hearing or trial.
Id. at 664, 353 S.E.2d at 166 (emphasis in original). The
instant case, however, is factually distinguishable from Allen. 5
In Allen, we noted that "[n]othing in the record
indicate[d] when the certificates were filed in the circuit
court clerk's office." Id. There was no date stamp on the
documents. This omission prevented the certificates from being
used against Allen because there was no way to determine
compliance with the statute. In the instant case, the trial
court reviewed the court file and found "the file shows that the
papers from the general district court were filed on 13 April
2001. That's a stamp from Gail H. Barb, Clerk of this Court."
(Emphasis added). The papers, including the certificate, were
filed as a group. While appellant correctly points out that the
certificate itself is not stamped "filed," we note that the
order of the general district court transferring the case to the
trial court, ordered that "The original of this order is to be
forwarded to the Clerk of the Circuit Court with all papers in
5
We note also that the rule is that "in the absence of the
preparer of the certificate as a witness at trial, the failure
of the Commonwealth fully to comply with the filing provisions
of § 19.2-187 renders the certificate inadmissible." Gray v.
Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705, 706 (1980)
(emphasis added). This rule is not implicated here, however,
because Southard prepared the certificate and testified at
trial.
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this case," was stamped "filed" on April 13, 2001. (Emphasis
added).
"In the absence of clear evidence to the contrary, courts
may presume that public officers have properly discharged their
official duties." Robertson v. Commonwealth, 12 Va. App. 854,
856-57, 406 S.E.2d 417, 418 (1991). Thus, here there is a
presumption that the clerk of the general district court
complied with that court's order to transfer all the papers in
the case to the trial court. Furthermore, when the order
arrived in the circuit court clerk's office and was stamped as
"filed" it was accompanied by the other papers in the case,
including the certificate, all of which were "filed" when the
order was filed with the Clerk of the Circuit Court. "Code
§ 19.2-187 does not prescribe the manner in which a clerk's
office must mark such certificates." Carter v. Commonwealth, 12
Va. App. 156, 158, 403 S.E.2d 360, 361 (1991). Accordingly, if
there is an objective basis in the record from which the fact
finder can determine if and when the certificate was filed in
the court, Code § 19.2-187 is satisfied. Credible evidence
supports the trial court's finding.
Affirmed.
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