Leland Lloyd Johnson v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia
LELAND LLOYD JOHNSON
MEMORANDUM OPINION * BY
v. Record No. 2371-97-2 JUDGE RICHARD S. BRAY
OCTOBER 27, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
Brian H. Jones (Kaestner, Pitney &
Jones, P.C., on brief), for appellant.
Ruth Ann Morken, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Leland Lloyd Johnson (defendant) was convicted in a bench
trial for driving while intoxicated. On appeal, defendant
complains that the "Certificate of Blood Alcohol Analysis"
(certificate) was improperly admitted into evidence because the
clerk of the trial court failed to provide a copy upon his
request pursuant to Code § 19.2-187. We disagree and affirm the
conviction.
The parties are fully conversant with the record, and we
recite only those facts necessary for disposition of the appeal.
In accordance with well established principles, we view the
evidence in the light most favorable to the prevailing party
below, the Commonwealth in this instance, granting all reasonable
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
inferences fairly deducible therefrom. See Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
On May 24, 1997, Officer Richard Dunn arrested defendant for
driving under the influence of alcohol. A related analysis of
defendant's breath reflected an alcohol content of .11 grams per
210 liters. Prior to trial in the general district court and,
again, on appeal to the circuit court, defendant requested a copy
of the certificate of analysis from the respective clerks'
offices. Although defendant properly received a copy from the
general district court clerk, the clerk of the trial court failed
to respond. The record establishes, however, that the
Commonwealth timely mailed a copy of the certificate to
defendant's counsel during the pendency of the appeal in the
circuit court.
Defendant objected to admission of the certificate into
evidence as an exception to hearsay created by Code § 19.2-187,
arguing that the clerk of the trial court had neglected to
provide a copy in accordance with the statute. In overruling the
objection, the court concluded that the copy previously provided
defendant by the clerk of the general district court satisfied
the application of Code § 19.2-187 to the circuit court
proceedings. Moreover, the trial judge found that "the
certificate of analysis was mailed [by the Commonwealth] to
counsel for the defendant."
Code § 19.2-187 provides, in pertinent part, that
[i]n any hearing or trial of any criminal
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offense . . ., a certificate of analysis of a
person performing an analysis or examination
. . . shall be admissible in evidence as
evidence of the 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 of such
counsel.
Thus, a certificate of analysis is clearly admissible provided a
copy "is mailed or delivered by the clerk or attorney for the
Commonwealth to [defense] counsel at least seven days prior to
the hearing or trial upon request of such counsel." Code
§ 19.2-187 (emphasis added). However, a certificate "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).
On appeal, factual findings "which are necessary predicates
to rulings on the admissibility of evidence . . . are to be given
the same weight as is accorded a finding of fact by the jury."
Rabeiro v. Commonwealth, 10 Va. App. 61, 64, 389 S.E.2d 731,
732-33 (1990). Here, the court determined that the attorney for
the Commonwealth had timely mailed a copy of the certificate to
defendant's counsel prior to trial in the circuit court, a
conclusion supported by the record. Although defendant's counsel
contends that he never received the document, the mailing,
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without more, fulfilled the statutory imperative.
The Commonwealth, therefore, complied with the provisions of
Code § 19.2-187, and the trial court properly admitted the
certificate into evidence. 1 Accordingly, we affirm the
conviction.
Affirmed.
1
Although the trial court concluded that compliance with
Code § 19.2-187 by the general district court clerk satisfied the
statute in the later circuit court proceedings, we find it
unnecessary to address that issue.
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