Coleman v. Com.

• Decision Date: 14 July 1998
• Docket Number: Record No. 1510-97-2.
• Parties: Lorenzo C. COLEMAN v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

501 S.E.2d 461

27 Va. App. 768

Lorenzo C. COLEMAN v. COMMONWEALTH of Virginia.

Record No. 1510-97-2.

Court of Appeals of Virginia, Richmond.

July 14, 1998.

Thomas E. Dempsey (Vergara & Associates, on briefs), Hopewell, for appellant.

Mary E. Shea, Assistant Attorney General (Richard Cullen, Attorney General; Donald E. Jeffrey, III, Assistant Attorney General, on brief), for appellee.

Present: BAKER and ANNUNZIATA, JJ., and COLE, Senior Judge.

COLE, Senior Judge.

Lorenzo C. Coleman (appellant) was convicted of possession of cocaine. He alleges on appeal that the trial judge erred in admitting a certificate of analysis because the Commonwealth failed to mail or deliver a copy of the certificate, upon his request, as required by Code § 19.2-187. Because appellant requested a copy of the certificate in his motion for discovery, endorsed the discovery order which directed that all discovery would take place in the Commonwealth's attorney's office, and failed to appear at the prosecutor's office for discovery of the certificate in accord with the terms of the discovery order, his claim is without merit.

Appellant originally was charged with possession of cocaine with intent to distribute. On February 25, 1997, he filed in the circuit court a motion for discovery and request for exculpatory evidence. In an unnumbered paragraph in the motion, he wrote, "Pursuant to Section 19.2-187 of the Code of Virginia, the defendant further requests that he be provided a copy of any certificate of analysis which the Commonwealth intends to introduce at trial." Appellant made no direct request to the clerk of the circuit court or to the attorney for the Commonwealth to mail or deliver a copy of the certificate of analysis to his counsel of record, as provided in Code § 19.2-187.

On March 12, 1997, the judge entered a discovery order based upon appellant's discovery motion. The order was endorsed, "We ask for this," and was signed by defense counsel and the attorney for the Commonwealth. The court ordered the Commonwealth's attorney to permit counsel for the defendant within a reasonable time period, but not less than ten days prior to the scheduled trial, to inspect and copy or photograph certain documents, statements, and reports at the office of the Commonwealth's attorney, Monday through Friday, between the hours of 8:30 a.m. and 5:00 p.m. upon twenty-four hour advance notice. Among other items, the discovery order included:

2. Any written reports of fingerprint analysis, blood tests, [and] other scientific reports, ... or copies thereof, that are known by the Commonwealth's Attorney to be within the possession, custody or control of the Commonwealth.

(Emphasis added.).

At trial, appellant objected, on hearsay grounds, to the introduction of the certificate of analysis. He argued that in his discovery motion he had requested a copy of any certificate of analysis the Commonwealth intended to introduce, and had not received one. The Commonwealth responded that a discovery conference was supposed to take place in the Commonwealth's attorney's office, and appellant's counsel had neither met with him nor requested a copy of the certificate.

The trial judge overruled appellant's objection to the admission of the certificate, stating that appellant's counsel had endorsed the discovery order, thus agreeing that discovery would take place under the terms of the order. The judge noted that the order permitted counsel to conduct discovery in the prosecutor's office at a specified time. The judge admitted the certificate and convicted appellant of possession of cocaine.

Code § 19.2-187 provides, in pertinent part:

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 Forensic Science... 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 (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, reflecting the results of examinations performed by employees of certain laboratories, is admissible to prove the truth of its contents, without the presence in court of the technician who conducted the analysis, provided (1) the Commonwealth filed the certificate of analysis with the clerk of the court hearing the case at least seven days prior to the hearing or trial¹ and (2) upon request of counsel of record for the accused, a copy of such certificate was mailed or delivered by the clerk or the attorney for the Commonwealth to such counsel at least seven days prior to the hearing or trial.

Code § 19.2-187 should be construed strictly against the Commonwealth and in favor of the accused because "`it undertakes to make admissible evidence which otherwise might be subject to a valid hearsay objection.'" Mullins v. Commonwealth, 12 Va. App. 372, 374, 404 S.E.2d 237, 238 (1991) (citation omitted). But see Willis v. Commonwealth, 10 Va.App. 430, 441, 393 S.E.2d 405, 411 (1990)

(holding penal laws ought not to be construed so strictly as to defeat intention of General Assembly).

A principle equally as important in our law instructs that "[t]he province of [statutory] construction lies wholly within the domain of ambiguity, and that which is plain needs no interpretation." Winston v. City of Richmond, 196 Va. 403, 408, 83 S.E.2d 728, 731 (1954). See Harrison & Bates, Inc. v. Featherstone Assocs. Ltd. Partnership, 253 Va. 364, 368, 484 S.E.2d 883, 885 (1997)

. "Words are ambiguous if they admit to `being understood in more than one way[,]' ... refer to `two or more things simultaneously[,]'... are `difficult to comprehend,' `of doubtful import,' or lack `clearness and definiteness.'" Diggs v. Commonwealth, 6 Va.App. 300, 301-02, 369 S.E.2d 199, 200 (1988) (en banc) (citation omitted). "Absent such infirmities, the manifest intent of the legislature clearly expressed in its enactments should not be judicially thwarted under the guise of statutory construction." Cregger v. Commonwealth, 25 Va.App. 87, 90, 486 S.E.2d 554, 555 (1997).

The sole issue appellant raises is whether the trial court erred in allowing the certificate of analysis in evidence over a hearsay objection. In order to obtain pretrial possession of the certificate of analysis, appellant had at least three avenues to secure it. He could have: (1) requested it under the...