Crews v. Com.

• Citation: 18 Va.App. 115,442 S.E.2d 407
• Decision Date: 29 March 1994
• Docket Number: No. 1555-92-2,1555-92-2
• Court: Court of Appeals of Virginia
• Parties: Wayne Phillip CREWS, S/K/A Wayne Phillip Crews, Jr. v. COMMONWEALTH of Virginia. Record

Page 407

442 S.E.2d 407

18 Va.App. 115

Wayne Phillip CREWS, S/K/A Wayne Phillip Crews, Jr. v. COMMONWEALTH of Virginia.

Record No. 1555-92-2.

Court of Appeals of Virginia.

March 29, 1994.

Glenn L. Berger, Altavista (Shreve & Berger, on brief), for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: BAKER, BARROW and BRAY, JJ.

BRAY, Judge.

Wayne Phillip Crews (defendant) was convicted in a bench trial for distributing cocaine in violation of Code § 18.2-248. On appeal, he argues (1) that the certificate of analysis did not sufficiently establish the chain of custody of the contraband, and (2) that the court erred in admitting into evidence an audio tape recorded at the time of the offense. We disagree and affirm the conviction.

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a trial court, sitting without a jury, is entitled to the same weight as a jury verdict and will be disturbed only if plainly wrong or without evidence to support it. Id. The credibility of a witness, the weight accorded the testimony, and the inferences to be drawn from proven facts are matters solely for the fact finder's determination. Long v. Commonwealth, 8 Va.App. 194, 199, 379 S.E.2d 473, 476 (1989).

On the evening of April 23, 1991, police informant Robert Clay was "buying crack cocaine" under the direction of Halifax County Investigator Kuland Roark. After Roark provided Clay with money and a recorder to tape any transactions, Clay and Connie Thompson, a friend, drove to "Robert's Quick Shop," where they were approached by Roy Rudder. Clay advised Rudder that he "wanted a hundred dollars worth of crack," and Rudder immediately "went over to [defendant's] truck, ... got the crack from [defendant]" and returned with it to Clay's vehicle. Rudder "kept [the cocaine] in his hand the whole time, didn't go in his pocket or nothing." Clay paid Rudder for the drug and watched as he again approached defendant's truck and gave the money to him. Following the transaction, Clay delivered the drug and the related tape recording to Roark. Although the conversations of Clay, Thompson, Rudder and others were recorded, defendant's voice was not identified on the tape.

Roark sealed the substance received from Clay in an envelope and "mailed it to the lab ¹ for analysis," "[c]ertified, return receipt requested," evidenced by receipt number P 039 87 9 035 (emphasis added). A "Request for Laboratory Examination" (request) accompanied the drugs, which specified the "Investigating Officer: Roark, L.K.," the "Agency Case #: 91-83-00-0614," assigned by Roark, the "Name of Suspect(s): Wayne Phillip Crews Jr. [and] Roy Lee Rudder," and the "Date ... of Offense: 4-23- 91." An "FS Lab #: C91-03495" and the notation, "Received Cert. Mail P 039 87 9 035" "4-26-91 MSC" (emphasis added), had been entered on the request form when it was returned to Roark by the lab.

The certificate of analysis (certificate) in issue identified the substance analyzed as "Cocaine," noted the "Date Received 4-26-91," the "FS Lab # C91-03495," the "Suspect(s): CREWS, Wayne Phillip Jr. [and] RUDDER, Roy Lee," "Your Case # 91-83-00-0614," and was mailed by the lab to "ATTN: L.K. Roark." However, it reflected, "Evidence Submitted By: Certified Mail P039 86 9 035" (emphasis added).

At trial, defendant objected to the admission of the certificate as evidence of the offending substance in issue, arguing that the discrepancy in the certified mail numbers indicated a break in the chain of custody. The trial judge concluded, however, that

[the forensic laboratory] made a one-digit mistake. Everything else checks out. The date that it was received and the transit number, the lab number or whatever you want to call it, the case number, all those things check out. The question is whether the one-digit mistake that the lab made in typing in the certified mail number is fatal.

Thus, with "everything else ... consistent," the court treated the numerical difference as simply "an obvious typographical error" and admitted the certificate.

Defendant also objected to the admission of the audio tape made coincidental with the sale as hearsay and challenged the Commonwealth's interpretation of selected portions of the recorded conversations. The trial court overruled these objections and received the tape into evidence, noting that it could not "make out exactly what [was said] there." Following his conviction, defendant requested that the tape be interpreted by an expert, but the court assured counsel that the disputed recording had "nothing to do with [its] decision" and denied the motion.

"The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Blain v. Commonwealth, 7 Va.App. 10, 16, 371 S.E.2d 838, 842 (1988). When a party offers proof of the chemical properties of an item in evidence, "authentication requires proof of the chain of custody, including 'a showing with reasonable certainty that the item [has] not been altered, substituted, or contaminated prior to analysis, in any way that would affect the results of the analysis.' " Reedy v. Commonwealth, 9 Va.App. 386, 387, 388 S.E.2d 650, 650-51 (1990) (quoting Washington v. Commonwealth, 228 Va. 535, 550, 323 S.E.2d 577, 587 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985)). Although it is not necessary to exclude every possibility that the substance was tainted, the record must account for every " 'vital link in the chain of possession.' " Robinson v. Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180 (1971) (quoting People v. Riser, 47 Cal.2d 566, 580-81, 305 P.2d 1, 10, cert. denied, 353 U.S. 930, 77 S.Ct. 721, 1...