Dunn v. Com., 0239-94-1

• Decision Date: 18 April 1995
• Docket Number: No. 0239-94-1,0239-94-1
• Citation: 20 Va.App. 217,456 S.E.2d 135
• Parties: Karen DUNN, s/k/a Karen M. Dunn v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 135

456 S.E.2d 135

20 Va.App. 217

Karen DUNN, s/k/a Karen M. Dunn v. COMMONWEALTH of Virginia.

Record No. 0239-94-1.

Court of Appeals of Virginia,

Richmond.

April 18, 1995.

Charles Peter Tench (Jones, Blechman, Woltz & Kelly, P.C., on brief), for appellant.

Linwood T. Wells, Jr., Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Present: BARROW, ^* KOONTZ and ELDER, JJ.

ELDER, Judge.

Karen M. Dunn (appellant) appeals her conviction for distribution of cocaine in violation of Code § 18.2-248. She contends that the certificate of drug analysis, which was introduced at trial by the Commonwealth, was inadmissible because gaps existed in the chain of custody when the drug was transferred between Division of Forensic Science laboratories for testing purposes. Because the Commonwealth sufficiently established its prima facie case as to the chain of custody, we affirm appellant's conviction.

I. FACTS

Special Agent Raymond Koon of the Naval Criminal Investigative Services, in conjunction with a Newport News Police Department undercover operation, purchased twenty dollars worth of cocaine from appellant on May 18, 1993. Appellant, who denied any involvement in the drug sale, was arrested minutes later for a then-outstanding capias.

Koon turned over the cocaine to Officer Felton of the Newport News Police Department, who placed it in a drug locker. Appellant stipulated at trial that the cocaine was then received by the Tidewater Laboratory of the Division of Forensic Science (hereinafter Division). The Commonwealth and appellant agree that the cocaine was subsequently transferred from Tidewater to the Division's Northern Virginia laboratory (Northern Laboratory), where it was analyzed and then returned to the Tidewater Laboratory. The only direct evidence in the record detailing which facilities handled the cocaine is the certificate of analysis from the Northern Laboratory, which reads, "[t]he evidence is being returned to the Tidewater Laboratory."

Appellant was indicted for distribution of cocaine and was tried in the Circuit Court for the City of Newport News on November 22, 1993. During the presentation of evidence, the Commonwealth moved to introduce into evidence the certificate of laboratory analysis. Appellant's objections to the certificate's introduction were overruled. The trial court found appellant guilty and sentenced her to five years in the state penitentiary, fined her one hundred dollars, and suspended her driver's license for six months.

II. ADMISSIBILITY OF CERTIFICATE/CHAIN OF CUSTODY

"Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all inferences fairly deducible therefrom." Crews v. Commonwealth, 18 Va.App. 115, 117, 442 S.E.2d 407, 408 (1994) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)). "On appeal, the judgment of the trial court is presumed correct." Johnson v. Commonwealth, 12 Va.App. 391, 396, 404 S.E.2d 384, 387 (1991). The burden is on appellant to show that the trial court's admission of evidence constitutes reversible error. Id. Applying these standards, we hold that the trial judge did not abuse his discretion in admitting the certificate of analysis into evidence. Various provisions of the Virginia Drug Control Act aid in our decision.

Code § 19.2-187 permits the Commonwealth to introduce into evidence at trial a certificate of analysis "of a person performing an analysis or examination, performed in any laboratory operated by ... the Division of Forensic Science." Before it can be admitted into evidence, such certificate must be duly attested by the person performing the analysis. Code § 19.2-187. Code § 19.2-187.01 relieves the Commonwealth of having to present testimony regarding the chain of custody of an analyzed or examined substance, provided certain safeguards are met.

Because the Commonwealth presented a duly attested certificate of analysis, it established its prima facie evidence of chain of custody. The Commonwealth did not lose the benefit of its prima facie proof when the cocaine was transferred between regional laboratories within the Division of Forensic Science. While the relevant statutory sections are construed strictly against the Commonwealth, see Gray v. Commonwealth, 220 Va. 943, 265 S.E.2d 705 (1980), no language in Code § 19.2-187.01 compels the conclusion that the General Assembly intended to eliminate the presumed, valid chain of custody when items are transferred between Division laboratories. See Erickson-Dickson v. Erickson-Dickson, 12 Va.App. 381, 386-87, 404 S.E.2d 388, 391 (1991) (stating that the plain meaning of statutory words must be used to construe legislative intent).

Our result is reached by a review of the amendments to Code § 19.2-187.01. Before July of 1991, Code § 19.2-187.01 stated, in pertinent part:

A report of analysis duly attested by the person performing such analysis or examination in any laboratory operated by the Division of Consolidated Laboratory Services or the Division of Forensic Science shall be prima facie evidence in a criminal or civil proceeding as to the custody of the material described therein from the time such material is received by an authorized agent of either Division until such material is released subsequent to such analysis or examination.

(Emphasis added).

As we explained above, at the time of the offense in this case, May 18, 1993, the statute stated in pertinent part:

A report of analysis duly attested by the person performing such analysis or examination in any laboratory operated by (i) the Division of Consolidated Laboratory Services, the Division of Forensic Science, or by any laboratory authorized by either Division to conduct such analysis or examination, (ii) the Federal Bureau of Investigation, (iii) the federal Bureau of Alcohol, Tobacco and Firearms, (iv) the Naval Investigative Service, or (v) the federal Drug Enforcement Administration shall be prima...