Galbraith v. Com.
| Decision Date | 02 August 1994 |
| Docket Number | No. 0325-92-4,0325-92-4 |
| Citation | 446 S.E.2d 633,18 Va.App. 734 |
| Parties | Mark Edward GALBRAITH v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Court of Appeals |
Robert Lee Tomlinson, II, Arlington, for appellant.
H. Elizabeth Shaffer, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., Virginia B. Theisen, Asst. Atty. Gen., on brief), for appellee.
Present: BAKER, BARROW and FITZPATRICK, JJ.
Mark Edward Galbraith (appellant) appeals from a judgment of the Circuit Court of Arlington County (trial court) that approved a jury verdict convicting him for possession of cocaine. Appellant contends that the trial court erred in admitting evidence regarding cocaine "that was not available at trial," and in admitting evidence "where the Commonwealth failed to properly establish the chain of custody." For the reasons that follow, we affirm.
Acting upon several complaints about street trafficking in narcotics in an area known for drug sales, on August 23, 1989 at 9:45 p.m., Arlington County Detectives Michael Schneider (Schneider) and Douglas Hearn (Hearn), along with other officers, were in "that area doing surveillances for street sales of narcotics." Schneider and Hearn, in separate vehicles, observed a truck drive into an alley next to a store. The truck was driven by appellant and was also occupied by a female passenger. Schneider observed a black male come from the alley and approach the cab of the truck. The passenger put her arm through the passenger window and passed money to the black male who put it into his pocket and returned to the alley. Three or four minutes later, the black male reappeared at the passenger window, placed his closed fist inside the truck, removed it, and left the scene.
As the truck backed out of the alley, Schneider radioed what he had observed to Hearn, who was stationed nearby, and advised him of the need to stop the truck. Schneider passed appellant and instructed Hearn to effect a traffic stop from the rear of the truck. Schneider stopped his vehicle in front of the truck and went back to the passenger's side. He noticed that the female went "down with both hands" to the truck's floorboard. Schneider testified that from his experience, it was common for drug users to begin using the drugs soon after the purchase, while still traveling in their vehicles. For safety reasons, Schneider opened the passenger door to see what the passenger had at her feet. Schneider found a smoking aluminum Mountain Dew can which had been fashioned into a crack pipe. The passenger was arrested.
As Hearn was getting out of his car, he saw a small object thrown out of the driver's side window. It appeared to be a pebble, and Hearn "walked right to it and retrieved it." Hearn further observed that appellant appeared to be trying to hide something. Upon closer examination, Hearn found two plastic packets by the driver's door, each containing suspected cocaine. A field test on the "pebble" made with the police test kit tested positive for cocaine. 1 Hearn packaged the two packets and the small pebble in individually sealed envelopes, then marked and sealed them in a larger envelope. The aluminum can was also separately packaged.
Later that night, Hearn locked the envelope in an evidence locker located in the property section. At 7:00 a.m. the next morning, Officer Victoria L. Gibbs (Gibbs), the property section property officer, removed the envelope and, after checking to see that the packages remained sealed, marked them as evidence and placed the envelope in a property section vault. Gibbs later transported the envelope containing the packages, still sealed, to the Northern Regional Forensic Laboratory in Fairfax, Virginia. Gibbs never broke the seal.
Forensic Scientist Stephanie Smith received the envelopes in a sealed condition. She ground the contents of the two small packets and analyzed the material to be cocaine. The remaining small envelope was empty when she looked inside. Hearn testified that he had placed the pebble like substance inside that envelope.
Prior to trial, upon learning that evidence was missing, counsel for appellant filed a written motion to suppress, requesting the following relief:
COMES NOW the defendant Mark Edward Galbraith, by counsel and moves the Court to suppress any evidence or testimony relating to a "chunk" of alleged crack cocaine, alleged to have been thrown out of the defendant's truck on the date of the offense as alleged in the indictment herein, 2 and in support thereof represents that the unavailability of the alleged cocaine, and the failure of the Commonwealth to have the same analyzed, deprived the defendant of his right to confront evidence against him.
At the hearing on the suppression motion, counsel for appellant and the Commonwealth stipulated that the "chunk" ("pebble") had been discovered as testified to by Hearn, that it had been field tested positive as cocaine, sealed in the envelope designated at trial as Exhibit 2, and transported with the other envelopes to the testing laboratory where, upon arrival, the envelopes all remained sealed. No explanation was offered concerning the disappearance of the "chunk" or "pebble."
The following colloquy occurred at the hearing on the suppression motion:
And although the preliminary field test, while it may generally be accurate I don't think under these circumstances it affords the defendant his right to confront the evidence against him.
I mean the obvious inference is, if it came out of the car then it's something that they didn't want in the car, probably was cocaine and came out of the driver's side of the car.
It strikes me as fundamentally unfair to have the jury's attention drawn to a piece of evidence that the defendant doesn't have access to and was never formally tested by the type of test that--are accepted as reliable.
THE COURT: Well, this is a motion to suppress any evidence or testimony relating to a quote, "chunk" of alleged crack cocaine. Alleged to have been thrown out of the defendant's truck.
The motion is denied.
Unless appellant can show bad faith on the part of the prosecution, or that the missing evidence would be exculpatory, failure to preserve potentially relevant evidence does not constitute a denial of due process. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337-38, 102 L.Ed.2d 281 (1988). In Tickel v. Commonwealth, 11 Va.App. 558 562-63, 400 S.E.2d 534, 537 (1991), we stated as follows:
Determining the intentions of the police in failing to preserve evidence requires consideration of the nature of the evidence. If it is clear that, had the evidence been properly preserved, it would have formed a basis for exonerating the defendant, then absent a showing to the contrary we must assume that the police were not acting in good faith. However, in Youngblood, the Supreme Court held that the "Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant."
Youngblood, 488 U.S. at 57-58, 109 S.Ct. at 337-38.
On appeal, the burden is on appellant to show that the trial court erred. DePriest v. Commonwealth, 4 Va.App. 577, 583, 359 S.E.2d 540, 542 (1987), cert. denied, 488 U.S. 985, 109 S.Ct. 541, 102 L.Ed.2d 571 (1988). In the case before us, appellant failed to show that, had the missing substance been present at trial, it would have aided in his defense or that its absence was caused by bad faith action of the prosecution. Therefore, appellant has not been denied due process.
Appellant further argues that field test results are generally less reliable than laboratory test results made admissible by Code § 19.2-187. Appellant offered no proof as to the accuracy of either test; however, that was the Commonwealth's burden, not appellant's. Although the Supreme Court of Virginia has declined to adopt the "Frye test" 3 that requires proof of general acceptance by the scientific community in the particular field in which the test belongs before such scientific evidence is admissible, this Court has predicated the admissibility of such evidence on a finding of reliability. See Hall v. Commonwealth, 12 Va.App....
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