Mullins v. Com., 1705-89-3

• Decision Date: 28 May 1991
• Docket Number: No. 1705-89-3,1705-89-3
• Citation: 404 S.E.2d 237,12 Va.App. 372
• Parties: Jessie James MULLINS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 237

404 S.E.2d 237

12 Va.App. 372

Jessie James MULLINS v. COMMONWEALTH of Virginia.

Record No. 1705-89-3.

Court of Appeals of Virginia.

May 28, 1991.

Robert B. Altizer (Gillespie, Hart, Altizer & White, P.C., on brief), Tazewell, for appellant.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Thomas C. Daniel, Asst. Atty. Gen., on brief), for appellee.

Panel: COLEMAN, KEENAN and MOON, JJ.

COLEMAN, Judge.

In a bench trial on December 4, 1984, the circuit court convicted Jessie James Mullins for violating Code § 18.2-248 by distributing hydromorphone (dilaudid), a Schedule II controlled substance. Mullins contends that the certificate of drug analysis was admitted into evidence in violation of Code § 19.2-187. ¹ We agree. Accordingly, we reverse his conviction and remand the case.

Mullins further contends that the trial court erred by permitting a deputy clerk to testify, in violation of Code § 19.2-271, that defense counsel had looked at the court file prior to trial. Presumably, the evidence was offered as tending to show that defense counsel had seen the certificate of analysis. For the reasons that follow, we do not reach that issue.

The certificate of analysis was properly filed with the clerk of the circuit court more than seven days prior to the trial. The Commonwealth's attorney had furnished Mullins' counsel with a copy of the certificate in response to a discovery motion. Mullins argues that because the clerk failed to mail him a copy of the certificate after he had requested it pursuant to Code § 19.2-187, the certificate was inadmissible. We agree.

The holding in Gray v. Commonwealth, 220 Va. 943, 265 S.E.2d 705 (1980), compels the conclusion that the certificate of analysis was inadmissible. In Gray, our Supreme Court held that § 19.2-187 should be construed strictly against the Commonwealth and in favor of the accused, since "it undertakes to make admissible evidence which otherwise might be subject to a valid hearsay objection." Id. at 945, 265 S.E.2d at 706. The Court further held that "[t]his rule of construction is particularly applicable to the filing requirements ... contained in a proviso to the Code section." Id.; see Stokes v. Commonwealth, 11 Va.App. 550, 399 S.E.2d 453 (1991). When Gray was decided, the proviso did not include a mailing requirement. The General Assembly amended Code § 19.2-187 in 1983 by adding the proviso "that a copy of such certificate is mailed or delivered by the clerk to counsel of record for the accused at least seven days prior to the hearing or trial upon request of such counsel." (emphasis added). The proviso was again amended in 1984, when the General Assembly separately numbered the filing and mailing clauses, thereby placing the two clauses on equal footing. Based on the logical extension of the Gray decision, we hold that the mailing condition also must be strictly construed against the Commonwealth.

The defendant in Gray, like Mullins, also had obtained a copy of the certificate of analysis through discovery. The Court held that no showing of prejudice to the defendant was required:

The statute does not provide that it shall suffice if, in lieu of filing with the clerk a copy of the certificate is furnished to defense counsel in advance of trial; neither does the statute provide that filing with the clerk three, rather than seven, days prior to trial shall be sufficient unless an accused can show prejudice resulting from the failure earlier to file the certificate. For this court to read these provisions into § 19.2-187 would be to construe the statute strictly against the accused and in favor of the Commonwealth, a result clearly contrary to the applicable rule of construction.

Id. 220 Va....