Myrick v. Com., 1477-89-2

CourtCourt of Appeals of Virginia
Citation13 Va.App. 333,412 S.E.2d 176
Docket NumberNo. 1477-89-2,1477-89-2
PartiesWilliam MYRICK, Sr., s/k/a William Fernando Myrick v. COMMONWEALTH of Virginia. Record
Decision Date26 November 1991

Kenneth C. Chrisman (Binford, Johnson, Cloninger & Chrisman, on brief), for appellant.

Thomas D. Bagwell, Sr. Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, COLEMAN and COLE *, JJ.

COLEMAN, Judge.

William Myrick, Sr. was convicted in a bench trial in the Circuit Court of the City of Petersburg for distribution of cocaine in violation of Code § 18.2-248. He contends on appeal: (1) that the trial court erred by admitting into evidence the certificate of drug analysis in violation of Code § 19.2-187; and (2) that the evidence was insufficient to sustain his conviction. We conclude that the court did not err by admitting the certificate of analysis and that the evidence was sufficient to prove Myrick's guilt. Accordingly, we affirm the conviction.

An officer of the Petersburg Police Department who was engaged in surveillance of the 100 block of Halifax Street in the City of Petersburg observed Myrick make what the officer thought was a drug sale in the parking lot of Billy's Grocery. Immediately after the transaction, the officer arrested the purchaser, Proferio Chambers, as he walked away. Another officer arrived at the scene and arrested Myrick. While no drugs were found on Myrick, Chambers, who had purchased two vials from Myrick, managed to swallow one vial just before he was arrested. The police seized the remaining vial from Chambers and sent it to a laboratory for analysis.

At Myrick's trial, both the officer who witnessed the transaction and the officer who arrested Myrick testified. The witnessing officer testified that he saw Myrick give Chambers small plastic vials in exchange for money. Proferio Chambers testified for the Commonwealth and corroborated the observations of the police officer. Chambers stated that he was "hanging around" Billy's Grocery watching drugs being sold when Myrick approached him and asked him if he was "looking for anything." Initially Chambers said no, but then asked Myrick if he had "any rocks." Myrick left, returned about two minutes later, and, in exchange for $20, gave Chambers two vials of what appeared to be, and were represented by Myrick to be, crack cocaine. Chambers testified that the vial he swallowed made him numb, and because of his knowledge of cocaine gained from prior use, he recognized the substance, from its appearance and from the sensation he experienced, as crack cocaine.

When the Commonwealth sought to introduce the certificate of analysis from the forensic laboratory identifying the substance as crack cocaine, Myrick objected on the ground that the filing requirements of Code § 19.2-187 had not been met because the certificate filed with the trial court was a copy and not the original. The Commonwealth's attorney indicated that the original had been filed in the Petersburg General District Court in the companion case against Proferio Chambers. The Commonwealth's attorney called the Clerk of the General District Court, presumably to testify that the original certificate was filed in that court. Myrick objected that the clerk was not permitted to testify by virtue of Code § 19.2-271. The court sustained that objection, and the clerk did not testify. However, over Myrick's objection, the court allowed a clerical employee of the Commonwealth's attorney to testify that she had filed the original certificate with the Petersburg General District Court and that she had made a copy of that certificate, which she had filed at the direction of the Commonwealth's attorney with the circuit court in Myrick's case. Prior to testifying, she obtained from the Petersburg General District Court a certified copy of the original certificate, which was also introduced as evidence in Myrick's trial. She compared the certified copy which she had obtained with the copy which she had previously filed in Myrick's case, and she testified that both were identical copies of the original certificate. The trial court ruled that filing the copy seven days before trial substantially complied with the requirements of Code § 19.2-187, and the court admitted both copies over Myrick's objection. Myrick was convicted, and this appeal followed.

I. CERTIFICATE OF ANALYSIS

The trial court did not err by permitting the employee from the Commonwealth's attorney's office to testify that she had made a photocopy of the original certificate and filed the original and the copy in the two courts and that she had obtained an authenticated copy of the original for comparison at trial. Her testimony was limited to explaining how she performed administrative duties of copying and filing documents and obtaining certified copies. She offered no evidence concerning the substance of the certificates, nor did she testify concerning any factual question pertaining to the charged offenses which was in dispute.

A written report offered to prove the results of testing or of an analysis would generally be inadmissible hearsay evidence unless the person who conducted the testing or prepared the report testified to authenticate the document and verify its contents. Allen v. Commonwealth, 3 Va.App. 657, 353 S.E.2d 162 (1987). Code § 19.2-187 was enacted to allow into evidence a written report of an analysis or examination conducted by specified laboratories, without requiring that the technicians be present. The statute sets forth specific safeguards, however, with which the Commonwealth must comply when it seeks to have a certificate of drug analysis admitted into evidence without independently proving the test results or authenticity of the report:

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 Consolidated Laboratory Services or the Division of Forensic Science ... 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.

Code § 19.2-187. Strict compliance with the pretrial filing provisions of Code § 19.2-187 is required. See Gray v. Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705, 706 (1980); Allen v. Commonwealth, 3 Va.App. 657, 663, 353 S.E.2d 162, 166 (1987) (strict compliance with filing provision). See also Stokes v. Commonwealth, 11 Va.App. 550, 399 S.E.2d 453 (1991) (extending strict compliance to mailing provision added to the statute in 1983); Mullins v. Commonwealth, 12 Va.App. 372, 404 S.E.2d 237 (1991). The policy behind requiring strict compliance is that the statute establishes an exception to the rule against admitting hearsay, which traditionally has been considered unreliable evidence. Since the statute authorizes the admission into evidence of documents whose reliability had not been independently proven, the requirement that the certificate be filed seven days in advance provides some guarantee of trustworthiness in that it gives an accused an opportunity to verify the results or to subpoena and challenge those who conducted the analysis, should that be a contested issue. As our Supreme Court said in Gray:

[Code § 19.2-187] deals with criminal matters, and it undertakes to make admissible evidence which otherwise might be subject to a valid hearsay...

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