Reedy v. Com.

• Decision Date: 06 February 1990
• Docket Number: No. 0479-88-3,0479-88-3
• Citation: 388 S.E.2d 650,9 Va.App. 386
• Court: Virginia Court of Appeals
• Parties: Davey James REEDY v. COMMONWEALTH of Virginia. Record

Page 650

388 S.E.2d 650

9 Va.App. 386

Davey James REEDY v. COMMONWEALTH of Virginia.

Record No. 0479-88-3.

Court of Appeals of Virginia.

Feb. 6, 1990.

Terry N. Grimes (King, Fulghum, Snead & Hale, Roanoke, on brief), for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., BARROW and MOON, JJ.

MOON, Judge.

Davey James Reedy was convicted of arson and two counts of murder by arson. As circumstantial evidence that Reedy started the fire, the Commonwealth relied on evidence that Reedy's clothing contained traces of gasoline. Reedy claims that his convictions should be reversed because the Commonwealth failed to establish the chain of custody of certain items of the clothing between the time Reedy left the scene of the fire and the time the clothing arrived at the state laboratory, and thus the trace of gasoline on his clothing could have resulted from mishandling. We disagree and affirm because the evidence was sufficient to show with reasonable certainty that the clothing had not been altered, substituted, or contaminated after the fire so as to affect the results of the analysis.

When the Commonwealth offers testimony concerning the physical or chemical properties of an item in evidence, or of any foreign matter found on the item, 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." 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). "[T]he requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received." Robinson v. Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180 (1971) (emphasis omitted).

Shortly after 6:00 a.m. on August 10, 1987, fire broke out at the residence of Reedy, his four year old daughter, and two year old son. The children died of carbon monoxide poisoning due to smoke inhalation, but Reedy escaped with burns, lacerations, and smoke inhalation injury. Deputy Roanoke Fire Marshall David Rickman, who investigated the fire, testified that the fire was intentionally caused by the pouring and igniting of gasoline on the back porch and kitchen area of the house. Laboratory analysis of burnt wood samples from the house revealed the presence of gasoline. Laboratory analysis of the t-shirt and underpants worn by Reedy at the time of the fire revealed the presence of gasoline on one or both pieces of clothing. A physician who treated Reedy testified that, because of the irregularity of burn patterns on Reedy's body, Reedy's burns were not caused by superheated air, but were caused by direct flame.

Reedy, who was separated from his wife, had threatened several times, when he was distraught or had been drinking, to burn his house down with his children and himself in it rather than to allow his wife to obtain the children's custody. The evening before the fire, he had an argument with his girlfriend. As a result of the argument, the girlfriend left Reedy's house with her belongings. Within hours before the fire, Reedy made two trips by taxi to his girlfriend's house in an effort to get her to return to his house. Reedy had been drinking.

After the fire started, Reedy told a neighbor that his children were not in the burning house but were at his girlfriend's house. Therefore, no one attempted to rescue the children. However, before being taken to the hospital, Reedy told a neighbor that the children were in the house. Then, both children were located in the house, dead from carbon monoxide inhalation. The daughter was at the top of the stairs. The son was found in a second floor bedroom with the door tied shut from the outside.

During the fire Mr. and Mrs. Lombardo, Reedy's neighbors, took Reedy two doors away to their house. There, Mrs. Lombardo doused Reedy's hands with water from a garden hose in response to Reedy's request for help to relieve the pain caused by burns to his hands.

An ambulance arrived at approximately 6:30 a.m. Paramedic David Bishop found Reedy sitting on the Lombardo's back porch step with "a towel or something" draped over him. Bishop cut off Reedy's t-shirt and laid it on the porch floor. Bishop noted that water was on the porch. Bishop helped Reedy onto a stretcher, placed the t-shirt on the foot of the stretcher, and carried Reedy to the ambulance. Bishop testified and was cross-examined in detail concerning the possibility that the shirt came in contact with gasoline during transit to the hospital. His testimony negated any likelihood that the shirt was contaminated in transit.

At Roanoke Memorial Hospital, the ambulance was met by Nurse Howard King. King supervised as Reedy was carried on the stretcher through the emergency room to a trauma room. During Reedy's treatment, King cut off Reedy's underpants. Nurse Vickie Trump also attended in Reedy's treatment. When Trump was cleaning up after Reedy was removed from the trauma room, she found his clothes on the floor and put them in a new plastic patient personal belongings bag. Believing that the Fire Department would be interested in the clothes for studying the relationship of clothing to burn patient injury, Trump telephoned the Fire Department. A Fire Department dispatcher informed Trump that Deputy Fire Marshall Rickman would come to the hospital to get the clothes. Trump then transferred the clothes to a new paper bag and wrote Rickman's name on it, after having been told by a colleague that the Fire Department preferred paper bags to plastic bags. Trump then placed the paper bag containing the clothes under a counter at the nurses' station. This spot was both inconspicuous and inaccessible to the public. At approximately 3:00 p.m., when nurse shifts changed, Trump informed her replacement, Nurse Kathleen Brow, of the matter and asked that Brow give the bag to Rickman. Rickman and Lieutenant David Deck of the Roanoke Fire Department picked up the bag from Nurse Brow at approximately 4:00 p.m.

At the Fire Department, Deck transferred the clothing to an evidence container. Deck sealed the can, labeled it, and put it into an evidence locker. Deck delivered the container to the state forensic laboratory on August 11, 1987.

At the forensic laboratory, trace analyst Amy Lawrence conducted a gas chromatography test on the contents of the container--both the t-shirt and underpants worn by Reedy at the time of the fire. The...