Horsley v. Commonwealth , 2 Va. App. 335 ( 1986 )

Benton, J.,

concurring in part, dissenting in part.

I concur in affirming the conviction, but I dissent from that portion of the opinion which holds that the glass particle found on Horsley’s clothing and expert testimony were admissible.

The basic rule for admitting demonstrative evidence is that the burden is upon the party offering the evidence to show with reasonable certainty that there has been no alteration or substitution of it. But the burden is not absolute that “all possibility of tampering” be eliminated. . . . However, “[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) (citation omitted).

In Rogers v. Commonwealth, 197 Va. 527, 90 S.E.2d 257 (1955), our Supreme Court said:

But where the substance analyzed has passed through several hands the evidence must not leave it to conjecture as to who had it and what was done with it between the taking and the analysis.

Id. at 531, 90 S.E.2d at 260 (citations omitted).

The Commonwealth failed to establish a chain of possession of Horsley’s shirt and pants. A vital link in the chain of possession was not accounted for; and the treatment of the clothing in the Lynchburg jail from the time it was taken from Horsley until it was delivered to Investigator Booth two days later leaves to conjecture what was done with it between the taking and the analysis.

The record indicates that Horsley and Anthony Johnson, a co-defendant, were taken to the jail on the day of their arrest and were required to remove their clothing. The Commonwealth’s evidence does not disclose the identity of the person who took possession of the clothing. The clothing was deposited with an unidentified deputy at the jail. Horsley’s clothing was hung on a rack in a closet that was used to store the personal clothing of the jail’s inmates. The record does not disclose the identity of the person who hung the clothing, when the clothing was hung, nor the manner in which Horsley’s clothing was handled. For two days Horsley’s clothing remained in the closet among the other clothes “□just like you would have a rack hanging with your clothes in your own closet.” Each inmate’s clothing was hung on a separate rack; however, no effort was otherwise made to isolate Horsley’s clothing from other clothing or debris in the closet.

After the clothing had been so exposed in the clothes closet for two days, Investigator Booth obtained a warrant for the seizure of Horsley’s and Johnson’s clothing from the jail. Deputy Miles retrieved the items from the closet and gave them to Sergeant Tyree, who delivered the clothing to Investigator Booth. The record does not disclose whether Horsley’s clothing was handled separately from Johnson’s clothing. The record does show that Investigator Booth delivered the items to the evidence room of the police department where Horsley’s clothing was placed in a separate evidence bag.

Where, as here, a glass particle the size of a pin head was scraped from Horsley’s clothing and offered to supply a basis for the opinion testimony of the forensic scientist, the requirement of “reasonable certainty” was not met. The Commonwealth failed to establish the identity of the person who received Horsley’s clothing upon processing at the jail. Moreover, the testimony of Sergeant Tyree and Deputy Miles established that the clothing was not properly handled for the purpose of showing “with reasonable certainty” that it was in the same condition when analyzed as when taken from Horsley. Apparently, the clothing initially was removed in compliance with dress regulations at the jail and not in anticipation of use as exhibits. Accordingly, there can be no “presumption of regularity in the handling of exhibits by public officials” applied in this case. Cf. Smith v. Commonwealth, 219 Va. 554, 559, 248 S.E.2d 805, 808 (1978). Based upon this record, I believe that the Commonwealth failed to establish the requisite foundation for the admission of the glass particle and the expert’s analysis of the particle.

I concur in the judgment of conviction, however, because I believe that under the circumstances the admission of the particle of glass from the clothing and the expert testimony constituted harmless error. The forensic scientist also examined a particle of glass found in Horsley’s shoe. That glass particle and the expert’s analysis were properly admitted because the chain of possession was established as to the shoes. The testimony of the forensic scientist in conjunction with the other evidence adduced at trial provided a sufficient basis for a jury to find Horsley guilty beyond a reasonable doubt.