Gosling v. Commonwealth , 14 Va. App. 158 ( 1992 )

Opinion

BRAY, J.

Gary A. Gosling (defendant) appeals a felony conviction of possession of marijuana while an inmate in a Virginia correctional facility. He contends that the trial court erred in (i) refusing to compel the testimony of a witness, (ii) denying him an opportunity to proffer for the record the anticipated testimony of the witness, and (iii) admitting into evidence several packages of the alleged drug and the related certificate of analysis. We disagree and affirm the conviction.

The evidence disclosed that defendant was an inmate at the Buckingham Correctional Center (Buckingham) on January 31, 1990, the date of the offense. Sergeant D. W. Staton (Staton), then an “Institutional Investigator” with the Virginia Department of Corrections, had received information from a “confidential source” of unlawful activity within Buckingham and reported it to Captain Charlie T. Barksdale (Barksdale), a corrections officer at the institution. An investigation ensued and Barksdale ordered that several named inmates, including defendant, be “escorted” to the “Watch Office” by Sergeants Holman and Isaac (Isaac), also corrections officers.

As defendant was accompanied to the office, Isaac observed him reach “into his right hip pocket,” remove “a pack of cigarettes” and “another small piece of plastic or cellophane,” which he “put ... in his mouth.” Defendant repeated these movements “several times” and his actions were reported to Barksdale on arrival at the office. When Barksdale instructed defendant to “open his mouth,” defendant refused and “started towards the exit,” but was “stopped . . . and wrestled to the floor.” During the struggle, a small plastic “bag fell out of [defendant’s] mouth” and he “spit out three more bags.” These bags were recovered by Barksdale and he noticed that they contained what “looked like tobacco or grass type substance like marijuana.”

Following the “altercation,” corrections officer Charles E. Johnston (Johnston) assisted in a “strip search” of defendant and discovered “a little packet of what appeared to be marijuana in [defendant’s] right front pocket.”

Barksdale and Johnston placed the items which they recovered into separate envelopes, four packets in the Barksdale envelope and a single packet in the Johnston envelope. Barksdale and Johnston made identifying notations on their respective envelopes and delivered them to Staton. Staton testified that, without opening the envelopes or knowledge of their contents, he retained them in “the evidence locker” until “the incident reports” and “everything” was “together,” and then forwarded them “to the lab for testing.” He further testified that this evidence, including the original two envelopes, was subsequently returned to him from “the lab,” accompanied by a “certificate of analysis,” all bearing the same “lab number.”

Although these items were thereafter retained by Staton in a secure area and identified by him at trial, one envelope, without explanation, had been “opened on the back.” This envelope contained a single item and, upon defendant’s objection, was not received into evidence. Four packets were found in the second envelope, three of which were marked “1-B,” “1-C” and “2,” respectively, and the fourth, unmarked. Barksdale identified both this envelope and “the four packs [of] material” as those items he originally delivered to Staton, as well as a photograph of the four packages, also received into evidence.

Defendant noted that the certificate of analysis referenced five items, marked “1A-1C,” “1-D” and “2” and received by the laboratory in two envelopes. He argued that the Commonwealth was unable to sufficiently correlate the items analyzed and identified by the laboratory with the contraband and envelopes offered into evidence, and objected to both the items and the report. In response, the trial court admitted the four remaining packets but carefully admonished the jury that the unmarked packet was introduced only for the “purpose of showing there were four packages in that envelope,” and was not to be “considered as evidence.”

Jimmy Hamrick (Hamrick), an inmate at Buckingham at the time of the subject offense, testified in behalf of defendant that another inmate had given “what looked like ... a pack of cigarettes” to defendant just prior to his apprehension, telling defendant to “give that to Joe.” However, when defendant’s counsel asked Hamrick if he was aware “what the contents of the package was,” Hamrick exercised his Fifth Amendment privilege against self-incrimination (the privilege)¹ and refused to answer.

Defendant requested the trial court to advise Hamrick of that protection provided to witnesses by Code § 19.2-270,² recited several additional questions he “would like to ask,” and moved the court to “compel [Hamrick] to testify” or be “in contempt.” The trial judge determined that Hamrick had “raised” and was “claiming” his privilege, declined to “instruct him on what the law is,” and overruled defendant’s motion.

Defense counsel then represented to the court that he had previously spoken with Hamrick and wished to “proffer what his testimony might be ... if he were compelled to testify.” The Commonwealth objected and the proposed proffer was refused by the trial judge.

Hamrick shares with every American citizen the privilege against compulsory self-incrimination. Although the federal guarantee, with its accompanying standards, is impressed upon the states through the Fourteenth Amendment of the United States Constitution, In re Gault, 387 U.S. 1, 42 (1967); Malloy v. Hogan, 378 U.S. 1, 29 (1964), the Virginia Constitution also expressly assures this privilege to an accused, as well as the right to confront the witnesses against him, the power of compulsory process for obtaining witnesses and the corresponding duty of such witnesses to testify. Va. Const. art. I, § 8; Farmer v. Commonwealth, 12 Va. App. 337, 340, 404 S.E.2d 371, 372 (1991).

Code § 19.2-270, and similar state and federal immunity statutes, represent legislative efforts to “seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify.” Kastigar v. United States, 406 U.S. 441, 446 (1972). These statutes recognize that “many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime” and, thus, are “essential” to the effective prosecution of criminal activity and the “truthfinding process.” Id. at 446-47; see Cunningham v. Commonwealth, 2 Va. App. 358, 362-63, 344 S.E.2d 389, 391-92 (1986); Cullen v. Commonwealth, 65 Va. (24 Gratt.) 624, 633-34 (1873).

It is well established in Virginia, however, that the privilege may not be diminished or compromised by an immunity statute that affords less than “full immunity and assurance against any liability to prosecution for a disclosure” compelled from a witness. Flanary v. Commonwealth, 113 Va. 775, 780-81, 75 S.E. 289, 290 (1912); Kendrick v. Commonwealth, 78 Va. 490, 496 (1884); Temple v. Commonwealth, 75 Va. 892, 898-900 (1881); Cullen, 65 Va. (24 Gratt.) at 635. Testimony may be compelled only “where immunity is complete and there is no possibility of prosecution.” Charles E. Friend, The Law of Evidence in Virginia § 69 (3d ed. 1988). This rule is in accord with the federal standard, articulated in Kastigar, that the “immunity granted” must be “coextensive with the scope of the privilege” and “as comprehensive as the protection afforded” by it. Kastigar, 406 U.S. at 449.

Although this concept of co-extensive immunity does not require absolute immunity from prosecution before testimony may be compelled, the witness must be provided nothing less than the protection guaranteed by the constitutional privilege. Use immunity, derivative use immunity and transactional immunity are species of immunity that have developed as government has attempted to balance constitutional safeguards with the needs of sound public policy. Id.; Caldwell v. Commonwealth, 8 Va. App. 86, 88-89, 379 S.E.2d 368, 370-71 (1989).

Use immunity protects the witness only from “the use of the specific testimony compelled from him under the grant of immunity,” but not from evidence obtained as a result of such testimony. Kastigar, 406 U.S. at 449-50; Caldwell, 8 Va. App. at 88-89, 379 S.E.2d at 370-71. Courts have recognized that witnesses protected only by use immunity may be pursued by prosecutors with evidence indirectly derived from compelled testimony and, consequently, have found it inadequate to overcome an assertion of the privilege. Counselman v. Hitchcock, 142 U.S. 547, 585-86 (1892); Temple, 75 Va. at 900; Cullen, 65 Va. (24 Gratt.) at 635-36.

Derivative use immunity prohibits use against the witness of evidence even indirectly obtained from his testimony, while transactional immunity accords complete immunity from prosecution to the witness for the offense related to compelled testimony. Kastigar, 406 U.S. at 453; Caldwell, 8 Va. App. at 88-89, 379 S.E.2d at 370. Unlike use immunity, the protection against self-incrimination provided by each has been found consonant and coextensive with constitutional safeguards and, thus, sufficient to supplant the privilege. Kastigar, 406 U.S. at 453; see Flanary, 113 Va. at 780-81, 75 S.E. at 291; Kendrick, 78 Va. at 496.

Code § 19.2-270 provides that “evidence shall not be given against the accused of any statement made by him . . . upon a legal examination.” (emphasis added). This statute, by its terms, confers only use immunity. A prosecutor, “without using one word of that statement,” might “be led by the testimony of the witness to means and sources of information which might result in” self-incrimination. Cullen, 65 Va. (24 Gratt.) at 635. Such limited protection is obviously not co-extensive with the constitutional privilege and cannot overcome it, once validly asserted.

Defendant’s reliance upon O’Dell v. Commonwealth, 234 Va. 672, 364 S.E.2d 491, cert. denied, 488 U.S. 871 (1988), and Cunningham v. Commonwealth, 2 Va. App. 358, 344 S.E.2d 389 (1986), as authority that Code § 19.2-270 supplants the constitutional privilege, is misplaced. In Cunningham, the witness admitted that his refusal to testify did not result from any fear of selfincrimination. 2 Va. App. at 362-63, 344 S.E.2d at 391. The issue in O’Dell arose when defendant excused a witness available to him at trial and later complained that the witness’ privilege against self-incrimination, though neither asserted nor tested, would have prevented his testimony. 234 Va. at 704, 364 S.E.2d at 509. Here, the statutory immunity is directly tested by the privilege.

Immunity is an issue, however, only if the privilege is properly available to the witness. The privilege was intended to avoid the actual “ ‘hazard of incrimination’ ” and a witness is not free to frustrate the judicial process by simply asserting it, ipse dixit. North Am. Mortgage Investors v. Pomponio, 219 Va. 914, 918, 252 S.E.2d 345, 348 (1979) (quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)). When a witness

declares his belief that the. answer to the question would criminate, or tend to criminate him, the court cannot compel him to answer, unless it is perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer cannot possibly have such tendency.

Temple, 75 Va. at 898.

In this analysis, the court may not compel the witness to answer, and thereby violate the privilege, but must consider the proposed question and its incriminating implications. Pomponio, 219 Va. at 919, 252 S.E.2d at 348; Kendrick, 78 Va. at 493-94. If “ ‘a prosecutor, building on [a] seemingly harmless answer, might proceed step by step to link the witness with some crime,’ ” under a “ ‘course and scheme of linkage’ ” which is not “ ‘incredible,’ ” exercise of the privilege must be sustained. Pomponio, 219 Va. at 919, 252 S.E.2d at 348. Once such circumstances are established, the privilege rests with the witness and its assertion must be honored by the court. Kendrick, 78 Va. at 493-94; see Johnson v. Riddle, 222 Va. 428, 431, 281 S.E.2d 843, 846 (1981).

The record discloses that the trial court properly heard and considered several questions that defendant proposed to ask Hamrick, recognized an incriminating dimension to the inquiries and honored the witness’ silence. Since it is the question, and not the anticipated answer, that is relevant to a ruling on the privilege, defendant’s proffer of expected responses was correctly refused by the court. See Worrells v. Commonwealth, 212 Va. 270, 271-72, 183 S.E.2d 723, 724 (1971).

Lastly, defendant argues that the integrity 'of the Commonwealth’s evidence was so compromised by irregularities in the chain of custody that neither the marijuana nor the results of its analysis were admissible. Evidence of the “physical or chemical properties of an item . . . requires proof of the chain of custody” to establish “ ‘with reasonable certainty’ ” that the material was not “ ‘altered, substituted, or contaminated’ ” prior to its analysis. Reedy v. Commonwealth, 9 Va. App. 386, 387, 388 S.E.2d 650, 650-51 (1990) (quoting Washington v. Commonwealth, 228 Va. 535, 550, 323 S.E.2d 577, 587 (1984), cert. denied, 471 U.S. 1111 (1985)). Obviously, it is the period preceding the analysis that is crucial to this determination. Id. at 391-92, 388 S.E.2d at 650-51. Once reasonably certain that the evidence analyzed was the same evidence originally collected and submitted, the report in this instance was admissible “as evidence of the facts therein stated and the results of the analysis . . . referred to therein.” Code § 19.2-187.

While the record reflects that some confusion may have occurred in the post-analysis repackaging and return of the evidence from the laboratory, this problem related to the articles themselves, not the certificate of analysis. The trial court properly addressed each item, admitted some for expressly limited purposes, and carefully admonished the jury in this regard. The weight, if any, to be accorded to such physical evidence was a matter for the jury to resolve after a consideration of all the circumstances. Reedy, 9 Va. App. at 391, 388 S.E.2d at 653. Without question, however, the chain of custody prior to analysis was clearly established by the Commonwealth and the analysis itself was properly received by the trial court.

Accordingly, we affirm the judgment of conviction.

Affirmed.

Willis, J., concurred.

1 U.S. Const. amend. V.

2 Code § 19.2-270 provides that: “In a criminal prosecution, other than for perjury, or in an action on a penal statute, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination, in a criminal or civil action, unless such statement was made when examined as a witness in his own behalf.”