James Anthony Brockett v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
JAMES ANTHONY BROCKETT
v. Record No. 1483-94-1 MEMORANDUM OPINION * BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA OCTOBER 31, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Kenneth N. Whitehurst, Jr., Judge
Andrew G. Wiggin, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Robert B. Beasley, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On appeal from his conviction of possession of cocaine,
James Anthony Brockett contends the trial court erred (1) in
denying his pretrial motion to dismiss, (2) in upholding the
January 26, 1994 order, and (3) in finding the evidence
sufficient to support his conviction.
On appeal, we view the evidence in the light most favorable
to the Commonwealth. Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975).
On July 17, 1988, at 1:30 a.m., Virginia Beach Police
Officers Jackson and Mullen executed a search warrant in Room 127
of the Lynnhaven Lodge. Brockett was in the room. Detective
Jackson searched Brockett and found in his rear pants pocket a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
napkin containing three baggies of cocaine. Jackson took the
cocaine to his office and locked it in an evidence locker for
which he had the only key. Later, Detectives Jackson and Mullen
repackaged the cocaine, sealed the packages, and locked them in
evidence locker number eight. Evidence custodian Carroll Cover
took the cocaine to the State Forensics Laboratory. Prior to
trial, Cover died and was succeeded by Master Police Officer W.
W. Carder as custodian of the evidence records. Carder's records
revealed that on July 22, 1988, Cover took the evidence to the
laboratory and delivered it to Charles Fishell, an examiner.
Fishell reported that the package was properly sealed, there was
no indication of tampering, and that the substance was cocaine.
He returned the cocaine to the police department on September 9,
1988. Subsequently, the drugs were inadvertently destroyed.
On January 26, 1994, a hearing was held on Brockett's motion
to dismiss the indictment
because of the absence of the Commonwealth being able
to introduce any evidence of cocaine, obviously, they
wouldn't have a case for possession of cocaine; and I
would move that the court would preclude the
Commonwealth from introducing any evidence of cocaine
on the basis that the Commonwealth cannot establish a
chain of custody between an item that was taken from
the defendant and to when it was analyzed.
The parties stipulated the circumstances from the time the
cocaine was taken from Brockett to the time it was submitted to
the laboratory for analysis. Brockett moved the court to
suppress the certificate of analysis of the cocaine on the ground
that the Commonwealth could not establish a chain of custody.
- 2 -
The court denied the motion and found the evidence sufficient to
establish an unbroken chain of custody. On the basis of this
order, the trial judge admitted the certificate of analysis of
the cocaine.
Brockett contends that the trial court erred in denying his
motion to dismiss the indictment. He argues that because the
Commonwealth does not have the cocaine to admit into evidence and
because the chain of custody is broken, the Commonwealth cannot
prove beyond a reasonable doubt that he possessed the cocaine.
We disagree.
The evidence showed a sufficient chain of custody. "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." Robinson v.
Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180 (1971)
(citation omitted). Officers Jackson and Mullen possessed the
seized cocaine from the time it was taken from Brockett until it
was packaged, sealed, and locked in locker number eight in the
property and evidence room. Although Cover was unable to
testify, his function as evidence custodian was to preserve the
evidence and deliver it to the laboratory for analysis. He
delivered the evidence to the laboratory. Charles Fishell, an
employee of the laboratory, testified that he received the
- 3 -
evidence from Cover, that the packages were sealed, and there was
no sign of tampering. "In the absence of clear evidence to the
contrary, courts may presume that public officers have properly
discharged their official duties." Robertson v. Commonwealth, 12
Va. App. 854, 856-57, 406 S.E.2d 417, 418 (1991). The evidence
supports the conclusion that Cover properly performed his duty
and that there was no tampering with the evidence. The chain of
custody was sufficient.
Brockett next contends that the trial court erred in
accepting the January 26, 1994 order. He argues the order does
not reflect the court's holding. He asserts that his stipulation
of facts concerning the chain of custody was limited to the
hearing on his motion to dismiss the indictment and did not apply
to the determination of the admissibility of the cocaine.
The record is clear that Brockett sought by his motion to
preclude the Commonwealth from introducing any evidence of the
cocaine. He stipulated to the facts surrounding the chain of
custody for that purpose. The stipulation was valid for that
purpose and the order properly set forth the trial court's
ruling.
Finally, Brockett challenges the sufficiency of the evidence
to support his conviction. He contends that discrepancies in the
testimonies of Jackson and Mullen render the Commonwealth's proof
inadequate. We disagree.
More than sufficient evidence linked Brockett to the
- 4 -
cocaine. Jackson found a napkin with three baggies of cocaine in
Brockett's rear pants pocket. Jackson locked the cocaine in a
locker to which he had the only key. Later, Jackson and Mullen
took the cocaine to police headquarters where it was sealed and
locked in evidence locker number eight. Cover took the cocaine
to the laboratory for analysis. Although the cocaine was
subsequently destroyed through inadvertence, the certificate of
analysis was properly admitted into evidence in its place. This
evidence sufficiently supports Brockett's conviction of
possession of cocaine.
We affirm the judgment of the trial court.
Affirmed.
- 5 -