Gary Wilson Douglas v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Elder and Fitzpatrick
GARY WILSON DOUGLAS
MEMORANDUM OPINION * BY
v. Record No. 1623-93-3 JUDGE LARRY G. ELDER
JUNE 27, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Frank I. Richardson, Jr., Judge
William Roscoe Reynolds (Stone, Worthy, Reynolds
& Joyce, on brief), for appellant.
Robert B. Condon, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Gary Wilson Douglas (appellant) appeals his three
convictions for selling cocaine in violation of Code § 18.2-248.
Appellant contends that the Commonwealth failed to prove that the
substance he sold was cocaine because the Commonwealth did not
introduce the plastic baggies of cocaine into evidence. Because
the trial court committed no error, we affirm appellant's
convictions.
We hold that the Commonwealth sufficiently established the
chain of custody of the baggies that contained the cocaine, and
the evidence was sufficient to show that appellant sold cocaine
to Stevens on three occasions.
On appeal, we view the evidence in the light most
favorable to the Commonwealth, granting to it all
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
reasonable inferences fairly deducible therefrom.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d
415, 418 (1987). Further, "[t]he admissibility of
evidence is within the broad discretion of the trial
court, and a ruling will not be disturbed on appeal in
the absence of discretion." Blain v. Commonwealth, 7
Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).
In Reedy v. Commonwealth, 9 Va. App. 386, 388
S.E.2d 650 (1990), we explained that [] [w]hen 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 could affect the results of
the analysis." "[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."
Jones v. Commonwealth, 18 Va. App. 608, 610, 446 S.E.2d 162, 163
(1994)(citing Reedy, 9 Va. App. at 387, 388 S.E.2d at 650-51)
(other citations omitted).
In this case, the record sufficiently establishes an
unbroken chain in the custody of the cocaine, with the
Commonwealth accounting for every vital link. Undercover agent
Stevens testified that she purchased one baggie of cocaine from
appellant on three different occasions. Stevens, whose actions
were monitored during the transactions, immediately turned over
the baggies to Officer Rogers. Rogers testified that he placed
each baggie he received from Stevens into a separate larger
evidence bag, which was sealed, dated, and signed. These
evidence bags were kept in a police locker to which Rogers had
the only key. When Rogers removed the bags, he mailed them by
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certified mail to the Commonwealth laboratory. The laboratory
analyzed each baggie of cocaine separately and prepared
individual certificates of analysis with matching certified mail
numbers.
Analyzed as individual links in the chain, the credible
evidence reveals that Stevens and Rogers properly handled the
baggies of cocaine before they were sent to the laboratory. A
presumption of regularity allows us to assume that the postal
service clerks who handled the evidence while in the postal
service's custody properly discharged their official duties.
Crews v. Commonwealth, 18 Va. App. 115, 119, 442 S.E.2d 407, 409
(1994); Robertson v. Commonwealth, 12 Va. App. 854, 856-57, 406
S.E.2d 417, 418-19 (1991). Finally, the provisions of Code
§§ 19.2-187 and 19.2-187.01 were satisfied, affording the
Commonwealth prima facie proof "as to the custody of the
[cocaine] described [in the certificate of analysis] from the
time [the cocaine] [was] received by an authorized agent of such
laboratory until [the cocaine] [was] released . . . ." Code
§ 19.2-187.01. Appellant did not challenge the propriety of the
attestation of the certificates of analysis.
Despite appellant's assertions to the contrary, the
Commonwealth's failure to actually introduce the baggies of
cocaine into evidence "did not create a missing vital link in the
chain of possession. . . . The procedures employed negated any
substantial probability that the [cocaine] had been altered,
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substituted, or contaminated . . . ." Jones, 18 Va. App. at 611,
446 S.E.2d at 164 (citing Dotson v. Petty, 4 Va. App. 357, 363-
64, 358 S.E.2d 403, 406-07 (1987)). "Where there is mere
speculation that contamination or tampering could have occurred,
it is not an abuse of discretion to admit the evidence and let
what doubt there may be go to the weight to be given the
evidence." Reedy, 9 Va. App. at 391, 388 S.E.2d at 652 (also
stating that the Commonwealth is not required to exclude every
conceivable possibility of substitution or tampering); see
Jackson v. State, 885 S.W.2d 303, 305 (Ark. App. 1994)(stating
that failure to produce physical evidence at trial goes to the
weight of the evidence).
Furthermore, we are guided by our decision in Hill v.
Commonwealth, 8 Va. App. 60, 379 S.E.2d 134 (1989)(en banc),
where "this Court affirmed a conviction for possession of cocaine
with intent to distribute, although the drug 'was not produced at
trial nor was any analysis of the substance admitted in
evidence.'" Hinton v. Commonwealth, 15 Va. App. 64, 66, 421
S.E.2d 35, 37 (1992)(citation omitted). The result in this case
differs, however, from Hinton, where the Commonwealth introduced
a certificate of analysis identifying cocaine residue on a can,
yet the submitting officer never mentioned the can during
testimony. In Hinton we held that the Commonwealth's proof was
wholly circumstantial and failed to present an unbroken chain of
circumstances that could prove the corpus delicti and criminal
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agency of the appellant. Hinton, 15 Va. App. at 67, 421 S.E.2d
at 37. In this case, as we explained, the Commonwealth provided
ample evidence that accounted for every link in the chain of
events.
Accordingly, we cannot say that the trial court abused its
discretion in finding that there was sufficient evidence to show
that the substance sold by appellant was cocaine, and the
convictions are affirmed.
Affirmed.
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