Ceasar Lamont Clark v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Chesapeake, Virginia
CEASAR LAMONT CLARK
MEMORANDUM OPINION * BY
v. Record No. 2312-98-1 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Kevin W. Grierson (Willcox & Savage, P.C., on
brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
In this appeal, Ceasar Lamont Clark raises the sole issue
of breach of chain of custody of illegal drug evidence allegedly
recovered from his person during a pat-down incident to his
detention on suspicion of shoplifting. Clark contends the
evidence was inadmissible on the ground that the chain of
custody was breached. Finding no error, we affirm the
conviction.
FACTS
We review the facts in the light most favorable to the
Commonwealth. See Juares v. Commonwealth, 26 Va. App. 154, 156,
493 S.E.2d 677, 678 (1997).
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On February 10, 1998, Clark was arrested on a charge of
shoplifting at a department store in Newport News, Virginia.
Mall security officers apprehended Clark in the store parking
lot. Roughly twenty minutes elapsed from the time of Clark's
initial detention by the security officers until the arrival of
Officer Dwight Walston of the Newport News City Police, who
arrested Clark. During this time, the mall security officers
conducted a lawful pat-down of Clark, and found a cellophane bag
containing two syringes and what appeared to be bags of a "solid
white substance" secreted on Clark's person. One of these
officers, Joseph Schmitt, placed the syringes and bags on the
hood of a nearby automobile. Officer Walston noted when he
arrived at the scene approximately twenty minutes later that
this automobile was parked roughly one to two feet from Clark.
Walston testified, however, that he retrieved one syringe from
the hood of the car and a plastic bag containing a "white
powdery substance."
Upon arriving at the police station with Clark in custody,
Officer Walston placed the evidence in the Property and Evidence
room, where the material was assigned the control number 70240.
It was then locked in an empty evidence locker. Testimony
indicated that this evidence was not removed from the locker
until it was opened by Detective Paul Cole, who retrieved the
material and placed it into the "main drug cage." On February
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17, 1998, Detective Cole removed the evidence and took it to the
Norfolk Forensic Lab, where he turned it over to a "duly sworn
agent of the lab." Detective Cole received the evidence back
from the lab along with a copy of the certificate of analysis
bearing Clark's name and the control number, 70240. Cole placed
the evidence once again in the main drug cage, where it remained
until trial.
At Clark's bench trial for larceny and possession of
cocaine, the Commonwealth offered into evidence the certificate
of analysis of the items taken from Clark upon his arrest.
Clark moved to strike this evidence on the ground that chain of
custody had not been established and that the description of the
items taken from him did not match the items tested. His motion
was denied. At the close of evidence, Clark moved to strike the
Commonwealth's evidence on the same grounds, and the court again
denied his motion. Clark was convicted on both charges, and now
appeals his conviction for possession of cocaine.
ANALYSIS
The party offering demonstrative evidence bears the burden
of showing with reasonable certainty that there has been no
alteration or substitution of that evidence. See Robinson v.
Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180 (1971);
Dotson v. Petty, 4 Va. App. 357, 361, 358 S.E.2d 403, 405
(1987). This rule applies particularly when a chemical analysis
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of an item is sought to be introduced into evidence. See Smith
v. Commonwealth, 219 Va. 554, 559, 248 S.E.2d 805, 808 (1978).
Evidence of the chemical or physical 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. See Gosling
v. Commonwealth, 14 Va. App. 158, 166, 415 S.E.2d 870, 874
(1992); Reedy v. Commonwealth, 9 Va. App. 386, 387, 388 S.E.2d
650 (1990). All that is necessary to show chain of custody is
that the evidence affords reasonable assurance that the exhibits
at the trial are the same, and in the same condition, as when
they were first obtained. See Brown v. Commonwealth, 21
Va. App. 552, 555-56, 466 S.E.2d 116, 117 (1996) (citing
Robertson v. Commonwealth, 12 Va. App. 854, 857, 406 S.E.2d 417,
419 (1991)). Moreover, "'[w]here 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.'"
Brown, 21 Va. App. at 556, 466 S.E.2d at 117) (quoting Reedy, 9
Va. App. at 391, 388 S.E.2d at 652).
In the present case, Clark argues that the chain of custody
was broken because the security officers placed the syringes and
bags they found on his person on the hood of a nearby car, where
they were left for twenty minutes until Officer Walston arrived
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on the scene. He further notes that although Officer Schmitt
testified that two syringes and three to five bags of a "solid
white" substance were placed on the car, Officer Walston
testified that he recovered one syringe and one plastic bag
containing a "white powdery substance." Based upon this
discrepancy in testimony, coupled with the twenty minute
interval during which the evidence remained on the hood of the
car, Clark asserts that it is not reasonably certain that the
evidence was in the same condition when analyzed as when it was
first taken from him. We disagree.
This Court has previously upheld a trial court's admission
of forensic evidence that was left unattended for approximately
one hour, finding no reason in the facts presented to surmise
that the evidence may have been contaminated. See Reedy, 9
Va. App. at 391, 388 S.E.2d at 652. Length of time, then, is
not necessarily determinative in such cases. Here, the evidence
established that the evidence lay on the hood of the car for
only twenty minutes, and no evidence establishes that the
evidence was left unattended during that time. Further, the
discrepancy between the testimonies of Officer Schmitt and
Officer Walston does not compel the conclusion that the evidence
was altered, substituted, or contaminated prior to its analysis;
the points upon which the testimonies of Schmitt and Walston
diverge are minor. See United States v. Dent, 149 F.3d 180,
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188-89 (3d Cir. 1998) (conviction for trafficking in cocaine
upheld where one witness described evidence as "an off white
chunky substance wrapped in foil," and another witness described
it as a "white chunky residue," because the witnesses' accounts
evinced "minor discrepancies [that] can be attributed to the
inevitable differences in human perception"). 1 Officer Schmitt
testified that when he apprehended Clark, he recovered "a bag, a
cellophane bag with two syringes and several other small bag
items which we believed to be drugs . . . ." When defense
counsel asked him to clarify what he meant by "several other
small bag items," Schmitt responded "[t]wo syringes and other
bags, several bags of what we believed to be drugs at that time,
cellophane, plastic." Schmitt stated that in total three to
five of these "other small bags" were found. Schmitt testified
further that "[e]verything was in one bag and the small bags
were inside the cellophane, wrapped bags." Schmitt further
testified that the bags contained a white substance having an
appearance he described as "solid."
Walston testified that when he arrived at the scene, the
mall security officers had removed from Clark's custody a
1
Although Dent was decided under Federal Rule of Evidence
901, the federal rule comports with our rule in Virginia, which
states that the Commonwealth is required simply to establish
with reasonable assurance that the evidence analyzed and
presented at trial was in the same condition as it was when
obtained by the police. See Brown, 21 Va. App. at 555-56, 466
S.E.2d at 117.
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"syringe wrapped in newspaper" and that the newspaper also
contained "a small plastic bag containing a white powdery
substance." Under cross-examination, Officer Walston described
the substance in the plastic bag as a "white powder substance,"
and repeated that he observed in the newspaper, "from what [he]
recall[ed]," "just one bag."
Schmitt's testimony explains the confusion over the number
of bags recovered from Clark. Schmitt stated that the "other
small bags" were found inside one larger cellophane bag, a
statement that is consistent with Officer Walston's observation
of a single cellophane or plastic bag when he arrived on the
scene. Schmitt's statement that the white substance in the bags
appeared "solid" and Walston's observation that the substance
was a "powder" may be attributed "to . . . inevitable
differences in human perception," Dent, 149 F.3d at 188-89, as
any tightly packed powder might be seen or described as a
"solid." Similarly, Schmitt's statement that he recovered two
syringes from Clark, while Walston testified to recovering only
one syringe when he arrived at the scene, may be ascribed to the
same "inevitable differences in human perception," id., and we
find no support in this difference in testimony for Clark's
allegation that the cocaine evidence tested by the forensic lab
was not in the same condition as when it was taken from Clark.
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Finally, Clark also contends that Officer Walston's
inability at trial to recall the number of the evidence locker
into which he placed the evidence evinces a break in the chain
of custody. We find Clark's contention on this point to be
without merit. Clark points to no evidence suggesting that
Detective Cole recovered the evidence from a locker other than
the one into which Officer Walston placed it. Indeed, both
officers agree that the evidence was marked with the proper
control number and that the locker in which it was placed had
every indication of having remained sealed until Detective Cole
opened it. Thus, the Commonwealth established with reasonable
assurance that this evidence was that recovered from Clark at
the time of his arrest and that it was in the same condition at
trial as it was when first recovered. See Brown, 21 Va. App. at
555-56, 466 S.E.2d at 117. When there is merely speculation
that tampering or contamination might have occurred, a trial
court does not abuse its discretion by admitting the evidence
and allowing the fact finder to consider that speculation in
determining the weight to be accorded the evidence. See Reedy,
9 Va. App. at 391, 388 S.E.2d at 652. Accordingly, we find no
error in the trial court's admission of the certificate of
analysis and its denial of Clark's motion to strike the
evidence, and we affirm his conviction.
Affirmed.
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