Phillip D. Waller, a/k/a, etc. v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia
PHILLIP D. WALLER, A/K/A
PHILLIP D. JACKSON
MEMORANDUM OPINION * BY
v. Record No. 1873-95-2 JUDGE SAM W. COLEMAN III
AUGUST 12, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUISA COUNTY
F. Ward Harkrader, Jr., Judge
John R. Maus for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
The defendant, Phillip D. Waller, was convicted in a jury
trial of distribution of cocaine. He was sentenced to twenty
years in prison, with ten years suspended, and fined $5,000. On
appeal, he asserts that the Commonwealth failed to prove the
chain of custody of the substance that was determined to be
cocaine after it was delivered to the Division of Forensic
Science state laboratory. Thus, he contends that the trial court
erred by admitting into evidence that substance which the
laboratory determined to be cocaine and the Certificate of
Analysis. We hold that the trial court did not err and,
accordingly, we affirm the conviction.
A party who offers into evidence an object or item must
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
prove that the object or item is authentic -- that the item is
what it purports to be. 1 Charles E. Friend, The Law of Evidence
in Virginia § 13-5 (4th ed. 1993). The proponent of such
tangible evidence authenticates it by proving "with reasonable
certainty" a continuous unbroken chain at each relevant link or
interval at which the authenticity of the evidence may be called
into question. Robinson v. Commonwealth, 212 Va. 136, 138, 183
S.E.2d 179, 180 (1971). The party must also establish that the
evidence continues to be the same item in all relevant or
essential characteristics.
Where the nature, quantity, quality, or physical or chemical
characteristics of the item are relevant, "authentication
requires proof . . . 'that the item [has] not been altered,
substituted, or contaminated prior to analysis, in any way that
would affect the results of the 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)). Although
the proponent has the burden of proving an unbroken chain of
custody or possession with reasonable certainty, the party "is
not required to exclude every conceivable possibility of
substitution, alteration, or tampering. . . . All that is
required in order to establish a chain of custody is that the
[proponent's] evidence 'afford reasonable assurance that the
exhibits at trial are the same and in the same condition as they
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were when first obtained.'" Pope v. Commonwealth, 234 Va. 114,
121, 360 S.E.2d 352, 357 (1987), cert. denied, 485 U.S. 1015(1988) (citations omitted).
Although the proponent must prove with reasonable assurance
an unbroken chain and that the evidence has not been altered or
tampered with in any relevant respect, the legislature has
determined, as a matter of policy, that for evidence analyzed in
specified laboratories, including the Division of Forensic
Science, a duly attested report by the person examining or
analyzing the evidence shall be prima facie proof of the chain of
custody, including the fact that the evidence has not been
altered or tampered with from the time it was delivered to the
lab until it was released. Code § 19.2-187.01; 1 Cirios v.
Commonwealth, 7 Va. App. 292, 300, 373 S.E.2d 164, 168 (1988)
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Code § 19.2-187.01. Certificate of analysis as evidence
of chain of custody of material described therein. -- A report of
analysis duly attested by the person performing such analysis or
examination in any laboratory operated by (i) the Division of
Consolidated Laboratory Services, the Division of Forensic
Science or any of its regional laboratories, or by any laboratory
authorized by either Division to conduct such analysis or
examination, . . . shall be prima facie evidence in a criminal
. . . proceeding as to the custody of the material described
therein from the time such material is received by an authorized
agent of such laboratory until such material is released
subsequent to such analysis or examination. Any such certificate
of analysis purporting to be signed by any such person shall be
admissible as evidence in such hearing or trial without any proof
of the seal or signature or of the official character of the
person whose name is signed to it. The signature of the person
who received the material for the laboratory on the request for
laboratory examination form shall be deemed prima facie evidence
that the person receiving the material was an authorized agent
and that such receipt constitutes proper receipt by the
laboratory for purposes of this section.
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(quoting Babbitt v. Miller, 192 Va. 372, 379, 64 S.E.2d 718, 722
(1951)). Thus, in order to relieve every examiner, analyst, or
person who may have had possession of the evidence at the
specified laboratories from being required to testify in every
case in order to establish the chain of custody for each item of
evidence, the legislature has provided that if the analyst
certifies that he or she examined or analyzed a particular item,
a rebuttable presumption shall exist that the object or item
returned to the court is the same one that was delivered to the
lab and analyzed and that it was not changed, altered, or
contaminated in any relevant way. Thus, while Code § 19.2-187.01
provides for a presumption of regularity based upon an
attestation by the examiner, that presumption may be rebutted.
Furthermore, Code § 19.2-187.1 expressly provides:
The accused in any hearing or trial in which
a certificate of analysis is admitted into
evidence pursuant to § 19.2-187 or
§ 19.2-187.01 shall have the right to call
the person performing such analysis or
examination or involved in the chain of
custody as a witness therein, and examine him
in the same manner as if he had been called
as an adverse witness.
In the present case, the Commonwealth proved that
Investigator Lowe received custody of a substance from a person
who had purchased the substance from the defendant, that Lowe
marked the substance for identification, and that he personally
delivered the substance to a security officer at the forensic
laboratory. The evidence proved that W. E. Beasley, the chief
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security officer, signed for receipt of the substance at the lab.
Investigator Lowe later retrieved from the lab a package
containing a substance bearing the same identifying numbers which
he had placed on the package when he delivered it to the lab.
Lowe accounted for the substance until it was introduced into
evidence at trial along with the accompanying Certificate of
Analysis.
The defendant, in an effort to rebut the presumption of
regularity as to the chain of custody while the substance was at
the forensic laboratory, called Donald C. King as a witness.
King was the forensic scientist who attested to the Certificate
of Analysis and certified that he had examined the substance and
determined it to be cocaine. King testified to and accounted for
the substance at all times after one of the security officers
delivered it to him for analysis. Through King, the defendant
did not present any evidence that the substance had been tampered
with, contaminated, adulterated, or substituted for, or that
another person had any contact with the substance after it was
delivered to him and before he analyzed it. Although the
evidence proved that the assistant director of the lab had a key
to the locked drawer in which King stored the substance, the
defendant presented no evidence that rebutted the presumption of
regularity by proving that the assistant director had tampered
with or accessed the substance.
In addition, the defendant established through King the
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names of the other persons at the lab who were in the chain of
custody or had possession of the substance after Investigator
Lowe delivered it. The defendant did not, however, call any of
those persons as witnesses or make any effort to determine
whether they had or were aware of any mishandling, tampering,
adulteration, contamination, substitution, or irregularity that
would break the chain of custody. Nevertheless, the defendant's
argument is that he rebutted the prima facie proof of the chain
of custody when he proved that the analyst King, whom Code
§ 19.2-187.1 declares to be an adverse witness, could not account
for the substance while it was in the possession of other persons
at the forensic lab and he could not verify that those persons or
someone else did not alter, contaminate, or substitute the
substance during the time that King could not account for it.
A defendant does not rebut the presumption of an unbroken
chain of custody by failing to offer proof of who had possession
of the substance at a given time or by failing to account for how
the person handled the substance at that time. Had the defendant
proved that the laboratory had lost the substance, misplaced, or
could not account for it, or that the substance was readily
accessible to persons other than those at the laboratory who
should have been in the chain of custody, then the presumption
may have been sufficiently rebutted to exclude the evidence or to
require the Commonwealth to explain the break in the chain.
However, a defendant cannot rebut the presumption by offering
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evidence that tends to prove only a single link in the chain and
by then claiming that the evidence fails to prove or account for
the other links.
Next, the defendant argues that the description of the
substance that was analyzed at the laboratory and returned to the
court so differed from the description of the substance that was
delivered to the lab that there can be no "reasonable assurance"
that they were the same substance. Therefore, he argues that the
varying descriptions between the two substances rebuts the prima
facie case established by the attested certificate and that the
trial court erred by admitting the substance and Certificate of
Analysis into evidence. The argument fails because the
descriptions are not so dissimilar that they prove that the
substance analyzed was different from that submitted. Moreover,
the identifying numbers and initials of those persons who
delivered and analyzed the substance and their testimony that the
substance appeared to be that which they delivered and analyzed
was sufficient to prove with "reasonable assurance" that they
were the same. The fact that Investigator Lowe chose the
descriptive terms, "two (2) off white rock like substances" and
on another occasion "two off-white tannish substances" and that
King characterized it as "white solid material" is insufficient
to rebut the presumption. As King explained, the varying
descriptions were nothing more than two people using slightly
different terminology to describe the same substance. The
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identifying numbers, the testimony of the witnesses, and the
presumption provided by Code § 19.2-187.01 that the substance
delivered to the lab was the same one that was returned to the
court, proves that the substance analyzed as cocaine was the
substance purchased from the defendant.
Accordingly, the trial judge did not err by admitting the
cocaine or the Certificate of Analysis into evidence.
Affirmed.
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