Daniel Edward Jackson v. Commonwealth ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Senior Judge Hodges
Argued at Alexandria, Virginia
DANIEL EDWARD JACKSON
MEMORANDUM OPINION * BY
v. Record No. 0075-98-4 JUDGE WILLIAM H. HODGES
FEBRUARY 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Elwood Earl Sanders, Jr., Director
Capital/Appellate Services (Public Defender
Commission, on briefs), for appellant.
Marla Graff Decker, Assistant Attorney General
(Mark L. Earley, Attorney General; Lisa R.
McKeel, Assistant Attorney General, on brief),
for appellee.
Daniel Edward Jackson (appellant) was convicted in a jury
trial of arson. He contends that the trial court erred by (1)
allowing expert opinion evidence as to whether evidence at the
fire scene was consistent with the use of an accelerant, and (2)
admitting Commonwealth's Exhibit 6 over a chain of custody
objection. For the following reasons, we find no error and
affirm the conviction.
Facts
On February 8, 1997, Mickey Gaines was awakened at 4:00 a.m.
by a "loud bang." Gaines saw that her stepfather's garage was on
fire. Gaines testified that earlier during the week of the fire,
her stepfather, Frank Coram, had accused appellant of stealing
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
several hundreds of dollars worth of coins from Coram's garage
and had called the sheriff. After the accusation, appellant
drove off in Gaines's car. Gaines did not speak to appellant
again between the day of the argument and the day of the fire.
The garage had no electricity, was not wired for
electricity, and had no heating source. No gasoline or oil was
stored in the garage. The motorcycles kept in the garage had a
small amount of gasoline in their tanks.
Assistant Fire Marshal Mike Taylor investigated the fire.
Taylor examined the fire patterns and looked for patterns of heat
and ignition sources, debris, and burn patterns. Taylor found
patterns on the floor "indicative of some form of ignitable
liquid that can be a flammable or combustible liquid that had
been poured." He also found evidence of "a flammable or
combustible liquid that had been poured." Underneath the step,
Taylor found "charring which was indicative of a fire that's
looking for more fuel. The fire is hungry. It's looking for
fuel and it's actually following a liquid that has run underneath
that wood where it would not normally travel." Taylor also found
burn marks in a carpeted area that were indicative of the use of
an ignitable liquid.
Fire Marshal Captain Patrick Brandenburg took a wooden
debris sample that showed characteristics of an ignitable liquid,
which was later tested and found to contain a petroleum product.
On February 12, 1997, Taylor and Brandenburg went to
interview appellant at David Necessary's house, but found that
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appellant abruptly exited a back door. They later found
appellant crouched behind a dumpster. Appellant denied any
knowledge of the fire. However, appellant told Charles Hill of
his plan to "burn a shed down with some old engines in it."
Appellant later told Hill that he had burned down the shed.
Appellant told Gregory Necessary that he "got even on somebody"
and had "burned them out." Appellant acknowledged possession of
the can of gasoline behind the wood pile at David Necessary's
house.
At trial, Taylor explained that the burn patterns were
"consistent with the presence of accelerants," which in this
case, he could narrow down to an ignitable liquid. Brandenburg
also testified that the burn patterns were consistent with the
use of accelerants.
I.
Appellant contends that the trial court committed reversible
error by allowing expert witnesses, Taylor and Brandenburg, to
testify that the burn patterns they observed and photographed at
the scene of the fire were consistent with the "presence" of an
accelerant, i.e., a flammable liquid. Appellant argues that this
expert testimony violated the "ultimate issue of fact" rule. We
disagree.
In Virginia, "[a]n expert witness may express an opinion
relative to the existence or nonexistence of facts not within the
common knowledge, but 'the admission of expert opinion upon the
ultimate issue of fact is impermissible because it invades the
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function of the fact finder.'" Zelenak v. Commonwealth, 25 Va.
App. 295, 299, 487 S.E.2d 873, 875 (1997) (en banc) (quoting
Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d 597, 598
(1992)). Whether fire is incendiary or accidental is an ultimate
issue of fact to be determined by the fact finder. See Ramsey v.
Commonwealth, 200 Va. 245, 250-51, 105 S.E.2d 155, 159 (1958).
However,
[t]he witness may detail the facts and
observations which came to his attention
while investigating the fire and may give his
or her conclusions or opinions on such
matters as where the fire started, the cause
or source of ignition, how it proceeded, and
whether and why certain accidental causes can
be eliminated. However, the court must
"permit the jurors to draw their own
conclusions as to the cause" of the fire.
Callahan v. Commonwealth, 8 Va. App. 135, 139, 379 S.E.2d 476,
479 (1989) (citation omitted).
The testimony of Taylor and Brandenburg as to the "presence"
of an accelerant at the fire scene did not constitute the
ultimate issue of fact. Rather, their testimony related to
observations which came to their attention while investigating
the fire. Their testimony did not constitute an opinion as to
the cause of the fire. Accordingly, the trial court did not err
in admitting the testimony of Taylor and Brandenburg regarding
the "presence" of an accelerant.
II.
Brandenburg testified that on February 8, 1997, he collected
a sample of wooden debris from the entrance door seal and step
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area at the fire scene to be tested for the presence of a
flammable liquid. While wearing gloves, Brandenburg placed the
sample in a sterile metal can, and marked the can with a case
number, his initials, and the date. Brandenburg sealed the can,
but did not tape it at that time because he intended to perform a
"fire canine" check on the sample within a couple of days.
Thereafter, Brandenburg secured the can in his vehicle. He then
transported it to the Leesburg fire marshal's office and locked
it in an evidence locker in a secure evidence room. Brandenburg,
the Chief Fire Marshal and Captain Mitchell were the only persons
who possessed keys to the locker.
After a canine test of the sample on February 10, 1997,
Brandenburg sealed the can, taped it with orange tape, and locked
it in the evidence locker. During the canine test, Brandenburg
did not remove any of the contents of the can. On February 19,
1997, Brandenburg transported the sample to the Northern Regional
Forensic Laboratory located in Fairfax, Virginia ("the Fairfax
laboratory"). The Fairfax laboratory received the sealed sample
under Brandenburg's signature and kept the sample at the lab
until September 9, 1997. During the time the sample remained at
the Fairfax laboratory, Robin McLaughlin, a forensic scientist,
performed a test on the sample to determine whether a flammable
liquid was present.
On September 9, 1997, Eileen Davis, the forensic section
chief in the trace evidence division of the Commonwealth of
Virginia Forensic Science Laboratory located in Richmond,
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Virginia ("the Richmond laboratory"), received the sample, which
had been at the Fairfax laboratory, from Taylor. Taylor had
travelled to the Fairfax laboratory and retrieved the sample,
which he then brought to Davis in Richmond. When Taylor received
the sample at the Fairfax laboratory, it was in a can sealed with
yellow evidence tape. The orange tape that had been placed on
the can by Brandenburg in February 1997 had been breached when
the Fairfax laboratory tested the sample. The Fairfax laboratory
placed the yellow tape on the can after it tested the sample. On
September 9, 1997, Davis again tested a previously extracted
portion of the sample, which the Fairfax laboratory had placed in
a small glass vial inside the can. Based upon her review of
McLaughlin's notes, Davis confirmed that she performed the same
type of test on the extract as McLaughlin had performed at the
Fairfax laboratory, with similar results. Davis then rendered a
report stating that the extract contained gasoline. Davis
returned the sample to Taylor on September 9, 1997. Taylor
transported the sample back to the Leesburg fire marshal's office
and secured it in a locked evidence locker until the morning of
trial. On the morning of trial, Taylor removed the can from the
evidence locker and transported it to the courthouse.
The trial court refused to admit the certificates of
analysis produced by the Fairfax laboratory and the Richmond
laboratory into evidence because the Commonwealth failed to file
them within seven days prior to trial as required by Code
§ 19.2-187. However, the trial court marked the certificates of
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analysis as Commonwealth's Exhibits 12 and 13 for identification
purposes only and ruled that based upon the certificates, the
Commonwealth was entitled to the prima facie presumption of the
chain of custody provided by Code § 19.2-187.01. The trial court
allowed Davis to testify regarding her testing of the sample and
her knowledge of the testing which was performed at the Fairfax
laboratory. The trial court ruled that the fact finder was
entitled to weigh the evidence, including Davis's testimony.
Appellant contends that the trial court erred in relying
upon Code § 19.2-187.01 to prove the chain of custody of the
sample. In addition, appellant argues that the chain of custody
was fatally flawed because Davis could not determine whether
McLaughlin's alteration of the sample during its testing affected
Davis's results.
"[T]he 'admissibility of evidence is within the broad
discretion of the trial court,' and the defendant bears the
burden of proving the trial court's admission of evidence
constitutes reversible error." Alvarez v. Commonwealth, 24 Va.
App. 768, 776, 485 S.E.2d 646, 650 (1997) (citations omitted).
In order to introduce evidence of the
chemical properties of the [sample] admitted
into evidence, the Commonwealth was required
to present "proof of the chain of custody" of
the [sample], "including 'a showing with
reasonable certainty that the item [had] not
been altered, substituted, or contaminated
prior to analysis, in any way that would
affect the results of the analysis.'"
However, in proving the chain of custody, the
Commonwealth "[']is not required to exclude
every conceivable possibility of
substitution, alteration or tampering.'" The
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Commonwealth must, instead, account for every
"'vital link in the chain of possession.'"
Id. at 776-77, 485 S.E.2d at 650 (citations omitted).
Here, Brandenburg collected the sample, marked and sealed
the can, secured it in a locked evidence locker, and then
personally delivered it to the Fairfax laboratory. Brandenburg's
testimony accounted for the sample until he left it at the
Fairfax laboratory. The Fairfax laboratory received the sample
under Brandenburg's signature on February 19, 1997, and it
remained there until Taylor retrieved it on September 9, 1997,
and personally transported it to Richmond, where Davis again
tested the extract and then gave the sample back to Taylor, who
accounted for it until it was presented at trial. The trial
court did not err in allowing the Commonwealth to rely on the
certificates of analysis to establish prima facie evidence of the
chain of custody of the sample from the time Brandenburg left it
at the Fairfax laboratory until Taylor retrieved and transported
it to the Richmond laboratory. See id. at 777-78, 485 S.E.2d at
651 (holding that although certificates of analysis were not
timely filed, the Commonwealth was entitled to rely upon Code
§ 19.2-187.01 to avoid establishing chain of custody within the
laboratory). In Alvarez, we recognized that "[u]nlike Code
§ 19.2-187, § 19.2-187.01 does not require filing of the
certificate seven days prior to trial as a prerequisite to
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admission for purposes of proving custody with the laboratory."
Id. at 777, 485 S.E.2d at 651. ¹
Here, the authorized agents attested to the analysis of the
sample introduced into evidence. Therefore, the certificates of
analysis were admissible to prove the chain of custody within the
laboratories. Thus, because the evidence was sufficient to prove
the chain of custody and the certificates of analysis were
properly relied upon by the trial court to prove the chain of
custody within the laboratories, the trial court did not err in
admitting the sample and Davis's testimony regarding her analysis
of the sample. Taking the evidence regarding the chain of
custody into account, the fact finder was entitled to determine
what weight, if any, was to be given to Davis's testimony in
light of the fact that she re-tested a sample previously tested
at the Fairfax laboratory. "The weight which should be given to
evidence and whether the testimony of a witness is credible are
¹
Code § 19.2-187.01 specifically provides that
"[a] report of analysis duly attested by the
person performing such analysis or
examination in any [authorized]
laboratory . . . shall be prima facie
evidence in a criminal or civil 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."
Alvarez, 24 Va. App. at 777-78, 485 S.E.2d at 651 (quoting Code
§ 19.2-187.01).
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questions which the fact finder must decide." Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
Accordingly, the trial court's judgment is affirmed.
Affirmed.
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