Zachary S. Lewis v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Clements and Agee
Argued at Richmond, Virginia
ZACHARY S. LEWIS
MEMORANDUM OPINION * BY
v. Record No. 2479-99-1 JUDGE JERE M. H. WILLIS, JR.
MARCH 20, 2001
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
Barry R. Taylor (Claude M. Scialdone; Kent K.
Stanley; Scialdone & Taylor, Inc., on
briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his misdemeanor conviction of possession of
marijuana, in violation of Code § 18.2-250.1, Zachary S. Lewis
contends that the trial court erred (1) in admitting into
evidence a certificate of analysis when the Commonwealth had
failed to comply with Code § 19.2-187, (2) in allowing the
Commonwealth to reopen its case to admit the certificate of
analysis, (3) in refusing to consider whether the general
district court denied him due process and subjected him to
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
double jeopardy, and (4) by holding that the general district
court did not violate his right against double jeopardy by
trying him twice on the same charge. By unpublished opinion, a
divided panel of this Court affirmed Lewis' conviction. Lewis
v. Commonwealth, Record No. 2479-99-1 (Va. Ct. App. August 1,
2000). On Lewis' motion, we stayed the mandate of that decision
and granted rehearing en banc.
Upon rehearing en banc, Lewis has presented only the first
question: whether the trial court erred in admitting into
evidence a certificate of analysis when the Commonwealth had
failed to comply with Code § 19.2-187. We affirm the judgment
of the trial court with respect to questions (2), (3) and (4)
for the reasons set forth in the panel majority opinion,
summarized herein. For the reasons that follow, we affirm the
judgment of the trial court with respect to the question
presented upon rehearing en banc.
I. BACKGROUND
Lewis appeared in general district court on September 9,
1998, for trial on a misdemeanor charge of possession of
marijuana. He objected to the admission into evidence of the
certificate of analysis of the subject material, asserting that
despite his request, neither the clerk nor the Commonwealth's
attorney had delivered a copy of the certificate to him seven
days prior to trial, as required by Code § 19.2-187. The
district court took the objection under advisement, and six
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months later, overruled it. At that time, the district court
did not remember the evidence. Over Lewis' objection, it
permitted the Commonwealth to present its evidence again. The
court admitted the certificate of analysis into evidence and
found Lewis guilty.
Lewis appealed his conviction to the trial court. Prior to
trial, he filed a motion for discovery, which included a request
for the certificate of analysis pursuant to Code § 19.2-187.
Six weeks before the date scheduled for trial, the
Commonwealth's attorney responded that Lewis was not entitled to
discovery under Rule 3A:11 because he was charged with a
misdemeanor, not a felony. The Commonwealth did not deliver or
mail a copy of the certificate of analysis to Lewis' counsel.
No hearing was held, and no order was entered pursuant to Lewis'
request for discovery.
On June 10, 1999, Lewis appeared before the trial court for
trial de novo. He objected to the admission of the certificate
of analysis, asserting that his request had been denied in
violation of Code § 19.2-187. The trial court overruled this
objection, holding that Code § 19.2-187 was discretionary, not
mandatory.
The Commonwealth rested its case without admitting the
certificate of analysis into evidence. Lewis moved to strike
the evidence. The trial court permitted the Commonwealth to
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reopen its case and to admit the certificate of analysis. The
trial court found Lewis guilty of possession of marijuana.
II. ANALYSIS
Code § 19.2-187, as in force at the time of the proceedings
against Lewis, 1 provided, in pertinent part:
In any hearing or trial of any criminal
offense . . . a certificate of analysis
. . . shall be admissible in evidence
. . . provided (i) the certificate of
analysis is filed with the clerk of the
court hearing the case at least seven days
prior to the hearing or trial and (ii) a
copy of such certificate is mailed or
delivered by the clerk or attorney for the
Commonwealth to counsel of record for the
accused at least seven days prior to the
hearing or trial upon request of such
counsel.
"Code § 19.2-187 should be construed strictly against the
Commonwealth and in favor of the accused because 'it undertakes
to make admissible evidence which otherwise might be subject to
a valid hearsay objection.'" Coleman v. Commonwealth, 27 Va.
App. 768, 772-73, 501 S.E.2d 461, 463 (1998) (quoting Mullins v.
Commonwealth, 12 Va. App. 372, 374, 404 S.E.2d 237, 238 (1991)).
The trial court erred in ruling that Code § 19.2-187 was
discretionary and not mandatory. See Taylor v. Commonwealth, 28
Va. App. 1, 6-7, 502 S.E.2d 113, 115 (1998) (en banc); Myrick v.
Commonwealth, 13 Va. App. 333, 336-37, 412 S.E.2d 176, 178
1
Code § 19.2-187 was amended by provisions not germane to
this decision. See 1999 Va. Acts, ch. 296; 2000 Va. Acts, ch.
336.
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(1991). However, "[a]n appellate court may affirm the judgment
of a trial court when it has reached the right result for the
wrong reason." Driscoll v. Commonwealth, 14 Va. App. 449, 452,
417 S.E.2d 312, 313 (1992) (citation omitted). This rule "may
not be used if the correct reason for affirming the trial court
was not raised in any manner at trial." Id. at 452, 417 S.E.2d
at 313-14 (citation omitted). Therefore, we must consider
whether the trial court reached the right result, though for the
wrong reason.
In Coleman, we held that a defendant has
at least three avenues to secure [a
certificate of analysis:] . . . (1)
[request] it under the terms of Code
§ 19.2-187(ii) directly from the clerk of
the . . . court or from the attorney for the
Commonwealth; (2) [make] a motion for
discovery under Rule 3A:11 to the court to
order the Commonwealth to permit him to
inspect and copy or photograph designated
documents, including scientific reports; and
(3) [call] upon the Commonwealth to produce
exculpatory evidence under Brady v.
Maryland, 373 U.S. 83 (1963).
Coleman, 27 Va. App. at 773, 501 S.E.2d at 463 (footnote
omitted).
In Coleman, Coleman was charged with a drug-related felony.
Through a motion for discovery under Rule 3A:11, he requested
the certificate of analysis. The trial court entered a
discovery order, directing that all discovery would take place
at the Commonwealth's Attorney's office within ten days of trial
and upon twenty-four hours notice. Coleman's counsel endorsed
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the discovery order "We ask for this." However, Coleman's
counsel failed to arrange a meeting at the Commonwealth's
Attorney's office to procure the discovery materials. We held
that, by endorsing the discovery order without objection,
Coleman had intermingled Code § 19.2-187 and Rule 3A:11 and
that, by failing to "conduct discovery as prescribed by the
discovery order, [Coleman] waived any objection concerning
delivery of the certificate to him." Id. at 775-76, 501 S.E.2d
at 464-65.
In Copeland v. Commonwealth, 19 Va. App. 515, 452 S.E.2d
876 (1995), Copeland was charged with a drug-related felony. He
filed "a motion for production and inspection of documents,
including, specifically 'certificates of analysis.'" Id. at
516, 452 S.E.2d at 876. The Commonwealth's attorney failed to
provide Copeland a copy of the certificate of analysis at least
seven days prior to trial, as required by Code § 19.2-187.
Reversing the admission of the certificate of analysis into
evidence, we held:
Copeland's counsel requested from the
attorney for the Commonwealth the
certificate of analysis. The attorney for
the Commonwealth delivered the certificate
of analysis to Copeland's counsel three days
before trial. That delivery was not timely.
Id. at 517, 452 S.E.2d at 877. We rejected the Commonwealth's
argument that Code § 19.2-187 required the request to be
directed to the clerk of the court. See id. As in Coleman,
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Copeland utilized the available vehicle of discovery to
communicate his request. Because the vehicle was proper, the
communication was sufficient under Code § 19.2-187.
This case is controlled by Coleman. Lewis had the right to
elect the method that he would employ to communicate his request
for the certificate of analysis. Having made that election, he
was bound to comply with the requirements of the method he
chose. He elected discovery under Rule 3A:11, a method not
available to him because he was charged with a misdemeanor, not
a felony. The Commonwealth's attorney's response was prompt and
informed Lewis well in advance of trial of the unavailability of
the method that he had chosen. Lewis failed to submit to the
trial court the question of his entitlement to discovery under
Rule 3A:11. He failed to pursue the other method available to
him, direct request of the Commonwealth's attorney or clerk. He
abandoned his request and placed himself in the position of
having made no request invoking the proviso of Code § 19.2-187.
Thus, the trial court did not err in admitting the certificate
of analysis into evidence.
III. OTHER ISSUES
We summarize the panel holdings that were not challenged on
rehearing en banc.
A. REOPENING THE CASE
"[T]he order of proof is a matter within the
sound discretion of the trial court and [an
appellate] court will not reverse the
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judgment except in very exceptional cases,
and, unless it affirmatively appears from
the record that this discretion has been
abused, [an appellate] court will not
disturb the trial court's ruling."
Lebedun v. Commonwealth, 27 Va. App. 697, 715, 501 S.E.2d 427,
436 (1998) (quoting Hargraves v. Commonwealth, 219 Va. 604, 608,
248 S.E.2d 814, 817 (1978)).
Through oversight, the Commonwealth neglected to present
the certificate of analysis in its case-in-chief. We perceive
no offense against justice or abuse of discretion in the trial
court's permitting the Commonwealth to reopen its case to cure
this oversight.
B. ARGUMENTS CONCERNING PROCEEDINGS IN THE DISTRICT COURT
[T]he State gives the accused the benefit of
two full opportunities for acquittal . . . .
If an accused elects to take advantage of a
second and fresh opportunity, it appears
entirely fair that the accused and the State
should start again at parity . . . .
Johnson v. Commonwealth, 212 Va. 579, 586, 186 S.E.2d 53, 58
(1972). No rule, statute, or case law concerning trial de novo
requires the circuit court to review errors by the district
court. But cf. Ward v. Village of Monroeville, 409 U.S. 57,
61-62 (1972) (holding that trial de novo cannot be used as a
procedural safeguard against systemic due process violations in
the lower courts). The record reflects no systematic due
process violation involved in this case.
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The Fifth Amendment protection against double jeopardy
"guarantees protection against (1) a second prosecution for the
same offense after acquittal; (2) a second prosecution for the
same offense after conviction; and (3) multiple punishments for
the same offense." Payne v. Commonwealth, 257 Va. 216, 227, 509
S.E.2d 293, 300 (1999) (citations omitted).
Double jeopardy protections do not apply until final
judgment is obtained. In interrupting Lewis' trial to consider
his objection, the general district court rendered no final
judgment. Therefore, the resumption of proceedings implicated
no double jeopardy concern.
The judgment of the trial court is affirmed.
Affirmed.
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Elder, J., with whom Benton, Annunziata and Clements, JJ., join,
concurring, in part, and dissenting, in part.
I concur in part III-B of the majority opinion. However, I
would hold that appellant's request for the certificate of
analysis was sufficient to require the Commonwealth to provide
it to him in compliance with the terms of Code § 19.2-187.
Therefore, I dissent from part II of the majority opinion and
would find it unnecessary to reach the issue addressed in part
III-A. I would reverse appellant's conviction and remand for
further proceedings if the Commonwealth be so advised.
The version of Code § 19.2-187 applicable to these
proceedings provided, in relevant part, as follows:
In any hearing or trial of any criminal
offense . . . , a certificate of analysis
. . . shall be admissible in evidence . . .
provided . . . (ii) a copy of such
certificate is mailed or delivered by the
clerk or attorney for the Commonwealth to
counsel of record for the accused at least
seven days prior to the hearing or trial
upon request of such counsel.
Id. (1995 Repl. Vol.) (emphasis added). As the majority
recognizes, we have held repeatedly that this code section
should be construed strictly against the Commonwealth and in
favor of the accused because it "'undertakes to make admissible
evidence which otherwise might be subject to a valid hearsay
objection.'" Mullins v. Commonwealth, 12 Va. App. 372, 374, 404
S.E.2d 237, 238 (1991) (quoting Gray v. Commonwealth, 220 Va.
943, 945, 265 S.E.2d 705, 706 (1980)).
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Code § 19.2-187 does not prescribe a particular manner in
which counsel must request a certificate of analysis from the
Commonwealth. See Woodward v. Commonwealth, 16 Va. App. 672,
675, 432 S.E.2d 510, 512 (1993) (holding that where statute
contains no requirement that request for certificate of analysis
must be made after Commonwealth files it with clerk, Court of
Appeals has no authority to impose such a limitation). In
Coleman v. Commonwealth, 27 Va. App. 768, 501 S.E.2d 461 (1998),
we recognized that a defendant has
at least three avenues to secure [a
certificate of analysis:] . . . (1)
request[] it under the terms of Code
§ 19.2-187(ii) directly . . . from the
attorney for the Commonwealth; (2) ma[k]e a
motion for discovery under Rule 3A:11 to the
court to order the Commonwealth to permit
[the defendant] to inspect and copy or
photograph designated documents, including
scientific reports; and (3) call[] upon the
Commonwealth to produce exculpatory evidence
under Brady v. Maryland, 373 U.S. 83 (1963).
Id. at 773, 501 S.E.2d at 463 (footnote omitted) (emphases
added). We held in Coleman that the certificate was admissible
because, although the defendant specifically had requested the
certificate "[p]ursuant to Section 19.2-187" in a separate
paragraph contained in his discovery motion, he had endorsed an
order of the court which provided that all documents requested
in the motion would be obtained by the defendant "during
business hours, in the prosecutor's office, not less than ten
days before trial, upon twenty-four hours advance notice." Id.
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at 770, 774, 501 S.E.2d at 462, 464. Although counsel for the
defendant endorsed the order, "We ask for this," thereby
consenting to the court's ordered method of discovery, counsel
never availed himself of the approved method of obtaining the
discovery materials or certificate. See id. at 771, 774, 501
S.E.2d at 462, 464. We held that "[t]he Commonwealth's attorney
reasonably could rely upon this endorsed order as controlling
all requests made in the motion for discovery, including the
request for any certificate of analysis." Id. at 774, 501
S.E.2d at 464.
The majority holds under Coleman that appellant was not
entitled to the certificate of analysis because he (1) requested
it via a discovery motion filed pursuant to Rule 3A:11, which
was not applicable to this case because it involved a
misdemeanor rather than a felony charge, rather than proceeding
directly under Code § 19.2-187, and (2) failed to take further
action when the Commonwealth responded that it would not tender
discovery under Rule 3A:11 because appellant was not entitled to
it. I would hold that appellant did all that was required of
him under a strict construction of Code § 19.2-187. He did not
merely request the certificate of analysis indirectly as "a
scientific report" to which he may have been entitled as part of
discovery under Rule 3A:11 only in a felony case. Rather, as
noted by the majority, he "made a request for the certificate of
analysis[] pursuant to Code § 19.2-187." Code § 19.2-187 does
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not prohibit a defendant from combining a motion for discovery
under Rule 3A:11 with a request for any certificates of analysis
under Code § 19.2-187. That a defendant charged with a
misdemeanor is not entitled to discovery does not negate the
fact that the same defendant is absolutely entitled to any
certificates of analysis specifically requested pursuant to the
terms of Code § 19.2-187. When appellant properly requested any
certificates of analysis pursuant to Code § 19.2-187 and the
Commonwealth failed timely to produce them, he was entitled to
conclude that the Commonwealth would not seek to admit any
certificates without proper foundation. Code § 19.2-187
provides an exception to the hearsay rule, and once appellant
requested any certificates, the burden rested on the
Commonwealth rather than appellant to prove compliance with the
statute.
For these reasons, I dissent from part II of the majority
decision, and I would reverse and remand appellant's conviction.
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