Byron Vondell Lyons v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia
BYRON VONDELL LYONS
MEMORANDUM OPINION * BY
v. Record No. 0406-00-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 12, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge
Charles E. Haden for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Byron Vondell Lyons (appellant) was convicted in a bench
trial of possession of cocaine with intent to distribute in
violation of Code § 18.2-248 and possession of a firearm while
simultaneously possessing a controlled substance in violation of
Code § 18.2-308.4(B). The sole issue raised is whether the trial
court erred in admitting the drug analysis into evidence because
appellant did not receive a copy of the certificate of analysis
filed in the circuit court at least seven days prior to trial as
required by Code § 19.2-187. Finding the admission of the
certificate to be error, we reverse and remand his convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, the
prevailing party below, granting to that evidence all reasonable
inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
Prior to the preliminary hearing in general district court,
appellant requested and received a copy of the certificate of
analysis pursuant to Code § 19.2-187. At the preliminary
hearing on March 24, 1999, the district court found no probable
cause to proceed with the charge of possession of cocaine with
intent to distribute. On April 5, 1999, a grand jury directly
indicted appellant on the charges of possession of cocaine with
intent to distribute and possession of a firearm while in
possession of cocaine with the intent to distribute. On the
same day, appellant submitted a motion for discovery requesting
among other things, a copy of the certificate of analysis. On
September 9, 1999, the Commonwealth's attorney requested the
certificate from the general district court record be
transferred to the circuit court for appellant's trial on
October 19, 1999. Neither the Commonwealth's attorney nor the
clerk of the circuit court provided a copy of the certificate
filed in the circuit court to appellant prior to trial.
At trial the certificate of analysis was admitted over
appellant's objection that he had not received a copy of it at
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least seven days prior to the circuit court trial as required by
Code § 19.2-187. During the trial, appellant's counsel reviewed
the certificate and agreed it appeared no different than the one
provided in the general district court prior to the preliminary
hearing. The trial judge ruled that the Commonwealth's attorney
had "substantially complied" with the statute and admitted the
certificate of analysis in evidence.
II.
Code § 19.2-187 provides, in pertinent part, that
[i]n any hearing or trial of any criminal
offense . . ., a certificate of analysis of
a person performing an analysis or
examination . . . shall be admissible in
evidence, as evidence of the facts therein
stated and the results of the analysis or
examination referred to therein, 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.
(Emphasis added). Thus, a certificate of analysis is admissible
only if a copy "is mailed or delivered by the clerk or attorney
for the Commonwealth to [defense] counsel at least seven days
prior to the hearing or trial upon request of such counsel."
Code § 19.2-187 (emphasis added). However, a certificate "is
not admissible if the Commonwealth fails strictly to comply with
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the provisions of Code § 19.2-187." Woodward v. Commonwealth,
16 Va. App. 672, 674, 432 S.E.2d 510, 512 (1993).
The contents of a "written report offered to prove the
results of testing or of an analysis would generally be
inadmissible hearsay evidence," absent authentication and
verification by "the person who conducted the testing or
prepared the report." Myrick v. Commonwealth, 13 Va. App. 333,
336-37, 412 S.E.2d 176, 178 (1991); Gray v. Commonwealth, 220
Va. 943, 945, 265 S.E.2d 705, 706 (1980). However, Code
§ 19.2-187 "imposes a condition for the exoneration of an
otherwise hearsay document from the application of the hearsay
rule, thus making that document admissible." Basfield v.
Commonwealth, 11 Va. App. 122, 124, 398 S.E.2d 80, 81 (1990);
Myrick, 13 Va. App. at 338, 412 S.E.2d at 178. Because this
statute "deals with criminal matters, and it undertakes to make
admissible evidence which otherwise" might be objectionable, it
"should be construed strictly against the Commonwealth and in
favor of the accused." Gray, 220 Va. at 945, 265 S.E.2d at 706;
Myrick, 13 Va. App. at 337-38, 412 S.E.2d at 178.
In the instant case, while a copy of the certificate was
properly provided in the general district court, the
Commonwealth failed to perform its obligation under the statute
to provide the certificate to defense counsel seven days prior
to trial in the circuit court. In this case, neither the clerk
of the circuit court nor the Commonwealth's attorney mailed to
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defense counsel a copy of the certificate filed with the trial
court. Failure to strictly comply with the provisions of Code
§ 19.2-187 prevents the certificate from being admitted into
evidence.
The Commonwealth argues that even if it was error to admit
the certificate of analysis, it was harmless.
Non-constitutional error in a criminal case requires reversal of
a conviction unless the Commonwealth establishes that the error
has not affected the verdict. See Lavinder v. Commonwealth, 12
Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991). The only other
evidence offered by the Commonwealth was circumstantial evidence
that the appellant had previously sold cocaine and, therefore,
this white powder might be cocaine. However, these statements
did not establish that the substance taken from appellant at the
time of his arrest was cocaine. Based upon the record before
us, we cannot say that the circumstantial evidence was enough to
establish that the substance was cocaine and render the use of
the certificate of analysis harmless. Accordingly, we reverse
and remand for further proceedings should the Commonwealth be so
advised.
Reversed and remanded.
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