Linwood Donzell Perry v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Annunziata
Argued at Richmond, Virginia
LINWOOD DONZELL PERRY
MEMORANDUM OPINION * BY
v. Record No. 3026-99-2 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 21, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
(H. Pratt Cook, III; Robert Cabell &
Associates, on brief), for appellant.
Appellant submitting on brief.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Linwood Donzell Perry (appellant) was convicted in a bench
trial for possession of heroin. On appeal, he asserts that the
trial court erroneously admitted a certificate of analysis
contrary to the requirements of Code § 19.2-187 and, that
without this evidence, he would not have been convicted. We
affirm the judgment of the trial court.
I. BACKGROUND
On May 17, 1999, Officer Karen Marie Dussling stopped a
vehicle operated by Perry. As she walked back to her police car
to write him a summons, Perry fled. Officer Dussling caught and
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
arrested him. When she searched him incident to that arrest,
she found a metal spoon in his pocket.
After Officer Dussling read Perry his Miranda rights, she
asked him about the metal spoon. He replied that "he had used
heroin around 5 p.m. and that there was heroin residue . . . on
the metal spoon."
The spoon was delivered to the state forensic laboratory,
which issued a certificate of analysis stating that the spoon
contained heroin residue. On September 17, 1999, Perry filed a
motion for discovery. The certificate of analysis was not
forwarded to Perry, however, until October 5, 1999, the day
before the trial.
At trial, the Commonwealth offered the certificate of
analysis into evidence. Perry objected, arguing that it had not
been delivered to him at least seven days prior to trial as
required by Code § 19.2-187. The court overruled the objection,
admitted the certificate of analysis, and found Perry guilty of
possession of heroin.
II. ADMISSIBILITY OF CERTIFICATE OF ANALYSIS
Perry contends that the trial court erred in admitting the
certificate of analysis into evidence under Code § 19.2-187. We
agree.
Code § 19.2-187 provides, in relevant part, that a
certificate of analysis shall be admissible in evidence
provided:
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(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 . . . to counsel of
record for the accused at least seven days
prior to the hearing or trial upon request
made by such counsel.
The certificate of analysis was not delivered to Perry at
least seven days prior to trial. Thus, the requirements of Code
§ 19.2-187 were not met, and the certificate was inadmissible.
See Gray v. Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705, 706
(1980).
The Commonwealth argues that the improper evidence was
harmless in light of Perry's admission to Officer Dussling. We
agree.
In Virginia, non-constitutional error "is harmless '[w]hen
it plainly appears from the record and the evidence given at the
trial that the parties have had a fair trial on the merits and
substantial justice has been reached.'" Lavinder v.
Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)
(en banc) (quoting Code § 8.01-678). "An error does not affect
a verdict if a reviewing court can conclude, without usurping
the jury's fact finding function, that, had the error not
occurred, the verdict would have been the same." Id. "The
effect of an error on a verdict varies widely 'depending upon
the circumstances of the case.' Each . . . must . . . be
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analyzed individually to determine if an error has affected the
verdict." Id. at 1009, 407 S.E.2d at 913 (citation omitted).
Perry admitted to Officer Dussling that the residue on the
spoon was heroin. He has never retracted or disputed this
acknowledgment. This evidence is competent and credible and
supports the judgment of the trial court.
The judgment of the trial court is affirmed.
Affirmed.
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