Freddie Lamont Mitchell v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge McClanahan and Senior Judge Fitzpatrick
Argued at Richmond, Virginia
FREDDIE LAMONT MITCHELL
MEMORANDUM OPINION∗ BY
v. Record No. 1937-05-2 JUDGE ELIZABETH A. McCLANAHAN
NOVEMBER 7, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Daniel T. Balfour, Judge
Reuben V. Greene for appellant.
Leah A. Darron, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Freddie Lamont Mitchell appeals his conviction of possession of cocaine with intent to
distribute in violation of Code § 18.2-248. He argues the trial court erred in admitting a
certificate of analysis because the Commonwealth did not prove that the material tested by the
Division of Forensic Science (DFS) was the same material police recovered from Mitchell’s
person. Finding no error, we affirm.
I. BACKGROUND
“Under familiar principles of appellate review, we examine the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible
therefrom.” Crews v. Commonwealth, 18 Va. App. 115, 117, 442 S.E.2d 407, 408 (1994). The
trial court’s judgment is presumed correct, and the defendant has the burden to prove that
∗
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
admission of the evidence constitutes reversible error. Dunn v. Commonwealth, 20 Va. App.
217, 219-20, 456 S.E.2d 135, 136 (1995); Crews, 18 Va. App. at 117, 442 S.E.2d at 408.
During a lawful pat down, Officer Stone seized suspected narcotics from Mitchell’s
person.1 Stone recovered one plastic bag with a large ball of suspected cocaine, another plastic
bag containing three smaller, individually wrapped rocks of suspected cocaine, and $404 cash.
Officer Brown gave the seized evidence to Officer Zannin. The evidence was in a bag with
“Freddie Mitchell” written on it. Zannin sealed the envelope and secured it in an evidence
locker. The envelope labeled Item 3, contained Items 3A, the bag with the large ball of
suspected cocaine, and 3B, the bag with the individually wrapped rocks of suspected cocaine.
Zannin completed a Request For Laboratory Examination form (request form), and Brown
delivered it along with the evidence to the DFS for testing.
Mitchell conceded the Commonwealth proved the chain of custody until the evidence
was delivered to the lab. He objected to the admission of the certificate of analysis on the
ground that the trial court could not be certain the lab tested the same material seized from his
person. To support his argument, Mitchell relies on the discrepancy in the description given to
Item 3A by Officers Stone and Zannin as a “powdery” material and the lab’s description of Item
3A as an off-white “solid” material. The trial court overruled his objection,2 admitted the
certificate of analysis, and convicted Mitchell of the charged offense.
1
Mitchell stipulated that the pat down was lawful.
2
In overruling Mitchell’s objection, the trial court noted that there were no mistakes as to
Item 3B, which was sent to the lab and received from the lab in the same envelope as Item 3A.
“Thus, [i]f [Items 3A and 3B] were in the same bag, then it would work to [the
Commonwealth’s] advantage.”
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II. ANALYSIS
“Code § 19.2-187.01 authorizes a trial court to receive a certificate of analysis as
evidence of the chain of custody of the material tested.” Harris v. Commonwealth, 261 Va. 185,
188, 541 S.E.2d 547, 548 (2001). That same statute “provides that a certificate of analysis from
any authorized laboratory is prima facie evidence of the laboratory’s custody of the evidence.”
Alvarez v. Commonwealth, 24 Va. App. 768, 777, 485 S.E.2d 646, 651 (1997); see also
Anderson v. Commonwealth, 48 Va. App. 704, 715, 634 S.E.2d 372, 377 (2006) (statute’s
“inference . . . verif[ies] the chain of custody of the samples while being tested by DFS
scientists”); Charles E. Friend, The Law of Evidence in Virginia § 13-5, at 529 (6th ed. 2003).
When the Commonwealth presents a duly attested certificate of analysis, it establishes “prima
facie evidence” that DFS had “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.” Code § 19.2-187.01.
At trial, the Commonwealth introduced both Zannin’s request form and a duly attested
certificate of analysis. The request form contained Mitchell’s name, the date and type of offense,
and a description of the evidence submitted.3 It also contained Zannin’s name as the
Investigating Officer, his office (listed as “Henrico Police”), as well as its address and case
number 040415245. It reflected the dates of submission to and receipt by the laboratory, the
name of the submitting officer, “K. G. Brown,” and the technician who received it. The case
number assigned by DFS, FS Lab # C04-7742, appeared in a box reserved “For DFS use only.”
3
Officer Zannin described the evidence in the request form as follows: “Package #3” is a
sealed envelope containing a “knotted baggy [sic] [of] white powder material” and three
“knotted baggys [sic] each containing off-white solid material.”
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The timely filed4 certificate of analysis referred to “Your Case # 040415245,” and “FS
Lab # C04-7742.” It was addressed to L.A. Zannin and contained the defendant’s name, the
name “K. G. Brown” as the submitting officer, and a description of the items submitted.5 Test
results proved the material submitted was cocaine.
Proof of a chain of custody is necessary to establish that the evidence tested is the same
as the evidence collected by police. Robertson v. Commonwealth, 12 Va. App. 854, 857, 406
S.E.2d 417, 419 (1991). This case does not involve a missing link in the chain of custody. Cf.
Robinson v. Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 181 (1971) (error to admit
certificate when there is a missing “vital link”). The only issue Mitchell raises is that the lab and
the officers described the evidence differently.6 Officers Stone and Zannin described Item 3A as
a “powdery” material, and the lab described it as an off-white “solid” material. Taken out of
context that lone fact could potentially lead to the erroneous conclusion that the lab did not test
the material seized from Mitchell; however, the facts of this case clearly prove otherwise.
4
The request form was submitted to the lab on May 4, 2004, the certificate of analysis
was dated June 14, 2004, it was filed in the clerk’s office August 20, 2004, and Mitchell’s trial
was February 8, 2005.
5
The certificate of analysis identified the relevant evidence as follows:
Item 3 – Sealed packaging containing Items 3A and 3B
Item 3A – One (1) plastic bag corner containing off-white solid material
Item 3B – Three (3) plastic bag corners containing off-white solid material.
Testing showed that Item 3A was 3.204 grams of cocaine and 3B consisted of 1.305 grams of
cocaine.
6
At trial, Officer Zannin identified the evidence received from DFS as the same bag he
received from Brown. He opened the sealed evidence envelope and described Item 3A as “very
granular and powdery and it’s white.” He added that it had some hard substances in it, “but not
much.” The trial court also observed that Item 3A “had some little lumps in it.” Stone
characterized Item 3A as a “powder-like substance.” Zannin described Item 3B as “an off-tan
rock-like solid substance.”
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Here, the Commonwealth established prima facie evidence of DFS’s custody of the
evidence. Mitchell had the right to rebut this evidence under Code § 19.2-187.1,7 but failed to do
so. Moreover, the information on the request form and the certificate “coincide to connect the
drug analyzed and subject of the certificate” to the evidence submitted. Crews, 18 Va. App. at
120, 442 S.E.2d at 409. The laboratory technician received the evidence, signed for it, and
assigned a number to it. That number, FS Lab # C04-7742, along with Zannin’s case number,
appears on both documents, which contain other data identifying Mitchell and the evidence
seized.
In Crews, 18 Va. App. at 117-18, 442 S.E.2d at 408, the defendant argued that a one-digit
discrepancy in the certified mail number written on the request form and that on the certificate of
analysis constituted a break in the chain of custody. Because all other identifying information on
the two forms was consistent, this Court ruled that the discrepancy was a mistake and the trial
court did not err in admitting the certificate.
As in Crews, the Commonwealth proved with reasonable assurance that the evidence the
lab tested was the same evidence recovered from Mitchell’s person. The trial court observed
Item 3A at trial and noted it contained some lumps, which could be described as solid material.
“Where there is mere speculation that contamination or tampering could have occurred, it is not
an abuse of discretion to admit the evidence and let what doubt there may be go to the weight to
be given the evidence.” Reedy v. Commonwealth, 9 Va. App. 386, 391, 388 S.E.2d 650, 652
(1990). The evidence permitted the trial judge to find with reasonable certainty that the seized
7
A defendant has “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.” Code § 19.2-187.1.
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items had not been altered, substituted, or contaminated prior to analysis. Accordingly, the trial
court did not err in admitting the certificate of analysis, and we affirm Mitchell’s conviction.
Affirmed.
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