Richard Lee Parham, Jr. v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia
RICHARD LEE PARHAM, JR.
MEMORANDUM OPINION * BY
v. Record No. 2798-99-1 JUDGE JAMES W. BENTON, JR.
FEBRUARY 6, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
F. Winslow Young (Wanda N. Allen, Attorney at
Law, Inc., on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial judge convicted Richard Lee Parham, Jr., of
possession of cocaine in violation of Code § 18.2-250(A). Parham
contends the trial judge erred in admitting the certificate of
analysis that identified the substance as cocaine. We conclude
that the trial judge did not err, and we affirm the conviction.
I.
At trial, State Trooper P.N. Gallaccio testified that at
4:00 a.m. he approached a car that was parked on the right
shoulder of a highway. Parham was alone at the car, which had its
hazard lights on and its hood up. Gallaccio noticed that Parham
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
had a strong odor of alcohol and bloodshot eyes that were barely
open. Parham denied having any identification. Gallaccio
testified that Parham gave him consent to search him.
As Gallaccio searched Parham, he believed Parham was gripping
something in his left hand, which was in his pocket. He was
unable to get Parham to remove his left hand from his pocket.
When Gallaccio informed Parham that he was arresting Parham for
public intoxication, Parham refused to put his hand behind his
back. During a struggle that ensued as Gallaccio attempted to
arrest Parham, Parham's left hand was close to his mouth. After
Gallaccio subdued Parham, he noticed a white powdery substance in
Parham's mouth.
Gallaccio handcuffed Parham's hands behind his back, put
Parham in the passenger seat of Gallaccio's patrol car, and placed
a seat belt over Parham. Gallaccio then searched Parham's car and
found a glass pipe on the left side of the driver's seat.
Gallaccio testified that he put the pipe in a sealed evidence bag
and placed the bag on the driver's side floorboard in his patrol
car. Gallaccio testified that he asked another trooper, who had
arrived on the scene, to watch Parham.
After Gallaccio returned to Parham's car and obtained the
registration document, he returned to his patrol car. Gallaccio
then noticed that the evidence bag was missing, that Parham was
squirming, and that Parham's seat belt was unbuckled. When
Gallaccio asked Parham to get out of the patrol car, he noticed
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that Parham's fingers were cut. Gallaccio found the evidence bag
"shoved between [the passenger] seat and the back rest . . . where
[Parham's] hands would be if they were handcuffed." The pipe in
the bag was broken. Gallaccio retrieved the bag with the broken
pipe, re-packaged the pipe, and later sent it to the Division of
Forensic Science for analysis.
After the prosecutor moved to admit in evidence the
certificate of analysis, the trial judge permitted Parham's
counsel to cross-examine Gallaccio. Gallaccio testified that he
routinely puts all arrestees in the front passenger seat of his
patrol car and that he always checks between the seat after the
arrestees leave his car. Gallaccio admitted the possibility that
trace amounts of cocaine might be in the seat cushions and that
trace amounts of cocaine could have been transferred into the seat
cushions from previous arrestees. He also testified that the pipe
had rubbed against the seat after Parham seized it. Gallaccio
also testified that no other suspect had placed cocaine between
the car's seats and that he was the only officer to use this
patrol car.
Over Parham's objection, the trial judge admitted into
evidence the certificate of analysis indicating the presence of
cocaine on the glass pipe. At the conclusion of the evidence, the
judge convicted Parham of possession of cocaine. This appeal
followed.
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II.
Parham argues that the chain of custody had been broken and
that no evidence proved the cocaine was on the pipe when Gallaccio
removed it from Parham's car. Thus, he contends the trial judge
erred in admitting in evidence the certificate of analysis. We
disagree.
Proof of a proper chain of custody of evidence is necessary
before a certificate of analysis of that evidence may be admitted
in evidence. See Alvarez v. Commonwealth, 24 Va. App. 768, 776,
485 S.E.2d 646, 650 (1997).
"The purpose of the chain of custody rule
is to establish that the evidence obtained
by the police was the same evidence tested."
"In offering this evidence, the
Commonwealth, however, 'is not required to
exclude every conceivable possibility of
substitution, alteration or tampering.'
Instead, the Commonwealth [is] required to
establish with 'reasonable assurance' that
the evidence analyzed and presented at trial
was in the same condition as it was when
obtained by police."
"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."
Brown v. Commonwealth, 21 Va. App. 552, 555-56, 466 S.E.2d 116,
117 (1996) (citations omitted). In short, "[w]hen a party
offers proof of the chemical properties of an item in evidence,
'authentication requires proof of the chain of custody,
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including "a showing with reasonable certainty that the item
[has] not been altered, substituted, or contaminated prior to
analysis, in any way that would affect the results of the
analysis."'" Crews v. Commonwealth, 18 Va. App. 115, 118-19,
442 S.E.2d 407, 409 (1994) (citations omitted).
The evidence in this case fully accounted for every "vital
link in the chain." Robinson v. Commonwealth, 212 Va. 136, 138,
183 S.E.2d 179, 180 (1971). Trooper Gallaccio recovered the
pipe from Parham's car, put it in a sealed bag, and placed it in
his patrol car. The evidence also proved that Parham was alone
in the patrol car and that no one else had approached it. The
only inference to be drawn from this evidence is that Parham
seized the bag and secreted it behind him. Thus, Parham was in
possession of the pipe when it was placed behind the seat and
broken. After Parham seized the pipe, which was inside the bag,
the officer obtained it from him. No break in the chain of
custody occurred after this happened.
"[T]he Commonwealth was required to establish with
'reasonable assurance' that the evidence analyzed and presented
at trial was in the same condition as it was when obtained by
police." Robertson v. Commonwealth, 12 Va. App. 854, 857, 406
S.E.2d 417, 419 (1991). The likelihood that the pipe was
contaminated by Parham's conduct only pertains to the weight the
trial judge might give the evidence. It has no bearing on the
chain of custody and, therefore, does not bar its admissibility.
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For these reasons, we hold that the trial judge did not err
in admitting in evidence the certificate of analysis.
Accordingly, we affirm the conviction.
Affirmed.
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