Michael Joseph Dotson v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Felton
Argued at Richmond, Virginia
MICHAEL JOSEPH DOTSON
MEMORANDUM OPINION * BY
v. Record No. 1416-02-2 JUDGE LARRY G. ELDER
MAY 6, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
Emmet D. Alexander (Gates & Alexander,
P.L.C., on brief), for appellant.
John H. McLees, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Michael Joseph Dotson (appellant) appeals from his bench
trial conviction for driving under the influence in violation of
Code § 18.2-266, his second such offense in five years. On
appeal, he contends the trial court erroneously admitted the
certificate of analysis showing the alcohol content of his
breath because, although he sought to obtain a copy in
compliance with the requirements of Code § 19.2-187, neither
"the clerk" nor the "attorney for the Commonwealth" provided him
with a copy of the certificate prior to trial as required by
that code section. We hold appellant's notice to the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth of his request met the requirements of the
applicable version of Code § 19.2-187. Thus, we reverse the
trial court's ruling. Further, based on the trial court's
express finding that the evidence was insufficient to support
the conviction in the absence of the certificate of analysis, we
dismiss the warrant.
I.
BACKGROUND
On December 2, 2001, appellant was arrested for the instant
DUI offense. Following his conviction in district court on
January 17, 2002, appellant noted an appeal to the circuit
court.
On February 14, 2002, while awaiting trial in circuit court
on the DUI appeal, appellant was arrested for driving on a
suspended license and failing to stop for the police. Trial on
those charges was set for March 28, 2002.
On March 22, 2002, appellant filed in the circuit court a
letter that was addressed to the clerk of that court and
contained the following heading:
RE: Commonwealth v. Michael Dotson
Letter of Representation, Motion to Suppress
and Motion for Discovery
Request for Copy of Certificate of Analysis
Within the body of the letter, appellant requested "any
certificate of analysis filed with your office regarding this
matter."
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The letter itself included no indication that counsel had
provided the Commonwealth's Attorney's Office with a copy of the
letter. However, the letter referenced enclosed suppression and
discovery motions that appellant also asked the court to file.
The suppression and discovery motions each included a
certificate of service showing the motion was hand-delivered to
the Commonwealth's Attorney's Office on March 22, 2002. Those
motions indicated in their captions that they were to be filed
"IN THE CIRCUIT COURT OF CHESTERFIELD COUNTY," but the discovery
motion cited Rule 7C:5 of the Rules of the Supreme Court of
Virginia, a rule that expressly pertains only to discovery in "a
General District Court." The discovery motion read in relevant
part as follows:
COMES NOW the Defendant, by counsel,
and moves the Court to require the State to
deliver to counsel for the Defendant any
exculpatory or inculpatory evidence within
the meaning of the above referenced cases or
rules, including, but not limited to:
* * * * * * *
(c) the results of any chemical tests,
scientific tests, analyses and any blood,
breath, drug analysis or refusal to submit
to such test and certificates of analysis
that the Commonwealth intends to use at
trial, this is intended to give you formal
notice of defendant's request from the
clerk's office for the certificate of
analysis; . . . .
(Emphasis added). Appellant argued at trial and the
Commonwealth conceded on brief on appeal that a copy of the
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letter to the circuit court clerk requesting the certificate was
provided to the Commonwealth's Attorney in conjunction with the
discovery motion.
On March 26, 2002, the Commonwealth filed a response to
appellant's discovery motion "pursuant to Rule 7C:5" "IN THE
GENERAL DISTRICT COURT OF THE COUNTY OF CHESTERFIELD," noting a
trial date of March 28, 2002. The Commonwealth responded to
some of the requests, objected to others, and indicated, "No
Certificate of Analysis filed." The Commonwealth apparently
believed, mistakenly, that the discovery motion pertained to the
charges that were then pending in general district court and
scheduled for trial on March 28, 2002. However, the
Commonwealth apparently understood, correctly, that the
suppression motion related to the DUI charge pending in circuit
court and set for trial on April 3, 2002.
At trial in circuit court on April 3, 2002, on the DUI
charge, appellant objected to admission of the certificate of
analysis because he had not received a copy of the certificate
from the clerk or the attorney for the Commonwealth, despite
having requested a copy from the clerk's office in the manner
prescribed by the statute and having given the Commonwealth's
Attorney's Office notice of the request. The Commonwealth's
attorney represented that appellant's counsel "has been told by
our office that we will no longer respond to his motions for
discovery on misdemeanors appealed to Circuit Court. We told
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him that several months ago." The Commonwealth's attorney also
argued that appellant's request for the certificate did not
comply with Code § 19.2-187 because appellant did not provide "a
cc copy to [the Commonwealth's Attorney's Office] of the
[request] to the Clerk's Office of the Circuit Court."
Appellant responded that his request to the clerk's office
for the certificate complied with the statute and that the
statute did not specify the manner in which notice of that
request was to be given to the Commonwealth's Attorney's Office.
He argued that the discovery response he received from the
Commonwealth's Attorney's office indicated the assistant
Commonwealth's attorney who filed the response in fact read the
motion containing the notice but mistakenly believed the motion
applied to a different charge pending in a different court.
The trial court concluded "the Commonwealth was not
provided with notice as envisioned by this statute" and admitted
the certificate of analysis into evidence.
The certificate of analysis showed a breath alcohol content
of 0.10%. The trial court convicted appellant of the charged
offense based on the certificate. However, it also found as
follows: "I will state this on the record . . . . [B]ut for
the BAC results, I don't think there's sufficient evidence to
convict [appellant] of driving under the influence, [and] . . .
I'll make that finding."
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II.
ANALYSIS
The version of Code § 19.2-187 applicable to the present
proceedings provided as follows:
In any hearing or trial of any criminal
offense . . . , a certificate of analysis of
a person performing an analysis or
examination, performed in any laboratory
operated by . . . the Division of Forensic
Science . . . when such certificate is duly
attested by such person, shall be admissible
in evidence as evidence of the facts therein
stated and the results of the analysis or
examination referred to therein, 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 made by
such counsel to the clerk with notice of the
request to the attorney for the
Commonwealth. The request to the clerk
shall be in writing at least ten days prior
to trial and shall clearly state in its
heading "Request for Copy of Certificate of
Analysis."
2000 Va. Acts, ch. 336. 1
1
The statute was subsequently amended. See 2002 Va. Acts,
ch. 832. Effective July 1, 2002, Code § 19.2-187 provides that
"[t]he request to the clerk shall be on a form prescribed by the
Supreme Court." 2002 Va. Acts, ch. 832. The form promulgated
by the Supreme Court, titled "REQUEST FOR COPY OF CERTIFICATE OF
ANALYSIS," contains the following language: "I certify that a
copy of this request has been mailed or delivered to the
Commonwealth's Attorney of this jurisdiction on this ________
day of __________, ____________." Thus, the rule and related
form now clearly specify the method by which a defendant
requesting a copy of a certificate of analysis from the clerk
must give notice to the Commonwealth of the request.
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Under Code § 19.2-187, "a certificate of analysis is
admissible to prove the truth of its contents without the
appearance in court of the technician who conducted the
analysis, provided that the Commonwealth strictly complies with
several 'specific safeguards' listed in the statute." Taylor v.
Commonwealth, 28 Va. App. 1, 6, 502 S.E.2d 113, 115 (1998) (en
banc) (quoting Myrick v. Commonwealth, 13 Va. App. 333, 336-37,
412 S.E.2d 176, 178 (1991)). "When the Commonwealth seeks to
admit a certificate of analysis containing hearsay evidence, it
has the burden of proving that the certificate satisfies the
requirements of Code § 19.2-187 . . . ." Id. at 7, 502 S.E.2d
at 115. "A certificate of analysis is not admissible if the
Commonwealth fails strictly to comply with the provisions of
Code § 19.2-187. Prejudice to the defendant from a failure to
comply need not be shown." Woodward v. Commonwealth, 16
Va. App. 672, 674, 432 S.E.2d 510, 512 (1993) (citations
omitted) (emphasis added).
Here, it is undisputed that counsel for appellant requested
a copy of the certificate from the clerk in the manner required
by Code § 19.2-187 and that neither "the clerk" nor the
"attorney for the Commonwealth" provided the requested copy.
Nevertheless, the Commonwealth argued and the trial court ruled
that the certificate was admissible because appellant failed to
give the Commonwealth's Attorney's Office "notice [of the
request] as envisioned by [Code § 19.2-187]." We disagree.
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Although the applicable version of the statute clearly specifies
the form that the request to the clerk's office must take, it
contains no requirements regarding the method by which counsel
must give "notice of the request to the attorney for the
Commonwealth." (Emphasis added).
"Where a statute is unambiguous, the plain meaning is to be
accepted without resort to the rules of statutory
interpretation." Last v. Virginia State Bd. of Med., 14
Va. App. 906, 910, 421 S.E.2d 201, 205 (1992). "'Courts are not
permitted to rewrite statutes. This is a legislative
function.'" Barr v. Town & Country Properties, Inc., 240 Va.
292, 295, 396 S.E.2d 672, 674 (1990) (quoting Anderson v.
Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944)). "We
give the words of a statute 'their common, ordinary and accepted
meaning,' absent an indication by the legislature to the
contrary." Germek v. Germek, 34 Va. App. 1, 8, 537 S.E.2d 596,
600 (2000) (quoting Gen. Trading Corp. v. Motor Vehicle Dealer
Bd., 28 Va. App. 264, 268, 503 S.E.2d 809, 811 (1998)). Thus,
we turn to Black's Law Dictionary, which provides that a person
has notice of a fact "if[, inter alia,] that person (1) has
actual knowledge of it; (2) has received a notice of it; (3) has
reason to know about it; . . . or (5) is considered as having
been able to ascertain it by checking an official filing or
recording." Black's Law Dictionary 1087 (7th ed. 1999); see
also 21A Michie's Jurisprudence, Words and Phrases 386 (2000
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Repl. Vol.) ("Notice, generally, is any knowledge, however
acquired, which is sufficient to put a party on enquiry."
(quoting Cain v. Cox, 23 W. Va. 594, 609 (1884))).
Here, appellant argued at trial, and the Commonwealth
conceded on brief, that counsel for appellant provided to the
Commonwealth's Attorney's Office a copy of the letter to the
Chesterfield County Circuit Court Clerk requesting the
certificate of analysis. That the letter did not include a
"cc:" reference indicating the Commonwealth was to receive a
copy is not dispositive because such a notation is not required
by Code § 19.2-187. See Woodward, 16 Va. App. at 675, 432
S.E.2d at 512 (holding fact that accused requested copy of
certificate before rather than after filing did not render
certificate admissible because "the statute contains no such
[requirement], and we have no authority to impose it").
Furthermore, the fact that the copy of the request provided
to the Commonwealth may have been attached to the motion for
discovery served on the Commonwealth also is not dispositive
under the facts of this case. See id. An assistant
Commonwealth's attorney in fact responded to the motion for
discovery and, thus, presumably had actual notice of the
contents of the letter, see Black's, supra, at 1087 (defining
notice as "actual knowledge . . . [or] reason to know"), which
was clearly addressed to the circuit court clerk rather than the
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district court clerk and which indicated in its heading that it
included a "Request for Copy of Certificate of Analysis."
Finally, the discovery motion itself listed the circuit
court rather than the district court in its caption and
indicated internally, in the portion of the motion requesting
copies of test results and certificates of analysis, that "this
is intended to give you formal notice of defendant's request
from the clerk's office for the certificate of analysis."
Appellant's counsel conceded he was not entitled to discovery in
a misdemeanor appeal, and for this reason, the mere presence of
the "formal notice" statement in his discovery motion, standing
alone, would have been insufficient to provide the Commonwealth
with notice of the request under Code § 19.2-187. Here,
however, the Commonwealth's Attorney's Office specifically
responded to the request containing that express "formal notice"
language by indicating that "No Certificates of Analysis [were]
filed." Neither the fact that the discovery motion erroneously
referenced a rule applicable only in district court nor the fact
that the assistant Commonwealth's attorney handling the
discovery motion apparently erroneously concluded the motion
pertained to a related district court matter was sufficient to
negate the fact that the motion's caption clearly listed the
circuit court rather than the general district court and
accompanied a copy of a letter specifically addressed to the
circuit court.
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We do not intend by our ruling to condone gamesmanship in
the practice of law or to encourage the filing of frivolous
pleadings or motions. See, e.g., Code § 8.01-271.1 (permitting
imposition of sanctions on attorney who signs pleading, motion
or other paper "interposed for an[] improper purpose"); Bennett
v. Commonwealth, 236 Va. 448, 460-61, 374 S.E.2d 303, 311 (1988)
(upholding trial court's granting of motion for mid-trial
continuance on ground that "[a]mbush, trickery, stealth,
gamesmanship, one-upmanship, [and] surprise have no legitimate
role to play in a properly conducted trial"). Nevertheless, we
hold these facts establish that the Commonwealth's Attorney's
Office both "received a notice of [appellant's request for the
certificate]" and "ha[d] reason to know about it." See Black's,
supra, at 1037; see also 21A Michie's, supra, at 386.
III.
For these reasons, we hold that appellant's notice to the
Commonwealth of his request to the circuit court clerk's office
for the certificate of analysis met the requirements of the
applicable version of Code § 19.2-187. Thus, we reverse the
trial court's ruling admitting the certificate. Further, based
on the trial court's express finding that the evidence was
insufficient to support the conviction in the absence of the
certificate of analysis, we dismiss the warrant.
Reversed and dismissed.
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