Opinion
Record No. 0323-93-2
Decided: August 30, 1994
FROM THE CIRCUIT COURT OF HALIFAX COUNTY, Kenneth M. Covington, Judge Designate
Affirmed.
Buddy A. Ward, Public Defender (Office of the Public Defender, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Jay Newman appeals his conviction for distributing cocaine in violation of Code Sec. 18.2-248. He contends that the trial court erred (1) in admitting the certificate of analysis over his objection that the Commonwealth had failed to establish an adequate chain of custody; and (2) in holding that the evidence was sufficient to support his conviction. For the reasons that follow, we affirm appellant's conviction.
I.
The admissibility of evidence lies within the broad discretion of the trial court, Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988), and "[w]here 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). Under the evidence in this case, the trial court did not abuse its discretion in admitting the certificate of analysis, for the possibility that the substance seized from appellant was not the same substance tested amounted to no more than mere speculation.
According to the testimony, the packets seized from appellant remained in the exclusive custody of Hite, Loftis, and Consolidated Lab Services prior to being tested. Although Hite and Loftis provided somewhat differing descriptions of the items seized-Hite described them as "two small packages, plastic cellophane," and Loftis described them as "two plastic baggie corners with red twist ties"-defense counsel failed to explore this potential discrepancy on cross-examination and never requested that the packets be produced for examination or introduced at trial. In any event, the testimony was unequivocal that the items obtained from appellant by Trooper Hite were the same items given to Officer Loftis and ultimately forwarded to the laboratory. Furthermore, we are aware of no statute or case law requiring that either the drugs seized or their packaging actually be introduced into evidence. Under Code Sec. 19.2-187, a duly attested certificate of analysis "shall be admissible . . . as evidence of the facts therein stated and the results of the analysis or examination referred to therein," provided that a copy of the certificate is filed with the clerk and mailed to opposing counsel within seven days of trial. Appellant does not allege that the Commonwealth failed to comply with the statute.
Although appellant now contends that Hite or Loftis could have confused the items taken from appellant with items seized from another suspect, both officers testified that this did not occur. In light of this testimony, we hold that the evidence was properly admitted and that any doubt as to the integrity of the evidence related to the weight to be given it.
II.
Appellant presents a two-pronged objection to the sufficiency of the evidence to support his conviction. In considering these issues on appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. "The judgment of a trial court will not be set aside unless it appears from the evidence that [it] is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code Sec. 8.01-680). "[T]he finding of the judge, upon the credibility of the witnesses and the weight to be given their evidence, stands on the same footing." Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987).
First, appellant contests the evidence linking him to the substance determined to be cocaine. We conclude, however, that the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to show that the substance Hite bought from appellant was the same substance that Hite turned over to Loftis, the same substance that Loftis sent to the laboratory, and the same substance the laboratory analyzed. Appellant's assertions of improper labeling or tampering amount to no more than mere speculation.
Appellant also contests the sufficiency of the evidence identifying him as the perpetrator. Despite the discrepancy between appellant's actual height and the undercover officer's initial report concerning the seller's height, the officer was able to pick appellant out of an in-court lineup as the person who sold him the cocaine. The trial court obviously found Trooper Hite's identification credible and reliable, which it was entitled to do. We cannot conclude that the evidence was insufficient to support appellant's conviction.
For these reasons, we affirm appellant's conviction.
Affirmed.
The evidence established that a " 'vital link in the chain of possession is not accounted for, because . . . it is as likely as not that the [substance] analyzed was not the [substance] originally received.' " Robinson v. Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180 (1971) (citation omitted).
[I]nconclusive and unsatisfactory evidence cannot be said to establish beyond a reasonable doubt that the [substance] analyzed was in fact the [substance taken from the] defendant. Such an analysis is important evidence in a trial of this sort, and care must be exercised to establish the essential links in the chain of evidence relied on to identify the [substance] analyzed as the [substance] taken.
Rodgers v. Commonwealth, 197 Va. 527, 530-31, 90 S.E.2d 257, 259-60 (1955).
State Trooper Hite testified that on February 15, three identified at trial as Jay Newman, he asked Newman to sell him years prior to trial, when he was introduced to a man that he cocaine. He described the man who sold him cocaine as being five feet, four inches tall, slender, and weighing 140 pounds. He testified that he purchased from Newman two "small packages [of] plastic cellophane" that appeared to contain cocaine. He testified that he gave the packages to South Boston Police Investigator Loftis.
Loftis testified that Hite worked in an undercover capacity with him for several months and made twenty-five or thirty purchases of drugs during that period. He testified that on February 15, Hite gave him "two clear plastic baggie corners with red twist ties." Loftis admitted that it was possible that Hite made more than one purchase of cocaine on February 15. Loftis sent the items he received to the laboratory. The laboratory reported that the white powder in the "two . . . plastic bag corners" it received from Loftis was cocaine.
The Commonwealth did not introduce into evidence either the cocaine or the packaging that contained the cocaine. This appeal turns on whether the Commonwealth adequately proved that the substance analyzed by the laboratory was the substance Hite obtained from Newman.
The evidence proved that Hite made many purchases of drugs while acting undercover. The evidence proved that Loftis did not know how many buys Hite made on February 15. Any inference that Hite made only one buy is speculative. Furthermore, if Hite made more than one drug purchase on February 15, no evidence proved that the packages he bought from Newman were the same ones Loftis sent to the lab and identified as having been purchased from Newman. Loftis had no first hand knowledge of the sale. Hite, the only witness for the Commonwealth with first hand knowledge of what packages were purchased from Newman, did not testify that the bags sent to the lab were the ones he bought from Newman. Hite also did not testify that he saw Loftis package and label the sample correctly.
The ambiguity regarding which bags were in fact purchased from Newman is exacerbated by Loftis's description of the bags he received from Hite as "two clear plastic baggie corners with red twist ties." Hite described the purchases he made from Newman as "two small packages, plastic cellophane." Those phrases may be reasonably construed to describe different items. Although one explanation for the differences in description may be attributable to means of expression from the witness stand, another equally reasonable conclusion is that it is as likely as not that Hite and Loftis described in their testimony the results of two entirely different drug purchases.
The fact finder was required to speculate in order to conclude that Hite and Loftis described the same packages. Such inconclusive evidence does not satisfy the requirement to prove the chain of possession. For these reasons, I dissent from the majority opinion, and I would reverse the conviction.