Opinion
Record No. 2479-99-1
August 1, 2000
Appeal from the Circuit Court of the City of Virginia Beach, Edward W. Hanson, Jr., Judge
Barry R. Taylor (Claude M. Scialdone; Scialdone Taylor, Inc., on brief), for appellant.
H. Elizabeth Schaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Judges Elder, Willis and Senior Judge Cole
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.
Zachary S. Lewis, appellant, appeals his misdemeanor conviction of possession of marijuana, in violation of Code § 18.2-250.1. The issues on appeal are: (1) whether the trial court erred in admitting the certificate of analysis when the Commonwealth failed to comply with Code § 19.2-187, (2) whether the trial court erred in allowing the Commonwealth to reopen its case to admit the certificate of analysis, (3) whether the trial court erred in denying appellant an opportunity to present evidence of the lower court's error of trying the case twice in violation of his double jeopardy and due process rights, and (4) whether the general district court erred in trying appellant twice on the same charge in violation of his right against double jeopardy. Finding no reversible error, we affirm the conviction.
FACTS
Appellant was arrested on a misdemeanor warrant for possession of marijuana. On September 9, 1998, appellant appeared before the general district court for trial. Appellant objected to the admission of the certificate of analysis for failure of the Commonwealth's Attorney or clerk to mail or deliver a copy of the certificate to him seven days prior to trial. Detective Squires delivered a copy three days before trial. The trial court held the objection under advisement for six months, at which time the trial court overruled the motion. The trial judge did not remember the evidence in the case and had the Commonwealth present its evidence again, over appellant's objection. The trial court allowed the admission of the certificate of analysis and found appellant guilty.
Appellant filed his notice of appeal to the circuit court. Prior to trial, appellant filed a motion for discovery that included a request for the certificate of analysis, pursuant to Code § 19.2-187. The Commonwealth's attorney responded in its written reply that appellant was not entitled to discovery under Rule 3A:11 because appellant stood charged with a misdemeanor, not a felony. The Commonwealth did not deliver or mail a copy of the certificate of analysis to appellant's counsel. No hearing was held and no order was entered in response to the request for discovery.
On June 10, 1999, appellant appeared before the circuit court for trial de novo. Appellant objected to the admission of the certificate of analysis. The trial court overruled appellant's objection to the admission of the certificate, stating that Code § 19.2-187 was discretionary, not mandatory. The Commonwealth's attorney rested without admitting the certificate. Appellant made a motion to strike the evidence, however, the trial court allowed the Commonwealth to reopen its case and admit the certificate. The trial court found appellant guilty of possession of marijuana.
Appellant advised the trial court he had further motions concerning the events in general district court, which the trial court refused to hear. Appellant proffered double jeopardy arguments concerning the events in general district court.
ANALYSIS I.
Code § 19.2-187 (1995 Repl. Vol.) (amended 1999) provides, in pertinent part, that
[i]n any hearing or trial of any criminal offense . . . a certificate of analysis . . . shall be admissible in evidence . . . provided (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 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 of such counsel.
"Code § 19.2-187 should be construed strictly against the Commonwealth and in favor of the accused because it 'undertakes to make admissible evidence which otherwise might be subject to a valid hearsay objection.'" Coleman v. Commonwealth, 27 Va. App. 768, 773-74, 501 S.E.2d 461, 463 (1998) (citations omitted).
Here, the trial court erred when it stated that Code § 19.2-187 was a discretionary and not mandatory statute. See Taylor v. Commonwealth, 28 Va. App. 1, 6-7, 502 S.E.2d 113, 115 (1998) (en banc); Myrick v. Commonwealth, 13 Va. App. 333, 336-37, 412 S.E.2d 176, 178 (1991). However, "[a]n appellate court may affirm the judgment of a trial court when it has reached the right result for the wrong reason." Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312, 313 (1992) (citation omitted). This rule "may not be used if the correct reason for affirming the trial court was not raised in any manner at trial." Id. at 452, 417 S.E.2d at 313-14 (citation omitted). We will consider whether the trial court reached the right result, though for the wrong reason.
In Coleman, we held that a defendant has at least three avenues to secure [a certificate of analysis:] . . . (1) [request] it under the terms of Code § 19.2-187(ii) directly from the clerk of the . . . court or from the attorney for the Commonwealth; (2) [make] a motion for discovery under Rule 3A:11 to the court to order the Commonwealth to permit him to inspect and copy or photograph designated documents, including scientific reports; and (3) [call] upon the Commonwealth to produce exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963).
Coleman, 27 Va. App. at 773, 501 S.E.2d at 463 (footnote omitted). In Coleman, Coleman was charged with a felony offense and he made a request for the certificate of analysis through his motion for discovery under Rule 3A:11. The trial court entered a discovery order that directed all discovery would take place at the Commonwealth's Attorney's office within ten days of trial and upon twenty-four hours notice. Coleman's counsel endorsed the discovery order "We ask for this." Coleman's counsel failed to arrange a meeting at the Commonwealth's Attorney's office to procure his discovery materials. This Court held that Coleman had intermingled Code § 19.2-187 and Rule 3A:11 and that, since he endorsed the discovery order without objection and failed to "conduct discovery as prescribed by the discovery order, [Coleman] waived any objection concerning delivery of the certificate to him." Id. at 775-76, 501 S.E.2d at 464-65.
In this case, appellant made his request for the certificate through a motion for discovery. While we have held that a request in a felony case for a certificate of analysis through a discovery motion was sufficient to invoke the seven day requirement of Code § 19.2-187, see Copeland v. Commonwealth, 19 Va. App. 515, 452 S.E.2d 876 (1995), appellant's case involved a misdemeanor offense. Appellant was not entitled to discovery pursuant to Rule 3A:11 because the Rule only applies to felony proceedings.
After receiving the Commonwealth's written reply to the request for discovery, that it would not provide the information requested because appellant was not entitled to discovery in a misdemeanor case, appellant failed to schedule a hearing on the motion. The trial court never entered an order pertaining to the request for discovery, as was done in Coleman.
Therefore, because appellant chose to proceed under Rule 3A:11, which was not applicable to his case, instead of directly proceeding under Code § 19.2-187, his request for the certificate of analysis was not valid. Although the trial court erred in stating that Code § 19.2-187 was discretionary, it properly admitted the certificate of analysis because appellant was not entitled to formal discovery, the avenue appellant chose to request the document.
Code § 19.2-187 provided, in part, that the certificate of analysis shall be admissible in evidence of the facts therein stated, "provided (i) the certificate of analysis is filed with the clerk or the court hearing the case . . . and (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 . . . upon request of such counsel." This section was amended in 1999 by the General Assembly to read "upon request made by such counsel to the clerk with notice of the request to the attorney for the Commonwealth." Code § 19.2-187 is a specific statute, as opposed to a general one, providing how counsel of record shall obtain a certificate of analysis filed with the clerk of the court hearing the case. "[W]hen one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner . . . and . . . they conflict, the latter prevails." Virginia Dept. of Taxation v. Blanks Oil Co., 255 Va. 242, 247, 498 S.E.2d 914, 916 (1998) (citations omitted).
II.
"[T]he order of proof is a matter within the sound discretion of the trial court and [an appellate] court will not reverse the judgment except in very exceptional cases, and, unless it affirmatively appears from the record that this discretion has been abused, [an appellate] court will not disturb the trial court's ruling."
Lebedun v. Commonwealth, 27 Va. App. 697, 715, 501 S.E.2d 427, 436 (1998) (quoting Hargraves v. Commonwealth, 219 Va. 604, 608, 248 S.E.2d 814, 817 (1978)). "Although the trial judge is a neutral and impartial arbiter and should not abandon that role by becoming an advocate, the trial judge is not required to sit idly and observe a miscarriage of justice occur because one party inadvertently overlooks establishing a routine element of proof."Id. at 716, 501 S.E.2d at 436.
In Lebedun, the Commonwealth failed to present evidence that identified Lebedun as the criminal agent, an essential element of the case. This Court held that the trial court did not err by allowing the Commonwealth to reopen its case and identify Lebedun. Here, as in Lebedun, the Commonwealth failed to establish an essential element of the offense in its case-in-chief, namely that the discovered substance was in fact marijuana. The certificate of analysis had been discussed and contested, but, due to an oversight, had not been submitted for admission. The trial court did not err by allowing the Commonwealth to reopen its case and move for the certificate's admission. We cannot say that the trial court abandoned its role as a neutral and impartial arbiter, nor that it abused its discretion.
III.
Appellant contends that the trial court erred in refusing to hear his arguments and evidence concerning double jeopardy and due process violations by the general district court. While he properly addresses the double jeopardy issue, he advances no argument in support of the due process contention, and he cites no legal authority for the due process contention. "Statements unsupported by argument, authority, or citations to the record do not merit appellate consideration. We will not search the record for errors in order to interpret appellant's contention [nor] correct deficiencies in a brief." Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). We will, however, address the double jeopardy argument.
"[T]he State gives an accused the benefit of two full opportunities for acquittal. . . . If an accused elects to take advantage of a second and fresh opportunity, it appears entirely fair that the accused and the State should start again at parity . . . ."Johnson v. Commonwealth, 212 Va. 579, 586, 186 S.E.2d 53, 58 (1972). No rule, statute, or case law concerning trial de novo requires circuit courts to review errors by the lower court. But cf. Ward v. Village of Monroeville, 409 U.S. 57, 61-62 (1972) (holding that trial de novo cannot be used as a procedural safeguard against systemic due process violations in the lower court). Therefore, the trial court did not err in refusing to hear argument and evidence on the double jeopardy motion and properly allowed appellant to proffer his argument and file supporting affidavits for appellate review.
IV.
The Fifth Amendment protection against double jeopardy "guarantees protection against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." Payne v. Commonwealth, 257 Va. 216, 227, 509 S.E.2d 293, 300 (1999) (citations omitted).
Jeopardy attached in September when the first witness was sworn. However, the double jeopardy protections do not apply until final judgment is obtained. The general district court judge held the objection to the certificate of analysis under advisement for six months without deciding the merits of the evidence. When the court reconvened, the judge did not remember the evidence and he rearraigned appellant and asked the Commonwealth to present its case again. The trial court reached final judgment of conviction once, though it heard some evidence twice. Therefore, the trial court did not put appellant in jeopardy of multiple prosecutions for the same offense.
For the above stated reasons, we affirm appellant's conviction for possession of marijuana.
Affirmed.
I concur in parts III and IV of the majority opinion. However, I would hold that appellant's request for the certificate of analysis was sufficient to require the Commonwealth to provide it to him in compliance with the terms of Code § 19.2-187. Therefore, I dissent from part I of the majority opinion and would find it unnecessary to reach the issue addressed in part II. I would reverse appellant's conviction and remand for further proceedings if the Commonwealth be so advised.
The version of Code § 19.2-187 applicable to these proceedings provided, in relevant part, as follows:
In any hearing or trial of any criminal offense . . ., a certificate of analysis . . . shall be admissible in evidence . . . 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 of such counsel.
Id. (1995 Repl. Vol.) (emphasis added). As the majority recognizes, we have held repeatedly that this code section should be construed strictly against the Commonwealth and in favor of the accused because it "'undertakes to make admissible evidence which otherwise might be subject to a valid hearsay objection.'"Mullins v. Commonwealth, 12 Va. App. 372, 374, 404 S.E.2d 237, 238 (1991) (quoting Gray v. Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705, 706 (1980)).
Code § 19.2-187 does not prescribe a particular manner in which counsel must request a certificate of analysis from the Commonwealth. See Woodward v. Commonwealth, 16 Va. App. 672, 675, 432 S.E.2d 510, 512 (1993) (holding that where statute contains no requirement that request for certificate of analysis must be made after Commonwealth files it with clerk, Court of Appeals has no authority to impose such a limitation). In Coleman v. Commonwealth, 27 Va. App. 768, 501 S.E.2d 461 (1998), we recognized that a defendant has
at least three avenues to secure [a certificate of analysis:] . . . (1) request it under the terms of Code § 19.2-187(ii) directly . . . from the attorney for the Commonwealth; (2) ma[k]e a motion for discovery under Rule 3A:11 to the court to order the Commonwealth to permit [the defendant] to inspect and copy or photograph designated documents, including scientific reports; and (3) call upon the Commonwealth to produce exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963).
Id. at 773, 501 S.E.2d at 463 (footnote omitted) (emphases added). We held in Coleman that the certificate was admissible because, although the defendant specifically had requested the certificate "[p]ursuant to Section 19.2-187" in a separate paragraph contained in his discovery motion, he had endorsed an order of the court which provided that all documents requested in the motion would be obtained by the defendant "during business hours, in the prosecutor's office, not less than ten days before trial, upon twenty-four hours advance notice." Id. at 770, 774, 501 S.E.2d at 462, 464. Although counsel for the defendant endorsed the order, "We ask for this," thereby consenting to the court's ordered method of discovery, counsel never availed himself of the approved method of obtaining the discovery materials or certificate. See id. at 771, 774, 501 S.E.2d at 462, 464. We held that "[t]he Commonwealth's attorney reasonably could rely upon this endorsed order as controlling all requests made in the motion for discovery, including the request for any certificate of analysis."Id. at 774, 501 S.E.2d at 464.
The majority holds under Coleman that appellant was not entitled to the certificate of analysis because he (1) requested it via a discovery motion filed pursuant to Rule 3A:11, which was not applicable to this case because it involved a misdemeanor rather than a felony charge, rather than proceeding directly under Code § 19.2-187, and (2) failed to take further action when the Commonwealth responded that it would not tender discovery under Rule 3A:11 because appellant was not entitled to it. I would hold that appellant did all that was required of him under a strict construction of Code § 19.2-187. He did not merely request the certificate of analysis indirectly as "a scientific report" to which he may have been entitled as part of discovery under Rule 3A:11 only in a felony case. Rather, as noted by the majority, he "made a request for the certificate of analysis pursuant to Code § 19.2-187." Code § 19.2-187 does not prohibit a defendant from combining a motion for discovery under Rule 3A:11 with a request for any certificates of analysis under Code § 19.2-187. That a defendant charged with a misdemeanor is not entitled to discovery does not negate the fact that the same defendant is absolutely entitled to any certificates of analysis specifically requested pursuant to the terms of Code § 19.2-187. When appellant properly requested any certificates of analysis pursuant to Code § 19.2-187 and the Commonwealth failed timely to produce them, he was entitled to conclude that the Commonwealth would not seek to admit any certificates without proper foundation. Code § 19.2-187 provides an exception to the hearsay rule, and once appellant requested any certificates, the burden rested on the Commonwealth rather than appellant to prove compliance with the statute.
For these reasons, I dissent from part I of the majority decision, and I would reverse and remand appellant's conviction.