Opinion
Record No. 0367-88-2.
September 11, 1990.
Appeal from the Circuit Court of Lancaster County, Dixon L. Foster, Judge.
Murray J. Janus (James S. Yoffy; Mark S. Brennan; Bremner, Baber Janus, on brief), for appellant.
Virginia B. Theisen, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Benton, Cole and Willis.
MEMORANDUM OPINION BY JUDGE JAMES W. BENTON, JR.
Joseph J. Nonnemacker, III, was convicted of possession of cocaine and possession of marijuana. Nonnemacker argues on appeal: (1) that the evidence was insufficient to establish that he possessed cocaine; and (2) that the trial judge erred in admitting into evidence two certificates of analysis. Because we conclude that the failure to comply with the filing requirement of Code § 19.2-187 rendered the certificates of analysis inadmissible, we reverse the marijuana conviction and remand for a new trial. We also conclude that the evidence was insufficient to sustain the conviction of possession of cocaine, and we reverse that conviction and dismiss the indictment.
State Trooper Timberlake received a report at 11:30 p.m. that several vehicles were parked at a service station in the Town of Kilmarnock. Timberlake knew that the station was closed for business at that time and that the building contained a sign prohibiting trespassing. Timberlake and an investigator from the Alcoholic Beverage Control Board arrived at the station and observed a pick-up truck and an automobile parked side by side, driver to driver. Thomas Smith and Viola Pittman occupied the truck. Nonnemacker was in the driver's seat of the two door automobile, and Melinda Sliacis was seated in the right rear passenger's seat. As Timberlake was advising the drivers of both vehicles that they were trespassing, he observed what appeared to be beer in Nonnemacker's automobile. Timberlake shone his flashlight into the automobile and noticed some small plastic bags on the floor in front of the rear seat on the left side of the automobile. A residue of white substance was visible in the bottom of the plastic bags. After picking up the six bags and showing them to Nonnemacker, Timberlake ordered Nonnemacker and Sliacis out of the automobile. Nonnemacker denied that the bags were his. A search of the car revealed a bag containing a greenish-brown substance and a wooden pipe, both of which Nonnemacker admitted were his.
At trial on December 11, 1987, the Commonwealth offered as evidence the original certificates of analysis, which showed the white substance to be cocaine and the greenish-brown substance to be marijuana. Nonnemacker objected to admission of the certificates on the ground that neither certificate bore a designation that it had been filed in the circuit court at least seven days prior to trial in compliance with Code § 19.2-187. Each certificate contained a stamp indicating only that it had been received in the general district court.
The Commonwealth called Faye Smith, Clerk of the Lancaster County General District Court, to testify concerning the filing of the certificates. Nonnemacker objected to Smith's testimony on the ground that Code § 19.2-271 barred Smith from testifying concerning her duties as clerk. The trial judge concluded that the statute was not intended to cover such a situation and overruled the objection. Smith testified that, following the October 21, 1987, preliminary hearing, she personally delivered to the circuit court on October 22, 1987, the papers attendant to the cocaine case. She further testified that, following the October 21, 1987, misdemeanor conviction, she delivered to the circuit court on November 10, 1987, papers attendant to the marijuana possession case.
Bertha Abbott, Clerk of the Lancaster County Circuit Court, testified, over Nonnemacker's objection, that her office received the cocaine case file, which included copies of both certificates of analysis, on October 22, 1987. According to Abbott, the marijuana case file was received on November 2, 1987. Abbott also testified that, through inadvertence, the copies of the certificates in the cocaine case file were never marked as filed. The trial judge admitted both certificates as evidence.
Code § 19.2-187 allows, as an exception to the hearsay rule, the admission into evidence of a certificate of analysis without the need for the in-court testimony of the laboratory technician who prepared the document:
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.
If the preparer of the certificate is not produced as a witness at trial, the failure of the Commonwealth fully to comply with the filing provisions of Code § 19.2-187 renders the certificate inadmissible. Gray v. Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705, 706 (1980); Allen v. Commonwealth, 3 Va. App. 657, 663, 353 S.E.2d 162, 166 (1987).
In this case, the original certificates of analysis received into evidence bear no indication that they were filed in the circuit court in compliance with the requirements of Code § 19.2-187. We do agree with the Commonwealth's contention that the copies of the certificates are evidence that the originals submitted at trial were timely filed in accordance with the statute. The copies are both contained in the circuit court's document file for the marijuana case. Although the copies purport to show by handwritten notation a filing on November 12, 1987, those copies do not bear the traditional signature and seal of the clerk of the circuit court. Absent some indicia of the authority of Diane H. Haynie to act, the handwritten notation of filing is meaningless. See Carroll v. Commonwealth, __ Va. App. __, __ S.E.2d __ (1990).
The copies of the certificates contained in the marijuana case documents file bear the following handwritten notation:
Filed 11/12/87 Teste BGA Clk By Diane H. Haynie,
The record does not disclose, however, the identity, title, or authorization of "Diane H. Haynie." We only know from the testimony of the clerk of the circuit court that "Diane is not a deputy."
Moreover, the copies bearing Haynie's notation were never introduced as evidence. There also is no indication from the record that those copies were in the circuit court file at the time of the trial on December 11, 1987. Furthermore, the fact that the circuit court's document file contains copies which may have existed in the file at the time of trial does not establish that the original certificates, when presented and accepted at trial as evidence, had been timely filed in compliance with Code § 19.2-187. Because the admission of the certificates into evidence was prejudicial error, we reverse the marijuana conviction and remand that case for a new trial. Allen, 3 Va. App. at 664, 353 S.B.2d at 166.
The record contains no basis to reconcile discrepancies among (1) Smith's testimony that she delivered documents for the marijuana file to the clerk's office on November 10, 1987; (2) Abbott's testimony that the file was received on November 2, 1987; and (3) the notation by Haynie that the certificates were filed November 12, 1987. The trial transcript does not show that any reference was made to the copies of the certificates that are contained in the marijuana case file. We also note that Nonnemacker's counsel represented to this Court at oral argument that the handwritten notations were not on the copies of the certificates of analysis at the time of the trial.
It is clear that the testimony of the clerk of the general district court and the clerk of the circuit court was inadmissible to establish that the certificates of analysis were filed with the clerk of the circuit court at least seven days prior to trial. Code § 19.2-271 expressly provides, in pertinent part:
No clerk of any court, magistrate, or other person having the power to issue warrants, shall be competent to testify in any criminal or civil proceeding, except proceedings wherein the defendant is charged with perjury, as to any matter which shall have come before him in the course of his official duties. Such person shall be competent to testify in any criminal proceeding wherein the defendant is charged pursuant to the provisions of § 18.2-460.
Both clerks testified to matters which came before them in the course of their official duties as clerks. These prosecutions were criminal proceedings other than perjury proceedings or a proceeding against the defendant pursuant to Code § 18.2-460. Code § 19.2-271 therefore renders the testimony of each clerk incompetent on this subject.
Nonnemacker also argues that the evidence was insufficient as a matter of law to sustain the conviction of possession of cocaine. We agree. Proof that cocaine was found in an automobile owned and occupied by Nonnemacker is insufficient, standing alone, to prove constructive possession. Code § 18.2-250 (A). The evidence showed only that Nonnemacker was seated in the driver's seat of an automobile that was registered to him and that a small quantity of cocaine was discovered on the floor of the rear seat behind the driver's seat. Another individual, Melinda Sliacis, was seated on the rear seat of the two door automobile at the time the cocaine was discovered. There was no proof concerning who else may have occupied the rear seat of the vehicle before this time. Crisman v. Commonwealth, 197 Va. 17, 87 S.E.2d 796 (1955) (where five men occupied automobile, anyone of whom could have dropped heroin on the floor of the rear seat, evidence failed to establish that the two defendants who occupied the rear seat possessed the drugs)
Far purposes of this discussion we assume that the evidence sufficiently established the identity of the substances.
The evidence further showed that while Nonnemacker readily admitted that the marijuana discovered on the floor of the front seat was his, he denied ownership of the bags containing cocaine residue and exhibited surprise at its discovery. Powers v. Commonwealth, 227 Va. 474, 316 S.E.2d 739 (1984) (surprise and denial of ownership a factor) No cocaine was found on Nonnemacker. No cocaine paraphernalia was found in or near the automobile. Sliacis and Smith, the driver of the other vehicle, both testified that the cocaine did not belong to Nonnemacker. Nonnemacker's fingerprints were not found on the packages.
Wright v. Commonwealth, 2 Va. App. 743, 348 S.E.2d 9 (1986) (evidence of fingerprints on bag of drugs a factor) Under these facts, the evidence failed to establish beyond a reasonable doubt that Nonnemacker "was aware of the presence and character of the drugs, and that he intentionally and consciously possessed them." Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975).
For the foregoing reasons, the judgment of conviction of possession of cocaine is reversed and the indictment is dismissed. The judgment of conviction of possession of marijuana is reversed and the case is remanded to allow the Commonwealth, if it be so advised, an opportunity to establish by some other means the identity of the substance.Gray, 220 Va. at 946, 265 S.E.2d at 706.
Reversed and dismissed in part and remanded in part.