Calvin L. Woodridge v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 23, 1999
• Docket: 0121982
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Elder and Annunziata Argued at Richmond, Virginia

CALVIN L. WOOLRIDGE OPINION BY v. Record No. 0121-98-2 JUDGE LARRY G. ELDER MARCH 23, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Ernest P. Gates, Judge Designate

Cullen D. Seltzer (David J. Johnson, Public Defender, on brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Calvin Woolridge (appellant) appeals from his jury trial

conviction for driving while intoxicated in violation of Code

§ 18.2-266. On appeal, he contends the trial court erroneously

(1) admitted the results of a breath test certificate prepared by

a machine which, without explanation, printed a random arabic

numeral on the face of the certificate in the middle of the

testing official's name; (2) admitted evidence that appellant was

offered a preliminary breath test; and (3) refused appellant's

proffered instruction telling the jury that it could consider

appellant's lack of flight from the arresting officer as a factor

in determining his guilt or innocence. For the reasons that

follow, we disagree and affirm the conviction.

I.

FACTS

On the evening of December 31, 1996, Officer James E.

Schultz, Jr., stopped appellant for speeding. When Schultz asked for appellant's license and registration, he noticed the odor of

alcohol coming from appellant's person. In response to an

inquiry from Schultz, appellant admitted consuming "a couple of

drinks." Schultz asked appellant to perform some field sobriety

tests, which Schultz demonstrated before asking appellant to

perform them. Appellant accurately performed one test which

involved counting backward from fifty-seven to forty-one, but he

was unable successfully to complete either the nine-step

heel-to-toe walk or the one-leg stand. Schultz then offered

appellant a field alka-sensor test and arrested appellant for

driving while intoxicated.

Schultz transported appellant to police headquarters, where

he administered a breathalyzer test on the Intoxilizer 5000.

Schultz, who was trained to operate the machine, placed his

personal identification card in the machine, from which the

machine determined that he was its operator. Schultz entered

appellant's name into the machine by hand. Schultz then

administered the test, and the machine produced a certificate of

breath analysis indicating that appellant had a blood alcohol

concentration of 0.14 grams per 210 liters of breath. On the

portion of the certificate listing the operator's name, the

machine printed "SCHULTZ4 JAMES E., JR." Schultz then signed the

certificate, which stated that the test was conducted with

approved equipment in accordance with the specifications of the

Division of Forensic Science and that the machine "ha[d] been

tested within the past six months and found to be accurate."

Schultz explained that he was not personally present when the

- 2 - calibration test was performed on August 30, 1996, but that his

training to operate the machine included information that the

machine would have been removed from service if it had not been

accurate at the time of the last calibration test.

At trial, appellant moved to exclude (1) the breath test

certificate and (2) testimony that appellant was offered and was

given a preliminary breath test. The trial court ruled that the

certificate was admissible and that Officer Schultz could testify

that he offered appellant a preliminary breath test. Officer

Schultz ultimately testified that "a field alcosensor test was

offered to [appellant]."

At the close of the evidence, appellant proffered Jury

Instruction X, which he described as "the inverse of [a] flight

instruction." The instruction read: "If a person does not flee

the scene of an alleged crime, that fact creates no presumption

that the person is innocent of having committed the crime.

However, it is a circumstance which you may consider along with

the other evidence." The trial court refused the instruction.

The jury convicted appellant of the charged offense. II.

ANALYSIS

A.

ADMISSIBILITY OF BREATH TEST CERTIFICATE

Appellant contends the trial court erroneously admitted the

breath test certificate. He argues that the certificate did not

comply with statutory requirements because the machine printed a

random number on the certificate in the middle of the testing

- 3 - official's name and the testing official, Officer Schultz, could

not confirm, based on personal knowledge, that the breathalyzer

machine was functioning properly either at the time the machine

was tested for accuracy by the Division of Forensic Science as

required by Code § 18.2-268.9 or at the time of appellant's

breath alcohol test. We hold that our decision in Anderson v.

Commonwealth, 25 Va. App. 26, 486 S.E.2d 115 (1997), read in

conjunction with Code § 18.2-268.9, controls our disposition of

these issues. We are guided by the principle that "[t]he

admissibility of evidence is within the broad discretion of the

trial court, and a ruling will not be disturbed on appeal in the

absence of an abuse of discretion."

Code § 18.2-268.9 provides, in relevant part, as follows:

To be capable of being considered valid as evidence in a prosecution under § 18.2-266, § 18.2-266.1, or a similar ordinance, chemical analysis of a person's breath shall be performed by an individual possessing a valid license to conduct such tests, with a type of equipment and in accordance with methods approved by the Department of Criminal Justice Services, Division of Forensic Science. The Division shall test the accuracy of the breath-testing equipment at least once every six months.

* * * * * * *

Any individual conducting a breath test under the provisions of § 18.2-268.2 shall issue a certificate which will indicate that the test was conducted in accordance with the Division's specifications, the equipment on which the breath test was conducted has been tested within the past six months and has been found to be accurate, the name of the accused, that prior to administration of the test the accused was advised of his right to observe the process and see the blood alcohol reading on the equipment used to perform the breath test, the date and time the sample was

- 4 - taken from the accused, the sample's alcohol content, and the name of the person who examined the sample. This certificate, when attested by the individual conducting the breath test, shall be admissible in any court in any criminal or civil proceeding as evidence of the facts therein stated and of the results of such analysis. Any such certificate of analysis purporting to be signed by a person authorized by the Division shall be admissible in evidence without proof of seal or signature of the person whose name is signed to it. . . .

Interpreting this statute in Anderson, we rejected the

contention that the certificate at issue, which contained the

same relevant wording in the attestation clause, was inadmissible

because the person administering the test had no personal

knowledge of the machine's performance testing. 25 Va. App. at

31, 486 S.E.2d at 117; see id. at 34 n.3, 486 S.E.2d at 119 n.3

(Benton, J., dissenting) (reciting language in attestation

clause). We held that "[t]he Commonwealth is not required to

establish a foundation for the statements contained in the

certificate." Id. at 30, 486 S.E.2d at 116. We reasoned:

"When the certificate contains what the statute requires, the statute makes the certificate self-authenticating for purposes of admissibility. Once the certificate is admitted, the statute makes it evidence of the alcoholic content of the blood to be considered with all other evidence in the case. But the statute does not make the certificate conclusive evidence of the statutory regularity of the test. With respect to regularity of the test, the statute affords the defendant the right to prove noncompliance with test procedures. . . . Even had he . . . proved some prejudicial irregularity in test procedures, such proof would not have defeated admissibility of the certificate but only affected its weight as evidence of the alcoholic content of his blood."

- 5 - Id. at 30, 486 S.E.2d at 117 (quoting Stroupe v. Commonwealth,

215 Va. 243, 245, 207 S.E.2d 894, 896 (1974)); see also Code

§ 18.2-268.11 (providing that substantial compliance with

procedures in Code §§ 18.2-268.2 to 18.2-268.9 is sufficient to

permit admissibility of blood or breath test results). As a

result, we held in Anderson that the "[testing officer's]

personal knowledge of the required test for accuracy affected, if

anything, the weight of the certificate as evidence, not its

admissibility." 1 25 Va. App. at 30, 486 S.E.2d at 117.

Appellant conceded on oral argument before us that the only

distinction between this case and Anderson is that the

certificate here contained a random numeral printed in the middle

of the testing official's name, but appellant contends that this

distinction required exclusion of the certificate. We disagree.

The same principles we enunciated in Anderson apply to Officer

Schultz's ability to confirm that the test was accurate when

administered to appellant. Simply put, the statute does not

require proof of the accuracy of an individual test as a

prerequisite to admissibility of the resulting certificate.

1 The Virginia Supreme Court on the merits denied Anderson's petition for appeal, see Anderson v. Commonwealth, No. 971680 (Va. Dec. 17, 1997), making the holding in Anderson fully binding on this Court. See Harward v. Commonwealth, 5 Va. App. 468, 476, 364 S.E.2d 511, 515 (1988) (noting that "'decision to . . . refuse a petition for writ of error is based upon . . . the merits of the case'" (quoting Saunders v. Reynolds, 214 Va. 697, 700, 204 S.E.2d 421, 424 (1974))); id. (noting that "doctrine . . . appl[ies] even when 'the precise issue involved' resulted in denial of a petition for a writ of error in a separate case" (quoting Stillwell v. Commonwealth, 219 Va. 214, 226, 247 S.E.2d 360, 368 (1978))).

- 6 - Here, although Schultz could not explain why the machine had

printed the number "4" on the breath analysis certificate in the

middle of his name, the certificate complied with all the

requirements contained in Code § 18.2-268.9, and the burden was

on appellant to prove a substantive, rather than merely

procedural, irregularity sufficient to defeat the certificate's

admissibility. See Anderson, 25 Va. App. at 30, 486 S.E.2d at

117 (citing Stroupe, 215 Va. at 245, 207 S.E.2d at 896). Compare

Brooks v. City of Newport News, 224 Va. 311, 314-15, 295 S.E.2d

801, 803 (1982) (holding that section of statute requiring

testing official to possess a valid license to conduct breath

tests was substantive such that certificate plainly indicating

that license of test administrator had expired was inadmissible)

(decided under former § 18.2-268(r1), predecessor of current

§ 18.2-268.9). Officer Schultz explained that the machine read

his name from an operator identification card Schultz inserted

into the machine. A variety of possible reasons might explain

the machine's inclusion of the number "4" in Schultz's name,

including an error in the information encoded on Schultz's

identification card or an error in the machine's reading of the

card. However, neither of these possibilities produces a

substantive irregularity sufficient to defeat the certificate's

admissibility. Therefore, the unexplained presence of the number

"4" affected only the weight to be given the certificate, not its

admissibility. See Anderson, 25 Va. App. at 30, 486 S.E.2d at

117.

- 7 - Appellant also contends on brief that the trial court failed

to consider other issues critical to the certificate's

admissibility -- whether it was relevant, material and more

probative than prejudicial. Because appellant did not challenge

the certificate's admissibility at trial on any of these grounds,

we do not consider on appeal his contention that any of these

factors may have barred admission of the certificate. See Rule

5A:18.

For these reasons, we hold that the trial court did not

abuse its discretion in admitting the certificate into evidence. 2

B.

ADMISSIBILITY OF TESTIMONY THAT APPELLANT WAS OFFERED A PRELIMINARY BREATH TEST

Under Code § 18.2-267(A), "[a]ny person who is suspected of

a violation of § 18.2-266 or § 18.2-266.1 shall be entitled, if

such equipment is available, to have his breath analyzed to

determine the probable alcoholic content of his blood." The

statute provides that, "[w]henever the breath sample analysis

indicates that alcohol is present in the person's blood, the

officer may charge the person with [driving while intoxicated]."

Code § 18.2-267(D). However, it also provides that "[t]he results of the breath analysis shall not be admitted into

evidence in any prosecution [for driving while intoxicated]."

Code § 18.2-267(E) (emphasis added). Therefore, we have held

that the results of the preliminary breath test may be admitted

2 Appellant challenges only the admissibility of the certificate. He does not challenge the sufficiency of the evidence to prove his blood alcohol level violated Code § 18.2-266.

- 8 - into evidence at a pretrial probable cause or suppression

hearing, see Stacy v. Commonwealth, 22 Va. App. 417, 423-24, 470

S.E.2d 584, 587 (1996), but "the results . . . shall not be

admitted into evidence in any prosecution" which determines guilt

or innocence, Code § 18.2-267(E); see Stacy, 22 Va. App. at

421-23, 470 S.E.2d at 586-87. The statute does not expressly

prohibit the introduction of evidence indicating that the accused

has been offered a preliminary breath test.

Appellant contends that evidence that the test was offered,

coupled with evidence that appellant was then arrested for DUI,

was tantamount to admitting the results of the test. He also

contends that the fact that the test was offered was irrelevant

and immaterial; because appellant did not question whether

Officer Schultz had probable cause to make the arrest, the

offering of the test tended to prove no fact in issue.

We disagree. First, the mere fact that appellant did not

challenge whether Officer Schultz had probable cause for the

arrest did not render immaterial the evidence that the test was

offered. Under settled principles, a defendant may not prevent

the Commonwealth from offering evidence of a fact simply because

the defendant is willing to stipulate to that fact or does not

contest its existence. We repeatedly have held that the

Commonwealth is not required to accept a defendant's offer to

stipulate and is entitled to offer evidence to prove any fact

relevant to the charged offense. See Cantrell v. Commonwealth, 7

Va. App. 269, 287, 373 S.E.2d 328, 337 (1988) (despite

defendant's offer to stipulate, permitting Commonwealth to offer

- 9 - evidence of defendant's affair as motive for murder of wife);

Glover v. Commonwealth, 3 Va. App. 152, 161-62, 348 S.E.2d 434,

440 (1986) (despite defendant's offer to stipulate, permitting

Commonwealth to prove prior convictions to support conviction

under recidivist statute), aff'd, 236 Va. 1, 372 S.E.2d 134

(1988). Here, appellant admits that whether Officer Schultz

offered appellant a preliminary breath test was relevant to

whether Schultz had probable cause to make the arrest. The mere

fact that appellant did not contest this issue did not nullify

the Commonwealth's right to offer evidence on that issue.

Second, we reject appellant's contention that the admission

of this evidence led to the impermissible inference that the test

showed the presence of alcohol. The evidence proved only that

Officer Schultz offered appellant the test; it did not disclose

whether appellant agreed or refused to take the test and,

therefore, provided no impermissible inference regarding the

results of the test.

abuse its discretion in admitting the challenged evidence.

C.

ENTITLEMENT TO PROFFERED JURY INSTRUCTION X

"[T]he trial court should instruct the jury only on those

theories of the case which find support in the evidence." Morse

v. Commonwealth, 17 Va. App. 627, 632-33, 440 S.E.2d 145, 149

(1994). "Although an instruction correctly states the law, if it

is not applicable to the facts and circumstances of the case, it

should not be given. An instruction must be supported by more

- 10 - than a scintilla of evidence." Hatcher v. Commonwealth, 218 Va.

811, 813-14, 241 S.E.2d 756, 758 (1978) (citation omitted).

"[T]he weight of the credible evidence that will amount to more

than a mere scintilla . . . is a matter to be resolved on a

case-by-case basis" by assessing the evidence in support of a

proposition against the "other credible evidence that negates"

it. Brandau v. Commonwealth, 16 Va. App. 408, 411-12, 430 S.E.2d

563, 565 (1993). On appeal, "we view the evidence with respect

to the refused instruction in the light most favorable" to the

appellant. Boone v. Commonwealth, 14 Va. App. 130, 131, 415

S.E.2d 250, 251 (1992).

Assuming without deciding that appellant's proffered

instruction correctly states the law, we nevertheless hold that

the instruction was not supported by more than a scintilla of

evidence. The evidence, viewed in the light most favorable to

appellant, shows that Officer Schultz stopped appellant for

speeding and that appellant knew he was speeding at the time he

was stopped. Therefore, appellant's failure to flee the scene

rather than stop in response to Officer Schultz's lights does not

provide even a scintilla of evidence to support an inference that

appellant was innocent of speeding under the facts of this case.

Further, that appellant stopped for Officer Schultz's

flashing lights and remained at the scene after Schultz began to

investigate appellant's possible intoxication also does not

provide the scintilla of evidence necessary to support

appellant's proffered instruction. As we previously held in a

different context, an accused's willingness to do something he or

- 11 - she is required by law to do is not probative of his or her guilt

or innocence, and evidence that the accused engaged in the

required act, therefore, is not admissible. See Hammond v.

Commonwealth, 17 Va. App. 565, 568, 439 S.E.2d 877, 879 (1994)

(en banc) (holding that request of accused to take a blood or

breath test, under circumstances where Code § 18.2-268.2 required

accused to take test, "prove[d] nothing about [the] guilt or

innocence [of the accused]" such that evidence was not relevant

and trial court did not err in refusing to admit it). Here,

appellant was required by law to stop in response to Officer

Schultz's flashing lights and to remain at the scene while

Schultz investigated his possible intoxication. See Code

§ 46.2-817 (criminalizing driver's failure to stop upon signal

from police officer); Code § 18.2-479 (criminalizing flight from

custody on charge of misdemeanor or felony). Therefore,

appellant's compliance was not probative of his innocence, and

the trial court did not err in refusing his instruction to the

contrary.

For these reasons, we affirm appellant's conviction. Affirmed.

- 12 -