Ceasar Lamont Clark v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: February 8, 2000
• Docket: 2312981
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata Argued at Chesapeake, Virginia

CEASAR LAMONT CLARK MEMORANDUM OPINION * BY v. Record No. 2312-98-1 JUDGE ROSEMARIE ANNUNZIATA FEBRUARY 8, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Randolph T. West, Judge

Kevin W. Grierson (Willcox & Savage, P.C., on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

In this appeal, Ceasar Lamont Clark raises the sole issue

of breach of chain of custody of illegal drug evidence allegedly

recovered from his person during a pat-down incident to his

detention on suspicion of shoplifting. Clark contends the

evidence was inadmissible on the ground that the chain of

custody was breached. Finding no error, we affirm the

conviction.

FACTS

We review the facts in the light most favorable to the

Commonwealth. See Juares v. Commonwealth, 26 Va. App. 154, 156,

493 S.E.2d 677, 678 (1997).

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. On February 10, 1998, Clark was arrested on a charge of

shoplifting at a department store in Newport News, Virginia.

Mall security officers apprehended Clark in the store parking

lot. Roughly twenty minutes elapsed from the time of Clark's

initial detention by the security officers until the arrival of

Officer Dwight Walston of the Newport News City Police, who

arrested Clark. During this time, the mall security officers

conducted a lawful pat-down of Clark, and found a cellophane bag

containing two syringes and what appeared to be bags of a "solid

white substance" secreted on Clark's person. One of these

officers, Joseph Schmitt, placed the syringes and bags on the

hood of a nearby automobile. Officer Walston noted when he

arrived at the scene approximately twenty minutes later that

this automobile was parked roughly one to two feet from Clark.

Walston testified, however, that he retrieved one syringe from

the hood of the car and a plastic bag containing a "white

powdery substance."

Upon arriving at the police station with Clark in custody,

Officer Walston placed the evidence in the Property and Evidence

room, where the material was assigned the control number 70240.

It was then locked in an empty evidence locker. Testimony

indicated that this evidence was not removed from the locker

until it was opened by Detective Paul Cole, who retrieved the

material and placed it into the "main drug cage." On February

- 2 - 17, 1998, Detective Cole removed the evidence and took it to the

Norfolk Forensic Lab, where he turned it over to a "duly sworn

agent of the lab." Detective Cole received the evidence back

from the lab along with a copy of the certificate of analysis

bearing Clark's name and the control number, 70240. Cole placed

the evidence once again in the main drug cage, where it remained

until trial.

At Clark's bench trial for larceny and possession of

cocaine, the Commonwealth offered into evidence the certificate

of analysis of the items taken from Clark upon his arrest.

Clark moved to strike this evidence on the ground that chain of

custody had not been established and that the description of the

items taken from him did not match the items tested. His motion

was denied. At the close of evidence, Clark moved to strike the

Commonwealth's evidence on the same grounds, and the court again

denied his motion. Clark was convicted on both charges, and now

appeals his conviction for possession of cocaine.

ANALYSIS

The party offering demonstrative evidence bears the burden

of showing with reasonable certainty that there has been no

alteration or substitution of that evidence. See Robinson v.

Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180 (1971);

Dotson v. Petty, 4 Va. App. 357, 361, 358 S.E.2d 403, 405

(1987). This rule applies particularly when a chemical analysis

- 3 - of an item is sought to be introduced into evidence. See Smith

v. Commonwealth, 219 Va. 554, 559, 248 S.E.2d 805, 808 (1978).

Evidence of the chemical or physical properties of an item

requires proof of the chain of custody to establish with

reasonable certainty that the material was not altered,

substituted, or contaminated prior to its analysis. See Gosling

v. Commonwealth, 14 Va. App. 158, 166, 415 S.E.2d 870, 874

(1992); Reedy v. Commonwealth, 9 Va. App. 386, 387, 388 S.E.2d

650 (1990). All that is necessary to show chain of custody is

that the evidence affords reasonable assurance that the exhibits

at the trial are the same, and in the same condition, as when

they were first obtained. See Brown v. Commonwealth, 21

Va. App. 552, 555-56, 466 S.E.2d 116, 117 (1996) (citing

Robertson v. Commonwealth, 12 Va. App. 854, 857, 406 S.E.2d 417,

419 (1991)). Moreover, "'[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.'"

Brown, 21 Va. App. at 556, 466 S.E.2d at 117) (quoting Reedy, 9

Va. App. at 391, 388 S.E.2d at 652).

In the present case, Clark argues that the chain of custody

was broken because the security officers placed the syringes and

bags they found on his person on the hood of a nearby car, where

they were left for twenty minutes until Officer Walston arrived

- 4 - on the scene. He further notes that although Officer Schmitt

testified that two syringes and three to five bags of a "solid

white" substance were placed on the car, Officer Walston

testified that he recovered one syringe and one plastic bag

containing a "white powdery substance." Based upon this

discrepancy in testimony, coupled with the twenty minute

interval during which the evidence remained on the hood of the

car, Clark asserts that it is not reasonably certain that the

evidence was in the same condition when analyzed as when it was

first taken from him. We disagree.

This Court has previously upheld a trial court's admission

of forensic evidence that was left unattended for approximately

one hour, finding no reason in the facts presented to surmise

that the evidence may have been contaminated. See Reedy, 9

Va. App. at 391, 388 S.E.2d at 652. Length of time, then, is

not necessarily determinative in such cases. Here, the evidence

established that the evidence lay on the hood of the car for

only twenty minutes, and no evidence establishes that the

evidence was left unattended during that time. Further, the

discrepancy between the testimonies of Officer Schmitt and

Officer Walston does not compel the conclusion that the evidence

was altered, substituted, or contaminated prior to its analysis;

the points upon which the testimonies of Schmitt and Walston

diverge are minor. See United States v. Dent, 149 F.3d 180,

- 5 - 188-89 (3d Cir. 1998) (conviction for trafficking in cocaine

upheld where one witness described evidence as "an off white

chunky substance wrapped in foil," and another witness described

it as a "white chunky residue," because the witnesses' accounts

evinced "minor discrepancies [that] can be attributed to the

inevitable differences in human perception"). 1 Officer Schmitt

testified that when he apprehended Clark, he recovered "a bag, a

cellophane bag with two syringes and several other small bag

items which we believed to be drugs . . . ." When defense

counsel asked him to clarify what he meant by "several other

small bag items," Schmitt responded "[t]wo syringes and other

bags, several bags of what we believed to be drugs at that time,

cellophane, plastic." Schmitt stated that in total three to

five of these "other small bags" were found. Schmitt testified

further that "[e]verything was in one bag and the small bags

were inside the cellophane, wrapped bags." Schmitt further

testified that the bags contained a white substance having an

appearance he described as "solid."

Walston testified that when he arrived at the scene, the

mall security officers had removed from Clark's custody a

1 Although Dent was decided under Federal Rule of Evidence 901, the federal rule comports with our rule in Virginia, which states that the Commonwealth is required simply to establish with reasonable assurance that the evidence analyzed and presented at trial was in the same condition as it was when obtained by the police. See Brown, 21 Va. App. at 555-56, 466 S.E.2d at 117.

- 6 - "syringe wrapped in newspaper" and that the newspaper also

contained "a small plastic bag containing a white powdery

substance." Under cross-examination, Officer Walston described

the substance in the plastic bag as a "white powder substance,"

and repeated that he observed in the newspaper, "from what [he]

recall[ed]," "just one bag."

Schmitt's testimony explains the confusion over the number

of bags recovered from Clark. Schmitt stated that the "other

small bags" were found inside one larger cellophane bag, a

statement that is consistent with Officer Walston's observation

of a single cellophane or plastic bag when he arrived on the

scene. Schmitt's statement that the white substance in the bags

appeared "solid" and Walston's observation that the substance

was a "powder" may be attributed "to . . . inevitable

differences in human perception," Dent, 149 F.3d at 188-89, as

any tightly packed powder might be seen or described as a

"solid." Similarly, Schmitt's statement that he recovered two

syringes from Clark, while Walston testified to recovering only

one syringe when he arrived at the scene, may be ascribed to the

same "inevitable differences in human perception," id., and we

find no support in this difference in testimony for Clark's

allegation that the cocaine evidence tested by the forensic lab

was not in the same condition as when it was taken from Clark.

- 7 - Finally, Clark also contends that Officer Walston's

inability at trial to recall the number of the evidence locker

into which he placed the evidence evinces a break in the chain

of custody. We find Clark's contention on this point to be

without merit. Clark points to no evidence suggesting that

Detective Cole recovered the evidence from a locker other than

the one into which Officer Walston placed it. Indeed, both

officers agree that the evidence was marked with the proper

control number and that the locker in which it was placed had

every indication of having remained sealed until Detective Cole

opened it. Thus, the Commonwealth established with reasonable

assurance that this evidence was that recovered from Clark at

the time of his arrest and that it was in the same condition at

trial as it was when first recovered. See Brown, 21 Va. App. at

555-56, 466 S.E.2d at 117. When there is merely speculation

that tampering or contamination might have occurred, a trial

court does not abuse its discretion by admitting the evidence

and allowing the fact finder to consider that speculation in

determining the weight to be accorded the evidence. See Reedy,

9 Va. App. at 391, 388 S.E.2d at 652. Accordingly, we find no

error in the trial court's admission of the certificate of

analysis and its denial of Clark's motion to strike the

evidence, and we affirm his conviction.

Affirmed.

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