Gary Wilson Douglas v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: June 27, 1995
• Docket: 1623933
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Koontz, Elder and Fitzpatrick

GARY WILSON DOUGLAS MEMORANDUM OPINION * BY v. Record No. 1623-93-3 JUDGE LARRY G. ELDER JUNE 27, 1995 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE Frank I. Richardson, Jr., Judge

William Roscoe Reynolds (Stone, Worthy, Reynolds & Joyce, on brief), for appellant.

Robert B. Condon, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Gary Wilson Douglas (appellant) appeals his three

convictions for selling cocaine in violation of Code § 18.2-248.

Appellant contends that the Commonwealth failed to prove that the

substance he sold was cocaine because the Commonwealth did not

introduce the plastic baggies of cocaine into evidence. Because

the trial court committed no error, we affirm appellant's

convictions.

We hold that the Commonwealth sufficiently established the

chain of custody of the baggies that contained the cocaine, and

the evidence was sufficient to show that appellant sold cocaine

to Stevens on three occasions.

On appeal, we view the evidence in the light most favorable to the Commonwealth, granting to it all * Pursuant to Code § 17-116.010 this opinion is not designated for publication. reasonable inferences fairly deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Further, "[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 discretion." Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).

In Reedy v. Commonwealth, 9 Va. App. 386, 388 S.E.2d 650 (1990), we explained that [] [w]hen the Commonwealth offers testimony concerning the physical or chemical properties of an item in evidence, or of any foreign matter found on the item, authentication requires proof of the chain of custody, including "a showing with reasonable certainty that the item [has] not been altered, substituted, or contaminated prior to analysis, in any way that could affect the results of the analysis." "[T]he requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received."

Jones v. Commonwealth, 18 Va. App. 608, 610, 446 S.E.2d 162, 163

(1994)(citing Reedy, 9 Va. App. at 387, 388 S.E.2d at 650-51)

(other citations omitted).

In this case, the record sufficiently establishes an

unbroken chain in the custody of the cocaine, with the

Commonwealth accounting for every vital link. Undercover agent

Stevens testified that she purchased one baggie of cocaine from

appellant on three different occasions. Stevens, whose actions

were monitored during the transactions, immediately turned over

the baggies to Officer Rogers. Rogers testified that he placed

each baggie he received from Stevens into a separate larger

evidence bag, which was sealed, dated, and signed. These

evidence bags were kept in a police locker to which Rogers had

the only key. When Rogers removed the bags, he mailed them by

-2- certified mail to the Commonwealth laboratory. The laboratory

analyzed each baggie of cocaine separately and prepared

individual certificates of analysis with matching certified mail

numbers.

Analyzed as individual links in the chain, the credible

evidence reveals that Stevens and Rogers properly handled the

baggies of cocaine before they were sent to the laboratory. A

presumption of regularity allows us to assume that the postal

service clerks who handled the evidence while in the postal

service's custody properly discharged their official duties.

Crews v. Commonwealth, 18 Va. App. 115, 119, 442 S.E.2d 407, 409

(1994); Robertson v. Commonwealth, 12 Va. App. 854, 856-57, 406

S.E.2d 417, 418-19 (1991). Finally, the provisions of Code

§§ 19.2-187 and 19.2-187.01 were satisfied, affording the

Commonwealth prima facie proof "as to the custody of the

[cocaine] described [in the certificate of analysis] from the

time [the cocaine] [was] received by an authorized agent of such

laboratory until [the cocaine] [was] released . . . ." Code

§ 19.2-187.01. Appellant did not challenge the propriety of the

attestation of the certificates of analysis.

Despite appellant's assertions to the contrary, the

Commonwealth's failure to actually introduce the baggies of

cocaine into evidence "did not create a missing vital link in the

chain of possession. . . . The procedures employed negated any

substantial probability that the [cocaine] had been altered,

-3- substituted, or contaminated . . . ." Jones, 18 Va. App. at 611,

446 S.E.2d at 164 (citing Dotson v. Petty, 4 Va. App. 357, 363-

64, 358 S.E.2d 403, 406-07 (1987)). "Where 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, 9 Va. App. at 391, 388 S.E.2d at 652 (also

stating that the Commonwealth is not required to exclude every

conceivable possibility of substitution or tampering); see Jackson v. State, 885 S.W.2d 303, 305 (Ark. App. 1994)(stating

that failure to produce physical evidence at trial goes to the

weight of the evidence).

Furthermore, we are guided by our decision in Hill v.

Commonwealth, 8 Va. App. 60, 379 S.E.2d 134 (1989)(en banc),

where "this Court affirmed a conviction for possession of cocaine

with intent to distribute, although the drug 'was not produced at

trial nor was any analysis of the substance admitted in

evidence.'" Hinton v. Commonwealth, 15 Va. App. 64, 66, 421

S.E.2d 35, 37 (1992)(citation omitted). The result in this case

differs, however, from Hinton, where the Commonwealth introduced

a certificate of analysis identifying cocaine residue on a can,

yet the submitting officer never mentioned the can during

testimony. In Hinton we held that the Commonwealth's proof was

wholly circumstantial and failed to present an unbroken chain of

circumstances that could prove the corpus delicti and criminal

-4- agency of the appellant. Hinton, 15 Va. App. at 67, 421 S.E.2d

at 37. In this case, as we explained, the Commonwealth provided

ample evidence that accounted for every link in the chain of

events.

Accordingly, we cannot say that the trial court abused its

discretion in finding that there was sufficient evidence to show

that the substance sold by appellant was cocaine, and the

convictions are affirmed. Affirmed.

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