COURT OF APPEALS OF VIRGINIA
Present: Judges Felton, Kelsey and Senior Judge Willis Argued at Richmond, Virginia
RICHARD EARL GILLARD MEMORANDUM OPINION * BY v. Record No. 0037-02-2 JUDGE WALTER S. FELTON, JR. AUGUST 19, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG Oliver A. Pollard, Jr., Judge
Elliott B. Bender for appellant.
Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Richard Gillard was convicted in a bench trial of multiple
offenses stemming from two separate incidents. From the April 22,
1998 incident, he was convicted of (1) possession of marijuana, in
violation of Code § 18.2-250.1; (2) possession of cocaine, in
violation of Code § 18.2-250; (3) possession of a firearm while in
possession of drugs, in violation of Code § 18.2-308.4; and
(4) possession of a concealed weapon, in violation of Code
§ 18.2-308. From the May 5, 1998 incident, Gillard was convicted
of (1) possession of cocaine, in violation of Code § 18.2-250; and
(2) possession of cocaine while in possession of a firearm, in
violation of Code § 18.2-308.4. In addition to the April 22 and
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. May 5 offenses, Gillard was convicted on two counts of felony
failure to appear, in violation of Code § 19.2-128.
On appeal, Gillard presents several assignments of error.
First, he contends the evidence was insufficient to support his
convictions for the April 22, 1998 offenses of possession of a
controlled substance, possession of a gun while in the possession
of a controlled substance, possession of a concealed weapon, and
possession of marijuana. Second, he argues that the trial court
erred in admitting evidence of his possession of illegal drugs and
a weapon when the arresting officer did not have reasonable
articulable suspicion to seize him and did not have probable cause
or voluntary consent to conduct a search of him on May 5, 1998.
Third, Gillard contends the trial court erred in admitting
evidence of a controlled substance when the Commonwealth failed to
sufficiently establish the chain of custody of the drugs in
question. Furthermore, he asserts the trial court abused its
discretion by not allowing Sergeant Jones to testify regarding his
observations of the procedures for checking evidence into and out
of the police property room. Lastly, he argues that the evidence
was insufficient to support his conviction on November 16, 1998
for felony failure to appear.
For the following reasons, we affirm the judgment of the
trial court.
- 2 - I. BACKGROUND
A. APRIL 22, 1998 OFFENSES
At 9:30 p.m. on April 22, 1998, Petersburg Police Officer
Rick Crimonese observed a vehicle, driven by Richard Gillard,
run a stop sign. Officer Crimonese stopped the vehicle. He
approached it on the passenger side and asked the passenger,
Tito Coleman, to pass over Gillard's driver's license. Officer
Crimonese noted a strong odor of marijuana emanating from the
vehicle.
With Gillard's driver's license in hand, he returned to his
patrol car and ran a check on the license. Officer Crimonese
then wrote a summons for the stop sign violation. Officer
Crimonese returned to Gillard's car and gave him the summons.
He also told Gillard that he smelled a strong odor of marijuana
coming from the vehicle and asked him if he had any weapons or
illegal narcotics in his car. Gillard responded, "No."
Officer Crimonese asked Gillard to get out of the car,
brought him to the rear of the vehicle, and asked permission to
conduct a pat-down frisk. During the frisk, he discovered a
large bulge in Gillard's right front pants pocket. Officer
Crimonese asked Gillard to remove the object, which was six
hundred and sixty-six dollars in U.S. currency.
As a result of the strong odor of marijuana he previously
noted coming from inside the car, Officer Crimonese searched the
vehicle. During the course of the search, he found a loaded - 3 - handgun under the driver's seat. He then placed Gillard under
arrest for possessing a concealed weapon.
Following the arrest, Officer Crimonese completed the
search of the vehicle. He recovered from the center console
quantities of a white powder, later determined to be cocaine,
and a green plant-like substance, later determined to be
marijuana.
Officer Crimonese placed the drugs and gun in a property
locker at 1:20 a.m. on April 23, 1998. The drugs and gun were
removed from the locker later the same day by Detective J.D.
Thomas and placed in the police headquarters' evidence room. An
officer in the evidence room subsequently assigned an inventory
control number to the items.
B. MAY 5, 1998 OFFENSES
At approximately 2:40 a.m. on May 5, 1998, Sergeant E.S.
Jones of the Petersburg Police Department observed a speeding
taxicab and initiated a traffic stop. The traffic stop was
conducted in a high crime area of the city. The cab driver was
upset when Sergeant Jones approached. The cab driver
immediately informed him that some unknown individuals "bailed
out" of his cab without paying. Sergeant Jones began
questioning the remaining two passengers, Gillard and Coleman,
in an attempt to identify the people who jumped out of the cab.
Sergeant Jones did not recognize Gillard. Coleman was
asked his name, but he provided a name of someone else that - 4 - Sergeant Jones knew well. He then recognized Coleman. Knowing
that Coleman was wanted on outstanding felony warrants, Sergeant
Jones drew his service weapon and took him into custody. At
that moment another police unit arrived on the scene.
Thereafter, Sergeant Jones asked Coleman the identity of the
other person in the cab. Coleman responded, "I can't tell you
who he is. You know I can't do that. I can't tell you who he
is."
As a result of Coleman's response, Sergeant Jones walked
back to the taxicab and asked Gillard if he could speak to him.
He responded affirmatively. Sergeant Jones then asked Gillard
for identification and informed him he was going to "run" the
information to determine if he had any outstanding warrants.
Gillard provided him with a Virginia State University
identification card. From his portable radio, Sergeant Jones
radioed to a dispatcher the information found on the
identification card.
Knowing that Coleman had carried weapons in the past and
considering that Gillard was with Coleman, Sergeant Jones became
concerned Gillard might be carrying a weapon. As a result, he
asked Gillard if he was carrying a weapon. Gillard responded,
"No." Sergeant Jones then asked Gillard to step out of the
vehicle so that he could pat him down for his safety. Gillard
stepped out of the taxicab and stated, "Officer, I've got [sic]
something I need to tell you. Officer, I have a gun." - 5 - Sergeant Jones then handcuffed Gillard and conducted a
pat-down frisk for weapons. A loaded .38 caliber handgun was
discovered in his coat. Gillard was then placed under arrest
for carrying a concealed weapon and transported to the
Petersburg City Jail. Once there, Gillard was read his Miranda
rights. A further search incident to the arrest revealed
several bags of cocaine in Gillard's possession.
Sergeant Jones packaged and sealed the drugs and placed
them, along with the gun, in a secure evidence locker at police
headquarters on May 5, 1998, the same day the evidence was
seized from Gillard. He also prepared a laboratory submission
request to the forensics lab. An inventory control number was
assigned to the drugs and gun by the evidence room officer.
C. EVIDENCE SUBMISSION TO FORENSICS LABORATORY
On May 6, 1998, the drugs seized from Gillard on April 22
and May 5, 1998, were removed from the evidence room by the
Petersburg Police Department and transported to the state
forensics laboratory for testing. Upon receipt of the drugs
from the police, the state laboratory assigned them forensic
science laboratory control numbers. The drugs remained at the
laboratory until June 25, 1998, when they were returned to the
police evidence room. The certificates of analysis reflected
that the results of the items tested matched the items submitted
for testing, based on the inventory control and forensic science
laboratory control numbers assigned. - 6 - D. EVIDENCE ROOM OPERATION
At trial, Gillard recalled Sergeant Jones as a defense
witness and attempted to question him regarding the internal
operations of the police evidence room and evidence handling
procedures. The Commonwealth repeatedly objected to Sergeant
Jones' testimony, and the trial court sustained some objections,
narrowed some, and overruled others. The trial court finally
halted the questioning of Sergeant Jones regarding the internal
procedures of the evidence room, stating:
He can testify as to what is proper in terms of his training and how he puts it [sic] the property into a locker and what he knows about checking it in and out. I am not going to let him get into the internal procedures of the property [room].
* * * * * * *
He has told you: I'm not familiar with the internal procedures of the property [room].
You're trying to equate what a line officer does in putting it in the locker and if he wants to check it back out of the property [room] for court or different purposes. You are trying to equate that procedure with what the property officer does for taking it out and taking it to the lab. And that's not appropriate.
Gillard asked the trial court to allow him to proffer for
the record what Sergeant Jones might possibly testify to
regarding his knowledge of the procedures and his observations.
However, the trial court ruled the proffer improper as only
- 7 - being speculative as to what Sergeant Jones' testimony "might
possibly be."
E. FAILURE TO APPEAR 1
On November 16, 1998, Gillard was recognized to appear in
the Petersburg General District Court for a preliminary hearing
stemming from the April 22, 1998 offenses. He failed to appear
on that date, and a warrant for his arrest was issued on the
same day. Brenda Simmons, deputy clerk for the general district
court, testified on February 20, 2001 that the Petersburg
General District Court records reflected that Gillard was
recognized on bond to be present in that court on November 16,
1998 for a preliminary hearing on the felony warrants arising
out of the April 22, 1998 incident. 2 She further testified that
the records reflected that Gillard failed to appear in court
that day and that the judge ordered a felony failure to appear
warrant be issued that same date. Ms. Simmons also testified
that she could not recall whether Gillard was in court on
1 Gillard was convicted of two counts of failure to appear. On October 29, 1998, he failed to appear in court for a scheduled hearing. He subsequently pleaded guilty to that charge. On November 16, 1998, Gillard again failed to appear in court for a scheduled hearing and was subsequently convicted. Gillard challenges the conviction for his November 16, 1998 failure to appear. 2 Ms. Simmons testified that on November 16, 1998 she made a note on Gillard's April 22, 1998 warrant for arrest for possession of cocaine with the intent to distribute that he failed to appear on November 16, 1998. Additionally, she testified that the district court judge noted on that document that Gillard failed to appear on that date. - 8 - November 16, 1998. However, she did testify that the court
records, which she authenticated, did reflect Gillard failed to
appear on November 16, 1998.
II. ANALYSIS
A. APRIL 22, 1998 OFFENSES: SUFFICIENCY OF EVIDENCE
We first consider whether the evidence was sufficient to
support Gillard's convictions for the April 22, 1998 offenses.
When the sufficiency of the evidence is challenged on appeal, it is well established that we must view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The conviction will be disturbed only if plainly wrong or without evidence to support it.
Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196
(1992).
On the evening of April 22, 1998, Officer Crimonese stopped
Gillard for running a stop sign. Officer Crimonese noted a
strong odor of marijuana emanating from Gillard's car when he
approached. After issuing Gillard a summons, Officer Crimonese
began to investigate further the source of the marijuana odor.
He asked Gillard to step out of the car. Officer Crimonese
obtained permission to conduct a pat-down frisk, which yielded
six hundred and sixty-six dollars in U.S. currency. He then
conducted a search of Gillard's car from which the marijuana
odor emanated. The search yielded a loaded handgun from under
the driver's seat. Gillard was arrested for possession of a
- 9 - concealed weapon. Incident to the arrest, a further search of
the car resulted in the recovery of cocaine and marijuana from
the center console.
"In determining whether a defendant constructively
possessed a firearm, the defendant's proximity to the firearm
and his occupancy and ownership of the vehicle must also be
considered." Logan v. Commonwealth, 19 Va. App. 437, 444, 452
S.E.2d 364, 369 (1994) (en banc). Officer Crimonese possessed
probable cause to search Gillard's vehicle based on the odor of
marijuana he smelled. During the search of Gillard's vehicle,
he found a gun under the driver's seat. Although Coleman was
left alone for a brief time period in the vehicle when Officer
Crimonese conducted a pat-down of Gillard, Officer Crimonese
testified that two other officers talked with Coleman while he
was talking with Gillard at the rear of Gillard's car. The
other officers arrived shortly after Gillard got out of his car.
There was no indication in the record of any furtive movements
by Coleman toward the driver's seat at any time during the stop.
From this evidence, the trial court could have reasonably
concluded that Gillard was aware of the presence and character
of the gun under the driver's seat of his car which he was
driving, and because of its proximity to Gillard, it was subject
to his dominion and control.
In addition to the discovery of the gun, marijuana and
cocaine were discovered in the vehicle's center console located - 10 - between the driver and passenger seats. To support a conviction
based upon constructive possession of drugs, "the Commonwealth
must point to evidence of acts, statements or conduct of the
accused or other facts or circumstances which tend to show that
the defendant was aware of both the presence and character of
the substance and that it was subject to his dominion and
control." Glasco v. Commonwealth, 26 Va. App. 763, 774, 497
S.E.2d 150, 155 (1998) (quoting Powers v. Commonwealth, 227 Va.
474, 476, 316 S.E.2d 739, 740 (1984)). While ownership or
occupancy of a motor vehicle in which illegal drugs are found
does not create a presumption that the owner or occupant
possessed the drugs,
"[o]wnership or occupancy of a vehicle or of premises where illicit drugs are found is a circumstance that may be considered together with other evidence tending to prove that the owner or occupant exercised dominion and control over items in the vehicle or on the premises in order to prove that the owner or occupant constructively possessed the contraband. Furthermore, proof that a person is in close proximity to contraband is a relevant fact that, depending on the circumstances, may tend to show that, as an owner or occupant of property or of a vehicle, the person necessarily knows of the presence, nature and character of a substance that is found there."
Logan, 19 Va. App. at 444, 452 S.E.2d at 369 (quoting Burchette
v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83
(1992)).
- 11 - As previously noted, the record reflects no furtive
movements by Coleman from the time of the traffic stop until the
drugs were found in the center console. The two officers spoke
with Coleman while Officer Crimonese conducted a safety pat-down
of Gillard. During the pat-down, six hundred and sixty-six
dollars in U.S. currency was discovered in Gillard's pocket.
Combined with the odor of marijuana emanating from the vehicle
and the proximity of Gillard to the center console in his car,
the trial court could have reasonably concluded beyond a
reasonable doubt that Gillard was aware of the presence and
character of the drugs found in the console and that he
exercised dominion and control over them. The evidence was
sufficient to find Gillard guilty beyond a reasonable doubt for
his unlawful possession of a controlled substance, unlawful
possession of a gun while in possession of a controlled
substance, possession of a concealed weapon, and possession of
marijuana on April 22, 1998.
B. MAY 5, 1998 OFFENSES: VOLUNTARY CONSENT, REASONABLE SUSPICION, PROBABLE CAUSE
We next consider whether the trial court erred in admitting
evidence of drug possession and possession of a gun relating to
Gillard's May 5, 1998 offenses. "In reviewing a trial court's
denial of a motion to suppress, 'the burden is upon [the
defendant] to show that th[e] ruling, when the evidence is
considered most favorably to the Commonwealth, constituted
- 12 - reversible error.'" McGee v. Commonwealth, 25 Va. App. 193,
197, 487 S.E.2d 259, 261 (1997) (en banc) (citation omitted).
"[W]e review de novo the trial court's application of
defined legal standards such as probable cause and reasonable
suspicion to the particular facts of the case." Hayes v.
Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359 (1999)
(citation omitted). "In performing such analysis, we are bound
by the trial court's findings of historical fact unless 'plainly
wrong' or without evidence to support them and we give due
weight to the inferences drawn from those facts by resident
judges and local law enforcement officers." McGee, 25 Va. App.
at 198, 487 S.E.2d at 261 (citing Ornelas v. United States, 517
U.S. 690, 699 (1996)).
Gillard argues that the arresting officer, Sergeant Jones,
did not have a reasonable articulable suspicion to seize him and
did not have probable cause or voluntary consent to conduct a
search of him. We disagree.
"Fourth Amendment jurisprudence recognizes three categories of police-citizen confrontations: (1) consensual encounters, (2) brief, minimally intrusive investigatory detentions, based upon specific, articulable facts, commonly referred to as Terry stops, and (3) highly intrusive arrests and searches founded on probable cause." Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744, 747 (1995) (citation omitted).
"A consensual encounter occurs when police officers approach persons in public places 'to ask them questions,' provided 'a - 13 - reasonable person would understand that he or she could refuse to cooperate.'" Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870 (1992) (citations omitted). "As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification." United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980).
Piggott v. Commonwealth, 34 Va. App. 45, 48-49, 537 S.E.2d 618,
619 (2000).
In contrast, even a brief detention for investigative purposes constitutes a seizure contemplated by the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889 (1968). "In order to justify such a seizure, an officer must have a 'reasonable and articulable suspicion of criminal activity on the part of the defendant . . . .' A general suspicion of some criminal activity is enough, as long as the officer can, based on the circumstances before him . . . articulate a reasonable basis for his suspicion." Hatcher v. Commonwealth, 14 Va. App. 487, 490, 419 S.E.2d 256, 258 (1992) (citations omitted). "[W]hen a court reviews whether an officer had reasonable suspicion to make an investigatory stop, it must view the totality of the circumstances . . . objectively through the eyes of a reasonable police officer with the knowledge, training, and experience of the investigating officer." Murphy v. Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128 (1989) (citation omitted).
Armed with the requisite suspicion, an officer may stop a person "'in order to identify him, to question him briefly, or to detain him briefly, while attempting to obtain additional information.'" DePriest - 14 - v. Commonwealth, 4 Va. App. 577, 585, 359 S.E.2d 540, 544 (1987), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 571 (1988) (quoting Hayes v. Florida, 470 U.S. 811, 816, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705 (1985)). However, police procedures and investigative methods attendant to the detention must be calculated to confirm or dispel the suspicion quickly and with minimal intrusion. Thomas v. Commonwealth, 16 Va. App. 851, 856-57, 434 S.E.2d 319, 323 (1993).
Wechsler v. Commonwealth, 20 Va. App. 162, 170-71, 455 S.E.2d
744, 748 (1995).
In viewing the totality of the circumstances, Gillard was
not subject to an unlawful seizure by Sergeant Jones. From the
outset, Sergeant Jones' encounter with the occupants of the
taxicab was lawful. The taxicab was lawfully stopped for
speeding. The taxi driver immediately informed Sergeant Jones
about "fare-jumpers" from his taxi. 3 Sergeant Jones properly
began questioning the cab driver, Gillard, and Coleman regarding
the identities of the "fare-jumpers."
During this conversation, Sergeant Jones recognized Coleman
as a person who had outstanding warrants against him. Sergeant
Jones lawfully arrested Coleman on the outstanding warrants and
placed him in his patrol car. He then questioned Coleman as to
3 Fare-jumpers are individuals who acquire the services of a taxi and jump out without paying the fare upon reaching their destination.
- 15 - Gillard's identity. Coleman responded, "I can't tell you who he
is. You know I can't do that. I can't tell you who he is."
The surrounding circumstances of the "fare-jumpers" and
Coleman's response as to Gillard's identity gave rise to a
reasonable suspicion that criminal activity might be afoot, thus
warranting an investigatory detention of Gillard in order to
identify him and to obtain additional information from him.
"For an investigatory stop, officers need only articulate a
reasonable suspicion that criminal activity 'may be afoot.'"
Barkley v. Commonwealth, 39 Va. App. 682, 691, 576 S.E.2d 234,
238 (2003) (citing United States v. Arvizu, 534 U.S. 266, 273
(2002)). Actual proof that criminal activity is afoot is not
necessary, only that it may be afoot. Harmon v. Commonwealth,
15 Va. App. 440, 444, 425 S.E.2d 77, 79 (1992).
When Sergeant Jones approached Gillard, who was sitting in
the front seat of the taxicab, he asked Gillard if he could talk
with him. Gillard responded, "Yes." Sergeant Jones then
requested identification information from Gillard to permit the
officer to determine if there were outstanding warrants against
him. Gillard voluntarily produced his Virginia State University
identification card. Sergeant Jones radioed the information to
police dispatch while he stood next to Gillard. The record
check returned no outstanding warrants.
Sergeant Jones asked Gillard if he had any weapons on him.
He responded, "No." Sergeant Jones then asked, "Can I get a pat - 16 - down on you for weapons?" Gillard responded, "Okay," and
voluntarily stepped out of the taxicab. Gillard then stated,
"Officer, there's something I need to tell you. . . . Officer,
I have a gun on me." Gillard's voluntary statement during a
lawful investigatory detention provided Sergeant Jones with
probable cause to search him for a weapon. During that search,
Sergeant Jones found a gun. Incident to the subsequent lawful
arrest for possession of a concealed weapon, drugs were also
found. The trial court did not err in admitting evidence of
Gillard's drug possession and possession of a gun relating to
the May 5, 1998 offenses.
C. CHAIN OF CUSTODY
evidence of a controlled substance in relation to the April 22,
1998 and May 5, 1998 offenses on the grounds that there was a
break in the chain of custody. "The 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." James v. Commonwealth, 18 Va. App. 746, 753, 446
S.E.2d 900, 904 (1994).
When 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 would - 17 - affect the results of the analysis." Washington v. Commonwealth, 228 Va. 535, 550, 323 S.E.2d 577, 587 (1984), cert. denied, 471 U.S. 1111, 105 S. Ct. 2347, 85 L. Ed. 2d 863 (1985). "[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." Robinson v. Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180 (1971) (emphasis omitted).
Reedy v. Commonwealth, 9 Va. App. 386, 387-88, 388 S.E.2d 650,
650-51 (1990).
The Commonwealth established with reasonable certainty that
there was no break in the chain of custody and that the
controlled substances seized from Gillard on April 22 and May 5,
1998, were not altered, substituted, or contaminated prior to
analysis.
Regarding the drugs seized in the late evening on April 22,
1998, testimony at trial established that Officer Crimonese
placed the drugs in a secure property locker in the early
morning hours of April 23, 1998. On the same day, Detective
J.D. Thomas removed the drugs from the secure property locker.
He transferred the items to the police headquarters' evidence
room where they were assigned an inventory control number. The
drugs were not removed from the evidence room until May 6, 1998,
when Detective Thomas and Officer Thomas Lauter transported them
to the state forensics laboratory for testing. The state
forensics laboratory assigned a laboratory control number upon
- 18 - receipt of the items from the police officers. The drugs
remained in the lab until June 25, 1998 when they were returned
to the Petersburg Police Department and secured in the police
headquarters' evidence room. The certificate of analysis, dated
May 27, 1998 and admitted into evidence, reflects the forensic
state laboratory control number assigned when the items were
received from the officers, and the inventory control number
assigned to the drugs on April 23, 1998 when they were placed in
the police evidence room. The police property inventory control
sheet reflecting the movement of the items into and out of the
police evidence room was admitted into evidence.
Regarding the drugs seized on May 5, 1998, testimony at
trial established that on that date Sergeant Jones packaged and
sealed the drugs and placed them in a secure evidence locker.
It was taken to the police headquarters' evidence room by
Detective Thomas and secured there. The property room officer
assigned an inventory control number to the drugs. The drugs
remained secured in the evidence room until May 6, 1998, when
Detective Thomas and Officer Lauter transported the drugs to the
state forensics laboratory for testing. When the state
forensics laboratory received the items, a laboratory control
number was assigned to the drugs. The drugs remained at the
forensics laboratory until June 25, 1998 when they were returned
to the Petersburg Police Department and secured in the police
headquarters' evidence room. The certificate of analysis, dated - 19 - May 22, 1998 and admitted into evidence, reflects the assigned
forensic state laboratory control number and the inventory
control number that was assigned to the drugs on May 5, 1998
when they were first placed in the police evidence room. The
police property inventory control sheet reflecting the movement
into and out of the police evidence room was admitted into
evidence.
The record indicates the Commonwealth sufficiently
established the requisite chain of custody of the drugs and
demonstrates with reasonable certainty that the drugs analyzed
by the state forensics lab were the same drugs seized from
Gillard. See Washington, 228 Va. at 550, 323 S.E.2d at 587.
The trial court did not err in admitting the certificates of
analysis for the controlled substances.
D. ABUSE OF DISCRETION
We next consider whether the trial court abused its
discretion in not allowing Sergeant Jones to testify regarding
his observations and knowledge of the procedures for checking
evidence into and out of the police property room. "The
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." James, 18 Va. App. at 753,
446 S.E.2d at 904.
"Questions as to the competency or admissibility of
testimony . . . are referred to the decision of the judge. As - 20 - it is the province of the jury to consider what degree of credit
ought to be given to evidence, so it is for the court alone to
determine whether a witness is competent, or the evidence
admissible." Mullins v. Commonwealth, 113 Va. 787, 791, 75 S.E.
193, 195 (1912). "A witness is competent to testify . . . if he
'possesses the capacity to observe, recollect, communicate
events, and intelligently frame answers to the questions asked
of him or her with a consciousness of a duty to speak the
truth.'" Jones v. Commonwealth, 32 Va. App. 30, 44, 526 S.E.2d
281, 287-88 (2000) (quoting Greenway v. Commonwealth, 254 Va.
147, 153, 487 S.E.2d 224, 227 (1997)).
Officer Thomas Lauter testified that he was the forensic
and evidence supervisor for the Petersburg Police Department at
the time the items at issue in this case were received, removed
for testing by the forensic laboratory, and returned from the
laboratory. He testified as to the handling of the property
within the evidence room, including assignment of control
numbers and movement of the property to and from the state
forensics laboratory.
In the Commonwealth's case-in-chief, Sergeant Jones was
called to testify as to actions he had taken in handling the
evidence he had seized from Gillard during the early morning of
May 5, 1998. Gillard later recalled Sergeant Jones as a defense
witness. In his examination of Sergeant Jones as a defense
witness, Gillard repeatedly asked if Sergeant Jones was familiar - 21 - with the internal procedures of the Petersburg Police Department
evidence room, ostensibly to impeach the testimony of Officer
Lauter, the forensic and evidence room supervisor who testified
about those procedures. Sergeant Jones testified that he was
familiar only with the procedure used by officers to place items
into the evidence room when they had seized evidence.
Sergeant Jones repeatedly testified that he was not
familiar with the internal procedures of the evidence room.
When the trial court ruled that Sergeant Jones was not a
competent witness to testify as to the internal procedures,
Gillard sought to proffer what Sergeant Jones might have
testified relating to the internal procedures and what Sergeant
Jones may have observed concerning these procedures. Gillard
told the trial court he wanted "to make a record. I have to
proffer what would possibly come out." (Emphasis added).
Prior to terminating Gillard's examination of Sergeant
Jones as a defense witness, Gillard was permitted wide latitude
in questioning the witness as to what he had observed generally,
as to submitting evidence to the evidence room, removing it to
take it to the state forensics laboratory, and the experience he
had when the evidence was taken to the laboratory. When Gillard
sought to "proffer" evidence for the record, he told the trial
court he could only proffer "what would possibly come out," a
matter of speculation. Moreover, the attempted proffer was not
tied to any specific question propounded to the witness. - 22 - Gillard did not offer to the court the relevancy or materiality
of the evidence he sought to present to the trial court. The
trial court correctly terminated further examination of the
witness and properly refused to permit a proffer when Gillard
could only speculate what the testimony might be.
With no capacity to observe, recollect, communicate events,
and intelligently frame answers to questions about the internal
procedures of the property room, Sergeant Jones was not a
competent witness to testify regarding those procedures. See
Jones, 32 Va. App. at 44, 526 S.E.2d at 287-88. Moreover,
Gillard's attempt to proffer Sergeant Jones' testimony was
improper. See generally Wyche v. Commonwealth, 218 Va. 839,
842-43, 241 S.E.2d 772, 774-75 (1978); Lowery v. Commonwealth, 9
Va. App. 304, 307-08, 387 S.E.2d 508, 510 (1990). We hold that
under these circumstances, the trial court did not abuse its
discretion in terminating the examination of Sergeant Jones and
in refusing to permit Gillard to proffer speculative testimony.
E. NOVEMBER 16, 1998: FAILURE TO APPEAR
Lastly, we consider whether the evidence was sufficient to
support Gillard's conviction for failure to appear on November
16, 1998.
When the sufficiency of the evidence is challenged on appeal, it is well established that we must view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The conviction will be
- 23 - disturbed only if plainly wrong or without evidence to support it.
Jones, 13 Va. App. at 572, 414 S.E.2d at 196.
On November 16, 1998, Gillard was scheduled to appear in
the Petersburg General District Court for a preliminary hearing
related to his April 22, 1998 offense of possession of cocaine
with the intent to distribute. The record reflects that Gillard
received notice to appear in court on November 16, 1998.
However, he failed to appear at the hearing. As a result, the
trial judge noted the failure to appear on the April 22, 1998
warrant for arrest. In addition, on November 16, 1998, the
trial judge ordered Gillard's bond be revoked and that an arrest
warrant be issued for his failure to appear.
In order to convict Gillard of failure to appear, the
Commonwealth must first show that Gillard had notice that he was
required to be present in court on the given date and that he
did not appear in court on the scheduled court date. The
Commonwealth relies on the court records as evidence of
Gillard's failure to appear. Code § 8.01-389(A) provides that
"[t]he records of any judicial proceeding and any other official
records of any court of this Commonwealth shall be received as
prima facie evidence provided that such records are
authenticated and certified by the clerk of the court where
preserved to be a true record." "[T]he terms 'authenticated'
and 'certified' are basically synonymous" in this context.
- 24 - Owens v. Commonwealth, 10 Va. App. 309, 311, 391 S.E.2d 605, 607
(1990).
The trial court properly admitted into evidence the deputy
clerk's testimony regarding the April 22, 1998 warrant of
arrest. The warrant of arrest reflects the district court
judge's finding that Gillard failed to appear and the judge's
order that Gillard's bond be revoked and that an arrest warrant
for failure to appear be issued. At trial, Ms. Simmons, deputy
clerk for the Petersburg General District Court, authenticated
the April 22, 1998 warrant for arrest. She testified that it
showed on its face Gillard failed to appear in court for a
preliminary hearing scheduled on November 16, 1998 and that a
warrant for Gillard's arrest was issued on that same day,
pursuant to the trial judge's order. She stated that she
recognized both the trial judge's handwriting and her own
handwriting on the warrant. The April 22, 1998 warrant for
arrest was authenticated by the deputy clerk, and her testimony
as to its content was therefore admissible as prima facie
evidence of Gillard's failure to appear.
With evidence of Gillard's failure to appear in court on
November 16, 1998, the Commonwealth was required to prove that
he had knowledge of the trial date. Knowledge of the trial
date, which includes dates to which the trial has been
continued, can be inferred from proof the trial date was set in
orders entered into the public record. Hunter v. Commonwealth, - 25 - 15 Va. App. 717, 722, 427 S.E.2d 197, 200-01 (1993). Here, the
court records, including the April 22, 1998 warrant for arrest,
reflect that Gillard was recognized to appear in court on
November 16, 1998 as a condition of his bond. Thus, Gillard had
notice of his court date. Moreover, Gillard did not contest
that he had notice to appear in court on November 16, 1998. He
asserted only that the evidence failed to prove he was not in
court on that date.
With failure to appear and knowledge of the court date
proven, the Commonwealth was required additionally to prove that
Gillard willfully failed to appear. "'Any failure to appear
after notice of the appearance date [is] prima facie evidence
that such failure to appear [was] willful.'" Id. at 721, 427
S.E.2d at 200 (quoting Trice v. United States, 525 A.2d 176, 179
(D.C. 1987)). The Commonwealth, therefore, successfully carried
its burden of proving Gillard's failure to appear beyond a
reasonable doubt.
With the Commonwealth successfully carrying its burden, the
burden of going forward with the evidence shifted to Gillard to
show why his absence was not willful. No cause was shown.
Therefore, the evidence was sufficient to sustain Gillard's
conviction for failure to appear.
III. CONCLUSION
In summary, we find that (1) the evidence was sufficient to
support Gillard's convictions for possession of a controlled - 26 - substance, possession of a gun while in possession of a
controlled substance, possession of a concealed weapon, and
possession of marijuana on April 22, 1998; (2) the trial court
did not err in admitting evidence of possession of cocaine and
possession of a gun while in possession of cocaine relating to
Gillard's May 5, 1998 offenses; (3) the Commonwealth
sufficiently established the chain of custody of the drugs
seized from Gillard on April 22 and May 5, 1998 and that the
trial court did not err in admitting the certificates of
analysis for the controlled substances; (4) the trial court did
not abuse its discretion in preventing Sergeant Jones from
testifying about the internal procedures for checking evidence
into and out of the police property room; and (5) the evidence
was sufficient to convict Gillard for failure to appear on
November 16, 1998.
The judgment of the trial court is affirmed.
Affirmed.
- 27 -