COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judge Elder and Senior Judge Duff Argued at Alexandria, Virginia
ROBERT EUGENE HUGHES, III MEMORANDUM OPINION** BY v. Record No. 2802-96-4 JUDGE LARRY G. ELDER NOVEMBER 25, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Jack B. Stevens, Judge Mark J. Yeager for appellant.
Ruth Ann Morken, Assistant Attorney General (James S. Gilmore, III, Attorney General; Margaret Ann B. Walker, Assistant Attorney General, on brief), for appellee.
Robert E. Hughes (appellant) appeals his conviction of
driving under the influence of alcohol in violation of Code
§ 18.2-266. He contends that the trial court erred when it
admitted into evidence a certificate of blood alcohol analysis
stating the result of a breath test he took shortly after his
arrest. For the reasons that follow, we reverse and remand.
I.
FACTS
On May 16, 1996, at approximately 8:30 a.m., appellant was
arrested by Trooper Loftis for driving under the influence of
* On November 19, 1997, Judge Fitzpatrick succeeded Judge Moon as chief judge. ** Pursuant to Code § 17-116.010 this opinion is not designated for publication. alcohol. The trooper transported appellant to headquarters where
Trooper Mungin administered a breath test to appellant. The test
indicated that appellant's blood alcohol content was in excess of
the legal limit allowed for operating a motor vehicle. The
result of this test was recorded on a certificate of blood
alcohol analysis (certificate).
On August 13, appellant filed a precipe with the trial court
requesting the clerk to send him a copy of the certificate. The
clerk did not mail or deliver a copy of the certificate prior to
appellant's trial on October 3. At trial, appellant made a motion in limine to exclude the
certificate because the clerk did not satisfy the "mailing
requirement" of Code § 19.2-187. The trial court granted the
motion. The Commonwealth subsequently moved for a nolle
prosequi, which the trial court denied. The trial court then
granted a recess of approximately two hours, during which the
Commonwealth located Trooper Mungin.
When appellant's trial resumed, the Commonwealth called
Trooper Mungin to testify. The written statement of facts
summarizing the trooper's testimony indicates that he identified
the certificate, but did not otherwise testify about its contents
or the breath test he administered to appellant. The
Commonwealth then moved the certificate into evidence. The trial
court overruled appellant's objection to the certificate and
admitted it into evidence. The trial court subsequently
-2- convicted appellant of driving under the influence of alcohol.
-3- II.
ADMISSIBILITY OF THE CERTIFICATE OF BLOOD ALCOHOL ANALYSIS
Appellant contends that the trial court erred when it
admitted the certificate because the Commonwealth failed to
establish compliance with all of the safeguards of Code
§ 19.2-187 and the testimony of Trooper Mungin did not render the
certificate admissible. We agree.
It is well established that hearsay evidence is considered
incompetent and is generally inadmissible unless it falls within
an exception to this exclusionary rule. See Neal v.
Commonwealth, 15 Va. App. 416, 420-21, 421 S.E.2d 521, 524
(1992). Hearsay evidence is defined as: testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.
Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781
(1977) (citation omitted) (emphasis added). The hearsay rule
applies to out-of-court statements contained in written reports
offered to prove the results of tests or analysis conducted out
of court. See Myrick v. Commonwealth, 13 Va. App. 333, 336-37,
412 S.E.2d 176, 178 (1991)); see also Bradshaw v. Commonwealth,
16 Va. App. 374, 380, 429 S.E.2d 881, 885 (1993) (citing William
v. Morris, 200 Va. 413, 417, 105 S.E.2d 829, 832 (1958)).
The General Assembly has created an exception to the hearsay
rule for the contents of written certificates of analysis. See
-4- Code § 19.2-187; Gray v. Commonwealth, 220 Va. 943, 945, 265
S.E.2d 705, 706 (1980); Allen v. Commonwealth, 3 Va. App. 657,
662-63, 353 S.E.2d 162, 165 (1987). However, as a foundation for
the admission of hearsay statements contained in certificates of
analysis, the Commonwealth must prove that it strictly complied
with the specific safeguards set forth in Code § 19.2-187,
including the "attestation" requirement, the "filing"
requirement, and the "mailing" requirement. 1 See Myrick, 13 Va.
App. at 337, 412 S.E.2d at 178; Neal, 15 Va. App. at 420, 425 S.E.2d at 524 (stating that "[t]he party seeking to rely on an
exception to the hearsay rule has the burden of establishing
admissibility"). If the Commonwealth fails to establish the
foundation required by Code § 19.2-187, then any hearsay
1 Code § 19.2-187 states in relevant part:
In any hearing or trial of any criminal offense . . . a certificate of analysis of a person performing an analysis or examination, performed in [one of the laboratories mentioned in the statute] when such certificate is duly attested by such person, shall be admissible in evidence as evidence of the facts therein stated and the results of the analysis or examination referred to therein, 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.
(Emphasis added).
-5- contained in a certificate of analysis is inadmissible to prove
the truth of what it asserts.
We hold that the trial court erred when it admitted the
certificate to prove the result of the breath test administered
to appellant shortly after his arrest. The Commonwealth concedes
that the clerk failed to comply with appellant's request for a
copy of the certificate prior to his trial. Because the mailing
requirement was not satisfied, Trooper Mungin's hearsay
statements contained in the certificate were not admissible "as
evidence of the facts . . . and the results of the analysis . . .
referred to therein." Code § 19.2-187; see also Copeland v.
Commonwealth, 19 Va. App. 515, 517, 452 S.E.2d 876, 877 (1995);
Mullins v. Commonwealth, 12 Va. App. 372, 374-75, 404 S.E.2d 237,
239 (1991).
The Commonwealth contends that Trooper Mungin's testimony
justified admitting the certificate. It cites a passage in Gray
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judge Elder and Senior Judge Duff Argued at Alexandria, Virginia
ROBERT EUGENE HUGHES, III MEMORANDUM OPINION** BY v. Record No. 2802-96-4 JUDGE LARRY G. ELDER NOVEMBER 25, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Jack B. Stevens, Judge Mark J. Yeager for appellant.
Ruth Ann Morken, Assistant Attorney General (James S. Gilmore, III, Attorney General; Margaret Ann B. Walker, Assistant Attorney General, on brief), for appellee.
Robert E. Hughes (appellant) appeals his conviction of
driving under the influence of alcohol in violation of Code
§ 18.2-266. He contends that the trial court erred when it
admitted into evidence a certificate of blood alcohol analysis
stating the result of a breath test he took shortly after his
arrest. For the reasons that follow, we reverse and remand.
I.
FACTS
On May 16, 1996, at approximately 8:30 a.m., appellant was
arrested by Trooper Loftis for driving under the influence of
* On November 19, 1997, Judge Fitzpatrick succeeded Judge Moon as chief judge. ** Pursuant to Code § 17-116.010 this opinion is not designated for publication. alcohol. The trooper transported appellant to headquarters where
Trooper Mungin administered a breath test to appellant. The test
indicated that appellant's blood alcohol content was in excess of
the legal limit allowed for operating a motor vehicle. The
result of this test was recorded on a certificate of blood
alcohol analysis (certificate).
On August 13, appellant filed a precipe with the trial court
requesting the clerk to send him a copy of the certificate. The
clerk did not mail or deliver a copy of the certificate prior to
appellant's trial on October 3. At trial, appellant made a motion in limine to exclude the
certificate because the clerk did not satisfy the "mailing
requirement" of Code § 19.2-187. The trial court granted the
motion. The Commonwealth subsequently moved for a nolle
prosequi, which the trial court denied. The trial court then
granted a recess of approximately two hours, during which the
Commonwealth located Trooper Mungin.
When appellant's trial resumed, the Commonwealth called
Trooper Mungin to testify. The written statement of facts
summarizing the trooper's testimony indicates that he identified
the certificate, but did not otherwise testify about its contents
or the breath test he administered to appellant. The
Commonwealth then moved the certificate into evidence. The trial
court overruled appellant's objection to the certificate and
admitted it into evidence. The trial court subsequently
-2- convicted appellant of driving under the influence of alcohol.
-3- II.
ADMISSIBILITY OF THE CERTIFICATE OF BLOOD ALCOHOL ANALYSIS
Appellant contends that the trial court erred when it
admitted the certificate because the Commonwealth failed to
establish compliance with all of the safeguards of Code
§ 19.2-187 and the testimony of Trooper Mungin did not render the
certificate admissible. We agree.
It is well established that hearsay evidence is considered
incompetent and is generally inadmissible unless it falls within
an exception to this exclusionary rule. See Neal v.
Commonwealth, 15 Va. App. 416, 420-21, 421 S.E.2d 521, 524
(1992). Hearsay evidence is defined as: testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.
Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781
(1977) (citation omitted) (emphasis added). The hearsay rule
applies to out-of-court statements contained in written reports
offered to prove the results of tests or analysis conducted out
of court. See Myrick v. Commonwealth, 13 Va. App. 333, 336-37,
412 S.E.2d 176, 178 (1991)); see also Bradshaw v. Commonwealth,
16 Va. App. 374, 380, 429 S.E.2d 881, 885 (1993) (citing William
v. Morris, 200 Va. 413, 417, 105 S.E.2d 829, 832 (1958)).
The General Assembly has created an exception to the hearsay
rule for the contents of written certificates of analysis. See
-4- Code § 19.2-187; Gray v. Commonwealth, 220 Va. 943, 945, 265
S.E.2d 705, 706 (1980); Allen v. Commonwealth, 3 Va. App. 657,
662-63, 353 S.E.2d 162, 165 (1987). However, as a foundation for
the admission of hearsay statements contained in certificates of
analysis, the Commonwealth must prove that it strictly complied
with the specific safeguards set forth in Code § 19.2-187,
including the "attestation" requirement, the "filing"
requirement, and the "mailing" requirement. 1 See Myrick, 13 Va.
App. at 337, 412 S.E.2d at 178; Neal, 15 Va. App. at 420, 425 S.E.2d at 524 (stating that "[t]he party seeking to rely on an
exception to the hearsay rule has the burden of establishing
admissibility"). If the Commonwealth fails to establish the
foundation required by Code § 19.2-187, then any hearsay
1 Code § 19.2-187 states in relevant part:
In any hearing or trial of any criminal offense . . . a certificate of analysis of a person performing an analysis or examination, performed in [one of the laboratories mentioned in the statute] when such certificate is duly attested by such person, shall be admissible in evidence as evidence of the facts therein stated and the results of the analysis or examination referred to therein, 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.
(Emphasis added).
-5- contained in a certificate of analysis is inadmissible to prove
the truth of what it asserts.
We hold that the trial court erred when it admitted the
certificate to prove the result of the breath test administered
to appellant shortly after his arrest. The Commonwealth concedes
that the clerk failed to comply with appellant's request for a
copy of the certificate prior to his trial. Because the mailing
requirement was not satisfied, Trooper Mungin's hearsay
statements contained in the certificate were not admissible "as
evidence of the facts . . . and the results of the analysis . . .
referred to therein." Code § 19.2-187; see also Copeland v.
Commonwealth, 19 Va. App. 515, 517, 452 S.E.2d 876, 877 (1995);
Mullins v. Commonwealth, 12 Va. App. 372, 374-75, 404 S.E.2d 237,
239 (1991).
The Commonwealth contends that Trooper Mungin's testimony
justified admitting the certificate. It cites a passage in Gray
in which the Supreme Court stated that in the absence of the preparer of the certificate as a witness at trial, the failure of the Commonwealth fully to comply with the . . . provisions of [Code] § 19.2-187 renders the certificate inadmissible.
Gray, 220 Va. at 945, 265 S.E.2d at 706. It argues that this
passage indicates that the in-court appearance of the preparer of
a certificate of analysis to "certify" the document is sufficient
to render its out-of-court statements admissible for their truth.
We disagree.
-6- The Supreme Court's dicta in Gray must be read together with
its subsequent acknowledgement in that case that Code § 19.2-187
creates an exception to the hearsay rule. See id. (stating that
Code § 19.2-187 "undertakes to make admissible evidence which
otherwise might be subject to a valid hearsay objection"). It is
axiomatic that, in order for a written document to be admissible
to prove the truth of its contents, the document must be properly
authenticated and free of inadmissible hearsay. [I]t is often mistakenly supposed that authentication of a document alone will establish its admissibility. It will not. The fact that a document is genuine does not mean that it is admissible. The genuine document must still meet the requirements of relevancy, etc., before it can be admitted, and the hearsay rule prohibits the admission of many a perfectly genuine document.
Charles E. Friend, The Law of Evidence in Virginia § 15-1 (4th
ed. 1993) (emphasis in original). The record established that,
even after Trooper Mungin testified, the certificate still
contained inadmissible hearsay. The summary of Trooper Mungin's
testimony contained in the written statement of facts indicates
that he merely "identified" the certificate. The summary does
not indicate that the trooper testified in court regarding the administration and result of the breath test itself. Because
Trooper Mungin did not testify about the facts surrounding the
breath test, the certificate still contained written evidence of
his out-of-court statement that appellant's blood alcohol content
was over the legal limit at the time of the test. See Stevenson,
-7- 218 Va. at 465, 237 S.E.2d at 781. Thus, assuming that Trooper
Mungin authenticated the certificate, its contents were
inadmissible because they were offered to prove the truth of the
matter asserted and did not fall within an exception to the
hearsay rule.
The admission of the hearsay statements in the certificate
following the failure of the clerk to comply with the mailing
requirement of Code § 19.2-187 is reversible error. See Woodward v. Commonwealth, 16 Va. App. 672, 674, 432 S.E.2d 510, 512 (1993)
(stating that "[p]rejudice to the defendant from a failure to
comply [with Code § 19.2-187] need not be shown"). However,
because the reversal is for "mere trial error, and not for
evidentiary insufficiency," we will remand the case for a new
trial. See Gray, 220 Va. at 946, 265 S.E.2d at 706; Allen, 3 Va.
App. at 664, 353 S.E.2d at 166.
For the foregoing reasons, we reverse the conviction of
§ 18.2-266 and remand for further proceedings consistent with
this opinion. Reversed and remanded.
-8-