Terence L. Hill, s/k/a Terrence L. Hill v. CW

• Court: Court of Appeals of Virginia
• Decided: November 23, 1999
• Docket: 2336981
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Lemons and Frank Argued at Norfolk, Virginia

TERENCE L. HILL, S/K/A TERRENCE L. HILL MEMORANDUM OPINION * BY v. Record No. 2336-98-1 JUDGE DONALD W. LEMONS NOVEMBER 23, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK Rodham T. Delk, Jr., Judge

James L. Grandfield, Assistant Public Defender, for appellant.

Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Terrence L. Hill appeals his conviction of possession of a

firearm after having been convicted of a felony, a violation of

Code § 18.2-308.2. On appeal, he argues that the trial court

erred in overruling his "chain of custody" objection to the

admission of a gunshot residue kit and that the evidence was

insufficient to prove that he possessed a firearm. We disagree

and affirm the conviction.

I. BACKGROUND

On January 30, 1998, Officer J.L. Naylor, of the City of

Suffolk Police Department, responded to a call at the five

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. hundred block of Causey Avenue to investigate reported gunfire.

Upon her arrival, Naylor observed Terrence L. Hill walking in an

area posted with "No Trespassing" signs. Naylor called for Hill

to stop, but Hill began running.

Naylor chased Hill, and observed him stumble, fall, use his

hands to break his fall, get up, and continue running. Naylor

apprehended Hill approximately one block from where Hill had

fallen. Naylor advised Hill that he was under arrest, and

ordered him to place his hands behind his back. Naylor told

Hill that she would "cap stun" him if he continued struggling.

Hill refused to comply, so Naylor stunned him, and subsequently

handcuffed him.

Officer C.A. Fellers of the City of Suffolk Police

Department arrived at the scene. Fellers and Naylor walked to

the location where Hill had fallen, and discovered a

nine-millimeter Kel-Tek handgun. The gun was discovered within

two minutes of Hill's apprehension.

Thirty to forty minutes after Hill's arrest, a gunshot

residue test was conducted on Hill's hands. At Hill's trial,

Naylor testified that she placed the sample obtained from Hill's

hands inside an envelope, sealed it, and kept it in her custody

and control at all times until she transported it to the

Commonwealth of Virginia, Division of Forensic Science,

Tidewater laboratory.

- 2 - Douglas H. DeGaetano, an expert in the field of gunshot

residue employed at the Division of Forensic Science central

laboratory in Richmond, testified that he received and analyzed

Hill's gunshot residue test kit, stating that he recognized it

by its "unique forensic science case number" and his "initials

where [he] sealed [the kit] after analyzing the samples."

DeGaetano testified that his examination revealed a particle of

gunshot residue on the sample taken from Hill's right hand, plus

a particle which was "indicative" of primer residue on the

sample taken from Hill's left hand. DeGaetano stated that

primer residue can be deposited on a person's hands primarily in

three ways: if the person fired the gun, if the person was

present in the area when the gun was fired, or if the person

handled a dirty weapon.

Hill objected to the admission of the gunshot residue kit

(GSR) into evidence and to DeGaetano's testimony on the grounds

that the Commonwealth failed to establish a sufficient chain of

custody. Acknowledging that the GSR was delivered to the

required lab in Norfolk by Naylor, Hill argues that the chain of

custody is broken because there was no evidence concerning how

the kit was transported from Norfolk to Richmond.

In addition, Hill testified that he did not have a firearm

in his possession when Naylor chased him. He offered no

explanation for the gunshot residue on his hands, and claimed

that he had not been in close proximity to a weapon.

- 3 - II. CHAIN OF CUSTODY

The GSR and DeGaetano's testimony were admitted into

evidence over Hill's objection. Inexplicably, the Commonwealth

did not offer the certificate of analysis for the GSR into

evidence. 1 Hill argues that the failure to introduce the

certificate removes any benefit of prima facie evidence of the

establishment of chain of custody. 2 While correct concerning the

lack of any benefits conferred by Code § 19.2-187.01, the

Commonwealth did not rely upon the certificate of analysis and

its accompanying attestation. Instead, the Commonwealth relied

upon Naylor's and DeGaetano's testimony to establish the chain

of custody.

"Establishing a chain of custody of exhibits is necessary

to afford reasonable assurance that the exhibits at trial are

the same and in the same condition as they were when first

obtained." Horsley v. Commonwealth, 2 Va. App. 335, 338, 343

S.E.2d 389, 390 (1986). Although the burden of proving chain of

custody rests with the Commonwealth, "[t]he Commonwealth is not

required to exclude every conceivable possibility of

1 The certificate of analysis for the GSR is in the record of the case having been lodged with the court as an exhibit to discovery responses by the Commonwealth. It was not offered in evidence. 2 The Commonwealth argues that Hill failed to present this objection to the trial court, and it is therefore barred on appeal. Upon review of the record, we find that the objection was sufficiently stated to be preserved for review on appeal.

- 4 - substitution, alteration, or tampering." Pope v. Commonwealth,

234 Va. 114, 121, 360 S.E.2d 352, 357 (1987). Rather, the

Commonwealth is required to establish with "reasonable

assurance" that the evidence presented and analyzed at trial was

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

obtained by the police. However, "[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." Reedy v. Commonwealth, 9 Va. App. 386, 391, 388

S.E.2d 650, 652 (1990).

Here, the evidence established that the GSR was taken from

appellant by Officer J.L. Naylor at approximately 1:31 a.m. on

January 30, 1998. Naylor placed the samples into an envelope,

which she immediately sealed. Naylor kept the envelope in her

possession until she delivered it to the Division of Forensic

Science's Norfolk regional laboratory on January 30, 1998.

Naylor assigned Case Number 9800585 to the GSR that she turned

over to the Norfolk lab.

Douglas H. DeGaetano, a forensic scientist employed by the

Division of Forensic Science at the central laboratory in

Richmond, testified that he analyzed the GSR containing Case

Number 9800585 and identified by Naylor as the GSR that she

turned over to the Norfolk lab. The GSR contained the lab

number T98-1015 and DeGaetano's initials where he sealed it

- 5 - after analyzing the samples. Appellant presented no evidence

tending to show that the GSR had been altered, substituted, or

tampered with after it was delivered to the Norfolk lab. "There

is a presumption of regularity in handling of exhibits by public

officials." Smith v. Commonwealth, 219 Va. 554, 559, 248 S.E.2d

805, 808 (1978). In proving the chain of custody, the

Commonwealth "'is not required to exclude every conceivable

possibility of substitution, alteration or tampering.' Instead,

the Commonwealth was required to establish with 'reasonable

assurance' that the evidence analyzed and presented at trial was

in the same condition as it was when obtained by police."

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

419 (1991) (quoting Pope v. Commonwealth, 234 Va. 114, 129, 360

S.E.2d 352, 357 (1987)). Based upon this record, the trial

court did not err in overruling appellant's objection to

DeGaetano's testimony regarding the results of his analysis of

the GSR.

III. POSSESSION OF A FIREARM

Hill argues that the evidence was insufficient to support

his conviction for possession of a firearm by a convicted felon,

a violation of Code § 18.2-308.2. On appeal, Hill argues that

the Commonwealth failed to prove either that he actually or

constructively possessed a firearm. Hill also argues that the

Commonwealth did not prove that the object introduced as

Exhibit #2 was actually a firearm, "capable of expelling a

- 6 - projectile by action of an explosion" as defined in Code

§ 18.2-308.2:2(G).

A. Actual or Constructive Possession

Because the police never saw him holding the handgun, Hill

contends that the circumstantial evidence supporting his

conviction was insufficient to support his conviction. Hill

argues that the Commonwealth's evidence "in its most favorable

light" establishes only that Officer Fellers recovered the

pistol "near where [Hill] had stumbled."

On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Moreover, [c]ircumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.

McBride v. Commonwealth, 22 Va. App. 730, 733, 473 S.E.2d 85, 87

(1996) (citations and internal quotations omitted).

"'Circumstantial evidence . . . is evidence of facts or

circumstances not in issue from which facts or circumstances in

issue may be inferred.'" Byers v. Commonwealth, 23 Va. App.

146, 151, 474 S.E.2d 852, 854 (1996) (quoting 1 Charles E.

Friend, The Law of Evidence in Virginia § 12-1 (4th ed. 1993)).

However, "[w]hen the Commonwealth relies solely upon

[circumstantial evidence] it bears the burden of excluding every

reasonable hypothesis of innocence, that is those which flow

from the evidence itself, and not from the imagination of

- 7 - defendant's counsel." Tyler v. Commonwealth, 254 Va. 162, 166,

487 S.E.2d 221, 223 (1997) (citations omitted).

To support a conviction for possession of a firearm after

having been convicted of a felony, the Commonwealth must prove

beyond a reasonable doubt that a defendant knowingly and

intentionally possessed the firearm. See Blake v. Commonwealth,

15 Va. App. 706, 427 S.E.2d 219 (1993). Proof of the

defendant's knowledge of the "presence and character" of a

weapon is necessary to show that the defendant consciously

possessed it, just as such proof is required to show possession

of illegal drugs. See id. at 708, 427 S.E.2d at 220.

Possession of illegal drugs "may be proved by evidence of acts,

declarations or conduct of the accused from which the inference

may be fairly drawn that he knew of the existence of narcotics

at the place where they were found." Andrews v. Commonwealth,

216 Va. 179, 182, 217 S.E.2d 812, 814 (1975).

In the same way, possession of a firearm can be inferred by

the surrounding circumstances. Here, Naylor responded to a call

about reported gunfire. Upon her arrival, Naylor saw Hill and

called to him, and Hill began running. Naylor chased Hill,

observed him fall, use his arms to break his fall, get up, and

continue running. After Hill had been apprehended, Fellers went

to the area that Naylor identified as where he had fallen.

Fellers recovered a handgun from that area. The gun was

recovered within minutes of Hill's fall.

- 8 - Although "mere proximity to contraband is insufficient to

[prove] possession . . . [it is a] factor [which may] be

considered . . . ." Lane v. Commonwealth, 223 Va. 713, 716, 292

S.E.2d 358, 360 (1982). Flight may also be considered as a

factor in determining guilt. See Langhorne v. Commonwealth, 13

Va. App. 97, 102, 409 S.E.2d 476, 480 (1991) (citation omitted).

An object which is "of significant value," such as a weapon, is

unlikely to have been intentionally or carelessly discarded.

See Powell v. Commonwealth, 27 Va. App. 173, 178, 497 S.E.2d

899, 901 (1998).

DeGaetano testified that "primer residue [from a weapon]

can be deposited on your hands by either firing a weapon, being

in the close proximity to the discharge of a weapon or by

handling a dirty weapon." DeGaetano identified a "single

particle of gunshot residue on [Hill's] right hand sample and

. . . found a particle that was indicative of primer residue on

[Hill's] left hand sample." On cross-examination, DeGaetano

testified that although there are other ways for primer residue

to be deposited on hands, the three examples he gave are "the

most typical ways."

Viewing the facts in the light most favorable to the

Commonwealth, we hold that the evidence was sufficient to find

that Hill had been in actual possession of the handgun recovered

by Fellers from the area where he had fallen.

- 9 - B. Rule 5A:18

On appeal, Hill argues that "the Commonwealth failed to

establish that Commonwealth's Exhibit #2 was in fact a

'firearm,' capable of expelling a projectile by action of

explosion." Code § 18.2-308.2:2(G) defines a firearm as "any

handgun, shotgun, or rifle which expels a projectile by action

of an explosion." Because Hill failed to raise this issue

before the trial court, we are barred from considering it on

appeal. See Rule 5A:18. See Dickerson v. Commonwealth, 29 Va.

App. 252, 256, 511 S.E.2d 434, 436 (1999).

IV. CONCLUSION

We hold that the trial court did not err in overruling

Hill's "chain of custody" objection to the admission of the GSR

and DeGaetano's testimony concerning the test results and that

the evidence was sufficient to prove that Hill actually

possessed the handgun in question after having been convicted of

a felony.

Affirmed.

- 10 -