PRESENT: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Russell, S.J.
TYRONE ANTWAN HERNDON
OPINION BY
v. Record No. 091265 JUSTICE LEROY F. MILLETTE, JR.
June 10, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the circuit court
abused its discretion in admitting into evidence a forensic
laboratory’s certificate of analysis when there was a
discrepancy between an officer’s description of an item
submitted to the laboratory for analysis and the laboratory’s
description of the item.
BACKGROUND
Tyrone Antwan Herndon was arrested in the City of
Martinsville for tampering with a motor vehicle. Upon
Herndon’s arrest, Officer Rob Coleman of the City of
Martinsville Police Department recovered from Herndon a “clear
plastic baggie which contained several off-white rock-like
substances.”
Officer Coleman collected the baggie and returned to the
police station where he sealed the baggie, and then sent it by
certified mail to the Department of Forensic Science (the
laboratory) for analysis. The laboratory conducted an
analysis and determined that the substance was cocaine.
At Herndon’s bench trial for possession of cocaine,
Officer Coleman testified during cross-examination that the
baggie he sent to the laboratory contained six off-white
rocks. The request for examination form that Officer Coleman
sent to the laboratory also described the baggie as containing
six off-white rocks. However, the certificate of analysis
returned from the laboratory described the item as: “One (1)
small ziplock plastic bag which contained off-white substance
and four (4) knotted plastic bag corners each of which
contained off-white substance.”
During re-direct, the following exchange took place:
[Commonwealth:] Did you package each of those
items the way they appear today?
[Officer Coleman:] No ma’am, I did not.
[Commonwealth:] Could you explain how they were
when you sent them to the lab?
[Officer Coleman:] Yes ma’am. They were in one
baggie, appeared to have plastic
wrapped around them and tied.
They were not packaged as you
see them today. They were in
larger forms. There [were] also
the knotted bags that are still
available.
[Commonwealth:] So[me] of the items are in
knotted bags and some of it is
loose in the smaller bags that
the lab provided, is that
correct?
[Officer Coleman:] Yes ma’am, that’s correct.
2
Herndon argued that the certificate of analysis should
not be admitted into evidence because the evidence described
in the certificate of analysis is not the same as what Officer
Coleman testified that he packaged and sent to the laboratory.
The circuit court found that the Commonwealth had established
a sufficient chain of custody, and admitted the certificate of
analysis into evidence over Herndon’s objection.
The circuit court found Herndon guilty of possession of
cocaine. In its ruling from the bench, the circuit court
stated:
It is argued that there is a variance between what
the officer described as having been seized and what
is now returned from the lab. However, it’s the
court’s view that the certificate of analysis here
may not be as descriptive in terms of numbering or
providing a gross number of the rocks involved as
Officer Coleman’s testimony, but it’s not at
variance because the officer never said that it was
one rock per baggie corner.
Herndon appealed his conviction to the Court of Appeals,
which affirmed his conviction in an unpublished opinion.
Herndon v. Commonwealth, Record No. 1393-08-3 (May 26, 2009).
We awarded Herndon this appeal.
DISCUSSION
Herndon argues that the circuit court abused its
discretion by admitting the certificate of analysis into
evidence because the Commonwealth failed to establish a chain
of custody that excluded alteration or substitution when the
3
description on the request form prepared by Officer Coleman
differed from the description on the certificate of analysis
prepared by the laboratory. According to Herndon, because
pieces of cocaine do not contain unique identifiers, the only
way their identity can be established with reasonable
certainty is by the number of pieces and the way the pieces
are packaged, and that Officer Coleman’s testimony does not
reconcile or explain the discrepancies in description.
Herndon argues that the fact that the names, dates, and
numbers on the packaging match, only proves that the evidence
bag sent by Officer Coleman was the same evidence bag received
by the laboratory, not that the contents of the bag and the
individual pieces of alleged cocaine were the same. Herndon
contends that since the Commonwealth apparently concedes that
the laboratory re-packaged at least some of the “rocks” that
the laboratory sent back, the Commonwealth has failed to
establish whether the laboratory analyzed and re-packaged the
“rocks” seized from Herndon, or if it analyzed and re-packaged
some sample other than what was recovered from Herndon.
In response, the Commonwealth argues that the circuit
court did not abuse its discretion in admitting into evidence
the certificate of analysis because the Commonwealth
established the chain of custody from the time of the
discovery of the evidence until its presentation in court.
4
The Commonwealth asserts that the evidence Officer Coleman
collected from Herndon was the same evidence that the
laboratory received and analyzed, because the evidence bag
Officer Coleman received back from the laboratory showed no
indication of tampering, and the seals on the evidence bag
were intact.
The Commonwealth asserts that Herndon failed to rebut the
presumption of regularity that applies in this case once the
laboratory received the evidence. The Commonwealth maintains
that the difference in the descriptions was not significant
enough to demonstrate that the substance analyzed was
different from the substance submitted. The Commonwealth
contends that despite the discrepancies in description, the
evidence presented at trial established with reasonable
certainty that the evidence collected by Officer Coleman was
the same evidence analyzed by the laboratory.
We review a circuit court’s decision to admit or exclude
evidence under an abuse of discretion standard and, on appeal,
will not disturb a circuit court’s decision to admit evidence
absent a finding of abuse of that discretion. Avent v.
Commonwealth, 279 Va. 175, 197, 688 S.E.2d 244, 256 (2010).
When the Commonwealth seeks to introduce evidence regarding
the chemical properties of an item, the burden is upon the
Commonwealth to show with reasonable certainty that there has
5
been no alteration or substitution of the item. Robinson v.
Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180 (1971).
However, this burden is not absolute and the Commonwealth is
not required “to exclude every conceivable possibility of
substitution, alteration, or tampering.” Pope v.
Commonwealth, 234 Va. 114, 121, 360 S.E.2d 352, 357 (1987).
When evidence involves chemical analysis, as with narcotics,
the burden is upon the Commonwealth to establish each vital
link in the chain of custody by showing the possession and
handling of the evidence from when it is obtained to its
presentation at trial. Robinson, 212 Va. at 138, 183 S.E.2d
at 180.
During his testimony, Officer Coleman examined the
evidence bag that he put the plastic baggie in when he
arrested Herndon. As he displayed the evidence to the court,
Officer Coleman testified that the evidence bag had on it his
signature, the date the evidence was recovered, and the case
number. He also stated that the seals on the evidence bag
were intact. Thus, Officer Coleman’s testimony establishes
that from the time the evidence was obtained from Herndon
until its receipt by the laboratory, the evidence bag that
contained the plastic baggie was not tampered with or altered.
When the Commonwealth introduces a certificate of
analysis as evidence of the chain of custody of the material
6
described in the certificate, the certificate of analysis
serves as prima facie evidence of the chain of custody of the
material tested during the time the evidence is in the custody
of the laboratory. Code § 19.2-187.01. Code § 19.2-187.01
provides, in pertinent part:
A report of analysis duly attested by the
person performing such analysis or examination in
any laboratory operated by . . . the Department of
Forensic Science . . . shall be prima facie evidence
in a criminal or civil proceeding as to the custody
of the material described therein from the time such
material is received by an authorized agent of such
laboratory until such material is released
subsequent to such analysis or examination.
Although Officer Coleman’s description of the item and
the laboratory’s description of the item do not correspond
exactly, the circuit court found that they were not
contradictory. Officer Coleman’s description of the item
focused on the number of pieces of cocaine contained in the
plastic baggie while the laboratory’s description focused on
the packaging of the cocaine that was inside the plastic
baggie. The circuit court determined that these descriptions
are not contradictory because the laboratory’s description
does not state the number of pieces of cocaine that were in
the individual baggie corners or in the plastic baggie that
contained the baggie corners.
Although Officer Coleman did not mention the baggie
corners in his written description of the item in the request
7
for examination, he referred to the “knotted bags” as still
available when he described the packaging as being different.
Thus, according to Officer Coleman, the baggie he sent to the
laboratory for analysis contained baggie corners.
The circuit court had the opportunity to examine the
witnesses’ demeanor during their testimony, and all the
evidence, including the packaging, and the baggie that
contained the cocaine and baggie corners. ∗ After observing
Officer Coleman’s testimony and examining the evidence, the
circuit court made a finding of fact that there is was no
variance in the descriptions of the item by Officer Coleman
and the laboratory “because the officer never said that it was
one rock per baggy corner.” “On review, we will not disturb
the factual findings of the trial court unless plainly wrong
or unsupported by the evidence.” Robinson v. Commonwealth,
273 Va. 26, 39, 639 S.E.2d 217, 224-25 (2007).
The circuit court did not abuse its discretion in
admitting the certificate of analysis into evidence when the
court, which observed the evidence, made a factual finding
that the discrepancies between the descriptions on the request
for examination form and certificate of analysis were not
contradictory, and the Commonwealth presented sufficient
8
evidence to establish with reasonable certainty that there had
been no alteration or substitution of the evidence.
CONCLUSION
For the foregoing reasons, we will affirm the judgment of
the Court of Appeals.
Affirmed.
∗
The Commonwealth did not introduce the baggie containing
the cocaine into evidence. Thus, we are unable to examine the
baggie and its contents because it is not part of the record.
9