Williams v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued by teleconference

JEROME H. WILLIAMS
OPINION BY
v. Record No. 0422-00-1 JUDGE JEAN HARRISON CLEMENTS
MAY 29, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge

Dianne G. Ringer, Senior Assistant Public
Defender, for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.

Jerome H. Williams was convicted in a bench trial of

possession of cocaine in violation of Code § 18.2-250. On

appeal, he contends the trial court erred in admitting into

evidence a copy of the certificate of analysis issued by the

state forensic laboratory. Finding no error, we affirm the

conviction.

I. BACKGROUND

On March 7, 1999, at 1:00 a.m., Police Officer Jeffrey

Stokes was on routine patrol in the City of Portsmouth when he

observed Williams riding a bicycle. Stokes asked to speak with
Williams for a moment and Williams stopped. After a brief

discussion, Williams consented to a search of his person.

Incident to that search, Stokes found a substance he suspected

was crack cocaine in Williams's identification badge holder.

The substance was sent to the Commonwealth's Division of

Forensic Science's Tidewater Laboratory in Norfolk for analysis.

At trial, the Commonwealth moved to introduce into evidence

a properly attested certificate of analysis from the Tidewater

Laboratory indicating that the tested substance was cocaine.

The certificate the Commonwealth sought to have admitted,

however, was a photocopy of the original certificate of

analysis. Attached to the certificate was a cover sheet on

Commonwealth of Virginia, Department of Criminal Justice

Services, Division of Forensic Science, Tidewater Laboratory

letterhead reading, "I certify that [the attached certificate of

analysis] is a true and accurate copy in accordance with

§ 8.01-390 and 391 of the Code of Virginia." The certification

was signed by "K. C. Hux, Custodian of Records, Tidewater

Laboratory," and "Robert J. Campbell, Director, Tidewater

Laboratory." Both signatures were dated November 24, 1999.

Williams, asserting that the Commonwealth's request for

admission of a copy of the certificate of analysis, rather than

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the original, created a "best evidence situation," objected to

the introduction of the copy of the certificate of analysis on

the ground that it lacked proper authentication. The

certification attached to the copy did not, Williams argued,

comply with Code § 8.01-390(A) and Code § 8.01-391(B).

The trial court, finding the copy of the certificate of

analysis admissible because it had been properly authenticated

under Code § 8.01-390(A), overruled Williams's objection and

admitted the copy and attached certification as Commonwealth's

Exhibit 2. Having determined the copy was admissible under Code

§ 8.01-390(A), the court concluded that it was unnecessary to

consider whether the copy had also been properly authenticated

under Code § 8.01-391(B). 1

II. ANALYSIS

On appeal, Williams contends the trial court erred in

admitting the copy of the certificate of analysis into evidence

because the copy was not properly authenticated under Code

1
In reaching this conclusion, the trial court stated,
"[t]here really seems to be no purpose when you read [Code
§ 8.01-391(B)] because it is almost a mirror of 390 [and] . . .
doesn't seem to do anything."

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§§ 8.01-390(A) 2 and 8.01-391(B). 3 Incorporated into this

argument is Williams's assertion that the trial court improperly

admitted the copy of the certificate of analysis into evidence

solely because it found that the copy had been authenticated in

compliance with Code § 8.01-390(A). He maintains that, because

he objected to the admission of the copy on the basis of both

2
The version of Code § 8.01-390(A) applicable to this case
reads:

Copies of records of this Commonwealth,
of another state, of the United States, of
another country, or of any political
subdivision or agency of the same, other
than those located in a clerk's office of a
court, shall be received as prima facie
evidence provided that such copies are
authenticated to be true copies both by the
custodian thereof and by the person to whom
the custodian reports.
3
The version of Code § 8.01-391(B) applicable to this case
reads:

If any department, division,
institution, agency, board, or commission of
this Commonwealth, of another state or
country, or of the United States, or of any
political subdivision or agency of the same,
acting pursuant to the law of the respective
jurisdiction or other proper authority, has
copied any record made in the performance of
its official duties, such copy shall be as
admissible into evidence as the original,
whether the original is in existence or not,
provided that such copy is authenticated as
a true copy both by the custodian of said
record and by the person to whom said
custodian reports, if they are different,
and is accompanied by a certificate that
such officer does in fact have the custody.

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Code §§ 8.01-390(A) and 8.01-391(B), the trial court should not

have admitted the copy of the certificate of analysis without

first determining that it had been properly authenticated under

both statutes.

The document whose admissibility is at issue here is a

photocopy of the original certificate of analysis. Had the

original certificate of analysis been offered by the

Commonwealth for admission into evidence, it would have been

admissible over a hearsay objection under Code § 19.2-187. 4

That statute establishes an exception to the hearsay rule for

the contents of certain certificates of analysis that have been

properly attested and filed pursuant to the requirements of that

4
Code § 19.2-187 provides, in pertinent part:

In any hearing or trial of any criminal
offense . . ., a certificate of analysis of
a person performing an analysis or
examination, performed in any laboratory
operated by the . . . Division of Forensic
Science . . . 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 made by
such counsel . . . .

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statute. See Myrick v. Commonwealth, 13 Va. App. 333, 337, 412

S.E.2d 176, 178 (1991). However, as we noted in addressing the

admissibility of a copy of a certificate of analysis in Proctor

v. Commonwealth, 14 Va. App. 937, 419 S.E.2d 867 (1992):

Code § 19.2-187 addresses the problem of
hearsay, and compliance with its
requirements merely exonerates an otherwise
hearsay document from the application of the
hearsay rule. The issue in this case is not
hearsay, but authentication. Although the
original certificate, if filed in compliance
with Code § 19.2-187, would have been
admissible in evidence over a hearsay
objection, a copy of that certificate, to be
admissible, must be shown to be genuine and
adequate.

Id. at 938-39, 419 S.E.2d at 868. In other words, to be

admissible, the copy of the certificate of analysis must be

properly authenticated. See id. at 938, 419 S.E.2d at 868.

Here, the copy of the certificate of analysis was

accompanied by a document certifying that the attached copy was

"a true and accurate copy in accordance with § 8.01-390 and 391

of the Code of Virginia." That certification, the Commonwealth

contends, serves to authenticate the copy of the certificate of

analysis under the referenced statutes.

Code § 8.01-390 codifies the "official written documents

exception" 5 to the hearsay rule and sets forth the method of

5
This exception is known by several names in Virginia,
including the official records exception, the public documents
exception, the official documents exception, the official

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authentication that allows copies of certain official records of

governmental entities to be admitted as prima facie evidence

under that exception. Ingram v. Commonwealth, 1 Va. App. 335,

340, 338 S.E.2d 657, 659 (1986). "Under [the official written

documents] exception, 'records and reports prepared by public

officials pursuant to a duty imposed by statute, or required by

the nature of their office, are admissible as proof of the facts

stated therein.'" Taylor v. Maritime Overseas Corp., 224 Va.

562, 565, 299 S.E.2d 340, 341 (1983) (quoting Williams v.

Commonwealth, 213 Va. 45, 46, 189 S.E.2d 378, 379 (1972)).

Conversely, "Code § 8.01-391, which concerns copies of

originals as evidence, is a statutory exception to the best

evidence rule." Jackson v. Commonwealth, 13 Va. App. 599, 601,

413 S.E.2d 662, 664 (1992); see also Charles E. Friend, The Law

of Evidence in Virginia § 16-4(c) (5th ed. 1999). Code

§ 8.01-391(B) provides that, when properly authenticated

pursuant to the requirements set forth in that section, copies

made of their official records by governmental entities "acting

pursuant to the law of the respective jurisdiction or other

proper authority" are as admissible as the original records,

whether the original records are "in existence or not."

recorded document exception, and the official written statements
exception. See Charles E. Friend, The Law of Evidence in
Virginia § 18-29 (5th ed. 1999).

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 Clearly, in this case, the original certificate of analysis

of which the instant copy was made was an official record of a

governmental entity. The question, then, is which statute, Code

§ 8.01-390(A) or Code § 8.01-391(B), controls the issue of the

proper authentication of the copy of the certificate of

analysis.

Here, the issue is not hearsay. See Myrick, 13 Va. App. at

338, 412 S.E.2d at 178-79. The original certificate of analysis

was properly attested pursuant to Code § 19.2-187 by the

forensic scientist who performed the analysis and prepared the

certificate. That attestation, which appears on the copy

offered by the Commonwealth, "obviates the hearsay problem."

Id. at 338, 412 S.E.2d at 179.

Rather, Williams's objection to the admission of the copy

of the certificate of analysis raises a best evidence question,

which is whether a copy of the certificate of analysis can be

admitted into evidence in lieu of the original. See id.

Indeed, Williams's attorney noted in objecting at trial to the

admission of the copy that the Commonwealth's request to have a

copy rather than the original certificate admitted gave rise to

a "best evidence situation."

Thus, we conclude that Code § 8.01-391(B), which codifies

an exception to the best evidence rule, is the controlling

statute in this case on the issue of authentication and that

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Code § 8.01-390(A), which codifies an exception to the hearsay

rule, is not applicable here. Hence, the trial court erred in

admitting the copy of the certificate on the basis of the copy's

compliance with the authentication requirements of Code

§ 8.01-390(A) and in concluding that compliance with the

authentication requirements of Code § 8.01-391(B) was

unnecessary.

We have held, however, that, "as long as the correct

reason, along with a factual basis to support it, is raised in

the trial court, '[a]n appellate court may affirm the judgment

of a trial court when it has reached the right result for the

wrong reason.'" Harris v. Commonwealth, 33 Va. App. 325, 332,

533 S.E.2d 18, 21 (2000) (alteration in original) (quoting

Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312,

313-14 (1992)). Accordingly, we will consider whether the trial

court reached the correct result here.

"The best evidence rule requires that, to prove the

contents of a document, the 'original must be produced unless it

be shown that the original is unavailable, in which case

secondary evidence may be introduced.'" Mostyn v. Commonwealth,

14 Va. App. 920, 923, 420 S.E.2d 519, 521 (1992) (quoting

Myrick, 13 Va. App. at 339, 412 S.E.2d at 179). However, under

the version of Code § 8.01-391(B) applicable to this case, a

copy of an official record is admissible without regard to the

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availability of the original if the copy "is authenticated as a

true copy both by the custodian of said record and the person to

whom said custodian reports and is accompanied by a certificate

that such officer does in fact have the custody." 6

In Ingram, in considering the authentication requirements

of Code § 8.01-390(A), we construed the requirement that a copy

of an official document be authenticated by both the record's

custodian and the person to whom the custodian reports. We held

as follows:

[T]o comply with the statute double
authentication is necessary to prove
genuineness as a prerequisite to admission
of a copy. Proper authentication under this
statute requires not only certification of
the copy as a true copy by the custodian of
the record and the person to whom he
reports, but also a showing that the persons
certifying are indeed the custodian and the
person to whom he reports. The latter
requirement is crucial to admission into
evidence of those documents governed by Code
§ 8.01-390. The statute addresses the
admission of all nonjudicial records as
evidence; without double authentication, a
court presented with a document from a
source with which it is unfamiliar would
have no means of judging its genuineness.

1 Va. App. at 340, 338 S.E.2d at 659-60 (citation omitted).

6
Code § 8.01-391(B), like Code § 8.01-390(A), has since
been revised to now require that the copy be authenticated as a
true copy by either the custodian of the record or the person to
whom the custodian reports, rather than by both.

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 For the policy reasons mentioned in Ingram and quoted

above, we will apply the same construction to the essentially

identical authentication requirement in the version of Code

§ 8.01-391(B) applicable to this case. Accordingly, to comply

with the requirement of Code § 8.01-391(B) that the copy be

authenticated by both the custodian of the original record and

the person to whom the custodian reports, the record must show

that the persons certifying the copy of the certificate of

analysis are indeed the custodian and the person to whom the

custodian reports.

We also construe Code § 8.01-391(B)'s second authentication

requirement—that the copy be "accompanied by a certificate that

such officer does in fact have the custody"—to mean that there

must be a certification accompanying the copy showing that the

custodian did in fact have custody of the original document when

the copy of it was made or when the copy was authenticated by

the custodian, rather than when the copy was offered for

admission into evidence. We reach this conclusion to alleviate

the statute's ambiguity and to give meaning to that portion of

Code § 8.01-391(B) that provides that the copy, if properly

authenticated, "shall be as admissible into evidence as the

original, whether the original is in existence or not." See

Broadnax v. Commonwealth, 24 Va. App. 808, 814, 485 S.E.2d 666,

668 (1997) (noting that, in construing a statute, the intention

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of the legislature must be gathered from the words used unless a

literal construction would involve a manifest absurdity). To

construe the terms "does in fact have custody" literally as

written, that is, in the present tense relative to the admission

of the copy into evidence, would divest the phrase "whether the

original is in existence or not," clearly referring to the time

of admission, of its import. While the words and phrases used

in a statute should generally be given their "ordinary and

usually accepted meaning," here "a different intention is fairly

manifest." Woolfolk v. Commonwealth, 18 Va. App. 840, 847, 447

S.E.2d 530, 533 (1994).

The certification accompanying the instant copy of the

certificate of analysis was signed by "K. C. Hux" as "Custodian

of Records, Tidewater Laboratory" and "Robert J. Campbell" as

"Director, Tidewater Laboratory." No other evidence was offered

regarding the positions of Hux or Campbell.

Williams argues that the certification does not constitute

a proper authentication because it fails to establish that

Campbell was, in fact, the person to whom Hux reported and it

does not constitute a certification that the custodian, in fact,

had custody of the original, as mandated by Code § 8.01-391(B).

We may not presume, he contends, based solely on Hux's signature

as "Custodian of Records" and Campbell's signature as

"Director," that Campbell was the person to whom Hux reported

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and that Hux had custody of the original certificate of

analysis.

Williams relies on Taylor v. Maritime Overseas Corp., 224

Va. 562, 299 S.E.2d 340, to support his argument that the

certification is insufficient to show that Hux reported to

Campbell. In that case, the Supreme Court held that a Coast

Guard "Boiler Inspection Book" was not admissible because it had

not been properly authenticated by both the custodian and the

person to whom the custodian reported. In reaching its

decision, the Court noted as follows:

Although each page of the proffered exhibit
bore a stamp with the signature of a Coast
Guard lieutenant certifying that the page
was a "True Copy," nothing in the exhibit or
the papers attached showed that this officer
was the custodian of the disputed records.
And, while the exhibit was accompanied by a
letter of transmittal signed by "T. Wood[,]
Captain, U.S. Coast Guard[,] Officer in
Charge[,] Marine Inspection," nothing even
suggested that Captain Wood was the person
to whom the custodian reported.

Id. at 565, 299 S.E.2d at 342.

We are mindful, in considering these issues, that

"[a]uthentication is the 'providing of an evidentiary basis

sufficient for the trier of fact to conclude that the writing

came from the source claimed.'" Taylor v. Commonwealth, 28 Va.

App. 1, 6, 502 S.E.2d 113, 115 (1998) (en banc) (quoting Walters

v. Littleton, 223 Va. 446, 451, 290 S.E.2d 839, 842 (1982)).

"Writings may be authenticated by circumstantial evidence. The

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amount of evidence sufficient to establish authenticity will

vary according to the type of writing, and the circumstances

attending its admission, but generally proof of any

circumstances which will support a finding that the writing is

genuine will suffice." Walters, 223 Va. at 451, 290 S.E.2d at

842 (citations omitted).

Our review of the record in this case convinces us that the

certification attached to the copy of the certificate of

analysis was sufficient, unlike the certification in Taylor, to

show that the purported custodian, in fact, reported to the

purported director and that the purported custodian, in fact,

had custody of the original document. Here, both the

certificate of analysis offered for admission by the

Commonwealth and the attached certification were from the

Division of Forensic Science's Tidewater Laboratory. The

certification plainly shows that Hux and Campbell were both

associated with the Tidewater Laboratory, Hux as its custodian

of records and Campbell as its director. A "custodian" is "one

entrusted officially with guarding and keeping (as property,

artifacts, records)." Webster's Third New International

Dictionary 559 (1993). A "director" is "one that directs: as

. . . the head or chief of an organized occupational group."

Id. at 641.

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 The trial court, we believe, could, therefore, logically

infer from the signatures and designations on the certification

that (1) Hux, as the custodian of records at the Tidewater

Laboratory, was the custodian of the original certificate of

analysis of which the subject copy was made and (2) Campbell, as

the director of the laboratory, was the person to whom all

employees of the laboratory, including Hux, ultimately reported.

Accordingly, we conclude that these circumstances are sufficient

to prove that the copy of the certificate of analysis is

genuine. To conclude otherwise "would be technical in the

extreme." Hurley v. Charles, 112 Va. 706, 710, 72 S.E. 689,

690-91 (1911) (finding, based on circumstantial evidence in the

record, that a will had been properly certified even though the

certificate accompanying the will contained only the deputy

clerk's name and his abbreviated title designation).

This case is factually distinguishable from Taylor v.

Maritime Overseas Corp. Unlike in our case, there was nothing

in the proffered documents in Taylor that either directly or

indirectly supported a finding that the person who certified

them was the custodian of the records. Moreover, no link was

drawn in Taylor between the alleged custodian and the person to

whom the custodian allegedly reported. Even though the captain

was designated in the proffered documents as the "Officer in

Charge[,] Marine Inspection," there was no evidence to permit

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the inference that he and the lieutenant were in the same unit

or that the captain was otherwise in the lieutenant's chain of

command. Conversely, in the present case, the certification

established both Hux's custodianship and the appropriate

connection between Hux and Campbell.

We hold, therefore, that the copy of the certificate of

analysis was properly authenticated under Code § 8.01-391(B) and

that the copy was thus admissible into evidence over Williams's

best evidence objection under the best evidence rule exception

codified in that section. Hence, the trial court reached the

correct conclusion, albeit for the wrong reason.

For these reasons, we affirm Williams's conviction.

Affirmed.

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Benton, J., concurring, in part, and dissenting, in part.

I agree with the majority's conclusion that the trial judge

erred in ruling that Code § 8.01-390(A) controlled the issue of

authentication and admission in evidence of the certificate. I

also agree that Code § 8.01-391(B) is the controlling statute.

I do not agree, however, that the record establishes compliance

with Code § 8.01-391(B).

In pertinent part, Code § 8.01-391(B) provided as follows

when this case was tried:

If any department, division, institution,
agency, board, or commission of this
Commonwealth . . . has copied any record
made in the performance of its official
duties, such copy shall be as admissible
into evidence as the original, whether the
original is in existence or not, provided
that such copy is authenticated as a true
copy both by the custodian of said record
and by the person to whom said custodian
reports, if they be different, and is
accompanied by a certificate that such
officer does in fact have the custody.

In this case, no evidence in the record tends to establish

that Campbell, the "Director," is "the person to whom" Hux, the

"Custodian of Records," reports. The mere fact that a person's

job title or job category description appears below the

signature line of the certifying person does not prove the

statutorily required fact. See Taylor v. Maritime Overseas

Corp., 224 Va. 562, 565, 299 S.E.2d 340, 342 (1983) (applying

similar language of Code § 8.01-390). The authentication in

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this case is not significantly different than the authentication

offered and rejected in Taylor. See 224 Va. at 565-66, 299

S.E.2d at 342. The phrase, "Officer in Charge," is not less

clear than the word "Director." If anything, the former phrase

better fulfills the statutory requirement because it implies

that the signer is "in charge of" the alleged custodian.

I agree with the majority's conclusion that the statute's

second authentication requirement means the custodian must have

custody of the document when the copy is made. No evidence

tends to prove, however, that the copy of the certificate that

was admitted into evidence was "accompanied by a certificate

that [Hux] does in fact have the custody." Nothing on the

certificate indicates that fact. Although Hux's job title,

"custodian of records," is more descriptive than the title of

the alleged custodian in Taylor, see 224 Va. at 565, 299 S.E.2d

at 342, the job title itself does not establish that Hux had the

original certificate in his possession when he certified the

proffered copy to be a true copy. Being a generic "custodian of

records" does not prove custody of a particular document and

certainly does not prove custody of the document when the copy

was made.

While demanding compliance with these requirements may

appear to be elevating form over substance, the legislature has

mandated these requirements for authenticating a record. A

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proponent of evidence must prove these necessary facts before

the copy can be considered "authenticated." Untiedt v.

Commonwealth, 18 Va. App. 836, 839, 447 S.E.2d 537, 539 (1994).

Absent any evidence to prove these facts, the trial judge could

only have speculated that the statutory requirement had been

satisfied.

For these reasons, I would hold that the record fails to

establish that the Commonwealth satisfied the requirements of

Code § 8.01-391(B). Thus, I would reverse the conviction.

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