Taylor v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman,
Willis, Elder, Bray, Annunziata, Overton and Bumgardner
Argued at Richmond, Virginia

CHANCE TAYLOR
OPINION BY
v. Record No. 0938-96-2 JUDGE ROSEMARIE ANNUNZIATA
JULY 21, 1998
COMMONWEALTH OF VIRGINIA

UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge

Charles R. Watson for appellant.

Leah A. Darron, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.

Chance Taylor (appellant) appeals his convictions of three

counts of possession of cocaine with intent to distribute. He

contends the trial court erred (1) by admitting into evidence the

date stamp on a certificate of drug analysis apparently affixed

when the certificate was received by an employee of the trial

court's clerk's office, and (2) by admitting the certificate of

drug analysis itself in violation of Code § 19.2-187. A panel of

this Court reversed the judgment of the trial court, holding that

the Commonwealth did not authenticate the date stamp. Taylor v.

Commonwealth, 25 Va. App. 457, 463, 489 S.E.2d 250, 253 (1997).

Upon rehearing en banc, we affirm appellant's convictions.
 I.

FACTS

Appellant was charged with three counts of possessing

cocaine with intent to distribute and was tried on October 27,

1995. At trial, a narcotics detective testified that on three

separate occasions he purchased a substance from appellant that

appeared to be crack cocaine. After the detective testified, the

Commonwealth's attorney offered a certificate of drug analysis

(certificate) prepared by Anthony A. Burke, a forensic scientist

with the Commonwealth's Division of Forensic Science. The

certificate included Mr. Burke's written statement that a

laboratory analysis of the items purchased from appellant

established that they were cocaine. On the face of the

certificate was an impression made by a mechanical date stamp

that stated:
RECEIVED AND FILED

JUL 13 1995

CHESTERFIELD CIRCUIT

COURT

Other than the date stamp, the certificate contained no

handwriting or other indicia that it was received by the clerk of

the trial court prior to appellant's trial.

Appellant objected to the admission of the certificate on

the ground that the Commonwealth failed to prove the certificate

had been filed with the clerk of the trial court at least seven

-2-
days prior to trial as required by Code § 19.2-187. He objected

to the admission of the date stamp on the certificate, contending

that it was inadmissible to prove the certificate was timely

filed because it had not been authenticated. The trial court

overruled appellant's objection and received both the certificate

and the date stamp into evidence. Appellant later renewed his

objection to the certificate and date stamp in a motion to

strike. The trial court overruled the motion and convicted

appellant of all three charges.
During the sentencing phase of the proceeding, appellant

moved the trial court to reconsider its ruling on his motion to

strike. He argued that, in addition to the lack of evidence

establishing the date stamp's authenticity, the date stamp on the

certificate was inadmissible because it was hearsay and not

within any exception to the hearsay rule. He argued that the

inadmissibility of the date stamp rendered the certificate

inadmissible because, without the date stamp, the Commonwealth

had failed to prove that the certificate had been filed in

accordance with Code § 19.2-187. The trial court overruled

appellant's motion and sentenced him.

On appeal, appellant contends that the trial court erred

when it admitted the date stamp on the certificate. He argues

that the date stamp was inadmissible either because it was not

authenticated or it was hearsay and not within an exception to

the hearsay rule. We disagree and affirm appellant's

-3-
convictions.

-4-
 II.

AUTHENTICATION OF THE DATE STAMP

Appellant initially contends the date stamp was inadmissible

because it was not authenticated. "'As a general rule, no

writing may be admitted into evidence unless and until it has

been "authenticated" . . . .'" Proctor v. Commonwealth, 14 Va.

App. 937, 938, 419 S.E.2d 867, 868 (1992) (quoting Charles E.

Friend, The Law of Evidence in Virginia § 180 (3d ed. 1988)).

Authentication is the "providing of an evidentiary basis

sufficient for the trier of fact to conclude that the writing

came from the source claimed." Walters v. Littleton, 223 Va.

446, 451, 290 S.E.2d 839, 842 (1982) (citing, inter alia, Bain v.

Commonwealth, 215 Va. 89, 205 S.E.2d 641 (1974)); see also

Proctor, 14 Va. App. at 938, 419 S.E.2d at 868 (describing

authentication as showing a document to be genuine) (quoting

Friend, supra, at § 180).

Appellant does not challenge the authentication of the

certificate of analysis itself, but, rather, the authentication

of the date stamp affixed to the certificate. Under Code

§ 19.2-187, a certificate of analysis is admissible to prove the

truth of its contents without the appearance in court of the

technician who conducted the analysis, provided the Commonwealth

strictly complies with several "specific safeguards" listed in

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

412 S.E.2d 176, 178 (1991). Included among the mandatory

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safeguards is the requirement that the certificate be "filed with

the clerk of the court hearing the case at least seven days prior

to the hearing or trial." Code § 19.2-187. When the

Commonwealth seeks to admit a certificate of analysis containing

hearsay evidence, it has the burden of proving that the

certificate satisfies the requirements of Code § 19.2-187,

including the filing requirement. See Neal v. Commonwealth, 15

Va. App. 416, 420, 425 S.E.2d 521, 524 (1992) (stating that

"[t]he party seeking to rely on an exception to the hearsay rule

has the burden of establishing admissibility"). The

admissibility of the date stamp on the certificate in this case

is, therefore, essential to proving the Commonwealth's claim that

the certificate had been filed in accordance with Code

§ 19.2-187.
We hold that the trial court properly overruled appellant's

objection to the admission of the certificate of analysis based

on his claim that the date stamp was not properly authenticated.

In addressing the authenticity of the date stamp, the trial

court acknowledged appellant's argument that "[t]here is no

evidence to say that that's the proper stamp of the court or

that, in fact, that's the kind of stamp the court uses." The

court ruled, however, that the date stamp "is an official stamp

of the court and papers received in the court at the clerk's

office."

"[T]he fact of judicial notice must appear from the record."

-6-
 Sutherland v. Commonwealth, 6 Va. App. 378, 383, 368 S.E.2d 295,

298 (1988) (citing Keesee v. Commonwealth, 216 Va. 174, 175, 217

S.E.2d 808, 809 (1975) (per curiam)). Although the court did not

use the words "judicial notice," we find that the trial court's

ruling indicates that it took judicial notice of the identity of

the date stamp.

"Judicial notice permits a court to determine the existence

of a fact without formal evidence tending to support that fact."
Scafetta v. Arlington County, 13 Va. App. 646, 648, 414 S.E.2d

438, 439 (citing Friend, supra, at § 268), aff'd on reh'g, 14 Va.

App. 834, 425 S.E.2d 807 (1992). A trial court may take judicial

notice of those facts that are either (1) so "generally known"

within the jurisdiction or (2) so "easily ascertainable" by

reference to reliable sources that reasonably informed people in

the community would not regard them as reasonably subject to

dispute. Ryan v. Commonwealth, 219 Va. 439, 445, 247 S.E.2d 698,

703 (1978); see also 2 McCormick on Evidence § 328 (John William

Strong ed., 4th ed. 1992); Friend, supra, at § 19-2.
"The taking of judicial notice is generally within the

discretion of the trial court." Ryan, 219 Va. at 446, 247 S.E.2d

at 703 (citing Randall v. Commonwealth, 183 Va. 182, 186, 31

S.E.2d 571, 572 (1944)). A trial court's discretion to take

judicial notice of facts, however, is not without limits. A

trial court may not take judicial notice of matters that are not

otherwise judicially noticeable, merely because the judge happens

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to have individual and extrajudicial knowledge of those matters.

See Darnell v. Barker, 179 Va. 86, 93, 18 S.E.2d 271, 275

(1942). In addition, regarding judicial records, a trial court

"will not take judicial notice of its records, judgments and

orders in other and different cases or proceedings, even though

such cases or proceedings may be between the same parties and in

relation to the same subject matter." Fleming v. Anderson, 187

Va. 788, 794, 48 S.E.2d 269, 272 (1948). The question before

this Court is whether the trial court abused its discretion in

taking judicial notice of the date stamp's authenticity.
We find no abuse of discretion in this case. The trial

court did not expressly state the ground on which it based its

judicial notice of the identity of its official date stamp.

Judicial notice of the identity of the official date stamp of a

court's clerk's office is proper, however, because this fact is

easily ascertainable by reference to a reliable source. The

actual date stamp utilized by a trial court's clerk's office is

in such close proximity to a trial court that it can be easily

inspected by the trial judge to verify its identity. With a

source of indisputable accuracy so readily accessible, a

reasonably informed person would not have regarded the identity

of the trial court's official date stamp as reasonably subject to

dispute.

II.

ADMISSION OF THE DATE STAMP AS HEARSAY

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 Appellant also contends the date stamp was inadmissible

hearsay. "'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.'" Brown v.

Commonwealth, 25 Va. App. 171, 181, 487 S.E.2d 248, 253 (1997)

(en banc) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371

S.E.2d 838, 842 (1988)) (addressing issue of whether out-of-court

statement was offered for the truth of the matter asserted). Of

course, a trial court's discretion is not without limits. See,

e.g., Wright v. Commonwealth, 23 Va. App. 1, 8-9, 473 S.E.2d 707,

710 (1996) (en banc) ("Additionally, while a trial court

generally has discretion in ruling on the admissibility of

evidence, a trial court has no discretion to apply the doctrine

of curative admissibility if the party seeking to invoke it

intentionally failed to object to the inadmissible [hearsay]

evidence in order to gain admission of otherwise inadmissible

[hearsay] evidence." (citations omitted)). "[A] trial court 'by

definition abuses its discretion when it makes an error of law.'"
Shooltz v. Shooltz, 27 Va. App. 255, 271, 498 S.E.2d 437, 441

(1998) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)).

"Hearsay is an out-of-court statement offered to prove the

truth of the matter asserted." Garcia v. Commonwealth, 21 Va.

App. 445, 450, 464 S.E.2d 563, 565 (1995) (en banc) (citing

Tickel v. Commonwealth, 11 Va. App. 558, 564, 400 S.E.2d 534, 538

(1991)). "'Hearsay evidence is testimony in court, or written

-9-
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) (quoting McCormick on

Evidence § 246 (2d ed. 1972)).

The date stamp in this case was written evidence of the

out-of-court statement made by an employee of the trial court's

clerk's office that the document bearing the date stamp was filed

with the clerk's office on the date indicated. The Commonwealth

offered the date stamp to prove that the certificate of analysis

had been received and filed in the Chesterfield Circuit Court on

July 13, 1995. As such, the date stamp was hearsay because it

was an out-of-court statement offered to prove the truth of the

matter asserted. Nonetheless, we hold the trial court properly

admitted the date stamp under the judicial records exception to

the hearsay rule codified in Code § 8.01-389.
"'As a general rule, hearsay evidence is incompetent and

inadmissible,' and '[t]he party seeking to rely upon an exception

to the hearsay rule has the burden of establishing

admissibility.'" Braxton v. Commonwealth, 26 Va. App. 176,

183-84, 493 S.E.2d 688, 691 (1997) (quoting Neal, 15 Va. App. at

420-21, 425 S.E.2d at 524). Generally, "authenticating a

document -- that is, proving that it is genuine -- does not

resolve other obstacles that may prevent the evidence from being

-10-
admissible. The hearsay issue must be resolved independently

. . . ." Hall v. Commonwealth, 15 Va. App. 170, 175, 421 S.E.2d

887, 890 (1992) (citation omitted). In Virginia, the law of

hearsay is governed by both common law and statute. See, e.g.,

Terry v. Commonwealth, 24 Va. App. 627, 633, 484 S.E.2d 614, 616

(1997) (explaining relationship between common law and statutory

"recent complaint" exceptions); see also Hanson v. Commonwealth,

14 Va. App. 173, 185, 416 S.E.2d 14, 21 (1992) (explaining that

Virginia has not adopted codified rules of evidence).
Code Section 8.01-389(A) provides:
The 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.

In the same way that "Code § 8.01-390 has codified the official

written documents exception [to the hearsay rule] recognized in

Virginia for documents or copies of documents that are properly

authenticated in accordance with its requirements," Ingram v.
Commonwealth, 1 Va. App. 335, 340, 338 S.E.2d 657, 659 (1986),

its companion statute Code § 8.01-389 "codifies as part of the

official records exception to the hearsay rule judicial 'records'

which are properly authenticated." Dingus v. Commonwealth, 23

Va. App. 382, 392, 477 S.E.2d 303, 308 (1996) (Coleman, J.,

concurring in part and dissenting in part) (citing Owens v.

Commonwealth, 10 Va. App. 309, 311, 391 S.E.2d 605, 607 (1990)).

-11-
 Although the language of Code § 8.01-389(A) requires that a

judicial record be "authenticated and certified by the clerk of

the court where preserved to be a true record" prior to its

admission, it does not indicate that the formal introduction of

evidence is the exclusive means by which this requirement can be

satisfied. In Owens, 10 Va. App. at 311, 391 S.E.2d at 607

(citations omitted), we addressed the meaning of this

requirement:
For purposes of this Code section the terms
"authenticated" and "certified" are basically
synonymous and we are unwilling to place
undue significance on the fact they are used
in the conjunctive in the statute.
Authentication is merely the process of
showing that a document is genuine and that
it is what its proponent claims it to be. As
we noted in Ingram v. Commonwealth, 1 Va.
App. 335, 338 S.E.2d 657 (1986), "[t]he
underlying rationale which justifies
admitting facts contained in official records
as an exception to the hearsay rule is that
the concern for reliability is largely
obviated because the nature and source of the
evidence enhance the prospect of its
trustworthiness."

The principles we articulated in Owens are applicable here.
Because the trial court took judicial notice that the date stamp

was genuine and was what its proponent claimed it to be, the date

stamp was authenticated within the meaning of Code § 8.01-389(A).

The policy basis for the judicial records exception codified in

Code § 8.01-389(A) was satisfied because the identity of the date

stamp was so easily ascertainable by reference to reliable

sources that reasonably informed people in the community would

-12-
not regard it as reasonably subject to dispute. We therefore

hold that the date stamp was sufficiently "authenticated and

certified" to satisfy the requirements of the statute. 1 Because

the date stamp met the authentication requirement of the statute,

it fell within the judicial records exception to the hearsay

rule, and "shall be received as prima facie evidence." Code

§ 8.01-389; cf. Ingram, 1 Va. App. at 340, 338 S.E.2d at 659

(explaining that Code § 8.01-389 codifies the official records

exception to the hearsay rule).
In summary, we hold that a court may take judicial notice of

the identity of the date stamp employed by its clerk because the

information is easily ascertainable through reference to the

actual date stamp. We also hold that the trial court's judicial

notice of the authenticity of the date stamp satisfies the

authentication requirement of Code § 8.01-389 and that therefore

the court did not err in admitting the date stamp as a judicial

record. Once properly admitted, the date stamp provided evidence

that the certificate of analysis was filed with the court at

least seven days in advance of trial. Code § 19.2-187.

Therefore, we find that the certificate of analysis was properly

admitted into evidence and affirm appellant's convictions.
Affirmed.

1
By so holding, we express no opinion on means of
authentication other than judicial notice or certification by the
clerk of the court.

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Benton, J., with whom Elder, J., joins, dissenting.

At trial, the Commonwealth sought to admit a certificate of

analysis pursuant to Code § 19.2-187. In pertinent part, that

statute reads as follows:
In any hearing or trial of any criminal
offense . . . , a certificate of analysis of
a person performing an analysis . . .
performed in any laboratory operated by the
. . . 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 . . . 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
. . . .
* * * * * * *

Any such certificate of analysis
purporting to be signed by any such person
shall be admissible as evidence in such
hearing or trial without any proof of the
seal or signature or of the official
character of the person whose name is signed
to it.

Code § 19.2-187. Because "[t]he statute deals with criminal

matters, and it undertakes to make admissible evidence which

otherwise might be subject to a valid hearsay objection," the

filing requirement in the statute must be "construed strictly

against the Commonwealth and in favor of the accused." Gray v.

Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705, 706 (1980).

I.

The Commonwealth sought to prove the filing requirement by

offering as evidence the following legend made by a stamp on the

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face of the certificate:
RECEIVED AND FILED
JUL 13 1995
CHESTERFIELD CIRCUIT
COURT

No evidence proved that the stamp was the official stamp of the

Chesterfield Circuit Court Clerk's Office. No evidence proved

who affixed the legend. No employee of the clerk's office

certified or authenticated the legend by writing or testimony.

"All writings are subject to the requirement of

authentication, which is the providing of an evidentiary basis

sufficient for the trier of fact to conclude that the writing

came from the source claimed." Walters v. Littleton, 223 Va.

446, 451, 290 S.E.2d 839, 842 (1982). "'As a general rule, no

writing may be admitted into evidence unless and until it has

been 'authenticated,' i.e., until it has been shown to be

genuine.'" Proctor v. Commonwealth, 14 Va. App. 937, 938, 419

S.E.2d 867, 868 (1992) (citation omitted). See also 2 McCormick

on Evidence § 218 (4th ed. 1992). However, "authenticating a

document . . . does not resolve other obstacles that may prevent

the evidence from being admissible." Hall v. Commonwealth, 15

Va. App. 170, 175, 421 S.E.2d 887, 890 (1992). Authentication is

"a separate and distinct evidentiary problem." Walters, 223 Va.

at 451, 290 S.E.2d at 842. Because authentication only

establishes the genuineness of the item, mere proof of

authenticity does not necessarily resolve the question of

admissibility. See 2 McCormick on Evidence § 218, at 36.

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 The majority concludes that the trial judge judicially

noticed that the legend on the certificate was "an official

stamp." 2 The record contains no indication, however, that the

trial judge actually judicially noticed that the legend on the

certificate was the "official stamp" of the clerk's office. Our

decisions specifically state that "the fact of judicial notice

must appear from the record." Sutherland v. Commonwealth, 6 Va.

App. 378, 383, 368 S.E.2d 295, 298 (1988). When the issue was

raised at trial, the trial judge merely noted that "the question

. . . becomes whether or not that stamp is sufficient without a

personal identification of the clerk." The judge then ruled that

the fact of the legend on the certificate, without more, was

sufficient to authenticate it.
Although no name or title is ascribed to the legend, the

majority concludes that the trial judge could infer from the

presence of the legend that it was genuine and affixed by some

official of the clerk's office. In short, the majority holds

that the mere presence of the legend, without signature,

sufficiently authenticates the document. The majority holds that
2
The Commonwealth did not address the issue of judicial
notice in either its brief or oral argument during the original
appellate hearing in this case. Instead, the Commonwealth's sole
argument was that the evidence was sufficient to prove that the
certificate of analysis was filed seven days before appellant's
trial in accordance with Code § 19.2-187. Only after the
original panel decision held that the evidence was insufficient
did the Commonwealth raise for the first time its argument that
"the trial court was entitled to -- and effectively did in this
case -- take judicial notice of the documents in its own court
file."

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appearance alone suffices to authenticate the item. However, in

Carroll v. Commonwealth, 10 Va. App. 686, 396 S.E.2d 137 (1990),

we held that a document purporting to be from the clerk's office

was not properly authenticated, where the person purporting to

sign the document on behalf of the clerk was not identified and

was not shown to be authorized by law to act. See id. at 691,

396 S.E.2d at 140.

The issue in this case is whether it is appropriate to infer

from the presence of a purported official legend that the legend

is genuine and was affixed by an official in the clerk's office.
See 7 Wigmore, Evidence § 2162, at 783 (Chadbourn rev. 1974)

(stating that these elements "are distinct . . . for it might be

[the clerk's] impression and yet another person might have

affixed it"). See also 3 Spencer S. Gard, Jones on Evidence

§ 17:17, at 274 (6th ed. 1972) (stating that authentication

requires proof of execution as well as proof of the "source from

which [the writing] was derived"); 2 McCormick on Evidence § 218,

at 36 (stating that authentication requires "proof of authorship

of, or other connection with, writings"). Thus, whether the

legend was authentic depends upon whether (1) the legend was the

official mark of the circuit court clerk's office and (2) whether

it was affixed by the clerk or someone authorized to act on the

clerk's behalf. Even if the trial judge could have taken

judicial notice of the fact that the legend was the "official

stamp" of the clerk's office, he did not and could not take

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judicial notice of the fact that the legend on the certificate of

analysis was genuinely affixed by the clerk or someone

"authorized by law to act in place of the clerk." Carroll, 10

Va. App. at 691, 386 S.E.2d at 140.

The determination of who affixed the legend would not be a

fact subject to judicial notice as a matter that is "generally

known" or "easily ascertainable." Doe v. Doe, 222 Va. 736, 746,

284 S.E.2d 799, 805 (1981). While "[i]t is conceivable that a

court might judicially know what the design of a certain public

[stamp] was, . . . this would not of itself enable the judge to

declare that the specific impression offered in court was genuine

or forged." 7 Wigmore, supra, § 2161, at 784. This is so

because "the principle of judicial notice, i.e., of assuming the

truth of an allegation without any evidence, rests on the

conceded notoriety of the fact alleged, as being too well known

to need evidence; obviously, this can never be the case with the

specific act of executing a particular document." Id.
No evidence in the record proved that the legend was affixed

by an official of the clerk's office. Because the legend

contains no signature, initials, or any other indication of who

affixed it, the trial judge had no evidence from which he could

find that the legend was affixed by the clerk or someone

"authorized to act in place of the clerk." Carroll, 10 Va. App.

at 691, 386 S.E.2d at 140.

Authentication may be accomplished by testimony of a

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competent witness with knowledge. See Jackson v. Commonwealth,

13 Va. App. 599, 602, 413 S.E.2d 662, 665 (1992). Authentication

may also be accomplished by the fixing of the signature or seal

of office of the clerk. See 7 Wigmore, supra, § 2131, at 714.

Neither was done. The filing requirement of Code § 19.2-187

pertaining to the certificate of analysis must be "strictly

construed against the Commonwealth and in favor of the accused."

Gray, 220 Va. at 945, 265 S.E.2d at 706. Thus, on this

evidence, I would hold that the Commonwealth failed to

authenticate the legend because the trial judge had no

"evidentiary basis sufficient . . . to conclude that the [legend]

came from the source claimed." Walters, 223 Va. at 451, 290

S.E.2d at 842. Accordingly, no evidence proved that the

certificate of analysis was filed in the clerk's office pursuant

to the requirements of Code § 19.2-187.

II.

Although the failure to authenticate the legend is

dispositive, I address the majority's discussion of the hearsay

issue because I believe it is also flawed. The majority holds

that the trial judge properly admitted the legend on the

certificate under the provisions of Code § 8.01-389. That

statutory exception to the hearsay rule provides, in pertinent

part, as follows:
The 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

-19-
 the court where preserved to be a true
record.

Code § 8.01-389(A) (emphasis added). For the reasons I have

previously stated, the Commonwealth failed to authenticate the

legend. However, even assuming, as the majority asserts, that

the legend was authenticated, that fact is not sufficient to

render the document admissible under Code § 8.01-389(A). To be

admissible, the legend must be "authenticated and certified by

the clerk of the court where preserved to be a true record."

Code § 8.01-389(A) (emphasis added). The record in this case

contains no evidence that the clerk of the court where the

document was required to be lodged "certified" that the legend on

the document was true. The majority relies, however, upon Owens
v. Commonwealth, 10 Va. App. 309, 391 S.E.2d 605 (1990), to hold

that certification was not required because authentication was

sufficient. I believe, first, the majority reads Owens too

broadly and, second, if Owens is properly interpreted by the

majority, the decision in Owens is plainly wrong and should be

reversed.

In Code § 8.01-389(A), the legislature statutorily adopted

the common law requirement that "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." Code

§ 8.01-389(A). See 5 Wigmore, Evidence, § 1680-1681a, at 912-13,

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919-21 (Chadbourn rev. 1974). The statute does not adopt a

principle of certification by authentication; it requires

authentication and certification. The clear language of the

statute uses authentication and certification conjunctively.

Both conditions must be present before the document can be

admitted, and the proponent of the document bears the burden of

proving both conditions exist.

In Owens, the "order was stamped 'A COPY, TESTE: WILLIAM T.

RYAN, CLERK' and undersigned by the deputy clerk." 10 Va. App.

at 311, 391 S.E.2d at 606. That document contained the clerk's

statement that the document was a true copy, an attestation by

the clerk, and the signature of the deputy clerk attesting to the

clerk's certification. Thus, the facts proved the document was

both "authenticated and certified by the clerk of the court."

Code § 8.01-389(A). Indeed, the Owens court noted that those
facts were "sufficient to 'authenticate and certify' the document

within the meaning of Code § 8.01-389." 10 Va. App. at 311, 391

S.E.2d at 606.

In Owens, and now in this case, the Court reads out of the
statute the clear legislative mandate that both authentication

and certification are required before the record is admitted.

Those terms were not synonymous under the common law, and we have

no indication that the legislature intended them to be synonymous

when adopting Code § 8.01-389(A). See also 5 Wigmore, supra,

§ 1679, at 877 ("It was natural, when declaring certified copies

-21-
admissible, [for legislatures] to provide in the same place for a

definite mode of authenticating them; and hence the two sets of

rules -- the admissibility of certified copies, and the proper

modes of authenticating such copies -- are customarily provided

for at the same time by the same statutory act."). Obviously,

"[w]hen the official custodian certifies a copy to be used in

evidence, and such a copy is admissible under the hearsay

exception . . . , the certificate also testifies, expressly or by

implication, to the genuineness of the original in his custody

from which the copy is made." 7 Wigmore, supra, § 2158, at 772.
To be admissible under Code § 8.01-389(A), however, the record

must be both certified and authenticated. If Owens is read in

this light, despite its statement that "the terms 'authenticated'

and 'certified' are basically synonymous," 10 Va. App. at 311,

391 S.E.2d at 607, it clearly does not support the majority's

holding in this case.

Authentication addresses the genuineness of a document.

Thus, authentication ensures that a document is what it purports

to be. For example, under the common law, the act of a public

official fixing the seal of that official's office to a document

was a means of authentication.

Certification, however, involves "a written assurance, or

official representation, that some act has or has not been done,

or that some event occurred, or some legal formality has been

complied with." Black's Law Dictionary 225 (6th ed. 1990). When

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a person certifies a document, he or she is attesting to the fact

that what is contained in the document is true. Thus, a

"'certificate' by a public officer is a statement . . . which is

by law made evidence of the truth of the facts stated for all or

for certain purposes." Id. 3 Here, if the clerk had certified

the legend on the certificate of analysis, he or she would have

been representing that the facts contained in the legend -- the

date the certificate of analysis was filed and the office in

which it was filed -- were true. Because the legend on the

certificate of analysis appears without any certification by the

clerk, no evidence proved that the certificate of analysis was

filed in the clerk's office on that date.
In Carroll, we reversed the trial judge's decision to admit

a document with the following legend:
A COPY TESTE:
WALTON F. MITCHELL, JR., CLERK
CRAIG COUNTY CIRCUIT COURT
BY /s/ Peggy B. Elmore
/s/ Peggy B. Elmore

Id. at 689, 396 S.E.2d at 139. We held that the document had not

been authenticated and certified as required by Code

§ 8.01-389(A). Id. at 691, 396 S.E.2d at 140. We reasoned as
3
Certification may often encompass authentication. See 18
U.S.C.A. § 3506 (certification by a custodian that certain facts
are true "shall authenticate" a record of a regularly conducted
activity); Uniform Rule of Evidence 902(11) (if a custodian
certifies, or declares under oath, that certain facts are true, a
record of a regularly conducted activity is self-authenticating);
7 Wigmore, supra, § 2158, at 772 (certification of a copy also
testifies to authenticity of original). However, authentication
does not encompass certification.

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follows:
[T]he deficiency in the certificate arises
with the signature. The document was not
"certified and authenticated" by the clerk
but by Peggy B. Elmore. Neither the document
itself nor any other evidence in the record
establishes that Peggy B. Elmore is
authorized by law to act in the place of the
clerk. The order does not state that she is
a deputy clerk, nor does it contain initials
or other indicia to demonstrate that she is a
deputy clerk. No evidence was presented to
the trial court as to who Peggy B. Elmore is
or whether she is authorized to act in place
of the clerk.

Id. at 691, 396 S.E.2d at 140.

Without the clerk's certification and authentication in this

case, the trial judge lacked assurance that the certificate of

analysis was not placed in the clerk's file by a third person and

at a time different than proported on the legend.

For these reasons, I would reverse the convictions and

remand for a new trial.

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