COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
LORENZO C. COLEMAN
OPINION BY
v. Record No. 1510-97-2 JUDGE MARVIN F. COLE
JULY 14, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
Robert G. O'Hara, Jr., Judge
Thomas E. Dempsey (Vergara & Associates, on
briefs), for appellant.
Mary E. Shea, Assistant Attorney General
(Richard Cullen, Attorney General; Donald E.
Jeffrey, III, Assistant Attorney General, on
brief), for appellee.
Lorenzo C. Coleman (appellant) was convicted of possession
of cocaine. He alleges on appeal that the trial judge erred in
admitting a certificate of analysis because the Commonwealth
failed to mail or deliver a copy of the certificate, upon his
request, as required by Code § 19.2-187. Because appellant
requested a copy of the certificate in his motion for discovery,
endorsed the discovery order which directed that all discovery
would take place in the Commonwealth's attorney's office, and
failed to appear at the prosecutor's office for discovery of the
certificate in accord with the terms of the discovery order, his
claim is without merit.
Appellant originally was charged with possession of cocaine
with intent to distribute. On February 25, 1997, he filed in the
circuit court a motion for discovery and request for exculpatory
evidence. In an unnumbered paragraph in the motion, he wrote,
"Pursuant to Section 19.2-187 of the Code of Virginia, the
defendant further requests that he be provided a copy of any
certificate of analysis which the Commonwealth intends to
introduce at trial." Appellant made no direct request to the
clerk of the circuit court or to the attorney for the
Commonwealth to mail or deliver a copy of the certificate of
analysis to his counsel of record, as provided in Code
§ 19.2-187.
On March 12, 1997, the judge entered a discovery order based
upon appellant's discovery motion. The order was endorsed, "We
ask for this," and was signed by defense counsel and the attorney
for the Commonwealth. The court ordered the Commonwealth's
attorney to permit counsel for the defendant within a reasonable
time period, but not less than ten days prior to the scheduled
trial, to inspect and copy or photograph certain documents,
statements, and reports at the office of the Commonwealth's
attorney, Monday through Friday, between the hours of 8:30 a.m.
and 5:00 p.m. upon twenty-four hour advance notice. Among other
items, the discovery order included:
2. Any written reports of fingerprint analysis,
blood tests, [and] other scientific reports,
. . . or copies thereof, that are known by the
Commonwealth's Attorney to be within the
possession, custody or control of the
Commonwealth.
(Emphasis added.).
At trial, appellant objected, on hearsay grounds, to the
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introduction of the certificate of analysis. He argued that in
his discovery motion he had requested a copy of any certificate
of analysis the Commonwealth intended to introduce, and had not
received one. The Commonwealth responded that a discovery
conference was supposed to take place in the Commonwealth's
attorney's office, and appellant's counsel had neither met with
him nor requested a copy of the certificate.
The trial judge overruled appellant's objection to the
admission of the certificate, stating that appellant's counsel
had endorsed the discovery order, thus agreeing that discovery
would take place under the terms of the order. The judge noted
that the order permitted counsel to conduct discovery in the
prosecutor's office at a specified time. The judge admitted the
certificate and convicted appellant of possession of cocaine.
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 of such
counsel.
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Thus, a certificate of analysis, reflecting the results of
examinations performed by employees of certain laboratories, is
admissible to prove the truth of its contents, without the
presence in court of the technician who conducted the analysis,
provided (1) the Commonwealth filed the certificate of analysis
with the clerk of the court hearing the case at least seven days
prior to the hearing or trial 1 and (2) upon request of counsel of
record for the accused, a copy of such certificate was mailed or
delivered by the clerk or the attorney for the Commonwealth to
such counsel at least seven days prior to the hearing or trial.
Code § 19.2-187 should be construed strictly against the
Commonwealth and in favor of the accused because "'it undertakes
to make admissible evidence which otherwise might be subject to a
valid hearsay objection.'" Mullins v. Commonwealth, 12 Va. App.
372, 374, 404 S.E.2d 237, 238 (1991) (citation omitted). But see
Willis v. Commonwealth, 10 Va. App. 430, 441, 393 S.E.2d 405, 411
(1990) (holding penal laws ought not to be construed so strictly
as to defeat intention of General Assembly).
A principle equally as important in our law instructs that
"[t]he province of [statutory] construction lies wholly within
the domain of ambiguity, and that which is plain needs no
interpretation." Winston v. City of Richmond, 196 Va. 403, 408,
1
Appellant makes no claim that the certificate was not
timely filed in the circuit court. Rather, he limits his claim
to the lack of mailing or delivery of a copy of the certificate
to him by the Commonwealth's attorney.
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83 S.E.2d 728, 731 (1954). See Harrison & Bates, Inc. v.
Featherstone Assocs. Ltd. Partnership, 253 Va. 364, 368, 484
S.E.2d 883, 885 (1997). "Words are ambiguous if they admit to
'being understood in more than one way[,]' . . . refer to 'two or
more things simultaneously[,]' . . . are 'difficult to
comprehend,' 'of doubtful import,' or lack 'clearness and
definiteness.'" Diggs v. Commonwealth, 6 Va. App. 300, 301-02,
369 S.E.2d 199, 200 (1988) (en banc) (citation omitted). "Absent
such infirmities, the manifest intent of the legislature clearly
expressed in its enactments should not be judicially thwarted
under the guise of statutory construction." Cregger v.
Commonwealth, 25 Va. App. 87, 90, 486 S.E.2d 554, 555 (1997).
The sole issue appellant raises is whether the trial court
erred in allowing the certificate of analysis in evidence over a
hearsay objection. In order to obtain pretrial possession of the
certificate of analysis, appellant had at least three avenues to
secure it. He could have: (1) requested it under the terms of
Code § 19.2-187(ii) directly from the clerk of the circuit court
or from the attorney for the Commonwealth; (2) made a motion for
discovery under Rule 3A:11 to the court to order the Commonwealth
to permit him to inspect and copy or photograph designated
documents, including scientific reports; and (3) called upon the
Commonwealth to produce exculpatory evidence under Brady v.
Maryland, 373 U.S. 83 (1963). 2
2
A motion for discovery of exculpatory evidence would have
produced no results in this case because the substance examined
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Instead of making a request under the terms of Code
§ 19.2-187 directly, and requesting that the clerk of the circuit
court or the attorney for the Commonwealth deliver to him, as
attorney for the accused, a copy of the certificate of analysis,
defense counsel chose to present his request for a copy of the
certificate of analysis in a motion for discovery pursuant to
Rule 3A:11. Subsection (e) of the Rule provides:
An order granting relief under this Rule
shall specify the time, place and manner of
making the discovery and inspection permitted
and may prescribe such terms and conditions
as are just.
The trial judge's order for discovery directed that all
discovery should take place during business hours, in the
prosecutor's office, not less than ten days before trial, upon
twenty-four hour advance notice. By endorsing the discovery
order, "We ask for this," appellant requested entry of the order
and consented to the manner in which all discovery, including his
request for the certificate of analysis, would occur. The
Commonwealth's attorney reasonably could rely upon this endorsed
order as controlling all requests made in the motion for
discovery, including the request for any certificate of analysis.
The Commonwealth's attorney had no further obligation to make a
separate mailing or delivery of the certificate of analysis.
Formal exceptions to rulings or orders of the trial court
are not necessary, provided a party, at the time the ruling or
was cocaine, which would not have been exculpatory.
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order is made or sought, "makes known to the court the action
which he desires the court to take or his objections to the
action of the court and his grounds therefor." Code
§ 8.01-384(A). The Supreme Court has cautioned counsel that
"generally it is advisable to have a court order or written
stipulation specify precisely what is to be discoverable, thereby
avoiding misunderstandings that may lead to fatal consequences on
appeal." Hackman v. Commonwealth, 220 Va. 710, 713, 261 S.E.2d
555, 558 (1980).
Appellant argues that his request for a copy of the
certificate of analysis was included in his general motion for
discovery and that such request made in this manner is
permissible under Copeland v. Commonwealth, 19 Va. App. 515,
516-17, 452 S.E.2d 876, 876-77 (1995). He asserts that his
request under Code § 19.2-187 and his motion under Rule 3A:11 are
wholly different actions, the former being a request as provided
by the statute and the latter being a motion for the entry of an
order. He contends that the statutory requirements of Code
§ 19.2-187 are not subject to abrogation by an agreed order.
Appellant argued to the trial court: "Clearly I have asked
for the certificate. Clearly, I haven't been provided with it.
There is abundance of case law and annotations in the statute
that requires strict compliance." The trial judge responded:
"And in this order, you had endorsed it as asking for it, meaning
that you agreed that the discovery would take place under the
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terms of this order, which permitted you to appear within ten
days in the Commonwealth's Attorney's office from 8:00 a.m. to
5:00 to get anything you wanted."
Appellant never made a direct request for the certificate of
analysis under Code § 19.2-187, which specifically provides that
the request be made to the clerk of the circuit court or to the
attorney for the Commonwealth. Instead, when he proceeded
through the discovery process, he chose to intermingle Code
§ 19.2-187 and Rule 3A:11. In making his decision, the trial
judge stated:
What I am suggesting, and what I believe to
be the case here . . . is that after that
request, you and the Commonwealth entered
into a different agreement concerning all
matters of discovery. And now you say that I
should treat the Commonwealth's view
differently than what you have agreed to. I
think that would be inappropriate under the
circumstances of this case. I will deny your
motion for excluding it on that basis.
The trial judge found that appellant, by endorsing the
discovery order without objection, was bound by the terms of the
order for all matters of discovery, including the request in
appellant's discovery motion for any certificate of analysis. We
cannot say the judge was plainly wrong in so ruling. By failing
to conduct discovery as prescribed by the discovery order,
appellant waived any objection concerning delivery of the
certificate to him.
Accordingly, we affirm the conviction.
Affirmed.
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