COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia
STEPHEN L. CREGGER
OPINION BY
v. Record No. 0908-96-3 JUDGE RICHARD S. BRAY
JUNE 24, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WYTHE COUNTY
J. Colin Campbell, Judge
Charles Paul Stanley, III (Hodges, Campbell &
Stanley, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Margaret Ann B. Walker, Assistant
Attorney General, on brief), for appellee.
Stephen L. Cregger (defendant) was convicted in a bench
trial of driving "while having a blood alcohol content of 0.08
percent or while under the influence of alcohol" (DUI). On
appeal, defendant contends that the trial court erroneously
admitted a "Certificate of Breath Alcohol Analysis" (certificate)
into evidence, a copy of which had not been provided to him by
the attorney for the Commonwealth in accordance with Code
§ 19.2-187. Finding no error, we affirm the conviction.
I. FACTS
On April 8, 1995, Trooper L. F. Valley observed an
automobile enter an intersection "without stopping at the stop
sign," "nearly hitting" the trooper's vehicle. Upon approaching
the car, Valley "detected . . . an odor of alcohol" and
ascertained that defendant was the driver. Subsequent analysis
of defendant's breath, reported on the disputed certificate,
revealed an alcohol concentration of 0.13 grams per 210 liters of
breath, a violation of Code § 18.2-266(i). 1 A warrant charging
defendant with the subject offense was thereafter obtained,
returnable to the "Wythe General District Court."
On August 17, 1995, defendant's counsel, pursuant to Code
§ 19.2-187, requested the attorney for the Commonwealth to
furnish a copy of the certificate prior to defendant's trial in
the general district court. The Commonwealth failed to comply,
but the district court admitted the certificate into evidence
over defendant's objection, resulting in conviction. Defendant
appealed to the circuit court, without requesting a copy of the
certificate incidental to prosecution of the offense in that
forum. Nevertheless, defendant objected to introduction of the
certificate into evidence during trial in the circuit court,
again arguing that the Commonwealth had neglected to comply with
his earlier motion in the general district court. The trial
court overruled the objection, admitted the disputed certificate,
and convicted defendant.
1
Code § 18.2-266 proscribes the operation of a motor vehicle
by any person having a "blood alcohol concentration of 0.08
percent or more by weight by volume or 0.08 grams or more per 210
liters of breath as indicated by a chemical test" or while "under
the influence of alcohol." Code § 18.2-269(A) creates a
presumption that an accused with such blood alcohol concentration
"was under the influence of alcohol at the time of the alleged
offense."
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II. ANALYSIS
Code § 19.2-187 provides, inter alia, that:
In any hearing or trial of any criminal
offense or in any proceeding brought pursuant
to Chapter 22.1 . . . of this title, a
certificate of analysis . . . 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.
(Emphasis added.) It is well established that "§ 19.2-187 should
be construed strictly against the Commonwealth and in favor of
the accused, since '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) (quoting Gray v. Commonwealth, 220 Va. 943, 945, 265
S.E.2d 705, 706 (1980)). But see Willis v. Commonwealth, 10 Va.
App. 430, 441, 393 S.E.2d 405, 411 (1990) ("[P]enal laws . . .
'ought not to be construed so strictly as to defeat the obvious
intention of the legislature.'" (quoting Huddleston v. United
States, 415 U.S. 814, 831 (1974))). A certificate is, therefore,
inadmissible when "the Commonwealth fails strictly to comply with
. . . [the statute]," including a default in providing an accused
with a copy of the certificate pursuant to its provisions.
Woodward v. Commonwealth, 16 Va. App. 672, 674, 432 S.E.2d 510,
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512 (1993); see also Bottoms v. Commonwealth, 20 Va. App. 466,
468-69, 457 S.E.2d 796, 797 (1995).
However, a principle of equal dignity in our jurisprudence
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, 83 S.E.2d 728, 731 (1954); see Harrison & Bates, Inc.
v. Featherstone Assocs. Ltd. Partnership, 253 Va. 364, 368, ___
S.E.2d ___, ___ (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. See Winston, 196 Va.
at 407-08, 83 S.E.2d at 731.
Code § 19.2-187 renders a "certificate of analysis"
admissible in certain proceedings, including "any hearing or
trial of any criminal offense," provided it is timely "filed with
the clerk of the court hearing the case" and "a copy . . . is
mailed or delivered by the clerk or attorney for the Commonwealth
to counsel of record for the accused . . . prior to the hearing
or trial." (Emphasis added.) By repeatedly employing the
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article "the," the legislature plainly and unambiguously
referenced a specific "hearing or trial" pending in a particular
tribunal, imposing upon its clerk, the attorney for the accused
and the attorney for the Commonwealth certain attendant
responsibilities. See Webster's Ninth New Collegiate Dictionary
1222 (1989). The statute clearly does not contemplate a
conjectural hearing or trial in an unknown forum. See Allen v.
Commonwealth, 3 Va. App. 657, 663-64, 353 S.E.2d 162, 165-66
(1987) (filing of certificate in general district court clerk's
office did not constitute statutory filing "with the clerk of the
[circuit] court hearing the case").
Here, defendant's only request for a copy of the certificate
related to the prosecution then underway in the general district
court. When defendant subsequently appealed the conviction in
that court to the circuit court, he invoked the jurisdiction of
the trial court pursuant to Code § 16.1-132, commencing a
proceeding de novo pursuant to Code § 16.1-136 and "annul[ling]
the judgment of the inferior tribunal as completely as if there
had been no previous trial." Walker v. Department of Pub.
Welfare, 223 Va. 557, 563, 290 S.E.2d 887, 890 (1982); see Buck
v. City of Danville, 213 Va. 387, 388, 192 S.E.2d 758, 759
(1972). Under such circumstances, "it appears entirely fair that
the accused and the State should start again at parity . . . ."
Johnson v. Commonwealth, 212 Va. 579, 586, 186 S.E.2d 53, 58
(emphasis added), cert. denied, 407 U.S. 925 (1972); see also id.
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at 584-86, 186 S.E.2d at 57-58 (circuit court is not bound by
sentence imposed in district court); Harbaugh v. Commonwealth,
209 Va. 695, 698-99, 167 S.E.2d 329, 332 (1969) (defendant is not
bound by a guilty plea entered in district court); Ledbetter v.
Commonwealth, 18 Va. App. 805, 809, 447 S.E.2d 250, 252-53 (1994)
(Commonwealth not bound by actions of prosecutor in district
court).
Thus, absent a request by defendant for a copy of the
certificate incidental to the de novo proceedings in the circuit
court, Code § 19.2-187 imposed no duty upon the attorney for the
Commonwealth, notwithstanding defendant's earlier request during
the pendency of trial in the general district court.
Accordingly, the certificate was properly received into evidence,
and we affirm the conviction.
Affirmed.
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Elder, J., dissenting.
I respectfully dissent because the majority's opinion
diverges in material respects from the lengthy line of cases
requiring the Commonwealth to strictly comply with the provisions
of Code § 19.2-187 and courts to narrowly construe its language.
I would hold that the trial court erroneously denied appellant's
motion to suppress the certificate of analysis (certificate)
because the Commonwealth's attorney failed to comply with the
request by appellant's counsel for a copy of the certificate
before trial. I disagree with the majority's holding that the
language of Code § 19.2-187 requires a defense counsel to renew a
request for a copy of a certificate previously made to a
Commonwealth's attorney when the defendant's case is appealed
from a general district court to a circuit court. Consequently,
I would reverse the conviction and remand.
Code § 19.2-187 provides that hearsay statements contained
in a certificate are admissible to prove the truth of their
assertions if, inter alia, "a copy of such certificate is mailed
or delivered by the . . . 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." (Emphasis
added.) We have repeatedly held that because Code § 19.2-187
provides an exception to the hearsay rule, a certificate is not
admissible if the Commonwealth fails to strictly comply with the
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provisions of Code § 19.2-187. 2 In addition, we have strictly
construed the language of Code § 19.2-187 because it is a penal
statute. 3
I would hold that the trial court erred when it admitted the
hearsay statements of the certificate because the Commonwealth's
attorney failed to comply with the mailing requirement of Code
§ 19.2-187. Appellant's counsel requested a copy of the
certificate from the Commonwealth's attorney on August 17, 1995.
The Commonwealth's attorney neither mailed nor delivered a copy
of the certificate to appellant's counsel prior to appellant's
trial in the circuit court on October 24. We have previously
held that the failure of either the Commonwealth's attorney or
2
See Bottoms v. Commonwealth, 20 Va. App. 466, 469, 457
S.E.2d 796, 797 (1995); Woodward v. Commonwealth, 16 Va. App.
672, 674, 432 S.E.2d 510, 512 (1993); Myrick v. Commonwealth, 13
Va. App. 333, 337, 412 S.E.2d 176, 178 (1991); Basfield v.
Commonwealth, 11 Va. App. 122, 124, 398 S.E.2d 80, 81 (1990);
Allen v. Commonwealth, 3 Va. App. 657, 663, 353 S.E.2d 162, 166
(1987); see also Gray v. Commonwealth, 220 Va. 943, 945, 265
S.E.2d 705, 706 (1980) (stating that "the failure of the
Commonwealth fully to comply with the filing provisions of
§ 19.2-187 renders the certificate inadmissible [in the absence
of the preparer of the certificate as a witness at trial]").
3
See Bottoms, 20 Va. App. at 469, 457 S.E.2d at 797;
Copeland v. Commonwealth, 19 Va. App. 515, 517, 452 S.E.2d 876,
877 (1995); Barber v. Commonwealth, 19 Va. App. 497, 499, 452
S.E.2d 873, 875 (1995); Petit Frere v. Commonwealth, 19 Va. App.
460, 464, 452 S.E.2d 682, 685 (1995); Winston v. Commonwealth, 16
Va. App. 901, 904, 434 S.E.2d 4, 5 (1993); Harshaw v.
Commonwealth, 16 Va. App. 69, 71-72, 427 S.E.2d 733, 735 (1993);
Mostyn v. Commonwealth, 14 Va. App. 920, 922, 420 S.E.2d 519, 520
(1992); Myrick, 13 Va. App. at 338, 412 S.E.2d at 178; Mullins v.
Commonwealth, 12 Va. App. 372, 374, 404 S.E.2d 237, 238 (1991);
Stokes v. Commonwealth, 11 Va. App. 550, 552, 399 S.E.2d 453, 454
(1991); Allen, 3 Va. App. at 663, 353 S.E.2d at 166; see also
Gray, 220 Va. at 945, 265 S.E.2d at 706 (1980).
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the clerk of court to strictly comply with the mailing
requirement renders a certificate inadmissible. See Bottoms v.
Commonwealth, 20 Va. App. 466, 469, 457 S.E.2d 796, 797 (1995)
(reversing conviction when clerk failed to mail a copy of
certificate prior to trial); Copeland v. Commonwealth, 19 Va.
App. 515, 517, 452 S.E.2d 876, 877 (1995) (reversing conviction
when Commonwealth's attorney delivered a copy of certificate only
three days prior to trial); Woodward v. Commonwealth, 16 Va. App.
672, 674-75, 432 S.E.2d 510, 511-12 (1993) (holding that trial
court erroneously admitted certificate when a copy was not sent
prior to trial); Mullins v. Commonwealth, 12 Va. App. 372, 375,
404 S.E.2d 237, 239 (1991) (reversing conviction under a prior
version of Code § 19.2-187 when clerk failed to send a copy prior
to trial even though defendant's counsel had obtained a copy
through discovery).
I disagree with the majority's construction of Code
§ 19.2-187 to require a defense counsel, who has already
requested a copy of a certificate from the Commonwealth's
attorney prior to a trial in general district court, to make a
second request if the case is appealed to the circuit court.
This interpretation of Code § 19.2-187 has no textual support and
is inconsistent with a narrow reading of the statute.
Code § 19.2-187 entitles a defense counsel to receive a copy
of the certificate from a Commonwealth's attorney "upon request."
The plain language of the statute does not specify the manner in
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which such a request must be made and does not require a defense
counsel to renew the request ever, much less following the appeal
of his or her client's case from a general district court to a
circuit court. Cf. Woodward, 16 Va. App. at 675, 432 S.E.2d at
512 (holding that the language of Code § 19.2-187 does not
prohibit a defendant's counsel from requesting a copy of a
certificate before it is filed with the trial court). Instead,
as Code § 19.2-187 is currently written, the duty of the
Commonwealth's attorney to send a copy of a certificate arises
once a defense counsel has made a request. Nothing in the
statute indicates that this duty ceases when a de novo appeal of
the defendant's case is taken to a circuit court. Thus, the
majority's broad reading of Code § 19.2-187 to require a defense
counsel to make two separate requests for the same certificate of
analysis when the defendant's case involves a trial in both
general district court and circuit court contradicts our well
established jurisprudence regarding the construction of this
statute.
In addition, the majority concludes that, through repeated
use of the article "the," the General Assembly intended the
delivery/mailing requirement of Code § 19.2-187 to apply to "a
specific 'hearing or trial' pending in a particular tribunal."
This conclusion leads to anomolous results when cases are tried
in both general district court and circuit court. Under the
majority's logic, not only is a defense counsel required to renew
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his or her request to a Commonwealth's attorney for a certificate
when the defendant's conviction is appealed to the circuit court,
a Commonwealth's attorney who has already complied once with the
delivery/mailing requirement at the general district level is
likewise required to provide the defense counsel with a second
copy of the same certificate or risk violating the mandates of
Code § 19.2-187. I do not believe that the General Assembly
intended the word "the" to mandate such a meaningless redundancy
in these situations. In addition, the statute regarding de novo
appeals of criminal cases from general district court was not
intended to transform the otherwise streamlined procedural
safeguards of Code § 19.2-187 into a procedural booby trap for
both defense counsel and Commonwealth's attorneys.
For these reasons, I dissent.
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