COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Fitzpatrick
Argued at Richmond, Virginia
MICHAEL GEORGE BROWN
v. Record No. 1518-94-2 OPINION BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA JANUARY 23, 1996
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
William H. Ledbetter, Jr., Judge
Andrea C. Long (Charles C. Cosby, Jr.; Boone, Beale,
Carpenter & Cosby, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellee.
Michael George Brown (appellant) was convicted in a bench
trial of possession of cocaine with intent to distribute in
violation of Code § 18.2-248. On appeal, he argues that the
trial court erred in admitting into evidence the cocaine and the
certificate of analysis because the chain of custody was broken
when: (1) the arresting officer left the cocaine in the evidence
vault for eleven days with the evidence custodian also having
access to the drugs, and (2) the state forensic laboratory
returned the evidence to the police by a private, commercial
parcel service. For the reasons that follow, we affirm the
conviction.
On December 1, 1993, several Fredericksburg City police
officers executed a search warrant at a residence in the city.
Appellant was in the house at the time and was ordered to lie on
the floor until handcuffed. While appellant was getting to his
feet, a white plastic Lifesavers Holes container fell from his
pocket. Detective Brent Taylor (Taylor) retrieved the container,
field tested the contents for drugs, and then sealed the
container in a plastic evidence bag.
On December 2, 1993, Taylor placed the sealed evidence bag
in his individual locker in the evidence vault. The evidence
custodian, the only other person with access to the evidence,
released the sealed bag to Taylor on December 13, 1993. When
Taylor received the sealed bag, it was in the same condition as
when he placed it in the evidence vault, and no tampering had
occurred. Taylor sent the sealed bag by certified mail to the
state forensic laboratory in Richmond for analysis of the
contents. A forensic scientist, a laboratory employee, analyzed
the contents of the container, determined that it held 5.08 grams
of crack cocaine, and resealed the container. A laboratory
employee returned the evidence to the police by United Parcel
Service (UPS) on January 14, 1994.
At trial, Taylor testified that, when he received the
evidence back from the laboratory, his original seal marked with
his initials remained on the container, and the seal applied at
the laboratory was intact. He also testified that immediately
before trial he examined the evidence, and the sealed container
was in the same condition as when he received it from the
laboratory. Taylor then applied a third seal. When Taylor
examined the evidence at trial, he stated that his third seal had
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not been breached and the evidence "appear[ed] to be in the same
condition as it was when I checked it out [before trial] and
prior to sending it off to [the laboratory]." Appellant did not
present any evidence to rebut the chain of custody established by
the Commonwealth.
Appellant objected to the admission of the cocaine and the
certificate of analysis, arguing that breaks in the chain of
custody occurred when Taylor left the evidence in the evidence
vault for eleven days with another person having access to the
drugs. He also argued that the chain of custody was broken when
the laboratory returned the evidence by a private carrier, UPS.
The trial judge overruled his objections and found the chain of
custody adequately proven because: (1) only Taylor and the
evidence custodian, a police department employee, had access to
the evidence during the eleven-day period, and (2) the sealed
container was intact when Taylor examined the evidence before and
during trial.
"Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom." Crews v. Commonwealth, 18 Va. App. 115, 117, 442
S.E.2d 407, 408 (1994). "'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.'" Id. at 118, 442 S.E.2d at 409 (quoting Blain v.
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Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)).
"The purpose of the chain of custody rule is to establish
that the evidence obtained by the police was the same evidence
tested." Robertson v. Commonwealth, 12 Va. App. 854, 857, 406
S.E.2d 417, 419 (1991).
In offering this evidence, the Commonwealth,
however, "is not required to exclude every
conceivable possibility of substitution,
alteration or tampering." Instead, the
Commonwealth [is] required to establish with
"reasonable assurance" that the evidence
analyzed and presented at trial was in the
same condition as it was when obtained by
police.
Id. (citations omitted). "Where there is mere speculation that
contamination or tampering could have occurred, it is not an
abuse of discretion to admit the evidence and let what doubt
there may be go to the weight to be given the evidence." Reedy
v. Commonwealth, 9 Va. App. 386, 391, 388 S.E.2d 650, 652 (1990).
Additionally, "it is the period preceding the analysis that is
crucial" in determining whether the evidence is the same evidence
recovered and submitted by the police. Gosling v. Commonwealth,
14 Va. App. 158, 166, 415 S.E.2d 870, 874 (1992).
In this case, the trial court did not abuse its discretion
by admitting the cocaine and the certificate of analysis into
evidence. The evidence established that Taylor, the arresting
officer, placed the container of drugs in an initialed, sealed
bag; put the bag in his locker in the evidence vault; retrieved
the bag from the evidence custodian on December 13, 1993; and
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immediately mailed the same sealed bag to the laboratory.
Although a person other than Taylor had access to the evidence
locker, he too was an employee of the police department.
Appellant presented no evidence of tampering or commingling, and
the evidence custodian's access to the drugs, without more, did
not constitute a break in the chain of custody. Additionally,
any argument that a break in the chain of custody occurred
because the evidence was left in the vault for eleven days is
based on mere speculation. See Murphy v. State, 632 A.2d 1150,
1153-54 (Del. 1993) (chain of custody adequate where evidence
stored in evidence locker for nine months before sent to forensic
laboratory for analysis and no evidence of tampering); State v.
Essick, 314 S.E.2d 268, 270-71 (N.C. Ct. App. 1984) (chain of
custody not destroyed where officers other than those who
gathered and sealed evidence had access to evidence locker and no
evidence of tampering).
Lastly, we reject appellant's argument that the return of
the drugs by a private carrier, UPS, without more, constitutes a
break in the chain of custody. Although the presumption of
regularity accorded to the United States mail does not apply to a
private carrier, see Robertson, 12 Va. App. at 856-57, 406 S.E.2d
at 418-19, the delivery of the container of drugs by a private
carrier, standing alone, gives rise to no presumption of
irregularity. When Taylor received the drugs back from the
laboratory, the seal was intact. The laboratory seal and the
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seal that Taylor applied when examining the evidence before trial
were also intact at trial. No evidence indicated a break in the
chain of custody prior to the analysis of the contraband.
Additionally, appellant failed to offer any evidence of
mishandling or tampering to rebut the Commonwealth's proof of
chain of custody. See Dunn v. Commonwealth, 20 Va. App. 217,
222-23, 456 S.E.2d 135, 137-38 (1995) (holding certificate of
analysis properly admitted when appellant did not offer evidence
to rebut the Commonwealth's proof of chain of custody).
Accordingly, the decision of the trial court is affirmed.
Affirmed.
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