COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
LARRY WAYNE SMITH
MEMORANDUM OPINION * BY
v. Record No. 2077-99-2 JUDGE RUDOLPH BUMGARDNER, III
JULY 18, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge
J. Gregory Webb (Michie, Hamlett, Lowry,
Rasmussen & Tweel, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Larry Wayne Smith was convicted during a bench trial of
possession of cocaine. He contends the trial court erred by
admitting the certificate of analysis for the drug. Concluding
that the trial court did not err, we affirm the conviction.
The defendant was a passenger in a car stopped for a
routine traffic violation. He consented to a search of his
person, and the police found a metal tube that later tested
positive for cocaine. Before trial, the defendant filed a
discovery motion requesting the Commonwealth to produce "any
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
scientific reports." 1 The defendant never had a discovery order
entered because the Commonwealth's Attorney followed an
open-file policy and voluntarily permitted defense counsel full
access to case files.
At trial, the defendant objected when the Commonwealth
offered the certificate of analysis. He maintained the
certificate was not admissible because he had not received a
copy of it seven days before trial as required by Code
§ 19.2-187. 2 The trial court overruled the objection concluding
"that this Discovery Motion cloaked in this language does not
comply with the request that is referred to in [Code
1
The motion, entitled "The Motion For Discovery and
Inspection and for Exculpatory Evidence," provided, in part:
7: Pursuant to Rule 3A:11 of the Rules of
the Supreme Court of Virginia, the due
process clause of the Fifth Amendment to the
United States Constitution, and Article I,
Section 8 and Section 11 of the Constitution
of the Commonwealth of Virginia, that the
Commonwealth's Attorney produce and divulge
to the Defendant or his counsel . . . (c)
any scientific reports in possession of the
Commonwealth or its agents.
2
A certificate of analysis shall be admissible where a copy
is filed with the clerk of court at least seven days prior to
trial and "a copy of such certificate is mailed or delivered by
the clerk or attorney for the Commonwealth to [defense] counsel
at least seven days prior to . . . trial upon request of such
counsel." Code § 19.2-187 before the 1999 amendment.
The 1999 amendment changed the last clause to read "upon
request made by such counsel to the clerk with notice of the
request to the attorney for the Commonwealth."
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§] 19.2-187." The trial court noted that the defendant's
request was "cloaked in language that [it] was being made
pursuant to Rule 3A:11," did not refer to Code § 19.2-187, and
did not request the certificate of analysis specifically. It
noted additionally that the "disguised" request was presented to
a Commonwealth's Attorney's office that had an open-file policy. 3
The defendant contends that his motion for discovery constituted
a sufficient request because it requested all scientific reports
and the statute does not require a citation to the precise code
section.
In Coleman v. Commonwealth, 27 Va. App. 768, 772, 501
S.E.2d 461, 463 (1998), the defendant filed a discovery motion
that specifically requested a copy of the certificate of
analysis under Code § 19.2-187. The trial court entered a
discovery order permitting the defendant to inspect the
certificate at the Commonwealth's Attorney's office. Both
parties requested the order, but the defendant never inspected
the certificate. The defendant objected at trial that he had
not received a copy of the certificate, but the trial court
ruled that he was bound to the terms of the discovery order. On
3
The certificate of analysis was in the Commonwealth's file
and was introduced at the preliminary hearing. Five days before
the trial, the Commonwealth's attorney asked defense counsel if
there was anything he needed. Defense counsel responded that he
only needed the defendant's statement, which the Commonwealth's
attorney furnished. No mention was made about the certificate
of analysis.
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appeal, Coleman argued that his request for a copy of the
certificate was included in his general motion for discovery and
that a request in that manner was sufficient.
This Court affirmed the trial court and noted:
"[a]ppellant 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." Id. at 775, 501 S.E.2d at 464.
Coleman waived any objection concerning delivery of the
certificate by failing to conduct discovery as prescribed by the
discovery order. See id. at 775, 501 S.E.2d at 464-65.
The defendant attempts to distinguish Coleman by
noting that the trial court did not enter a discovery order
as it had in Coleman. However, the essential holding in
Coleman is the need to make a direct request to either the
clerk or attorney for the Commonwealth. As explained in
Coleman:
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
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designated documents, including scientific
reports; and (3) called upon the
Commonwealth to produce exculpatory evidence
under Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
Id. at 773, 501 S.E.2d at 463 (footnote omitted).
In this case, the defendant chose to move the trial court
to enter a discovery order. The motion was a request directed
to the trial court and was not a direct request to the clerk or
the Commonwealth's attorney. As with any pleading filed with
the court, a copy of the request had to be mailed to the
opposing counsel. See Rule 1:12. However, that was not
sufficient to alert either the clerk or the Commonwealth's
attorney that the motion was a request pursuant to Code
§ 19.2-187. Because the defendant did not make a sufficient
request, the trial court did not err in admitting the
certificate of analysis. Accordingly, we affirm the conviction.
Affirmed.
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