COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Senior Judge Hodges
Argued at Alexandria, Virginia
SHANE EDWARD DEAN
OPINION BY
v. Record No. 0422-98-4 JUDGE WILLIAM H. HODGES
JUNE 15, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
J. Peyton Farmer, Judge
Elwood Earl Sanders, Jr., Appellate Defender
(Public Defender Commission of Virginia, on
briefs), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Shane Edward Dean (appellant) appeals his convictions for
robbery and use of a firearm in the commission of a robbery. On
appeal, he argues that the trial judge erred in refusing to
admit certificates of analysis because one certificate was not
filed with the circuit court in compliance with Code § 19.2-187;
and appellant failed to prove a proper chain of custody for
another certificate of analysis where, without notification to
appellant, the Commonwealth released witnesses under subpoena
who were necessary to prove the chain of custody. Assuming,
without deciding, the trial judge erred in refusing to admit the
certificates of analysis, we hold that the errors were harmless.
FACTS
Appellant was convicted of robbing a Popeye’s restaurant on
September 1, 1995. Sidney Turner, the assistant manager of the
restaurant at the time of the robbery, testified that appellant
entered the restaurant at about 11:00 a.m., when no other
customers were in the restaurant. Turner greeted appellant as
he walked by the counter and entered the restroom. Turner
testified that he got a “very good look” at appellant when
appellant first entered the restaurant.
Appellant exited the restroom wearing a bandanna covering
his face from the nose downward. Appellant held a gun, and he
said to Turner, “This is a holdup. Get in the office, and get
the safe open.” Appellant removed cash from the safe and put it
in his pants pockets. Appellant directed two other employees to
bring him the cash drawers from the cash registers, and
appellant removed cash from those drawers. Appellant ordered
the employees into the freezer, and appellant shut the freezer
door.
James Harris testified that he gave appellant a ride to
Popeye’s on the day of the robbery, and appellant asked Harris
to wait for him as appellant entered the restaurant. Appellant
exited Popeye’s after he was in the restaurant for about five
minutes. Appellant entered Harris’s car wearing a bandanna
around his neck, stuffing money into his pants, and carrying a
2
- 2 -
gun. Appellant told Harris, “[J]ust go ahead and drive.”
Harris sideswiped a car as they drove away. The driver of the
sideswiped car later identified Harris as the driver of the car.
The driver also stated that she saw a passenger in Harris’s car,
but she did not identify appellant as the passenger.
Appellant testified that he did not rob Popeye’s, but he
could not remember where he was on September 1, 1995.
Turner testified that he viewed appellant’s face during the
entire incident, which, according to Turner, lasted about seven
to ten minutes. Turner also stated that he stood within arm’s
length of appellant during part of the incident. More than
eight months after the robbery, Turner identified appellant’s
photograph from a photo array. Turner testified at trial that
he was “absolutely” sure that appellant was the robber.
Detective William Bowler testified that another employee of
Popeye’s looked at the photo array after the incident. The
employee thought appellant’s eyes and nose looked like the
robber’s, but he did not positively identify appellant’s picture
as that of the robber.
Police investigators obtained fingerprint evidence from the
crime scene, from Harris’s car, and from some recovered cash.
They submitted the evidence to a laboratory for analysis. A
certificate of analysis dated March 14, 1997 (“March 14
certificate”) was filed with the circuit court. This
3
- 3 -
certificate indicated that the investigators recovered five
latent fingerprints and four latent palm prints of value. None
of the latent fingerprints matched the submitted fingerprints of
appellant. The certificate further indicated that “inked palm
prints” were needed to complete the examination. The
certificate stated that “an automated fingerprint search was
conducted,” but no identification was made.
When appellant moved to admit the March 14 certificate into
evidence, the Commonwealth objected on the ground that the chain
of custody of the fingerprint evidence was not sufficiently
proven. The trial judge ruled that the March 14 certificate was
inadmissible based on the Commonwealth’s ground for objection.
The laboratory performed further fingerprint and palm print
analysis as reported in a certificate of analysis dated August
7, 1997 (“August 7 certificate”). This certificate also
indicated that the latent fingerprints did not match appellant’s
fingerprints. The certificate reported that the latent palm
prints were compared “insofar as possible” with the submitted
palm prints of appellant. The certificate stated, “In order for
a conclusive comparison to be made, [a] fully recorded set of
inked palm prints . . . should be submitted.” The August 7
certificate also indicated that no identification was made from
an automated fingerprint search.
4
- 4 -
The August 7 certificate was not filed with the circuit
court prior to the trial in accordance with Code § 19.2-187.
When appellant moved to admit the certificate into evidence, the
Commonwealth objected on the ground that it had not been timely
filed with the circuit court. The trial judge ruled that the
certificate was inadmissible based on the Commonwealth’s ground
for objection.
ANALYSIS
“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.”
Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842
(1988). “A defendant is entitled to a fair trial but not a
perfect one.” Lutwak v. United States, 344 U.S. 604, 619
(1953). “‘[A]n erroneous evidentiary ruling does not require
reversal of a criminal conviction where the error is harmless.’”
Brown v. Commonwealth, 25 Va. App. 171, 182, 487 S.E.2d 248, 253
(1997) (en banc) (citation omitted).
“In Virginia, non-constitutional error
is harmless ‘[w]hen it plainly appears from
the record and the evidence given at the
trial that the parties have had a fair trial
on the merits and substantial justice has
been reached.’ ‘[A] fair trial on the merits
and substantial justice’ are not achieved if
an error at trial has affected the verdict.
. . . An error does not affect a verdict if
a reviewing court can conclude, without
usurping the jury’s fact finding function,
5
- 5 -
that, had the error not occurred, the
verdict would have been the same.”
Id. at 183, 487 S.E.2d at 254 (quoting Lavinder v. Commonwealth,
12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc)
(alteration in original) (quoting Code § 8.01-678)).
Appellant claimed by way of defense that he did not commit
the crime, and he challenged the identification evidence
presented by the Commonwealth. Thus, identification of the
robber was an issue in the case. However, the Commonwealth
presented overwhelming evidence that appellant committed the
crime. Therefore, assuming, without deciding, that the trial
judge erred in refusing to admit the two certificates, we hold
that the verdict would have been the same.
Even without the fingerprint evidence, the Commonwealth
presented other direct evidence to prove that appellant was the
criminal agent. Turner positively identified appellant as the
robber. Harris’s testimony placed appellant at the scene of the
crime on the date the crime was committed. Furthermore, Harris
saw appellant with a gun, a bandanna, and cash after appellant
exited the restaurant. Thus, the certificates of analysis
indicating that the recovered fingerprints “were not identified”
with appellant’s fingerprints were inconsequential in light of
the other evidence presented.
6
- 6 -
Moreover, from the evidence presented, it appears that
appellant may have only touched the freezer door or handle and
the bathroom door in the restaurant. The objects would in all
likelihood have contained fingerprints from numerous other
persons. Indeed, with regard to the fingerprints analyzed from
the restaurant, a business open to the public, one would expect
to find fingerprints from many persons. The fact that the
recovered fingerprints, which were found in a place of public
access, were not identified as appellant’s fingerprints does not
tend to prove that appellant did not commit the crime.
Furthermore, the evidence showed that the employees opened
the safe and handled the cash drawers, so it is possible that
appellant left no recoverable fingerprints at the scene.
The two certificates of analysis also indicate that
fingerprints were recovered and analyzed from some of the
recovered cash. However, the same analysis applies to these
prints--fingerprints from numerous other persons would be
expected to be found on cash. The fact that appellant’s
fingerprints were not found on the cash was inconsequential.
In addition, the March 14 certificate indicated that a set
of appellant’s inked palm prints was needed to complete the
examination. The August 7 certificate indicated that the
laboratory was still unable to complete “a conclusive
comparison” of the latent palm prints and that “a fully recorded
7
- 7 -
set of inked palm prints” should be submitted. Thus, the
certificates concerning the palm print analyses were actually
inconclusive, not exculpatory, and “did not materially
contradict the testimony of the Commonwealth’s . . . witnesses,
which alone provided evidence sufficient to support appellant’s
conviction.” Scott v. Commonwealth, 25 Va. App. 36, 44, 486
S.E.2d 120, 123 (1997).
In addition, appellant was not prejudiced by the trial
judge’s refusal to admit the certificates because appellant
argued to the jury in his closing argument that the Commonwealth
presented no fingerprint evidence linking him to the robbery.
Accordingly, it plainly appears from the record and evidence
presented that appellant received a fair trial on the merits and
substantial justice was reached.
Appellant also argues that he was denied a fair trial
because the Commonwealth, without informing appellant, released
witnesses who could have testified concerning the chain of
custody of the evidence analyzed in the March 14 certificate.
Appellant did not issue subpoenas for the witnesses.
“The defendant’s right to compulsory process is the right
to request subpoenas for witnesses and the right to have the
requested subpoenas issued by the court. However, a defendant
cannot claim that he was denied the right to compulsory process
for obtaining witnesses on his behalf where he does not seek to
8
- 8 -
subpoena the witnesses.” State v. Specich, 473 So. 2d 380, 386
(La. Ct. App. 1985).
In State v. Green, 448 So. 2d 782 (La. Ct. App. 1984), the
state subpoenaed a witness. Prior to trial, the prosecutor
released the witness from the subpoena. The defendant contended
the trial court erred in allowing the prosecution to excuse from
subpoena a material witness without the knowledge and consent of
the defendant. See id. at 786. However, the Court of Appeals
of Louisiana held that the defendant’s failure to issue a
subpoena for the witness prior to trial and after being granted
a continuance did not show “an exercise of due diligence.” Id.
at 787. The Court further found that the defendant did not show
that “the witness was made unavailable due to suggestion,
procurement, or negligence of the state . . . .” Id.
Therefore, the state’s actions “did not contribute substantially
to the witness’s failure to appear.” Id. See also Meek v.
State, 636 So. 2d 543 (Fla. Dist. Ct. App. 1994) (state attorney
has authority to release witnesses from a grand jury subpoena or
investigative subpoena issued by the state).
Here, appellant made no showing that the witnesses were
made unavailable due to any action by the Commonwealth. The
attorney for the Commonwealth subpoenaed the witnesses prior to
trial. The attorney for the Commonwealth had authority to issue
the subpoenas pursuant to Code § 19.2-267 and Rule 3A:12.
9
- 9 -
However, at no time, either before or during the trial, did
appellant issue subpoenas for these witnesses. Moreover, when
the issue arose at trial, appellant did not ask for a
continuance in order to obtain the presence of the witnesses at
the trial. Therefore, appellant failed to exercise due
diligence in obtaining the presence of the witnesses at trial.
Accordingly, the release of the witnesses by the Commonwealth
did not contribute to the witnesses’ failure to appear and did
not deprive appellant of any right to subpoena the witnesses as
his own witnesses. Rather, appellant’s failure to issue
subpoenas for the witnesses resulted in their absence. See
Brame v. Commonwealth, 252 Va. 122, 133-34, 476 S.E.2d 177, 183
(1996) (holding that where defendant had the opportunity to
secure a witness’ testimony, but made no effort to procure the
presence of the witness, defendant had no standing to complain
that he was denied the right to cross-examine the witness when
the witness did not testify).
For the foregoing reasons, we affirm the convictions.
Affirmed.
10
- 10 -