COURT OF APPEALS OF VIRGINIA
Present: Judges Felton, Kelsey and Senior Judge Willis
Argued at Richmond, Virginia
MEMORANDUM OPINION * BY
JUDGE D. ARTHUR KELSEY
JUNE 17, 2003
Record No. 1221-02-2
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Leslie M. Osborn, Judge
J. William Watson, Jr. (Watson, Nelson,
Morrison & Miller, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Leon Martin argues that the trial court abused its
discretion by admitting two drug certificates of analysis into
evidence because, he claims, the chain of custody for the drugs
had not been properly established.
Martin also contends that
the court abused its discretion by admitting a doctor's
examination of the drugs in question.
Finding no error in the
trial court's judgment, we affirm.
On appeal, we review the evidence "in the light most
favorable to the Commonwealth."
Kingsbur v. Commonwealth, 40
* Pursuant to Code § 17.1-413, this opinion is not designated
Va. App. 307, 308, 579 S.E.2d 357, 358 (2003).
requires us to "discard the evidence of the accused in conflict
with that of the Commonwealth, and regard as true all the
credible evidence favorable to the Commonwealth and all fair
inferences that may be drawn therefrom."
Commonwealth, 39 Va. App. 522, 528, 574 S.E.2d 756, 758-59
(2003) (en banc) (citation omitted).
During August 2000, Dennis Barker, an investigator with the
South Boston Police Department, was assigned to work with the
Halifax County Drug Task Force.
On August 22, 2000, Barker met
with Samuel Kirby, an informant with the Task Force, to "have
Mr. Kirby go out and make a drug purchase."
Kirby and his vehicle.
Satisfied that Kirby was not carrying
any contraband, Barker informed Kirby of "who he should attempt
to purchase drugs from" and provided him with an "audio
transmitter tape recorder, a video device," and "$50 to purchase
Kirby drove to Martin's house where Martin sold him three
rocks of crack cocaine for $50.
Kirby immediately returned and
delivered the drugs to Barker, who field tested the substance
and verified that the contraband was crack cocaine.
placed the drugs in a Ziploc bag, sealed the bag with red
evidence tape, and both Kirby and Barker initialed the bag.
Upon returning to his office, Barker placed the drugs in his
secure evidence locker.
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Barker sent the drugs to the Virginia Division of Forensic
Science for analysis via certified mail.
Along with the drugs,
Barker submitted a form entitled the "Division of Forensic
Science Request for Laboratory Examination," which included
specific serial numbers and information about the offense.
Division returned a certified mail receipt acknowledging that it
had received the drugs from Barker.
The receipt was not signed,
but was initialed and contained the article number "P 088 575
After completing the examination, the Division returned
the drugs, a certificate of analysis, and the Request for
In addition to the forensic scientist's
signature, the Request contained the same initials that appeared
on the postal receipt, followed by the article number "P 088 575
On August 23, 2000, Russ Nicollson, an investigator with
the Halifax-South Boston Drug Task Force, arranged for Kirby to
purchase drugs from Martin.
Nicollson followed the identical
procedure as had Barker, and Kirby again purchased $50 worth of
crack cocaine from Martin.
Nicollson sent the baggie via
certified mail for analysis at the Division.
As before, the
Division acknowledged receiving the drugs by returning a
certified receipt that was initialed and contained the article
Following the examination, the Division
returned the drugs, certificate of analysis, and the Request for
Once again, the Request contained the
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identical initials as the postal receipt and also contained the
article number "Z-248-186-426."
Based on the two transactions, Martin was tried on four
counts of possession with intent to distribute, in violation of
Code § 18.2-248, and one count of conspiring to distribute a
Schedule I or II controlled substance, in violation of Code
At the trial for the August 22 sale, Martin's
counsel objected to the introduction of the certificate of
analysis, arguing that the lack of a legible name on the postal
receipt created a fatal break in the chain of custody.
trial court overruled the objection, noting that "it would
appear that whoever initialed this lab report was the same
initial that goes on this [return receipt] when you compare the
The trial court overruled a similar objection concerning
the chain of custody for the drugs purchased on August 23.
trial court admitted the evidence, noting that the matching
initials on the postal receipt and the Request for Laboratory
Examination indicated that an agent of the Division received the
package and delivered it to the forensic scientist responsible
for the case.
Finding Martin guilty of all the offenses, the
trial court sentenced him to prison for 75 years, suspending 43
years of the total sentence.
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"'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.'"
Crest v. Commonwealth, 40 Va. App. 165, 170, 578 S.E.2d 88, 90
(2003) (quoting Jones v. Commonwealth, 38 Va. App. 231, 236, 563
S.E.2d 364, 366 (2002)).
Because a trial court "by definition
abuses its discretion when it makes an error of law," Leonard v.
Commonwealth, 39 Va. App. 134, 148, 571 S.E.2d 306, 313 (2002)
(citations omitted), we review its conclusions of law de novo
"to determine that its discretion was not guided by erroneous
legal conclusions," Koon v. United States, 518 U.S. 81, 100
To admit a certificate of analysis into evidence, the
Commonwealth must first present "proof of the chain of custody"
for the drugs to be examined.
Alvarez v. Commonwealth, 24
Va. App. 768, 776, 485 S.E.2d 646, 650 (1997).
chain of custody does not require the Commonwealth to "eliminate
every conceivable possibility of substitution, alteration, or
Johnson v. Commonwealth, 259 Va. 654, 678, 529
S.E.2d 769, 783 (2000) (citation omitted).
Commonwealth need only provide "reasonable assurance that the
sample to be admitted at trial is the same sample, and in the
same condition, as when it was first obtained."
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Commonwealth can shoulder this burden by establishing every
"vital link in the chain of possession."
Alvarez, 24 Va. App.
at 777, 485 S.E.2d at 650. 1
To relieve the Commonwealth of "having to present testimony
regarding the chain of custody of an analyzed or examined
substance," Code § 19.2-187.01 "authorizes a trial court to
receive a certificate of analysis as evidence of the chain of
custody of the material tested."
Harris v. Commonwealth, 261
Va. 185, 188, 541 S.E.2d 547, 548 (2001) (citation omitted).
Under this statute, receipt by an authorized agent of the
Division "shall be prima facie evidence" as to the custody of
the material until the laboratory returns the materials to the
trial court following the examination.
Id. (quoting Code
In this case, the Commonwealth established a sufficient
chain of custody for the drugs seized during both sales.
each instance, the police officers mailed the narcotics to the
Martin also challenges the trial court's decision to allow
testimony from Steve Watsen, a forensic chemist with the Drug
Enforcement Administration. Martin, however, admits that his
trial attorney "did not sufficiently interpose the objection" on
this matter. "The Court of Appeals will not consider an
argument on appeal which was not presented to the trial court."
Proctor v. Commonwealth, 40 Va. App. 233, 246, 578 S.E.2d 822,
829 (2003) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308,
494 S.E.2d 484, 488 (1998)); See Rule 5A:18. For this reason,
we are barred from determining whether the trial court abused
its discretion by admitting Watsen's testimony. Further, under
the circumstances of this case, we see no reason to invoke the
good cause or ends of justice exceptions to Rule 5A:18.
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Division and, on each occasion, the Division verified its
receipt by executing the Request for Laboratory Examination.
This receipt alone establishes prima facie evidence of the chain
See Harris, 261 Va. at 188-89, 541 S.E.2d at 548
(noting that "the prosecution established, prima facie, that the
contraband was received by such an agent; there is no hint that
it was received, for example, by some mere non-employee
bystander who happened to be loitering on the laboratory's
It is true, as Martin points out, that the initials on the
postal receipts do not appear to be consistent with the
signatures on the two Requests for Laboratory Examination.
difference, however, does not in any way undermine the statutory
inference —— particularly given the fact that the initials
appear on all four documents (both postal receipts and both lab
It may be true that the actual forensic
scientists who performed the examinations and signed the
laboratory request forms did not physically receive the mail
from the postman or sign the postal receipts.
Nothing in Code
§ 19.2-187.01 requires that they do so.
To be sure, the presence of the postal receipts addressed
to the proper addressee gives rise to a presumption of its own.
"All authorities hold that mailing a letter, properly addressed
and stamped, raises a presumption of its receipt by the
Hartford Fire Ins. v. Mut. Sav. & Loan Co., Inc.,
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193 Va. 269, 273, 68 S.E.2d 541, 544 (1952); see also Washington
v. Anderson, 236 Va. 316, 322, 373 S.E.2d 712, 715 (1988);
Manassas Park Dev. Co. v. Offutt, 203 Va. 382, 385, 124 S.E.2d
29, 31 (1962); Villwock v. Ins. Co. of N. America, 22 Va. App.
127, 135 n.4, 468 S.E.2d 130, 134 n.4 (1996).
That so, the
postal receipts tend to defeat, not support, Martin's effort to
overcome the statutory inference under Code § 19.2-187.01.
In sum, the trial court did not abuse its discretion by
admitting into evidence the certificates of analysis.
no error on this issue, we affirm Martin's convictions.
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