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CREGGER v. COMMONWEALTH OF VIRGINIA


CREGGER v. COMMONWEALTH
OF VIRGINIA


JUNE 24, 1997
Record No. 0908-96-3

STEPHEN L. CREGGER

v.

COMMONWEALTH OF VIRGINIA

OPINION BY JUDGE RICHARD S. BRAY
FROM THE CIRCUIT COURT OF WYTHE COUNTY

J. Colin Campbell, Judge
Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia

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.

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, 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 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. 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.

 

_____________

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 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 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
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 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.

 

 

FOOTNOTES:

[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."

[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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