DEAN v. COMMONWEALTH


DEAN

v.

COMMONWEALTH


JUNE 15, 1999

Record No. 0422-98-4

SHANE EDWARD DEAN

v.

COMMONWEALTH OF VIRGINIA

 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY

J. Peyton Farmer, Judge

Present: Judges Annunziata, Bumgardner and
Senior Judge Hodges

Argued at Alexandria, Virginia

OPINION BY JUDGE WILLIAM H. HODGES

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 Sect. 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 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 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.

The August 7 certificate was not filed with the
circuit court prior to the trial in accordance with Code
Sect. 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, 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 Sect. 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.

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 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 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. 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.

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