FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Karen J. Burrell, Judge
J. Barry McCracken, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Benjamin H. Katz, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: Judges Alston, McCullough and Senior Judge Clements Argued at Chesapeake, Virginia
MEMORANDUM OPINION [*]
STEPHEN R. McCULLOUGH JUDGE
Brandon Rashad Jones argues that his convictions for possession of cocaine with the intent to distribute and possession of a firearm while possessing cocaine with the intent to distribute must be reversed on three grounds. First, he contends that the trial court erred in admitting the certificate of analysis because the Commonwealth failed to establish a proper chain of custody. Second, he claims that "[t]he trial court erred in considering the signature on the Request for Laboratory Examination, submitted by a Norfolk police officer, of a non-testifying employee of the [laboratory] in conjunction with [the] subsequently prepared certificate of analysis to establish the internal chain of custody at the laboratory . . . in violation of the Defendant's right to confront witnesses." Finally, he argues that the evidence against him is insufficient. We disagree and affirm his convictions.
I. The traffic stop
On December 21, 2009, around 11:00 p.m., Norfolk police stopped a vehicle with expired tags. Three persons were in the vehicle: the driver, a passenger in the front seat named Johnny B. Sharp, and appellant, who was the only passenger in the back seat. Appellant was seated in the middle of the back seat. Appellant was speaking on the phone. Officer D.J. Chaney overheard appellant say into the phone, "[t]he police have stopped us off Lafayette." Officer Chaney asked him to end the conversation, and appellant pretended to do so before switching the phone to his other ear. Officer Brian Jones noticed that appellant was slouched down in the center of the back seat and had his legs spread out so that his right leg was pressed against the map pocket on the back of the front passenger seat. He noticed that the pocket "was moving in a front to backward motion opening and closing" as appellant moved his legs back and forth. Officer Jones shined his flashlight down into the map pocket and observed the grip of a handgun. He immediately warned his partner, Officer Chaney, about the gun, and all three of the vehicle's occupants were removed from the vehicle.
After securing the passengers, Officer Chaney looked inside the map pouch behind the front passenger seat. He observed a handgun and a plastic bag in the map pocket. While wearing gloves, he took the plastic bag out and observed what he believed to be narcotics. Officer Chaney returned the narcotics to the map pocket and called the narcotics division. Soon afterwards, Officer Jones picked up the bag of suspected drugs and placed it to the right of where appellant had been seated during the traffic stop. Once appellant was removed from the back seat, Officer Jones noticed that the map pocket would just hang open.
Neither officer observed any liquid stains in the area of the back seat. In addition, appellant was not sweating or drooling. Officer Chaney did not observe any stains on appellant's pants. The police cruiser's spotlight as well as its headlights were trained on the stopped vehicle. While looking inside the vehicle, Officer Chaney used his flashlight, which he described as "very bright."
II. The chain of custody
Chaney and Jones contacted the narcotics division. Later, while still at the scene, they turned over the drugs to Investigator Juvenal Valdez of the Norfolk police's Vice and Narcotics Department. Investigator Valdez took the bag of suspected drugs with him to the police station. Once there, he took the items out of the bag and placed them on a table. After weighing and measuring them, he photographed them. He then returned them to the bag. Following a preliminary test of the items, he placed the items in a manila envelope, put the package in his evidence locker and locked the door. This locker is specifically assigned to Investigator Valdez, and he is the only one who has the key. At the time, there were no other drugs or items from any other case in the locker. Investigator Valdez also obtained a DNA sample from appellant, a buccal swab, in the early hours of December 22. After swabbing appellant's mouth, Investigator Valdez returned the Q-tip to its container and sealed it. He also stored that item in his locker. Investigator Valdez wore latex gloves both when he took the buccal swab and when he handled the narcotics.
On December 29, 2009, Investigator Valdez took the package containing the suspected drugs out of the locker and took it to the police department's property and evidence section. He received a specific evidence voucher, number 09008824. That same day, he took the package to the lab for analysis. Six and a half weeks later, he submitted the swab he had obtained from appellant for DNA analysis to the lab.
All of the drugs recovered from the stopped vehicle were contained within one bag. This one plastic bag contained two additional plastic bags, each of which contained individually wrapped rocks of cocaine. There were six rocks of cocaine in one bag and ten in the other. The rocks of cocaine were individually wrapped. The wrapping consisted of a torn-off corner of a plastic baggy.
There were additional empty plastic bags along with the bags which contained cocaine. Investigator Valdez estimated that there were two or three of these empty bags. On the request for laboratory examination form, Investigator Valdez indicated that he was submitting 16 "clear plastic baggies containing white hard substance" as well as "clear plastic baggi[e]s." He testified that he submitted "everything": the baggies containing cocaine and the empty baggies. ...