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Whitehurst v. Commonwealth

Court of Appeals of Virginia, Chesapeake

March 11, 2014

Cindy Lynn WHITEHURST
v.
COMMONWEALTH of Virginia.

Amina Matheny for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: Judges FRANK, KELSEY and ALSTON, JJ.

FRANK, Judge.

[63 Va.App. 133] Cindy Lynn Whitehurst, appellant, was convicted, in a bench trial, of possessing a Schedule I or II controlled substance, with the intent to distribute in violation of Code § 18.2-248. On appeal, she contends the admission of the drug certificate of analysis violated her Sixth Amendment right to confrontation. For the reasons stated, we affirm the judgment of the trial court.

BACKGROUND

On appeal, we will consider the evidence in the light most favorable to the Commonwealth, as it prevailed in the trial court. Beasley v. Commonwealth, 60 Va.App. 381, 391, 728 S.E.2d 499, 504 (2012).

Officer B. Ring of the Chesapeake Police Department approached appellant's vehicle and observed a white rock next to [63 Va.App. 134] appellant's right leg, next to the vehicle's center console. From his experience, he recognized the rock to be " a crack cocaine rock." Appellant picked up the rock and placed it in a fast-food bag. Appellant exited her vehicle, and the officer saw a rock of crack cocaine at appellant's feet. Appellant was then arrested. A search of appellant's vehicle revealed crack cocaine in a plastic baggie.

Page 911

The officer advised appellant of her rights under Miranda v. Arizona, 384 U.S. 436, 439, 86 S.Ct. 1602, 1609, 16 L.Ed.2d 694 (1966). Thereafter, appellant admitted she was a long time cocaine user, that she normally bought " eight balls" of cocaine, and that she started selling drugs after she was in an accident. She also confessed ownership of the cocaine.

PROCEDURAL BACKGROUND

On March 2, 2012, the attorney for the Commonwealth e-mailed defense counsel, inquiring whether counsel would stipulate the chain of custody of the drugs and whether counsel would require the presence of the analyst. Counsel expressed no desire to have the analyst present. Nevertheless, the Commonwealth's attorney sent out the notice required by Code § 19.2-187. The trial was continued a number of times.

The Commonwealth, on March 6, 2012, and pursuant to Code § 19.2-187, filed a notice of its intent to offer into evidence the certificate of analysis without having the analyst present. A copy of that notice was mailed to appellant's trial counsel on the same date.[1] Appellant did not file a written objection as required by Code § 19.2-187(B).

On September 19, 2012, defense counsel filed a notice indicating appellant did not waive the presence of the analyst and asserting her right of confrontation under the Sixth Amendment. However, appellant did not subpoena the analyst.

[63 Va.App. 135] At the September 24, 2012 trial, appellant testified that she never discussed waiver of her right of confrontation with her attorney and never ...


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