COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Clements and Haley 

Argued at Chesapeake, Virginia 

CALVIN JOJUAN BELL 

 OPINION BY 

v. Record No. 2941-04-1 JUDGE LARRY G. ELDER 

 DECEMBER 6, 2005 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Johnny E. Morrison, Judge 

 S. Jane Chittom, Appellate Defender (Virginia Indigent Defense 

Commission, on brief), for appellant. 

 Rosemary V. Bourne, Assistant Attorney General (Judith Williams 

Jagdmann, Attorney General; Denise C. Anderson, Assistant 

Attorney General, on brief), for appellee. 

 Calvin Jojuan Bell (appellant) appeals from his bench trial convictions for possession of 

marijuana and possession of cocaine with intent to distribute, his third such offense. On appeal, 

he contends the trial court erred in admitting the certificate of analysis establishing the 

substances were marijuana and cocaine because his attorney requested the certificate in the 

manner provided for in Code § 19.2-187 and the evidence failed to show “a copy of such 

certificate was mailed or delivered to counsel of record for the accused at least seven days prior 

to the hearing or trial upon request made by such counsel.” We hold the evidence fails to 

support the trial court’s finding that the certificate was provided to counsel of record in the 

manner required by the statute and, thus, that the admission of the certificate was error. Because 

we cannot conclude the erroneous admission of the certificate was harmless, we reverse the 

convictions and remand for further proceedings consistent with this opinion if the 

Commonwealth be so advised. 
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I. 

BACKGROUND 

 On November 4, 2003, Portsmouth Police Officer Kevin Parker was on routine patrol in a 

marked police car when he observed a vehicle turn left without yielding to oncoming traffic. 

The vehicle’s movement caused an oncoming car “to slam on brakes.” Officer Parker activated 

his emergency equipment and attempted to make a traffic stop. Instead of slowing or stopping, 

the vehicle attempted to elude Officer Parker, driving approximately 60 miles per hour in a 

25-mile-per-hour residential zone. After a four-minute chase, in which several other police cars 

joined, the subject vehicle came to a stop in the parking lot of an apartment complex. Appellant 

exited the car and attempted to flee but was apprehended by other officers. The officers arrested 

appellant, and in a search of the jacket he was wearing, made incident to arrest, they found two 

bags suspected to contain marijuana and crack cocaine. From the vehicle’s ashtray, an officer 

recovered a partially smoked cigar, which he believed contained marijuana. 

 Appellant was arrested on warrants for possessing marijuana with intent to distribute and 

possessing cocaine with intent to distribute.1

 The bags of suspected contraband were sent to the 

Division of Forensic Science for testing. The Division determined the bags contained 17.8 

grams of marijuana and 11.498 grams of cocaine. It issued a certificate of analysis containing 

that information dated November 13, 2003. 

On November 25, 2003, an assistant Commonwealth’s attorney submitted to the court for 

filing a copy of the certificate of analysis. Also on that date, the Commonwealth hand-delivered 

a copy of the certificate of analysis to John H. Underwood, the Public Defender, who was 

counsel of record for appellant. On December 1, 2003, the district court entered an order 

 1

 Appellant also was charged with and convicted for attempting to elude and assault and 

battery on a law enforcement officer. He does not challenge those convictions in this appeal. 
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relieving Assistant Public Defender Ann Johns as counsel for appellant and substituting attorney 

Kenneth L. Melvin as retained counsel. On December 15, 2003, the Commonwealth filed in the 

district court its response to appellant’s district court discovery request. The response included a 

copy of the certificate of analysis. 

 Appellant apparently failed to appear on the next scheduled date but was eventually 

arrested. In district court on June 8, 2004, while still represented by Mr. Melvin, appellant 

waived his right to a preliminary hearing on the charge for possessing cocaine with intent to 

distribute. Mr. Melvin also represented appellant on the marijuana charge. The district court 

reduced the marijuana charge to simple possession and found appellant guilty of that offense. 

Appellant noted an appeal of the misdemeanor marijuana conviction on that same date. 

 After waiving his preliminary hearing on the cocaine charge, appellant was indicted for 

that offense on July 1, 2004. Trial on the cocaine indictment and the misdemeanor marijuana 

appeal was set for October 5, 2004. Appellant was represented in the circuit court by Assistant 

Public Defender Amarnath H. Meda. On August 12, 2004, Mr. Meda filed in the circuit court a 

“Request for Copy of Certificate of Analysis” form and certified that a copy of the request was 

mailed or delivered to the Commonwealth’s Attorney on that same date. 

 On September 29, 2004, six days prior to trial, the clerk’s office delivered to Mr. Meda a 

copy of the certificate of analysis, which his office stamped “Received” as of that same date. On 

October 1, 2004, four days prior to trial, Assistant Commonwealth’s Attorney Andrew Robbins 

delivered to Mr. Meda a copy of the certificate as part of his response to appellant’s request for 

discovery. 

 At trial, the Commonwealth offered the cocaine and marijuana into evidence without 

objection from appellant. When the Commonwealth offered the certificate of analysis into 

evidence, however, appellant’s attorney objected on the ground that the certificate was not 
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provided to him by the clerk or the Commonwealth at least seven days prior to trial as required 

by Code § 19.2-187. The court denied the motion. 

 When the Commonwealth rested, appellant moved to strike on the ground that the 

certificate was improperly admitted and that, without it, the evidence was insufficient to prove 

the substances seized were narcotics. The trial court denied the motion. 

 Appellant testified in his own behalf. He said he fled from the police because he had no 

driver’s license and was on probation. When asked if he denied having “these items” in his 

pocket, appellant responded, “It was in my jacket.” The prosecutor said, “You had the crack and 

the marijuana in your jacket and the money in your pants pocket[,] right?” Appellant responded, 

“Yeah.” A short time later, however, he testified that the jacket was in the car and that it did not 

belong to him. When the prosecutor asked, “But you knew the drugs were in it?” appellant 

responded, “I don’t know. It’s the man whoever car [sic] it was.” 

 Appellant’s counsel then rested, renewed his previous motions to strike and said he 

would like to make “some additional argument.” Before hearing the additional argument, the 

court said it would like to “get[] back to [appellant’s] original motion.” The court inquired 

whether appellant’s counsel, Mr. Meda, had “review[ed] . . . both files” and asked whether 

Mr. Meda knew the Public Defender’s Office had been involved in the case at the district court 

level. Mr. Meda said he had not reviewed the file “this morning.” He also said, “We were not 

involved in the case at the District Court level, Your Honor,” but then said, “I know that we did 

not conduct a preliminary hearing. I can’t say whether or not we were” involved in any other 

way at the district court level. 

 The trial court then consulted “the file,” which it said indicated the Public Defender’s 

Office was appointed to represent appellant at his arraignment in district court on November 5, 

2003. The trial court also noted the district court order that relieved Assistant Public Defender 
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Ann Johns as counsel and substituted Mr. Melvin. The trial court then inquired whether 

Mr. Meda “receive[d] a copy of everything that Mr. Melvin received,” including discovery. 

Mr. Meda said that he did not receive a copy of it. The trial court said, “You didn’t? You didn’t 

ask for it?,” and Mr. Meda responded, “No, sir. I only file for discovery in Circuit Court.” 

 The trial court then detailed the numerous filings contained in the district court record 

and asked, “[I]f you look at the file, you would have seen that, you know, your office did get this 

certificate at the District Court level[,] right?” to which Mr. Meda responded, “Yes, sir.” The 

court then explained: 

And that’s why I made my ruling; you had it. You got out of the 

case. Mr. Melvin got in the case, then your client didn’t show up 

for some reason; then, when he was arrested, then you got back 

into the case, and there is a history. There’s more history to this 

case than maybe what you’re aware of. . . . That’s why I made the 

ruling and denied your motion to exclude that certificate. . . . I 

wanted the record to also reflect what’s in these files and the whole 

history of the case. 

Mr. Meda responded, 

I know the court’s made its ruling, but just for the record, . . . it 

was just my point that I think that the statute requires that once 

we’re in Circuit Court, that the set of procedures have to be 

followed in terms of the filing of notice, irregardless [sic] of the 

fact that the Commonwealth complied with those provisions in 

General District Court level; . . . we’re at a different stage and a 

different court . . . . 

 At the conclusion of trial, the court convicted appellant of the charged offenses, and 

appellant noted this appeal. 

II. 

ANALYSIS 

 “Generally, a court has discretion to determine whether evidence is admissible.” Waller 

v. Commonwealth, 27 Va. App. 71, 74, 497 S.E.2d 508, 509 (1998). Nevertheless, “[a] 

certificate of analysis is not admissible if the Commonwealth fails strictly to comply with the 
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provisions of Code § 19.2-187.” Woodward v. Commonwealth, 16 Va. App. 672, 674, 432 

S.E.2d 510, 512 (1993). “When the Commonwealth seeks to admit a certificate of analysis 

containing hearsay evidence, it has the burden of proving that the certificate satisfies the 

requirements of Code § 19.2-187 . . . .” Taylor v. Commonwealth, 28 Va. App. 1, 7, 502 S.E.2d 

113, 115 (1998) (en banc). 

Code § 19.2-187 provides in relevant part as follows: 

In any hearing or trial of any criminal offense . . . , a certificate of 

analysis of a person performing an analysis or examination, 

performed in any laboratory operated by the Division of 

Consolidated Laboratory Services or the Division of Forensic 

Science[,] . . . when such certificate is duly attested by such 

person, 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 made by such counsel to the clerk 

with notice of the request to the attorney for the Commonwealth. 

The request to the clerk shall be on a form prescribed by the 

Supreme Court and filed with the clerk at least ten days prior to 

trial. 

2002 Va. Acts, ch. 832.2

 This statute “imposes a condition for the exoneration of an otherwise hearsay document 

from the application of the hearsay rule, thus making that document admissible.” Basfield v. 

Commonwealth, 11 Va. App. 122, 124, 398 S.E.2d 80, 81 (1990). “The purpose of the [statute] 

is plain. It is to ensure that the certificate to be used in evidence is lodged timely in a secure and 

appropriate place, accessible to the accused, and available to him upon request.” Stokes v. 

Commonwealth, 11 Va. App. 550, 552, 399 S.E.2d 453, 454 (1991) (emphasis added). 

 2

 This is the version of Code § 19.2-187 (2000 Repl. Vol. & 2002 Cum. Supp.) in effect 

at the time of appellant’s trial. The General Assembly made minor, non-substantive changes to 

Code § 19.2-187 in 2005. See 2005 Va. Acts, chs. 868, 881. 
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Because this statute “deals with criminal matters, and it undertakes to make admissible 

evidence which otherwise” might be objectionable, it “should be construed strictly against the 

Commonwealth and in favor of the accused.” Gray v. Commonwealth, 220 Va. 943, 945, 265 

S.E.2d 705, 706 (1980) (construing former version of statute that contained only mailing 

requirement). “Prejudice to the defendant from a failure to comply need not be shown.” 

Woodward, 16 Va. App. at 674, 432 S.E.2d at 512 (emphasis added) (noting harmless error 

analysis could be applied to affirm conviction only because record contained other evidence 

proving that defendant possessed cocaine--evidence that was “unaffected by the erroneously 

admitted certificate of analysis”). “The issue is not whether the defendant or his counsel 

received notice of the content of the certificate, but whether the statutory prerequisites had been 

satisfied for admitting into evidence a document that otherwise would be inadmissible hearsay.” 

Mullins v. Commonwealth, 12 Va. App. 372, 374, 404 S.E.2d 237, 239 (1991). 

The Virginia Supreme Court applied these principles in 1980 in Gray, under a version of 

Code § 19.2-187 that contained only a filing requirement and stated that a certificate of analysis 

was admissible “‘provided . . . [it was] filed with the clerk of the court hearing the case at least 

seven days prior to the hearing or trial.’” 220 Va. at 944, 265 S.E.2d at 705 (quoting former 

Code § 19.2-187 (1975 Repl. Vol. & 1976 Cum. Supp.)). Applying the rule of strict construction 

set out above, the Supreme Court held as follows: 

The statute does not provide that it shall suffice if, in lieu of filing 

with the clerk, a copy of the certificate is furnished to defense 

counsel in advance of trial; neither does the statute provide that 

filing with the clerk three, rather than seven, days prior to trial 

shall be sufficient unless the accused can show prejudice resulting 

from the failure earlier to file the certificate. For this court to read 

these provisions into § 19.2-187 would be to construe the statute 

strictly against the accused and in favor of the Commonwealth, a 

result clearly contrary to the applicable rule of construction. 

Id. at 945-46, 265 S.E.2d at 706. 
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We applied these principles in Mullins, 12 Va. App. at 374, 404 S.E.2d at 238, under a 

version of Code § 19.2-187 that took effect in 1984. We held that, as with the filing condition 

addressed in Gray, “the mailing condition also must be strictly construed against the 

Commonwealth.” Mullins, 12 Va. App. at 374, 404 S.E.2d at 238. The mailing provision of the 

version of Code § 19.2-187 at issue in Mullins required that a copy of the certificate had to be 

“‘mailed or delivered by the clerk . . . to counsel of record for the accused at least seven days 

prior to the hearing or trial upon request of such counsel’” and gave no indication, as the present 

statute does, that the Commonwealth’s attorney was permitted to satisfy such a request. Id.

(quoting former Code § 19.2-187 (1983 Repl. Vol. & 1984 Cum. Supp.)) (emphasis added). In 

Mullins, although the clerk did not provide the defendant with a copy of the certificate of 

analysis, it was undisputed that the defendant’s attorney received a copy from the 

Commonwealth’s attorney in response to a discovery motion. Id. We held “the version of Code 

§ 19.2-187 in effect at the time of Mullins’ trial mandated that when defense counsel made such 

a request, mailing or delivery by the clerk became a statutory prerequisite to be satisfied before 

admitting the certificate into evidence.” Id. at 375, 404 S.E.2d at 239 (emphasis added). 

We noted in dicta in Mullins that subsequent amendments to Code § 19.2-187, which 

took effect in 1988, permitted either the clerk or the Commonwealth’s attorney to satisfy the 

mailing requirement and said that, under the amended statute, receipt of the certificate from the 

Commonwealth’s attorney in response to a discovery request would fulfill the mailing 

requirement. Id. at 375 n.2, 404 S.E.2d at 239 n.2; see Code § 19.2-187 (1983 Repl. Vol. & 

1988 Cum. Supp.). However, that statement in Mullins, in addition to being dicta, clearly 

contemplated the provision of the certificate in the circuit court in response to a request made to 

the clerk by defendant’s counsel in that same court; the statement did not address whether a 

certificate provided in district court upon request or as part of discovery in that court would 
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satisfy a request for the certificate later made to the clerk of the circuit court. For the reasons 

that follow, we hold that a proper request for a certificate made to the clerk of the circuit court 

may be satisfied only by the clerk’s or Commonwealth’s attorney’s provision of the certificate 

during the pendency of proceedings in the circuit court. 

In reaching this conclusion, we compare the language of the filing requirement in 

subsection (i) and the mailing requirement in subsection (ii). In analyzing the filing requirement, 

we have held Code § 19.2-187(i) does not authorize 

filing in the general district court as a substitute for the proviso that 

the certificates be filed in the circuit court at least seven days prior 

to the hearing in the circuit court; rather it specifically requires the 

certificate to “be filed with the clerk of the court hearing the case 

at least seven days prior to the hearing or trial.” 

Allen v. Commonwealth, 3 Va. App. 657, 664, 353 S.E.2d 162, 166 (1987) (quoting former 

Code § 19.2-187 (1983 Repl. Vol. & 1984 Cum. Supp.)). Logic and the controlling principle of 

strict statutory construction, see, e.g., Mullins, 12 Va. App. at 374, 404 S.E.2d at 238, dictate that 

we construe the mailing requirement of subsection (ii) in the same fashion. Based on the 

statute’s prefatory language referring to “any hearing or trial of any criminal offense” and the 

language of subsection (i) requiring filing with “the clerk of the court hearing the case,” we hold 

that the statute applies to a proceeding in a single court and that subsection (ii)’s reference to 

“the clerk” applies to that same clerk referenced in subsection (i)--“the clerk of the court hearing 

the case.” 

 Although our focus in Mullins was on whose actions could satisfy the statutory mailing 

requirement, our analysis also implicitly recognized that the duty to satisfy the statutory mailing 

requirement arose “when defense counsel made such a request.” 12 Va. App. at 375, 404 S.E.2d 

at 239 (emphasis added). The relevant part of Code § 19.2-187 provided then, as it does now, 

that a certificate of analysis is admissible “provided . . . (ii) a copy of such certificate is mailed or 
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delivered . . . to counsel of record for the accused at least seven days prior to the hearing or trial 

upon request” “of” or “made by” “such counsel.” 2002 Va. Acts, ch. 832 (“upon request made 

by such counsel”); Mullins, 12 Va. App. at 373 n.1, 404 S.E.2d at 238 n.1 (“upon request of such 

counsel”). The version of the statute applicable in appellant’s case also requires that the request 

(a) be made “to the clerk [of the court hearing the case] with notice of the request to the attorney 

for the Commonwealth” and (b) “be on a form prescribed by the Supreme Court and filed with 

the clerk [of the court hearing the case] at least 10 days prior to trial.” Code § 19.2-187 (2000 

Repl. Vol. & 2002 Cum. Supp.). Thus, the revised statute makes even more clear that the event 

triggering the mailing requirement is the filing of the prescribed form, with notice to the 

Commonwealth’s attorney, in the court in which the proceedings are pending. 

Strict compliance with the statute requires that if counsel for the accused invokes 

subsection (ii) by filing a proper request for any certificates of analysis in the circuit court, in 

order for a certificate of analysis provided to counsel for the accused to satisfy the mailing 

requirement of subsection (ii), permitting its admission into evidence at trial in circuit court, it 

must be provided “upon request made by such counsel” during the pendency of proceedings in 

the circuit court. Failure of the clerk or the Commonwealth’s attorney to comply with such a 

request in a timely fashion permits counsel for the accused to conclude that if the 

Commonwealth plans to offer the certificate, it will call as a witness the “person who 

perform[ed] the analysis or examination” reflected in the certificate. See Code § 19.2-187. As 

we have noted on numerous occasions, “[t]he issue is not whether the defendant or his counsel 

received notice of the content of the certificate, but whether the statutory prerequisites ha[ve] 

been satisfied for admitting into evidence a document that otherwise would be inadmissible 

hearsay.” Mullins, 12 Va. App. at 374, 404 S.E.2d at 239; see also Woodward, 16 Va. App. at 

674, 432 S.E.2d at 512 (noting harmless error analysis could be applied to affirm conviction only 
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because record contained other evidence proving that defendant possessed cocaine--evidence that 

was “unaffected by the erroneously admitted certificate of analysis”). Because the mailing did 

not occur in a timely fashion in response to the request made in the circuit court on the required 

form, the mailing requirement of Code § 19.2-187 was not satisfied.3

 Cf. Allen, 3 Va. App. at 

664, 353 S.E.2d at 166 (holding timely filing of certificates in district court did not satisfy 

requirement for timely filing in circuit court). 

III. 

For these reasons, we hold the evidence failed to support the trial court’s finding that the 

certificate was provided to appellant in the manner required by Code § 19.2-187. Because we 

cannot conclude the erroneous admission of the certificate was harmless,4

 we reverse the 

 3

 Although the request must be made on a specified form, the statute does not require that 

the certificate be provided in any particular fashion or accompanied by any particular 

certification or form as long as the evidence supports a finding that it was mailed or delivered at 

least seven days prior to trial. Cf. Carter v. Commonwealth, 12 Va. App. 156, 158, 403 S.E.2d 

360, 361 (1991) (“Although we are required to construe Code § 19.2-187 strictly against the 

Commonwealth and in favor of the accused, the statute only requires that the certificate be filed.” 

(citation omitted)). Thus, as we noted in dicta in Mullins, a defendant’s request for a certificate, 

filed on the proper form in the circuit court, is satisfied if the Commonwealth subsequently 

provides a timely copy of the certificate as part of discovery. Mullins, 12 Va. App. at 375 n.2, 

404 S.E.2d at 239 n.2. 

4

 In determining whether an error is harmless, we review “the record and the evidence 

and evaluate the effect the error may have had on how the finder of fact resolved the contested 

issues.” Lavinder v. Commonwealth, 12 Va. App. 1003, 1007, 407 S.E.2d 910, 912 (1991) 

(en banc). Non-constitutional error is harmless if other evidence of guilt is so “overwhelming” 

and the error so insignificant by comparison that we can conclude the error “failed to have any 

‘substantial influence’ on the verdict.” United States v. Lane, 474 U.S. 438, 450, 106 S. Ct. 725, 

732, 88 L. Ed. 2d 814, 826 (1986) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 

S. Ct. 1239, 1248, 90 L. Ed. 2d 1557, 1567 (1946); see Clay v.Commonwealth, 262 Va. 253, 

260, 546 S.E.2d 728, 731-32 (2001) (adopting Kotteakos harmless error standard). 

Here, absent the certificate of analysis, the evidence regarding the nature of the 

substances was limited to the substances themselves, which were admitted at trial; the testimony 

of a police officer that, based on his unenumerated “education, training and experience,” he 

believed the substances to be cocaine and marijuana; and appellant’s affirmative response at trial 

to the prosecutor’s question, “You had the crack and the marijuana in your jacket . . . [,] right?” 

Assuming without deciding the evidence other than the certificate of analysis would have 

been sufficient to support a finding that the substances seized from appellant and admitted at trial 
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convictions and remand for further proceedings consistent with this opinion if the 

Commonwealth be so advised.

Reversed and remanded.

 

were, in fact, cocaine and marijuana, we cannot conclude, without usurping the trial court’s 

fact-finding function, “that the error did not influence the [fact finder], or had but slight effect.” 

Clay, 262 Va. at 260, 546 S.E.2d at 731 (quoting Kotteakos, 328 U.S. at 764, 66 S. Ct. at 1248, 

90 L. Ed. 2d at 1566).