COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder, 

 Bray, Annunziata, Bumgardner, Frank, Clements and Agee 

Argued at Richmond, Virginia 

ZACHARY S. LEWIS 

 MEMORANDUM OPINION* BY 

v. Record No. 2479-99-1 JUDGE JERE M. H. WILLIS, JR. 

 MARCH 20, 2001 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Edward W. Hanson, Jr., Judge 

 Barry R. Taylor (Claude M. Scialdone; Kent K. 

Stanley; Scialdone & Taylor, Inc., on 

briefs), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 On appeal from his misdemeanor conviction of possession of 

marijuana, in violation of Code § 18.2-250.1, Zachary S. Lewis 

contends that the trial court erred (1) in admitting into 

evidence a certificate of analysis when the Commonwealth had 

failed to comply with Code § 19.2-187, (2) in allowing the 

Commonwealth to reopen its case to admit the certificate of 

analysis, (3) in refusing to consider whether the general 

district court denied him due process and subjected him to 
double jeopardy, and (4) by holding that the general district 

court did not violate his right against double jeopardy by 

trying him twice on the same charge. By unpublished opinion, a 

divided panel of this Court affirmed Lewis' conviction. Lewis 

v. Commonwealth, Record No. 2479-99-1 (Va. Ct. App. August 1, 

2000). On Lewis' motion, we stayed the mandate of that decision 

and granted rehearing en banc. 

 Upon rehearing en banc, Lewis has presented only the first 

question: whether the trial court erred in admitting into 

evidence a certificate of analysis when the Commonwealth had 

failed to comply with Code § 19.2-187. We affirm the judgment 

of the trial court with respect to questions (2), (3) and (4) 

for the reasons set forth in the panel majority opinion, 

summarized herein. For the reasons that follow, we affirm the 

judgment of the trial court with respect to the question 

presented upon rehearing en banc. 

I. BACKGROUND

 Lewis appeared in general district court on September 9, 

1998, for trial on a misdemeanor charge of possession of 

marijuana. He objected to the admission into evidence of the 

certificate of analysis of the subject material, asserting that 

despite his request, neither the clerk nor the Commonwealth's 

attorney had delivered a copy of the certificate to him seven 

days prior to trial, as required by Code § 19.2-187. The 

district court took the objection under advisement, and six 

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months later, overruled it. At that time, the district court 

did not remember the evidence. Over Lewis' objection, it 

permitted the Commonwealth to present its evidence again. The 

court admitted the certificate of analysis into evidence and 

found Lewis guilty. 

 Lewis appealed his conviction to the trial court. Prior to 

trial, he filed a motion for discovery, which included a request 

for the certificate of analysis pursuant to Code § 19.2-187. 

Six weeks before the date scheduled for trial, the 

Commonwealth's attorney responded that Lewis was not entitled to 

discovery under Rule 3A:11 because he was charged with a 

misdemeanor, not a felony. The Commonwealth did not deliver or 

mail a copy of the certificate of analysis to Lewis' counsel. 

No hearing was held, and no order was entered pursuant to Lewis' 

request for discovery. 

 On June 10, 1999, Lewis appeared before the trial court for 

trial de novo. He objected to the admission of the certificate 

of analysis, asserting that his request had been denied in 

violation of Code § 19.2-187. The trial court overruled this 

objection, holding that Code § 19.2-187 was discretionary, not 

mandatory. 

 The Commonwealth rested its case without admitting the 

certificate of analysis into evidence. Lewis moved to strike 

the evidence. The trial court permitted the Commonwealth to 

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reopen its case and to admit the certificate of analysis. The 

trial court found Lewis guilty of possession of marijuana. 

II. ANALYSIS

 Code § 19.2-187, as in force at the time of the proceedings 

against Lewis,1 provided, in pertinent part: 

In any hearing or trial of any criminal 

offense . . . a certificate of analysis 

. . . shall be admissible in evidence 

. . . 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. 

"Code § 19.2-187 should be construed strictly against the 

Commonwealth and in favor of the accused because 'it undertakes 

to make admissible evidence which otherwise might be subject to 

a valid hearsay objection.'" Coleman v. Commonwealth, 27 Va. 

App. 768, 772-73, 501 S.E.2d 461, 463 (1998) (quoting Mullins v. 

Commonwealth, 12 Va. App. 372, 374, 404 S.E.2d 237, 238 (1991)). 

 The trial court erred in ruling that Code § 19.2-187 was 

discretionary and not mandatory. See Taylor v. Commonwealth, 28 

Va. App. 1, 6-7, 502 S.E.2d 113, 115 (1998) (en banc); Myrick v. 

Commonwealth, 13 Va. App. 333, 336-37, 412 S.E.2d 176, 178 

 1

 Code § 19.2-187 was amended by provisions not germane to 

this decision. See 1999 Va. Acts, ch. 296; 2000 Va. Acts, ch. 

336. 

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(1991). However, "[a]n appellate court may affirm the judgment 

of a trial court when it has reached the right result for the 

wrong reason." Driscoll v. Commonwealth, 14 Va. App. 449, 452, 

417 S.E.2d 312, 313 (1992) (citation omitted). This rule "may 

not be used if the correct reason for affirming the trial court 

was not raised in any manner at trial." Id. at 452, 417 S.E.2d 

at 313-14 (citation omitted). Therefore, we must consider 

whether the trial court reached the right result, though for the 

wrong reason. 

 In Coleman, we held that a defendant has 

at least three avenues to secure [a 

certificate of analysis:] . . . (1) 

[request] it under the terms of Code 

§ 19.2-187(ii) directly from the clerk of 

the . . . court or from the attorney for the 

Commonwealth; (2) [make] a motion for 

discovery under Rule 3A:11 to the court to 

order the Commonwealth to permit him to 

inspect and copy or photograph designated 

documents, including scientific reports; and 

(3) [call] upon the Commonwealth to produce 

exculpatory evidence under Brady v. 

Maryland, 373 U.S. 83 (1963). 

Coleman, 27 Va. App. at 773, 501 S.E.2d at 463 (footnote 

omitted). 

 In Coleman, Coleman was charged with a drug-related felony. 

Through a motion for discovery under Rule 3A:11, he requested 

the certificate of analysis. The trial court entered a 

discovery order, directing that all discovery would take place 

at the Commonwealth's Attorney's office within ten days of trial 

and upon twenty-four hours notice. Coleman's counsel endorsed 

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the discovery order "We ask for this." However, Coleman's 

counsel failed to arrange a meeting at the Commonwealth's 

Attorney's office to procure the discovery materials. We held 

that, by endorsing the discovery order without objection, 

Coleman had intermingled Code § 19.2-187 and Rule 3A:11 and 

that, by failing to "conduct discovery as prescribed by the 

discovery order, [Coleman] waived any objection concerning 

delivery of the certificate to him." Id. at 775-76, 501 S.E.2d 

at 464-65. 

 In Copeland v. Commonwealth, 19 Va. App. 515, 452 S.E.2d 

876 (1995), Copeland was charged with a drug-related felony. He 

filed "a motion for production and inspection of documents, 

including, specifically 'certificates of analysis.'" Id. at 

516, 452 S.E.2d at 876. The Commonwealth's attorney failed to 

provide Copeland a copy of the certificate of analysis at least 

seven days prior to trial, as required by Code § 19.2-187. 

Reversing the admission of the certificate of analysis into 

evidence, we held: 

 Copeland's counsel requested from the 

attorney for the Commonwealth the 

certificate of analysis. The attorney for 

the Commonwealth delivered the certificate 

of analysis to Copeland's counsel three days 

before trial. That delivery was not timely. 

Id. at 517, 452 S.E.2d at 877. We rejected the Commonwealth's 

argument that Code § 19.2-187 required the request to be 

directed to the clerk of the court. See id. As in Coleman, 

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Copeland utilized the available vehicle of discovery to 

communicate his request. Because the vehicle was proper, the 

communication was sufficient under Code § 19.2-187. 

 This case is controlled by Coleman. Lewis had the right to 

elect the method that he would employ to communicate his request 

for the certificate of analysis. Having made that election, he 

was bound to comply with the requirements of the method he 

chose. He elected discovery under Rule 3A:11, a method not 

available to him because he was charged with a misdemeanor, not 

a felony. The Commonwealth's attorney's response was prompt and 

informed Lewis well in advance of trial of the unavailability of 

the method that he had chosen. Lewis failed to submit to the 

trial court the question of his entitlement to discovery under 

Rule 3A:11. He failed to pursue the other method available to 

him, direct request of the Commonwealth's attorney or clerk. He 

abandoned his request and placed himself in the position of 

having made no request invoking the proviso of Code § 19.2-187. 

Thus, the trial court did not err in admitting the certificate 

of analysis into evidence. 

III. OTHER ISSUES

 We summarize the panel holdings that were not challenged on 

rehearing en banc. 

A. REOPENING THE CASE

"[T]he order of proof is a matter within the 

sound discretion of the trial court and [an 

appellate] court will not reverse the 

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judgment except in very exceptional cases, 

and, unless it affirmatively appears from 

the record that this discretion has been 

abused, [an appellate] court will not 

disturb the trial court's ruling." 

Lebedun v. Commonwealth, 27 Va. App. 697, 715, 501 S.E.2d 427, 

436 (1998) (quoting Hargraves v. Commonwealth, 219 Va. 604, 608, 

248 S.E.2d 814, 817 (1978)). 

 Through oversight, the Commonwealth neglected to present 

the certificate of analysis in its case-in-chief. We perceive 

no offense against justice or abuse of discretion in the trial 

court's permitting the Commonwealth to reopen its case to cure 

this oversight. 

B. ARGUMENTS CONCERNING PROCEEDINGS IN THE DISTRICT COURT

[T]he State gives the accused the benefit of 

two full opportunities for acquittal . . . . 

If an accused elects to take advantage of a 

second and fresh opportunity, 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 

(1972). No rule, statute, or case law concerning trial de novo

requires the circuit court to review errors by the district 

court. But cf. Ward v. Village of Monroeville, 409 U.S. 57, 

61-62 (1972) (holding that trial de novo cannot be used as a 

procedural safeguard against systemic due process violations in 

the lower courts). The record reflects no systematic due 

process violation involved in this case. 

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 The Fifth Amendment protection against double jeopardy 

"guarantees protection against (1) a second prosecution for the 

same offense after acquittal; (2) a second prosecution for the 

same offense after conviction; and (3) multiple punishments for 

the same offense." Payne v. Commonwealth, 257 Va. 216, 227, 509 

S.E.2d 293, 300 (1999) (citations omitted). 

 Double jeopardy protections do not apply until final 

judgment is obtained. In interrupting Lewis' trial to consider 

his objection, the general district court rendered no final 

judgment. Therefore, the resumption of proceedings implicated 

no double jeopardy concern. 

 The judgment of the trial court is affirmed. 

 Affirmed.

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Elder, J., with whom Benton, Annunziata and Clements, JJ., join, 

 concurring, in part, and dissenting, in part. 

 I concur in part III-B of the majority opinion. However, I 

would hold that appellant's request for the certificate of 

analysis was sufficient to require the Commonwealth to provide 

it to him in compliance with the terms of Code § 19.2-187. 

Therefore, I dissent from part II of the majority opinion and 

would find it unnecessary to reach the issue addressed in part 

III-A. I would reverse appellant's conviction and remand for 

further proceedings if the Commonwealth be so advised. 

 The version of Code § 19.2-187 applicable to these 

proceedings provided, in relevant part, as follows: 

In any hearing or trial of any criminal 

offense . . . , a certificate of analysis 

. . . shall be admissible in evidence . . . 

provided . . . (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. 

Id. (1995 Repl. Vol.) (emphasis added). As the majority 

recognizes, we have held repeatedly that this code section 

should be construed strictly against the Commonwealth and in 

favor of the accused because 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)). 

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 Code § 19.2-187 does not prescribe a particular manner in 

which counsel must request a certificate of analysis from the 

Commonwealth. See Woodward v. Commonwealth, 16 Va. App. 672, 

675, 432 S.E.2d 510, 512 (1993) (holding that where statute 

contains no requirement that request for certificate of analysis 

must be made after Commonwealth files it with clerk, Court of 

Appeals has no authority to impose such a limitation). In 

Coleman v. Commonwealth, 27 Va. App. 768, 501 S.E.2d 461 (1998), 

we recognized that a defendant has 

at least three avenues to secure [a 

certificate of analysis:] . . . (1) 

request[] it under the terms of Code 

§ 19.2-187(ii) directly . . . from the 

attorney for the Commonwealth; (2) ma[k]e a 

motion for discovery under Rule 3A:11 to the 

court to order the Commonwealth to permit 

[the defendant] to inspect and copy or 

photograph designated documents, including 

scientific reports; and (3) call[] upon the 

Commonwealth to produce exculpatory evidence 

under Brady v. Maryland, 373 U.S. 83 (1963). 

Id. at 773, 501 S.E.2d at 463 (footnote omitted) (emphases 

added). We held in Coleman that the certificate was admissible 

because, although the defendant specifically had requested the 

certificate "[p]ursuant to Section 19.2-187" in a separate 

paragraph contained in his discovery motion, he had endorsed an 

order of the court which provided that all documents requested 

in the motion would be obtained by the defendant "during 

business hours, in the prosecutor's office, not less than ten 

days before trial, upon twenty-four hours advance notice." Id.

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at 770, 774, 501 S.E.2d at 462, 464. Although counsel for the 

defendant endorsed the order, "We ask for this," thereby 

consenting to the court's ordered method of discovery, counsel 

never availed himself of the approved method of obtaining the 

discovery materials or certificate. See id. at 771, 774, 501 

S.E.2d at 462, 464. We held that "[t]he Commonwealth's attorney 

reasonably could rely upon this endorsed order as controlling 

all requests made in the motion for discovery, including the 

request for any certificate of analysis." Id. at 774, 501 

S.E.2d at 464. 

 The majority holds under Coleman that appellant was not 

entitled to the certificate of analysis because he (1) requested 

it via a discovery motion filed pursuant to Rule 3A:11, which 

was not applicable to this case because it involved a 

misdemeanor rather than a felony charge, rather than proceeding 

directly under Code § 19.2-187, and (2) failed to take further 

action when the Commonwealth responded that it would not tender 

discovery under Rule 3A:11 because appellant was not entitled to 

it. I would hold that appellant did all that was required of 

him under a strict construction of Code § 19.2-187. He did not 

merely request the certificate of analysis indirectly as "a 

scientific report" to which he may have been entitled as part of 

discovery under Rule 3A:11 only in a felony case. Rather, as 

noted by the majority, he "made a request for the certificate of 

analysis[] pursuant to Code § 19.2-187." Code § 19.2-187 does 

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not prohibit a defendant from combining a motion for discovery 

under Rule 3A:11 with a request for any certificates of analysis 

under Code § 19.2-187. That a defendant charged with a 

misdemeanor is not entitled to discovery does not negate the 

fact that the same defendant is absolutely entitled to any 

certificates of analysis specifically requested pursuant to the 

terms of Code § 19.2-187. When appellant properly requested any 

certificates of analysis pursuant to Code § 19.2-187 and the 

Commonwealth failed timely to produce them, he was entitled to 

conclude that the Commonwealth would not seek to admit any 

certificates without proper foundation. Code § 19.2-187 

provides an exception to the hearsay rule, and once appellant 

requested any certificates, the burden rested on the 

Commonwealth rather than appellant to prove compliance with the 

statute. 

 For these reasons, I dissent from part II of the majority 

decision, and I would reverse and remand appellant's conviction. 

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