COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Bumgardner 

Argued at Salem, Virginia 

LARRY WAYNE SMITH 

 MEMORANDUM OPINION* BY 

v. Record No. 2077-99-2 JUDGE RUDOLPH BUMGARDNER, III 

 JULY 18, 2000 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

Edward L. Hogshire, Judge 

 J. Gregory Webb (Michie, Hamlett, Lowry, 

Rasmussen & Tweel, on brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Larry Wayne Smith was convicted during a bench trial of 

possession of cocaine. He contends the trial court erred by 

admitting the certificate of analysis for the drug. Concluding 

that the trial court did not err, we affirm the conviction. 

 The defendant was a passenger in a car stopped for a 

routine traffic violation. He consented to a search of his 

person, and the police found a metal tube that later tested 

positive for cocaine. Before trial, the defendant filed a 

discovery motion requesting the Commonwealth to produce "any 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
- 2 - 

 

scientific reports."1 The defendant never had a discovery order 

entered because the Commonwealth's Attorney followed an 

open-file policy and voluntarily permitted defense counsel full 

access to case files. 

At trial, the defendant objected when the Commonwealth 

offered the certificate of analysis. He maintained the 

certificate was not admissible because he had not received a 

copy of it seven days before trial as required by Code 

§ 19.2-187.2 The trial court overruled the objection concluding 

"that this Discovery Motion cloaked in this language does not 

comply with the request that is referred to in [Code 

1

 The motion, entitled "The Motion For Discovery and 

Inspection and for Exculpatory Evidence," provided, in part: 

7: Pursuant to Rule 3A:11 of the Rules of 

the Supreme Court of Virginia, the due 

process clause of the Fifth Amendment to the 

United States Constitution, and Article I, 

Section 8 and Section 11 of the Constitution 

of the Commonwealth of Virginia, that the 

Commonwealth's Attorney produce and divulge 

to the Defendant or his counsel . . . (c) 

any scientific reports in possession of the 

Commonwealth or its agents. 

2

 A certificate of analysis shall be admissible where a copy 

is filed with the clerk of court at least seven days prior to 

trial and "a copy of such certificate is mailed or delivered by 

the clerk or attorney for the Commonwealth to [defense] counsel 

at least seven days prior to . . . trial upon request of such 

counsel." Code § 19.2-187 before the 1999 amendment. 

 The 1999 amendment changed the last clause to read "upon 

request made by such counsel to the clerk with notice of the 

request to the attorney for the Commonwealth." 
- 3 - 

§] 19.2-187." The trial court noted that the defendant's 

request was "cloaked in language that [it] was being made 

pursuant to Rule 3A:11," did not refer to Code § 19.2-187, and 

did not request the certificate of analysis specifically. It 

noted additionally that the "disguised" request was presented to 

a Commonwealth's Attorney's office that had an open-file policy.3 

The defendant contends that his motion for discovery constituted 

a sufficient request because it requested all scientific reports 

and the statute does not require a citation to the precise code 

section. 

In Coleman v. Commonwealth, 27 Va. App. 768, 772, 501 

S.E.2d 461, 463 (1998), the defendant filed a discovery motion 

that specifically requested a copy of the certificate of 

analysis under Code § 19.2-187. The trial court entered a 

discovery order permitting the defendant to inspect the 

certificate at the Commonwealth's Attorney's office. Both 

parties requested the order, but the defendant never inspected 

the certificate. The defendant objected at trial that he had 

not received a copy of the certificate, but the trial court 

ruled that he was bound to the terms of the discovery order. On 

 3

 The certificate of analysis was in the Commonwealth's file 

and was introduced at the preliminary hearing. Five days before 

the trial, the Commonwealth's attorney asked defense counsel if 

there was anything he needed. Defense counsel responded that he 

only needed the defendant's statement, which the Commonwealth's 

attorney furnished. No mention was made about the certificate 

of analysis. 
- 4 - 

appeal, Coleman argued that his request for a copy of the 

certificate was included in his general motion for discovery and 

that a request in that manner was sufficient. 

This Court affirmed the trial court and noted: 

"[a]ppellant never made a direct request for the certificate of 

analysis under Code § 19.2-187, which specifically provides that 

the request be made to the clerk of the circuit court or to the 

attorney for the Commonwealth. Instead, when he proceeded 

through the discovery process, he chose to intermingle Code 

§ 19.2-187 and Rule 3A:11." Id. at 775, 501 S.E.2d at 464. 

Coleman waived any objection concerning delivery of the 

certificate by failing to conduct discovery as prescribed by the 

discovery order. See id. at 775, 501 S.E.2d at 464-65. 

The defendant attempts to distinguish Coleman by 

noting that the trial court did not enter a discovery order 

as it had in Coleman. However, the essential holding in 

Coleman is the need to make a direct request to either the 

clerk or attorney for the Commonwealth. As explained in 

Coleman: 

In order to obtain pretrial possession of 

the certificate of analysis, appellant had 

at least three avenues to secure it. He 

could have: (1) requested it under the 

terms of Code § 19.2-187(ii) directly from 

the clerk of the circuit court or from the 

attorney for the Commonwealth; (2) made a 

motion for discovery under Rule 3A:11 to the 

court to order the Commonwealth to permit 

him to inspect and copy or photograph 
- 5 - 

designated documents, including scientific 

reports; and (3) called upon the 

Commonwealth to produce exculpatory evidence 

under Brady v. Maryland, 373 U.S. 83, 83 

S. Ct. 1194, 10 L. Ed. 2d 215 (1963). 

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

In this case, the defendant chose to move the trial court 

to enter a discovery order. The motion was a request directed 

to the trial court and was not a direct request to the clerk or 

the Commonwealth's attorney. As with any pleading filed with 

the court, a copy of the request had to be mailed to the 

opposing counsel. See Rule 1:12. However, that was not 

sufficient to alert either the clerk or the Commonwealth's 

attorney that the motion was a request pursuant to Code 

§ 19.2-187. Because the defendant did not make a sufficient 

request, the trial court did not err in admitting the 

certificate of analysis. Accordingly, we affirm the conviction. 

 Affirmed.