COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

HARRY ANTWAN TRAYNHAM 

 MEMORANDUM OPINION* BY 

v. Record No. 0690-96-2 JUDGE MARVIN F. COLE 

 JULY 1, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

William L. Wellons, Judge 

 Theodore N. Tondrowski (Bowen & Bowen, on 

brief), for appellant. 

 Richard B. Smith, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Tried by a jury in Halifax County, Harry Antwan Traynham 

(appellant) was convicted of the murder of Anthony Whitlock, the 

attempted murders of Virgil Talley and Kenneth Brooks, using a 

firearm in the commission of the murder and attempted murders, 

and discharging a firearm from a motor vehicle. On appeal, 

appellant contends that the trial court erred (1) in allowing the 

testimony of Agent Ronald Campbell because the Commonwealth did 

not provide appellant with Campbell's diagram of the crime scene, 

(2) in admitting the shell casing found inside a vehicle 

recovered by the police on the night of the shootings, and (3) in 

refusing to permit appellant to reopen the evidence and recall 

two witnesses for questioning about the notes of a police 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 -2- 

officer. Finding no error, we affirm appellant's convictions. 

BACKGROUND

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Maynard v. Commonwealth, 

11 Va. App. 437, 439, 399 S.E.2d 635, 637 (1990) (en banc). So 

viewed, the evidence demonstrated that between 8:30 and 9:00 p.m. 

on February 13, 1995, a blue Volkswagen Jetta passed by Brooks 

and Whitlock as they stood together on a street within Westside 

Trailer Park. Brooks identified appellant as the driver of the 

car and Kevin Newman as the front seat passenger. Through the 

car window Newman fired a gun at Brooks and Whitlock. Brooks was 

not hurt, but Whitlock suffered a fatal gunshot wound. 

 The Jetta then turned around and pursued a car driven by 

Talley. Shots were fired from the Jetta at Talley's vehicle as 

Talley tried to escape. 

 Residents of the Westside Village apartments near the scene 

of the shootings saw two African-American males get out of a 

Jetta that evening and enter the apartment of Curly Chandler. 

One witness testified that appellant and Newman arrived at the 

apartment at 9:00 p.m. and that a Jetta was parked out front. 

About fifteen minutes after the arrival of appellant and Newman, 

the police surrounded the Jetta and looked inside it using 

flashlights, but did not notice anything unusual. The police 

towed the Jetta to Franklin's Garage and impounded it there. 
 -3- 

Shortly after the car was towed, appellant and Newman fled, 

leaving the apartment by the patio door. 

 Agent John Holt testified that he interviewed appellant, 

other suspects, and witnesses in connection with the case. 

Initially, appellant told the police that he was visiting 

relatives and friends on the evening of February 13, 1995. 

During a second interview, appellant gave a different account of 

his whereabouts on February 13. Later, appellant told Holt that 

Newman had shot Whitlock and that he had seen Newman in the Jetta 

on February 13. Appellant denied being in the car with Newman 

when the shooting occurred. According to appellant, Newman had 

contacted him after the shooting and asked appellant to meet him 

at Chandler's apartment. After appellant arrived, Newman said he 

had gotten "one of the two," and that he needed appellant to 

drive the car. While they were still in Chandler's apartment, 

the police arrived on the scene and found the Jetta. Appellant 

and Newman left the apartment by the patio door. 

 I. 

 Agent Campbell, an evidence technician, responded to 

Westside Trailer Park on February 14, 1995. Campbell prepared a 

diagram of the scene based upon his investigation of the 

incident. 

 At trial, appellant objected to the Commonwealth's use of 

the diagram because it had not been provided to the defense in 

discovery. Appellant also objected to Campbell drawing 
 -4- 

conclusions as an expert witness concerning bullet trajectories. 

 The trial judge noted that, although no written discovery order 

had been entered, "the Court had ordered discovery consistent 

with the motions filed by counsel for the defendant." 

Appellant's discovery motion had requested "written reports of 

. . . ballistic tests, . . . [and] other scientific reports . . . 

known by the Attorney for the Commonwealth to be within the 

possession, custody or control of the Commonwealth." The trial 

judge ruled that the prosecutor should have disclosed Campbell's 

diagram to appellant and excluded it from evidence. However, the 

judge ruled that Campbell could testify about his findings during 

his investigation. 

 Campbell testified that on February 14, 1995 he located at 

the scene of the shootings a bullet hole on the outside of a 

trailer and two bullets inside the trailer. Campbell said, "It 

appeared that [one of] the bullet[s] had passed from the outside 

of the trailer to the inside wall into . . . [a] bedroom." 

 Appellant contends that the trial judge should have excluded 

Campbell's testimony because the Commonwealth's failure to 

disclose the diagram violated the terms of discovery ordered by 

the trial judge. "Rule 3A:11 provides for limited pretrial 

discovery by a defendant in a felony case." Ramirez v. 

Commonwealth, 20 Va. App. 292, 295, 456 S.E.2d 531, 532 (1995). 

In pertinent part, Rule 3A:11(b)(1) provides that 

 [u]pon written motion of an accused a court 

shall order the Commonwealth's attorney to 

permit the accused to inspect and copy or 
 -5- 

photograph any relevant . . . written reports 

of autopsies, ballistic tests, fingerprint 

analyses, handwriting analyses, blood, urine 

and breath tests, other scientific reports, 

and written reports of a physical or mental 

examination of the accused or the alleged 

victim made in connection with the particular 

case, or copies thereof, that are known by 

the Commonwealth's attorney to be within the 

possession, custody or control of the 

Commonwealth. 

"While . . . Rule [3A:11] permits a defendant to discover written 

'scientific reports,' by its very terms the Rule 'does not 

authorize the discovery . . . of reports, memoranda or other 

internal Commonwealth documents made by agents in connection with 

the investigation or prosecution of the case . . . .'" Spencer 

v. Commonwealth, 238 Va. 295, 303, 384 S.E.2d 785, 791 (1989). 

 Campbell's diagram was not a report or test included within 

the scope of Rule 3A:11 or appellant's discovery motion. To the 

contrary, the diagram was prepared by Campbell as he investigated 

the scene and was intended for use as a demonstrative exhibit 

only. It was not a written report of a ballistic test. 

Accordingly, the Commonwealth had no duty to disclose the diagram 

to appellant before trial. Because no discovery violation 

occurred, the trial judge did not err in refusing to exclude 

Campbell's testimony. 

 II. 

 Campbell first examined the Jetta at Franklin's Garage on 

February 14, 1995. Inside the car, Campbell found a shell casing 

on the passenger seat "to the far right, almost up against . . . 
 -6- 

the right-front passenger door." Campbell did not collect the 

casing at that time, but secured the doors of the vehicle with 

evidence tape. He returned on February 16, 1995, further 

examined the vehicle, and seized the shell casing and other 

evidence. The shell casing was from a .357 Magnum. The bullets 

recovered from Whitlock's body and the crime scene could have 

been fired from a .357 Magnum. 

 Appellant asserts that the trial judge should have excluded 

the shell casing from evidence because the Commonwealth failed to 

establish the chain of custody. "Establishing a chain of custody 

of exhibits is necessary to afford reasonable assurance that the 

exhibits at trial are the same and in the same condition as they 

were when first obtained." Horsley v. Commonwealth, 2 Va. App. 

335, 338, 343 S.E.2d 389, 390 (1986) (citing Robinson v. 

Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180 (1971)). The 

Commonwealth, however, "is not required to exclude every 

conceivable possibility of substitution, alteration, or 

tampering." Pope v. Commonwealth, 234 Va. 114, 121, 360 S.E.2d 

352, 357 (1987). "Where there is mere speculation that 

contamination or tampering could have occurred, it is not an 

abuse of discretion to admit the evidence and let what doubt 

there may be go to the weight to be given the evidence." Reedy 

v. Commonwealth, 9 Va. App. 386, 391, 388 S.E.2d 650, 652 (1990) 

(where clothing appellant wore when his home burned travelled to 

the hospital either on defendant's person or near him on the 
 -7- 

stretcher and later was recovered from the floor of the emergency 

room by hospital personnel, evidence sufficiently established 

chain of custody of the clothing). 

 Police officers impounded the Jetta, thereby seizing all 

evidence contained inside, on the night of the shootings. Using 

flashlights at night, the officers looked inside the vehicle, but 

did not spot the shell casing, which Campbell first noticed the 

following night. The casing was located to the far right of the 

car near the passenger side door, and might not have been easily 

visible with only a flashlight from the outside of the vehicle. 

Following his discovery, Campbell secured the vehicle with 

evidence tape. When Campbell returned on February 16, he removed 

the shell casing for analysis. 

 These circumstances provided reasonable assurance that the 

shell casing was contained in the vehicle when the police 

impounded the vehicle and that it remained there until Campbell 

removed it. With the exception of Campbell's contacts with the 

vehicle, the record contains no evidence that the Jetta was 

disturbed in any manner after the police impounded it. The 

theory that the shell casing was placed inside the vehicle after 

the impoundment amounted to nothing more than mere speculation of 

tampering with the evidence. Such speculation did not require 

the exclusion of the shell casing, but affected the weight the 

jury could assign to it. See id. In fact, in closing argument 

to the jury, appellant asserted the theory that the shell casing 
 -8- 

had been planted in the car. 

 The Commonwealth laid a sufficient foundation for the 

introduction of the shell casing. Therefore, the trial judge did 

not abuse his discretion by admitting the casing into evidence 

and letting what doubt there may have been about its origin go to 

its weight. 

 III. 

 Testifying as a witness for the Commonwealth, Brooks 

admitted that a felony charge was pending against him. He also 

said he had talked to Holt about appellant's case. Brooks stated 

that Holt always would find out when Brooks was arrested on other 

charges. 

 In his own behalf, appellant called Odesster Byrd, Brooks' 

former girlfriend, as a witness. Byrd testified that Brooks 

originally denied seeing appellant at the scene of the shootings. 

 She also said that she had told Holt she knew Brooks had been in 

contact with him. Appellant asked the trial judge to permit him 

to question Byrd further about her knowledge of Brooks' bias in 

favor of the prosecution and about whether the Commonwealth was 

protecting Brooks from prosecution upon unrelated charges. The 

trial judge ruled that to explore this line of questioning, 

appellant must first call Holt and question him about any deals 

he may have made with Brooks. Then, the judge stated, appellant 

could recall Byrd to respond to Holt's testimony. 

 Appellant called Holt as a witness. Holt said he had not 
 -9- 

made any representations to Brooks about obtaining favorable 

treatment in an unrelated criminal matter in exchange for 

information against appellant. However, Holt indicated that, 

because he told Brooks that any information Brooks provided would 

be brought to the attention of the Commonwealth's Attorney and 

perhaps the trial judge in an unrelated case, Brooks may have 

believed that he would receive consideration for his cooperation 

with the prosecution. Brooks had served as a paid police 

informant in relation to other criminal investigations. In fact, 

Holt had once discussed Brooks and his unrelated criminal charges 

with the Commonwealth's Attorney. Holt had advised a magistrate 

that it would not be a good idea for Brooks to be jailed in 

Halifax County with appellant. 

 Karen Harris, another former girlfriend of Brooks, testified 

that Brooks had said Holt would pay his telephone bill and give 

him assistance on charges in Charlotte County. 

 The Commonwealth later called Holt as a rebuttal witness. 

During direct examination the prosecutor asked Holt no questions 

concerning Byrd or Brooks. On cross-examination, appellant 

attempted to question Holt about what Byrd had told him about 

Brooks. The trial judge sustained the prosecutor's objection 

that the question was beyond the scope of direct examination. 

 Appellant then asked to reopen the evidence to question 

Holt, using notes Holt had located since testifying as a defense 

witness, about Holt's conversation with Byrd. Holt's notes 
 -10- 

indicated Byrd had told Holt that Brooks had said he had made a 

deal with the prosecutor concerning a criminal charge Byrd had 

brought against Brooks. After asserting that the notes were 

exculpatory, defense counsel stated, 

 I'm asking the Court just to give me a chance 

to reopen it for that one question to Officer 

Holt, given the fact that if [the prosecutor] 

had gone through Mr. Holt's file yesterday or 

the day before, he would have seen this, he 

would have realized what it is, and he would 

have given to me, and we could have done it 

through the evidence generally. 

The trial judge refused, stating that appellant was limited to 

questioning Holt about matters brought up on direct examination. 

 Appellant questioned Holt no further. 

 Appellant argues on appeal that the Commonwealth's failure 

to disclose Holt's notes entitled him to reopen his case and 

further question Holt and Byrd. Appellant, however, did not ask 

the trial judge to permit him to recall Byrd after Holt located 

his notes. The Court of Appeals will not consider an argument on 

appeal which was not presented to the trial court. See Jacques 

v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) 

(citing Rule 5A:18). Accordingly, Rule 5A:18 bars our 

consideration of this question. The record does not reflect any 

reason to invoke the good cause or ends of justice exceptions to 

Rule 5A:18. 

 "Whether to reopen a case lies within the sound discretion 

of the trial judge." Minor v. Commonwealth, 16 Va. App. 803, 

805, 433 S.E.2d 39, 40 (1993). The refusal to permit a party, 
 -11- 

after resting his case, to introduce further evidence will not be 

reversed on appeal absent an abuse of that discretion. See

Chrisman v. Commonwealth, 3 Va. App. 371, 375-76, 349 S.E.2d 899, 

902 (1986). 

 In Williams v. Commonwealth, 4 Va. App. 53, 354 S.E.2d 79 

(1987), the trial judge refused to permit the defendant to reopen 

the evidence and recall Mary Breeden, who allegedly overheard a 

conversation during the trial between Stephen Frazier, who was 

one of the Commonwealth's witnesses, and a police officer. 

Breeden supposedly heard Frazier and the officer discussing an 

agreement regarding Frazier's testimony against the defendant. 

Frazier earlier had testified that charges were pending against 

him, but there had been no evidence of a plea agreement. The 

prosecutor denied that any deal existed. According to defense 

counsel, Frazier had made statements indicating his belief that 

he would receive no incarceration upon the pending charges. 

Furthermore, Frazier's trial date had been postponed until after 

the defendant's trial. See id. at 76, 354 S.E.2d at 92. In 

upholding the trial judge's refusal of the defendant's request to 

recall Breeden, we stated: 

 We cannot say as a matter of law that the 

trial court abused its discretion in refusing 

to allow further testimony from Breeden 

. . . . Aside from the speculations of 

counsel regarding an undisclosed plea 

agreement, the only proffer of evidence was 

the assertion that Breeden could testify as 

to her belief that such an agreement 

existed. . . . [T]he prosecutor specifically 

represented to the court that no plea 

agreement existed with Frazier. Further, the 
 -12- 

jury was aware that Frazier was facing 

charges and that these charges were still 

pending. Breeden's belief in the existence 

of a plea agreement would not have added 

anything relevant to the jury's knowledge. 

Id. at 77, 354 S.E.2d at 92-93. 

 Similarly here, even assuming that the Commonwealth should 

have revealed Holt's notes to the defense, nothing relevant to 

the jury's knowledge would have been added by permitting 

appellant to recall Holt. Byrd's statement to Holt had the 

tendency to prove that Brooks harbored a belief he had an 

agreement with the prosecutor. However, the jury already knew 

that a felony charge was pending against Brooks and that he had 

received preferential treatment, favors, and money from the 

police. Holt admitted that Brooks may have believed he had a 

deal with the Commonwealth regarding the pending charge. Just as 

in Williams, there was no evidence that an agreement actually 

existed between Brooks and the prosecution. 

 Furthermore, Byrd testified as appellant's own witness, and 

the trial judge had granted appellant permission to recall her 

after Holt during appellant's own case. Although appellant did 

not have Holt's notes at that time, Holt had indicated that 

Brooks had received assistance from the Commonwealth and might 

believe he had an agreement with the Commonwealth. Appellant 

never availed himself of the opportunity to recall Byrd during 

his own case to question her further about Brooks' purported 

contacts or a possible agreement with the prosecutor or the 
 -13- 

police. 

 In addition, as the prosecutor argued at trial, the evidence 

appellant sought to elicit from Holt -- Byrd's statements to Holt 

about what Brooks had told her -- was clearly hearsay. See Hamm 

v. Commonwealth, 16 Va. App. 150, 155, 428 S.E.2d 517, 521 

(1993). Neither at trial nor in this Court did appellant assert 

any exception to the hearsay rule which would permit the 

introduction of Holt's testimony. "The party seeking to rely 

upon an exception to the hearsay rule has the burden of 

establishing admissibility." Neal v. Commonwealth, 15 Va. App. 

416, 421, 425 S.E.2d 521, 524 (1992). Appellant failed to 

sustain this burden. 

 We find no abuse of discretion in the trial judge's refusal 

to allow appellant to reopen the evidence and recall Holt. 

Therefore, for the foregoing reasons, we affirm appellant's 

convictions. 

 Affirmed.
 -14- 

Benton, J., concurring and dissenting. 

 I. 

 One of the Commonwealth's witnesses was a state police 

officer who was "an evidence technician." He testified that he 

examined the "[crime] scene to see if [there was] any evidence 

that may be of value that need[ed] to be collected." The officer 

collected bullets from inside the trailer and shell casings from 

an automobile. After the officer collected those items, he 

prepared a diagram of "measurements, . . . making from his own 

experience[] estimates as to trajectory or . . . how these things 

really line up." He prepared the document to use as "evidence of 

a trajectory." 

 On motion of the defendant to exclude the document and 

testimony concerning it, the trial judge stated that "it was 

understood by both attorneys that the Court had ordered discovery 

consistent with the motions filed by counsel for the defendant." 

 Finding that the diagram was not disclosed to the defendant in 

discovery, the trial judge ruled that the exhibit could not be 

entered in evidence. 

 I disagree with the majority that the diagram indicating 

bullet trajectories was not a scientific report as contemplated 

by Rule 3A:11(b)(1). The document as described in the record 

supports the trial judge's ruling that it was. Nonetheless, I 

agree that the trial judge did not err in excluding the document 

and allowing the officer to testify concerning the evidence he 
 -15- 

discovered. 

 Code § 19.2-265.4(B) states in pertinent part that if "the 

attorney for the Commonwealth has failed to comply with . . . 

[discovery], the court may order the Commonwealth to permit the 

discovery or inspection, grant a continuance, or prohibit the 

Commonwealth from introducing evidence not disclosed, or the 

court may enter such other order as it deems just under the 

circumstances." This Court has ruled that "[t]he relief to be 

granted following the late disclosure of evidence is within the 

trial [judge's] discretion." Knight v. Commonwealth, 18 Va. App. 

207, 212, 443 S.E.2d 165, 168 (1994). 

 Although the trial judge did not bar the officer from 

testifying concerning his investigation, none of the officer's 

testimony concerned trajectories or the measurements as detailed 

on the diagram. Accordingly, I would hold that the record 

established that the trial judge did not abuse his discretion in 

applying the sanction of Code § 19.2-265.4. 

 II. 

 On February 13, 1995 the police "towed and impounded" for 

evidence the vehicle that was suspected of being used in the 

shooting. No evidence proved that the police secured the vehicle 

when it was impounded or that the unlocked vehicle was not 

entered before it was secured the following night. 

 "[T]o establish a chain of custody of exhibits . . . the 

evidence [must] afford reasonable assurance that the exhibits at 
 -16- 

trial are the same and in the same condition as they were when 

first obtained." Smith v. Commonwealth, 219 Va. 554, 559, 248 

S.E.2d 805, 808 (1978). Because the police impounded the vehicle 

on February 13, 1995, the chain of custody for the vehicle and 

its contents began on that date. 

 The Commonwealth's evidence failed to properly account for 

the evidence for the first twenty-four hours the vehicle was in 

the custody of the police. The evidence proved that several 

police officers looked in the vehicle on February 13 before it 

was impounded. They saw no shell casings and failed to secure 

the unlocked vehicle. The Commonwealth's evidence establishing 

the chain of custody of the bullet casing found in the vehicle 

begins, however, on the night after the police obtained custody 

of the vehicle. 

 Officer Campbell testified that almost twenty-four hours 

after the vehicle and its contents were impounded, he went to the 

private garage where the police sent the vehicle. He went to the 

garage "because [he] had information that [the] vehicle needed to 

be examined." He testified that he "looked into the vehicle 

. . . [and] saw . . . a shell casing." The shell casing was 

"sitting in the passenger seat to the far right, almost up 

against what would be referred to as the right-front passenger 

door." The officer further testified that because he was "not 

going to examine [the] item at that time, [he placed evidence 

tape] . . . on the doors of the vehicle with [his] initials on it 
 -17- 

to . . . protect the integrity of that vehicle." Although the 

officer went to the vehicle because the vehicle "needed to be 

examined," he gave no explanation for deferring his examination. 

 The evidence proved that for twenty-four hours after the 

police impounded the vehicle, the vehicle was unsecured. 

Consequently, a "'vital link in the chain of possession is not 

accounted for,'" i.e., from the impoundment until Officer 

Campbell's discovery twenty-four hours later. Robinson v. 

Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180 (1971) 

(citation omitted). For these reasons, I would reverse the 

convictions and remand for a new trial.