                  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.
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.



                                 -2-
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




                                  -3-
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


                                -4-
             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 . . .



                                  -5-
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



                                  -6-
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



                                 -7-
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




                                -8-
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




                                 -9-
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,



                                 -10-
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


                               -11-
           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



                                 -12-
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.




                               -13-
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




                               -14-
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



                               -15-
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



                                -16-
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.




                               -17-
