                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Clements and Beales
Argued at Richmond, Virginia


QUINTON DARNELL WHITTED
                                                               MEMORANDUM OPINION * BY
v.      Record No. 0450-07-2                                   JUDGE RANDOLPH A. BEALES
                                                                      MAY 20, 2008
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                              Frederick G. Rockwell, III, Judge

                  Aubrey Russell Bowles, IV (Bowles and Bowles, on brief), for
                  appellant.

                  Karri B. Atwood, Assistant Attorney General (Robert F. McDonnell,
                  Attorney General, on brief), for appellee.


        A jury convicted Quinton Darnell Whitted (appellant) of six felonies, all related to a bank

robbery. On appeal, appellant argues that the trial court erred in “allowing the DNA report to be

admitted into evidence.” Based upon the following analysis, we affirm his convictions.

                                           BACKGROUND

        In compliance with Code § 19.2-270.5, the Commonwealth sent a letter to appellant’s

attorney with notification of the prosecution’s intent to introduce a certificate of analysis at trial.

With this letter, the Commonwealth enclosed the first two pages of a four-page certificate of

analysis that compared appellant’s DNA to DNA collected from gloves allegedly used in the

bank robbery. The Commonwealth did not have pages three and four of the certificate.

        On the day of the jury trial, during the testimony of Elizabeth Ballard, the forensic

scientist who prepared the DNA certificate, appellant discovered that Ballard had pages three and

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
four of the certificate. The full certificate was also in the court’s file. Appellant objected to

introduction of the certificate, arguing that the Commonwealth had not complied with Code

§ 19.2-270.5. The trial court overruled the objection, finding appellant’s counsel had an

“obligation” to review the court’s file, where he would have found the full certificate.

          The jury heard from other witnesses, viewed pictures taken during the robbery, and saw a

comparison of appellant’s shoe to a shoeprint that one of the robbers had left on the counter at

the bank. At the conclusion of all the evidence, the jury convicted appellant of wearing a mask

in public, two counts of robbery, two counts of use of a firearm in the commission of a robbery,

and entering a bank while armed. The jury then sentenced him to ninety-three years in the

penitentiary. The trial court affirmed the guilty verdicts and imposed the jury’s sentences for the

crimes.

                                              ANALYSIS

          Code § 19.2-270.5 states, in pertinent part:

                 At least twenty-one days prior to commencement of the proceeding
                 in which the results of a DNA analysis will be offered as evidence,
                 the party intending to offer the evidence shall notify the opposing
                 party, in writing, of the intent to offer the analysis and shall
                 provide or make available copies of the profiles and the report or
                 statement to be introduced. In the event that such notice is not
                 given, and the person proffers such evidence, then the court may in
                 its discretion either allow the opposing party a continuance or,
                 under appropriate circumstances, bar the person from presenting
                 such evidence.

Assuming without deciding that the Commonwealth did not comply with this statute, we find

any error was harmless.

          Admission of a certificate of analysis where the Commonwealth has failed to follow the

procedures outlined in Code § 19.2-270.5 constitutes non-constitutional error. Cf. Bell v.

Commonwealth, 47 Va. App. 126, 140 n.4, 622 S.E.2d 751, 757 n.4 (2005) (discussing Code



                                                  -2-
§ 19.2-187). If such an error is harmless, then this Court must affirm a defendant’s conviction.

See Code § 8.01-678.

               Non-constitutional error “is harmless ‘when it plainly appears from
               the record and the evidence given at the trial that the parties have
               had a fair trial on the merits and substantial justice has been
               reached.’” Lavinder v. Commonwealth, 12 Va. App. 1003, 1005,
               407 S.E.2d 910, 911 (1991) (en banc) (quoting Code § 8.01-678)
               (emphasis added in Lavinder). To determine whether an error is
               harmless, the Court “must 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.” Id. at 1007, 407 S.E.2d at 912.
               “An error does not affect a verdict if a reviewing court can
               conclude, without usurping the jury’s fact finding function, that,
               had the error not occurred, the verdict would have been the same.”
               Id. at 1005, 407 S.E.2d at 911.

Hall v. Commonwealth, 32 Va. App. 616, 627, 529 S.E.2d 829, 835 (2000) (en banc).

       Even without the certificate of analysis, the evidence against appellant was still

overwhelming. We conclude that the jury would have convicted appellant even if the trial court

had excluded the DNA certificate.

       First, Ballard testified 1 about all of the incriminating information contained in the

certificate of analysis. She explained the testing that she conducted on the DNA samples. She

explained her conclusion that DNA from the gloves matched DNA taken from appellant.

Therefore, the certificate was merely duplicative of Ballard’s testimony.

       In addition, the jury was shown pictures from the bank’s security camera. These pictures

showed one of the robbers dressed in a gray sweatshirt with a red t-shirt under it, a bandana over

his face, and gloves on his hands. This robber gave one of the tellers a bag and ordered him to


       1
          During oral argument before this Court, appellant claimed he objected at trial to the
admission of both the certificate and Ballard’s testimony. However, at trial appellant only
objected to introduction of the certificate; he never objected to Ballard’s testimony. Appellant’s
argument to the trial court focused exclusively on the two missing pages, not the live testimony
of Ballard. Therefore, we find any argument regarding the admissibility of Ballard’s testimony
was not preserved for appeal. Rule 5A:18. In addition, appellant’s question presented claims
error related to the certificate only, not to Ballard’s testimony.
                                                   -3-
put money in it. The teller put “bait” money and a red dye pack that would explode into the bag.

This robber jumped up onto the counter while the teller was filling the bag, leaving several

shoeprints on the counter.

       Appellant was seen in a trailer park close to the bank immediately after the robbery

occurred. He was wearing a red t-shirt, and he had a gray sweatshirt and a pair of gloves with

him. It was late December, but appellant was “sweating.” A resident in the area saw appellant

walk between two trailers and then return thirty seconds later without the gloves and sweatshirt.

The gloves were found under the steps of one of the trailers and the gray sweatshirt, with some

red dye on it, was in a trash can beside the same trailer. A few days later, the bag from the

robbery with the bait money and an exploded dye pack was recovered at a residence across the

street from the two trailers that appellant had walked by.

       When the police stopped appellant in the trailer park, he was wearing tennis shoes and

had a red bandana in his back pocket. A forensic science expert, Amanda Lane, testified that two

shoeprints left on the bank’s counter by one of the robbers “had been made by the right shoe”

that appellant was wearing when he was stopped by the police in the trailer park. Appellant’s

right shoe and these prints matched “perfectly,” according to Lane. The certificate detailing this

expert’s findings was admitted into evidence.

       Based on all the evidence presented at trial, we conclude that the jury would have

convicted appellant, even if the DNA certificate had been excluded.

                                           CONCLUSION

       Based on the above findings, we hold that, if the trial court did err when it overruled

appellant’s objection to the certificate of analysis, that error was harmless. Therefore, we affirm his

convictions.

                                                                                             Affirmed.

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