Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, Kinser,
JJ., and Poff, Senior Justice
HARRY STEPHEN CAPRIO
OPINION BY
v. Record No. 962090 SENIOR JUSTICE RICHARD H. POFF
October 31, 1997
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The dispositive issue framed in this appeal is whether the
Court of Appeals of Virginia erred in upholding the trial court's
ruling denying the appellant's motion for a continuance and
allowing the Commonwealth to introduce the testimony of an expert
concerning his extrapolation of blood profile frequency based
upon his analysis of a series of DNA profiles and reports.
On March 5, 1992, Harry Stephen Caprio was indicted for the
murder and robbery of Elizabeth Marie Bickley committed August 5,
1991. In the first of two trials conducted by the Circuit Court
of the City of Portsmouth, the judge struck the robbery charge
and, when the jury reported that it was unable to reach a verdict
on the murder charge, he declared a mistrial.
Following three and one-half days in the conduct of the
second trial in October 1995, the foreman of the jury announced
that the jury was "deadlocked". Upon further deliberation
required by an Allen instruction, the jury returned a verdict
convicting Caprio of second degree murder and fixing his penalty
at 15 years in the penitentiary. By final judgment order dated
January 10, 1996, and entered February 1, 1996, the court
confirmed the verdict and imposed the penalty. The Court of
Appeals upheld the several rulings of the trial court challenged
by the appellant, and we awarded Caprio this appeal.
Neither Caprio's testimony at trial nor the investigating
officer's handwritten transcript of Caprio's statements contained
an inculpatory admission, and the record shows that the evidence
underlying this conviction was wholly circumstantial.
Consequently, we will summarize only those facts in evidence
relevant to the issue we consider dispositive.
Ms. Bickley's corpse was discovered about 11:00 p.m. on
August 5, 1991, lying in the middle of a street intersection.
After Caprio was identified as a suspect, but before he was
arrested, he volunteered to submit blood samples for DNA
analysis. Jeffrey D. Ban, Section Chief of the Serology DNA Unit
at the Virginia Division of Forensic Science, supervised a series
of DNA analyses of these samples, samples of the victim's blood,
and samples of genetic materials found on a pair of shorts Caprio
had worn on the day of the crime.
In a "certificate of analysis" dated May 17, 1995, Ban
stated that "[t]he DNA profile obtained from Harry Caprio's
shorts . . . is consistent with the DNA profile of Elizabeth M.
Bickley . . . and different from that of Harry Caprio . . . ."
Based upon the five tests comprising that analysis, Ban concluded
that "[t]he probability of randomly selecting an unrelated
individual with a matching DNA profile . . . is approximately
. . . 1 in 210 in the Caucasian population . . . ."
This certificate reaffirmed Ban's conclusion, based upon a
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single test that was reported in his certificate issued September
16, 1993, that "the genetic material deposited on Harry Caprio's
shorts cannot be eliminated as originating from Elizabeth
Bickley." Both certificates and a report of enzyme testing by a
forensic serologist were timely delivered to defense counsel.
On the day before Ban testified at the second trial, he
reviewed the results of the seven DNA tests underlying the two
certificates and the serologist's report and advised the
Commonwealth that he would use a chart during his testimony to
illustrate the results of that review. The Commonwealth notified
defense counsel and, invoking Code § 19.2-270.5, counsel objected
to introduction of that evidence and, in the alternative, moved
for a continuance. The trial court overruled the objection and
denied the motion, and Ban testified as follows:
Taking each of these into account, each of the
seven, you have approximately one in a hundred twenty
thousand individuals would have a profile that would be
consistent with each of these seven different areas
that I have tested for in the Caucasian.
. . . .
[W]e would have to test . . . a hundred twenty
thousand people before we'd find this profile again
. . . [and] we might find that profile again, or we
might not.
. . . .
Basically, we've looked at seven different areas,
several different tests that we have done; and in each
of the tests we've demonstrated that the profile that
we found in Harry Caprio's shorts is consistent with
that of Elizabeth Bickley and different than that of
Harry Caprio.
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Code § 19.2-270.5, the statute cited by defense counsel,
provided at the time of trial in relevant part:
In any criminal proceeding, DNA (deoxyribonucleic acid)
testing shall be deemed to be a reliable scientific
technique and the evidence of a DNA profile comparison
may be admitted to prove or disprove the identity of
any person. . . .
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.
(Emphasis added.)
The Commonwealth argues that "the statute does not apply"
because "the blood profile frequency calculation is not a
profile, report, or statement". We disagree.
"When a statute is plain and unambiguous, a court may look
only to the words of the statute to determine its meaning."
Harrison & Bates, Inc. v. Featherstone Assoc., 253 Va. 364, 368,
484 S.E.2d 883, 885 (1997) (citing Brown v. Lukhard, 229 Va. 316,
321, 330 S.E.2d 84, 87 (1985)); accord Doss v. Jamco, Inc., 254
Va. ___, ___, ___ S.E.2d ___, ___ (1997) (this day decided). We
have repeatedly articulated the principles of statutory
construction:
"While in the construction of statutes the
constant endeavor of the courts is to ascertain and
give effect to the intention of the legislature, that
intention must be gathered from the words used, unless
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a literal construction would involve a manifest
absurdity. Where the legislature has used words of a
plain and definite import the courts cannot put upon
them a construction which amounts to holding the
legislature did not mean what it has actually
expressed."
Barr v. Town & Country Properties, 240 Va. 292, 295, 396 S.E.2d
672, 674 (1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172
S.E. 445, 447 (1934)). See also, Abbott v. Willey, 253 Va. 88,
91, 479 S.E.2d 528, 530 (1997); Weinberg v. Given, 252 Va. 221,
225-26, 476 S.E.2d 502, 504 (1996); Turner v. Wexler, 244 Va.
124, 127, 418 S.E.2d 886, 887 (1992); Grillo v. Montebello
Condominium Owners Assoc., 243 Va. 475, 477, 416 S.E.2d 444, 445
(1992).
The twenty-one day notice requirement of the statute at bar
applies to "the results of a DNA analysis" to be "offered as
evidence". Copies of "the profiles and the report or statement
to be introduced" must be made available to the defense. Ban's 1
in 120,000 extrapolation, a statistical probability of a DNA
match, was clearly a "report" or "statement" of "the results of a
DNA analysis" conducted in the course of the seven different
tests Ban reviewed. Adhering to the plain meaning rule, we hold
that Ban's blood frequency extrapolation was a matter within the
contemplation of the statute.
Even so, the Court of Appeals ruled that "[t]he trial court
did not abuse its discretion by denying appellant's request for a
continuance and appellant's alternative request to bar the
evidence", and the Commonwealth contends that the statute should
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be construed to vest a trial court with such discretion. True,
the statute provides that, in the event timely notice is not
given, "then the court may in its discretion either allow . . . a
continuance or . . . bar . . . such evidence."
That language expressly limits the court's discretion by the
disjunctive "or" to a choice of "either" of two defined options.
Stated differently, if, as here, a trial court determines that
the evidence is admissible, the statute requires the court to
grant a motion to interrupt and postpone the progress of the
trial to afford the defense a period of time for consultation
with other experts and preparation of an appropriate response to
the new evidence. Article 1, § 8, of the Constitution of
Virginia guarantees an accused the right "to call for evidence in
his favor", and "although granting or denying a continuance is
within the discretion of the trial court, it must exercise its
discretion 'with due regard to the provisions of the Bill of
Rights, which secure to one accused of crime a fair and impartial
trial . . . .'" Gilchrist v. Commonwealth, 227 Va. 540, 546, 317
S.E.2d 784, 787 (1984) (citations omitted). Here, the trial
court chose to reject both options.
Because the trial court erred in not applying the plain
meaning of the statute, and because we cannot say that the
dramatic statistical difference between the blood profile
frequency reported in the certificate of analysis timely
delivered to the defense and that which was not timely disclosed
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by the Commonwealth was harmless, we will reverse the judgment of
the Court of Appeals upholding the trial court's ruling. For the
reasons stated by the Court of Appeals, we affirm its judgment
upholding the other three rulings of the trial court at issue in
this appeal, and we need not address Caprio's assignments of
error related to those rulings.
We will annul the conviction and remand the case to the
Court of Appeals with direction to remand the case to the trial
court for further proceedings consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
JUSTICE KINSER, with whom JUSTICE COMPTON joins, concurring.
I agree with the majority decision in all aspects but one.
Since the Commonwealth's failure to disclose the new blood
profile frequency extrapolation in a timely fashion was
prejudicial to Caprio, this Court does not need to decide in this
case whether Code § l9.2-270.5 requires, in every instance, that
the trial court must either grant a continuance or bar
introduction of the evidence, regardless of the degree and nature
of the deviation from the requirements of Code § l9.2-270.5 or
whether the opposing party was prejudiced. The statute plainly
makes the decision whether to use either of these remedies
discretionary with the trial court.
For these reasons, I concur.
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