Tuesday 15th
May, 2001.
Jeffery Andrew Crawford, s/k/a
Jeffrey Crawford, Appellant,
against Record No. 0683-99-1
Circuit Court Nos. CR97-378 through CR97-381
Commonwealth of Virginia, Appellee.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Willis,
Elder, Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements and
Agee
Jonathan W. Gatewood for appellant.
Kathleen B. Martin, Assistant Attorney General
(Mark L. Earley, Attorney General; H. Elizabeth
Shaffer, Assistant Attorney General, on brief),
for appellee.
On September 19, 2000, a divided panel of this Court
reversed the appellant's convictions. Crawford v. Commonwealth, 33
Va. App. 431, 534 S.E.2d 332 (2000). We granted the Commonwealth's
petition for rehearing en banc.
Upon rehearing en banc, the judgment of the trial court is
affirmed on the ground that the appellant did not raise in the trial
court the basis for the objection he argues on appeal. Rule 5A:18;
McLean v. Commonwealth, 30 Va. App. 322, 329, 516 S.E.2d 717, 720
(1999) (en banc). At trial, the appellant conceded the proposed DNA
instruction was an accurate statement of the law, but objected on the
ground that it instructed the jury on the "propriety" of the DNA
evidence as a matter of law. He did not proffer an alternative
instruction, did not offer any alternative language, and did not
specify his objection. On appeal, the appellant argues the
instruction was improper because it unduly emphasized the DNA
evidence, contained permissive language, and required the jury to
make a distinction they were unqualified to make. Accordingly, the
opinion previously rendered by a panel of this Court on September 19,
2000 is withdrawn and the mandate entered on that date is vacated.
The appellant shall pay to the Commonwealth of Virginia thirty
dollars damages.
Chief Judge Fitzpatrick concurs in the result but finds the
issue properly preserved and would affirm for the reasons stated in
the panel dissent.
Judge Benton, with whom Judge Elder joins, dissents:
At no stage of this appeal has the Commonwealth argued on
brief that the issue raised by appellant is procedurally defaulted
under Rule 5A:18. Indeed, the record reflects that the following
colloquy occurred at trial when the prosecutor offered the challenged
instruction:
[PROSECUTOR]: Your Honor, I pulled it out of the
Code section, which is there for you to review.
I think it's an accurate statement of law and I
think the trier of fact is entitled to know what
that law is.
[DEFENSE ATTORNEY]: Well, it may be an accurate
statement of law, sir, but the reason we're
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objecting to this instruction entitled, "DNA
testing is deemed to be a reliable scientific
technique," is that some of these people in the
jury may have a question about the propriety of
the DNA evidence, Judge. And for them to receive
an instruction read to them by the Court, I think
essentially tells them that they have to cast
aside any questions that they might have about
it.
THE COURT: That's not the way I read it.
[DEFENSE ATTORNEY]: Well, Judge --
THE COURT: I will grant it. . . .
On appeal, Crawford presents the question, "Whether the
jury instruction regarding DNA was improper." In support of that
issue, Crawford asserts a variety of reasons why the instruction was
improper. However, Crawford's argument on brief includes the
following:
The jury instruction in question compelled a
particular finding and unduly emphasized a
particular area of evidence. Such an instruction
tended to allow the court to persuade, as well
as, mislead the jury. The instruction allowed
the Court to place its judicial stamp on
particular evidence. This effectively prevented
the jury from questioning such evidence and
prejudiced the defendant.
I would hold that Rule 5A:18 does not bar us from
considering on the merits the issue raised by this appeal. The
contemporaneous objection rule is designed to allow the trial judge
to correct any error that is called to his or her attention in order
to ensure fairness to both parties and to promote judicial
efficiency. Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737
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(1991). In this case, Crawford's objection clearly fulfilled this
purpose by bringing to the judge's attention "the propriety of the
DNA evidence" in this case. The jury had the option of disbelieving
this particular evidence even though Code § 19.2-270.5 states that
DNA testing in general is reliable. The statute also specifically
allows other evidence of identity and evidence challenging the
particular use of DNA evidence in a given trial. Id. Crawford had
the right to question the wording of the instruction and object that
the instruction sounded like a judicial endorsement of the
Commonwealth's evidence at the expense of any other evidence. He
brought those concerns to the attention of the trial judge and makes
the same argument on appeal. Thus, the trial judge had the
opportunity to rule on this issue, and we may consider it on appeal
without being unfair to the Commonwealth.
For the reasons fully addressed by the panel majority, see
Crawford v. Commonwealth, 33 Va. App. 431, 534 S.E.2d 332 (2000), I
would reverse the convictions and remand for a new trial.
It is ordered that the trial court allow counsel for the
appellant a total fee of $925 for services rendered the appellant on
this appeal, in addition to counsel's costs and necessary direct
out-of-pocket expenses.
The Commonwealth shall recover of the appellant the amount
paid court-appointed counsel to represent him in this proceeding,
counsel's costs and necessary direct out-of-pocket expenses, and the
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fees and costs to be assessed by the clerk of this Court and the
clerk of the trial court.
This order shall be published and certified to the trial
court.
Costs due the Commonwealth
by appellant in Court of
Appeals of Virginia:
Attorney's fee $925.00 plus costs and expenses
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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