Hills v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Frank
Argued by teleconference

DAVID LEE HILLS
OPINION BY
v. Record No. 0367-99-4 JUDGE ROSEMARIE ANNUNZIATA
SEPTEMBER 26, 2000
COMMONWEALTH OF VIRGINIA

UPON A REHEARING

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge

Peter D. Greenspun (Vladimir I. Arezina;
Peter D. Greenspun & Associates, P.C., on
brief), for appellant.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.

David Lee Hills appeals from his conviction of rape. He

contends: 1) the trial court erred in allowing an expert

witness' testimony based upon statistical data relating to DNA

evidence; 2) that DNA evidence offered by the Commonwealth

should not have been admitted because he was not given proper

notice of the Commonwealth's intent to proffer this evidence; 3)

the trial court erred in denying his motions to strike the

Commonwealth's evidence at the close of the trial, and to set

aside the conviction, because the evidence at trial was

insufficient to support the verdict; 4) that the trial court

erroneously denied his post-trial Brady v. Maryland motion;
5) the trial court erred by admitting blood analysis results

into evidence without an adequate showing of chain of custody;

and 6) that the trial court erred in refusing to instruct the

jury that parole has been abolished in Virginia and in

precluding inquiry during voir dire on the same issue. We

affirm with respect to the first five issues, but find that the

trial court erred in refusing to instruct the jury and allow

voir dire on the subject of abolition of parole. For the

reasons stated herein, we reverse and remand for resentencing.

FACTS

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

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom." Hunley v. Commonwealth,

30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999). On November

7, 1997, Patricia McKendry began drinking beer at approximately

11:30 a.m. in her home in Fairfax, Virginia. Her birthday was

two days away, and she planned to go out for the evening to

celebrate. By the time she left her apartment at 7:00 p.m., she

had consumed nine beers. She went to P.J. Skidoo's, a nearby

bar, to continue celebrating her birthday. She was a frequent

customer of P.J. Skidoo's and was known by sight to the bar's

doorman.

McKendry spent the evening playing darts and talking with a

number of the bar's patrons. One of the people she encountered

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was the defendant, David Hills, who was also a regular customer

there. McKendry and Hills conversed at the bar between

7:30 p.m. and 8:00 p.m., and, during this time, Hills bought

McKendry a drink. The bartender, Todd Doty, realized after he

served the drink to McKendry that she was extremely intoxicated,

and he told the other bartenders not to serve any more alcohol

to her. Doty also reported McKendry's intoxication to the bar's

general manager, Dimitri Paraskevopoulos, who told one of the

doormen, John Brobst, to ask her to leave. As Brobst approached

McKendry to do so, he observed her putting on her coat and,

surmising that she was leaving of her own accord, decided not to

speak to her.

Paraskevopoulos and Brobst both saw McKendry leave the bar,

and they each saw Hills leave within a few moments of McKendry's

departure. Brobst observed Hills approach McKendry as she stood

beneath the awning of a nearby furniture store, taking shelter

from the rain. Brobst watched as they conversed but did not

overhear their conversation. He then saw them walk together

down the alleyway between P.J. Skidoo's and the furniture store,

toward the parking lot behind the bar, where they got into a

white car which Hills drove. Hills and McKendry remained inside

the car with the engine running for several minutes before they

left.

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 McKendry testified that Hills approached her as she stood

under the store's awning and that he offered her a ride home.

She accepted the offer, and the two walked to Hills' car parked

in the lot behind the bar. After they left the parking lot and

traveled a short distance on Lee Highway, McKendry realized they

were traveling in the opposite direction from her apartment.

McKendry protested that they were going in the wrong direction,

but Hills continued to drive, eventually proceeding southbound

on Route 123. After proceeding south for several miles on Route

123, Hills turned left at Burke Centre Parkway, then into the

parking lot of a shopping center, parking the car in the loading

area in the back. McKendry asked Hills why they were there, and

Hills replied, "[y]ou know what we're doing here." Hills began

to play with McKendry's hair. McKendry protested, "[t]hat ain't

what we're doing, I don't do things like that," and said she

wanted to go home. Hills then reached across to the passenger

side door, unlatched it, and kicked McKendry on the side,

saying, "[g]et the f--- out." The kick knocked McKendry out of

the car.

Hills walked around the car to where McKendry lay, grabbed

her by her jacket, and dragged her toward a wooded area near the

shopping center's loading dock. Hills stopped near a chain link

fence in the patch of woods and placed McKendry against the

fence. He pulled her blouse and bra over her head, and pulled

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down her pants and undergarments, ripping her pants as he did

so. Hills then grabbed McKendry's left breast with his hand and

forcibly had intercourse with her. McKendry did not consent to

the intercourse. McKendry cursed and yelled at Hills to stop

and struck him on the head with her hands. After a few moments,

Hills ceased the attack and fled, leaving McKendry lying by the

fence.

McKendry took several minutes to recover from the assault

sufficiently to try to put on her clothing and look for help.

She walked out of the woods into the shopping center parking

lot, and, seeing that Hills' car was gone, she walked toward

Route 123, hoping to find a way home. She saw a police car

parked nearby and approached it. Two police officers were in

the car, and, seeing her approach, they exited their vehicle and

asked if she needed assistance. She told them she had just been

raped.

One of the police officers was Mark Gleason, a five-year

veteran of the Fairfax County Police. Gleason testified that

when he saw McKendry approach his police cruiser it was

approximately 10:00 p.m., and he could see that McKendry's bra

was up over her neck and her sweater was torn. Her breasts were

exposed, and they exhibited red marks. Her pants were ripped,

leaving her groin area exposed. When McKendry reported she had

been raped, Gleason informed his supervisor of her account and

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requested that a K-9 unit respond to the scene. Gleason asked

McKendry for a description of the attacker, and, after the K-9

unit arrived, he and other officers set out to investigate.

After unsuccessfully searching for the crime scene, Gleason

transported McKendry to Fairfax Hospital, where she was examined

by sexual assault nurse examiner Suzanne Brown. Brown found

five bruises consistent with the impression of fingers on

McKendry's left breast, and she noted severe redness and

swelling in McKendry's vagina, including abrasions on the labia.

Brown used a physical evidence recovery kit ("PERK") to swab

McKendry's body, and she took a blood sample from her. Brown

sealed the results of the PERK examination and gave them and the

blood sample to Detective Joanne Studer, a sexual assault

investigator with the Fairfax County police. Detective Studer

took the sealed evidence to the state crime lab on Braddock Road

and gave it to a representative of the lab, who signed for it.

On November 19, 1998, Hills was tried before a jury on the

charge of rape. Hills objected to the admission of the test

results derived from McKendry's PERK examination and blood

samples, as well as to the results of a blood test performed on

Hills' blood, on the ground the Commonwealth had failed to

establish that the individual who signed for this evidence at

the state forensic lab was authorized to do so. Hills also

objected to the testimony of Mary McDonald, a DNA examiner with

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the Virginia Division of Forensic Science, who received

McKendry's PERK kit and blood sample and the blood sample taken

from Hills. McDonald testified that her analysis of the DNA

recovered from a swab of McKendry's left breast indicated Hills

could not be ruled out as a contributor. She further testified

that it was 330 times more likely that this DNA came from Hills

than from another, randomly selected, Caucasian person. Hills

objected to McDonald's testimony on the grounds that she did not

prepare the statistical database she used to arrive at her

conclusions and that her testimony violated Code § 19.2-270.5

because the Commonwealth failed to give Hills adequate notice of

her testimony. The court overruled these objections.

Leanne Hooper, a forensic DNA analyst with Cellmark

Diagnostic Laboratory in Montgomery County, Maryland, testified

for the defense. Hooper opined that the DNA analysis results

were inconclusive as to whether Hills could be a contributor of

the DNA recovered from McKendry, because Hills' alleles were not

present in the STR portion of the test results. Hooper

testified that the types of alleles present in the DNA sample

tested were consistent with McKendry's alleles, but not with

those of Hills. Hooper also opined that no conclusion

concerning the statistical probability of the DNA sample

matching Hills' DNA could be made because of the inconclusive

nature of the test results and the small amount of DNA tested.

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 Detective Joanne Studer, who investigated the case,

testified as a defense witness. She stated that when she called

McKendry two days after the attack to confirm a meeting,

McKendry told her, "[m]y story is going to change, I was f---ed

up." Hills cited this admission by his accuser as one of the

bases for his motion to strike the Commonwealth's evidence and

for his later motions to set aside the verdict.

Dr. James Valentour, chief forensic toxicologist for the

Commonwealth's Division of Forensic Science, also testified for

the defense. Dr. Valentour opined that McKendry would have had

to have consumed twice the amount of alcohol she admitted to

having consumed on the date in question in order for her blood

alcohol level to reach .26%, the level of intoxication indicated

by her blood test following the attack. Hills cites the

discrepancy between Dr. Valentour's testimony and that of

McKendry in regard to the amount of alcohol she had consumed as

evidence her memory of the rape and her identification of him as

her attacker were unreliable because of her intoxication.

On November 20, 1998, after three days of deliberations,

the jury found Hills guilty of rape and sentenced him to six

years in prison. On January 22, 1999, the court issued an order

of final judgment in accord with the jury's verdict and

sentence. This appeal followed.

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 ADMISSIBILITY OF DNA ANALYSIS

Hills contends that Mary McDonald's testimony based upon a

statistical database compiled and maintained by the

Commonwealth's forensic laboratory in Richmond was erroneously

admitted into evidence, because McDonald took no part in its

compilation or maintenance and had no first-hand knowledge of

it. For the reasons which follow, we find the court did not err

in admitting the challenged testimony.

A. Alleged procedural bar

The Commonwealth first contends Hills' argument is

procedurally barred. The Commonwealth argues that when a

defendant utilizes DNA test results offered by the Commonwealth

to his or her own advantage during the presentation of the

defense, he or she waives any objection to the admissibility of

that evidence. The Commonwealth cites Hubbard v. Commonwealth,

243 Va. 1, 413 S.E.2d 875 (1992), for the proposition that

"'[w]here an accused unsuccessfully objects to evidence which he

considers improper and then on his own behalf introduces

evidence of the same character, he thereby waives his objection

and [the appellate court] cannot reverse for the alleged

error.'" 243 Va. at 9, 413 S.E.2d at 879 (quoting Saunders v.

Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 (1970)).

The Commonwealth contends that Hills, through the testimony of

DNA analyst Leanne Hooper, utilized the DNA test results,

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derived from comparison with the challenged database, in

presenting his case. Thus, under the holding of Hubbard, the

Commonwealth argues that Hills is precluded from contesting the

admissibility of evidence which he used on his own behalf. We

disagree with the Commonwealth's characterization of Hooper's

testimony.

Hills objected to McDonald's analysis of the DNA and blood

samples taken from McKendry on the ground she utilized a

statistical database that was not entered into evidence in

reaching her conclusions. In contrast, Hooper's testimony was

limited to a critique of McDonald's analysis, and she testified

that she did not perform any DNA analysis in this case.

Furthermore, the trial judge specifically noted that Hooper did

"not analyz[e] a DNA sample . . . [but rather] remark[ed] on the

results of the analysis that [the Commonwealth's] witness ha[d]

given." We, therefore, conclude that Hills did not introduce

evidence "of the same character" as the DNA evidence offered by

the Commonwealth through the testimony of Mary McDonald, but was

instead simply challenging the conclusions McDonald reached in

her analysis. Hills is, therefore, not procedurally barred from

making his claim on appeal.

B. Admissibility of expert testimony based
upon data not in evidence

Hills contends that Mary McDonald's testimony, discussing

her reliance on the DNA database compiled and maintained by the

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Department of Forensic Science when performing her analysis of

the DNA samples taken from McKendry, included references to the

database that constituted inadmissible hearsay. Hills argues

that McDonald's testimony was, therefore, inadmissible without

introduction of the database upon which her analysis was based.

His claim is without merit.

"[T]he principal rationale underlying the hearsay rule [is]

that of reliability . . . ." King v. Commonwealth, 18 Va. App.

57, 59, 441 S.E.2d 704, 705 (1994) (citation omitted). It is

well settled that the legislature may "exonerat[e] . . .

otherwise hearsay [evidence] from the application of the Hearsay

Rule, thus making that [evidence] admissible." Basfield v.

Commonwealth, 11 Va. App. 122, 124, 398 S.E.2d 80, 81 (1990).

The legislature has established such an exception to the hearsay

rule with respect to DNA evidence.

Code § 19.2-270.5 is a rule of evidence which provides, in

pertinent part: "[i]n any criminal proceeding, DNA . . .

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." The statute's

clear import is the admissibility of DNA testing, with all its

constituent parts, which necessarily involves and includes a DNA

profile comparison. Its admissibility is based on a legislative

determination that the database used to perform the testing is

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presumptively reliable. See Evans-Smith v. Commonwealth, 5

Va. App. 188, 199, 361 S.E.2d 436, 442 (1987) ("The rationale

for allowing hearsay [is] the inherent reliability of the

statement . . . ."). It is thus implicit in the statutory

language that testimony regarding the results of the DNA testing

is admissible, notwithstanding the nature of the database used

to perform the comparative analysis portion of the test. 1

Furthermore, such evidence is admissible under the

principles established in Virginia case law. In Funderburk v.

Commonwealth, 6 Va. App. 334, 368 S.E.2d 290 (1988), we

addressed the admissibility of an expert's testimony concerning

her blood serology analysis, which was based upon the expert's

use of studies not admitted into evidence to arrive at a

statistical prevalence evaluation of the victim's blood type in

the general population. Although generally an expert witness

must base his or her opinion only on facts in evidence, see

Simpson v. Commonwealth, 227 Va. 557, 565, 318 S.E.2d 386, 391

(1984), we held that an exception exists for expert testimony

concerning information not specifically prepared for the case at

hand and which is of a type "customarily relied upon and

consulted by those in [the expert witness'] field." Funderburk,

1
Although the statute excludes objections to the analysis
based on hearsay, nothing in the statute precludes a challenge
by the opposing party to the "accuracy and reliability of the
procedures employed in the collection and analysis of a
particular DNA sample." Code § 19.2-270.5 (emphasis added).

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6 Va. App. at 338, 368 S.E.2d at 292. "Such information and

knowledge [was] within the expertise of the [witness] and the

court did not err to admit her testimony when the studies or

tables [were] not in evidence or not identified." Id. (citing

Missouri v. Onken, 701 S.W.2d 518, 522 (Mo. App. 1985)); see

also Kern v. Commonwealth, 2 Va. App. 84, 87, 341 S.E.2d 397,

399 (1986) (jewelry appraiser's testimony concerning market

value of gemstone was properly admitted, although expert relied

on market data brochure not admitted into evidence; because

brochure "was not prepared for the sole purpose of arriving at a

specific opinion at issue in [the] case," the general rule did

not apply).

In this case, the forensic science DNA database utilized to

prepare the analysis was not prepared specifically for Hills'

prosecution, and it was of a type generally relied upon by DNA

analysts. McDonald's testimony was, therefore, properly

admitted.

ADEQUACY OF NOTICE OF INTENT TO OFFER DNA EVIDENCE

Hills further contends the notice sent to him on June 16,

1998 by the Commonwealth, which stated that DNA evidence would

be introduced against him at trial, failed to adequately notify

him of the character and content of the testimony to be given by

Mary McDonald, and this failure violated the requirements of

Code § 19.2-270.5. We disagree.

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 Code § 19.2-270.5 provides, 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.

A certificate of analysis was prepared by McDonald on March 16,

1998, and she produced a supplemental report on September 1,

1998, a copy of which was immediately provided to defense

counsel. The supplemental report included McDonald's conclusion

that Hills was 330 times more likely to have contributed the DNA

recovered from McKendry than another, randomly selected

Caucasian. By letter dated June 16, 1998, the Commonwealth

notified Hills' counsel of its intent to introduce DNA evidence.

At that time, trial was scheduled for July 7, 1998, but was

later continued until September 22, 1998. Thus, both the June

16, 1998 letter and the September 1, 1998 supplemental report

were received by Hills at least twenty-one days before the

scheduled trial dates. The statutory time requirement for

notice of DNA evidence was, therefore, met.

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 Hills argues, however, that although he received the

supplemental report twenty-one days prior to his trial, he was

not given "notice" that this report would be offered as

evidence. We disagree. Code § 19.2-270.5 provides: "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 opposing

counsel, in writing, of the intent to offer the

analysis . . . ." (Emphasis added). By letter dated June 16,

1998, the Commonwealth provided Hills with such notice of

intent. The supplemental report prepared by McDonald

constituted additional analysis of the DNA evidence in question,

not an analysis of new evidence requiring additional notice to

Hills. The supplemental report merely completed the summary of

the analysis contained in McDonald's report of March 16, 1998.

On June 16, 1998, well in advance of his trial, Hills received

the notice required by statute. The court thus properly

admitted the supplemental report.

SUFFICIENCY OF THE EVIDENCE

Hills further contends the evidence admitted against him at

trial failed to prove his guilt beyond a reasonable doubt. This

challenge is based primarily on the credibility of the

complaining witness. He cites McKendry's extreme state of

inebriation at the time of her attack and the presence of trace

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amounts of PCP in her blood stream at that time, as

demonstrating the unreliability of her memory of the attack. 2

His argument is without merit.

"In reviewing the sufficiency of the evidence, we consider

the record 'in the light most favorable to the Commonwealth,

giving it all reasonable inferences deducible therefrom.'"

DeAmicis v. Commonwealth, 31 Va. App. 437, 440, 524 S.E.2d 151,

152 (2000) (quoting Watkins v. Commonwealth, 26 Va. App. 335,

348, 494 S.E.2d 859, 866 (1998)). "'An appellate court must

discard all evidence of the accused that conflicts with that of

the Commonwealth . . . .'" Id. (quoting Lea v. Commonwealth, 16

Va. App. 300, 303, 429 S.E.2d 477, 479 (1993)). The credibility

of witnesses and the weight assigned their testimony are matters

exclusively for the jury. See Lynn v. Commonwealth, 27 Va. App.

336, 351, 499 S.E.2d 1, 8 (1998). "This Court does not

substitute its judgment for that of the trier of fact." Hunley,

30 Va. App. at 559, 518 S.E.2d at 349 (citing Cable v.

Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992)). A

"jury [is] entitled to disbelieve [an] appellant's self-serving

2
Hills also cites the testimony of defense witness Dr.
James Valentour, chief forensic toxicologist for the
Commonwealth's Division of Forensic Science, who testified that
McKendry would have had to have consumed twice the amount of
alcohol she admitted to having consumed on the date in question
in order for her blood alcohol level to reach .26%, the level of
intoxication indicated by her blood test following the attack.
Hills cites this discrepancy between McKendry's testimony and
that of Dr. Valentour as impeaching McKendry's credibility.

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testimony and to conclude that he was lying to conceal his

guilt." Price v. Commonwealth, 18 Va. App. 760, 768, 446 S.E.2d

642, 647 (1994). The jury's verdict may not be disturbed unless

it is plainly wrong or without evidence to support it. See

Lynn, 27 Va. App. at 351, 499 S.E.2d at 8 (citing Traverso v.

Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988)).

The jury's verdict in this case is fully supported by

evidence in the record and is not plainly wrong. McKendry

testified to her encounter with Hills at P.J. Skidoo's and to

Hills' offer to drive her home from the bar. She testified to

the attack that ensued, including specific details, such as the

location and discrete acts committed by Hills in the course of

raping her and Hills' action in kicking her out of the parked

car. The jury was able to assess McKendry's credibility as she

testified and took its assessment of her into account in

reaching its verdict, including the evidence offered of her

inebriation on the evening in question. Because we "do[ ] not

substitute [our] judgment for that of the trier of fact,"

Hunley, 30 Va. App. at 559, 518 S.E.2d at 349, we cannot say the

jury's assessment of McKendry's credibility was plainly wrong.

McKendry's account of the events of the evening which

culminated in the rape was corroborated by the testimony of

other witnesses. Dimitri Paraskevopoulos and John Brobst saw

Hills leave the bar soon after McKendry, and Brobst saw Hills

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approach McKendry and engage her in conversation outside the

bar. He also reported seeing McKendry go to Hills' car with

him. Witnesses Kathleen Gregg, Kathy Rosnick, and Dennis Stubbs

saw Hills and McKendry leave the bar within minutes of each

other, and all three confirmed that McKendry and Hills had

conversed at the bar during the evening of the attack. 3

The Commonwealth's DNA evidence demonstrated that it was

330 times more likely that Hills contributed the DNA recovered

from McKendry following the attack than another, randomly

selected Caucasian. Hills offered his own expert's testimony to

question this determination, leaving the jury to decide the

relative weight of the two experts' opinions. The jury gave

greater weight to Mary McDonald's testimony. Because "[t]he

credibility of the witnesses, the weight accorded testimony, and

the inferences to be drawn from proven facts are matters to be

determined by the fact finder," we cannot say the jury erred in

its conclusion. DeAmicis, 31 Va. App. at 440, 524 S.E.2d at

152.

3
Hills contends that the witnesses contradicted one
another. However, as noted, we view the record in the light
most favorable to the Commonwealth and discard all evidence of
the accused that conflicts with that offered by the prosecution.
See DeAmicis, 31 Va. App. at 440, 524 S.E.2d at 152. The weight
to be accorded the evidence was exclusively for the jury to
decide, and, as its conclusion was not plainly wrong, we will
not disturb its judgment. See Lynn, 27 Va. App. at 351, 499
S.E.2d at 8.

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 The jury was not bound to accept Hills' account of the

evening in question, in which he denied offering McKendry a ride

home and denied committing the offense. See Price, 18 Va. App.

at 768, 446 S.E.2d at 647. Nor was the jury bound to accept the

testimony of Hills' fiancée regarding the time Hills returned

home. Because the jury's conclusion cannot be said to be

plainly wrong, the trial court properly denied Hills' motion to

strike the Commonwealth's evidence and his post-trial motion to

set aside the verdict or to order a new trial. We will not

disturb the court's decision on appeal.

POST-TRIAL BRADY MOTION

Hills additionally contends the Commonwealth failed to

disclose exculpatory evidence, in violation of Brady v.

Maryland, 373 U.S. 83 (1963). He argues that McKendry's

admission to Detective Studer that her account of the attack was

going to change because of her extreme inebriation was a

statement that tended to exculpate him and should, therefore,

have been disclosed to Hills no later than June 19, 1998,

pursuant to the trial court's order following a hearing on

Hills' motion for exculpatory evidence held on June 12, 1998.

We hold that his claim is barred under Rule 5A:18.

Rule 5A:18 establishes that "[n]o ruling of the trial court

. . . will be considered as a basis for reversal unless the

objection was stated together with the grounds therefor at the

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time of the ruling . . . ." This rule exists "to inform the

trial judge of the action complained of in order to give the

judge the opportunity to consider the issue and to take timely

corrective action . . . in order to avoid unnecessary appeals,

reversals and mistrials." Robinson v. Commonwealth, 13 Va. App.

574, 576, 413 S.E.2d 885, 886 (1992) (citing Hogan v.

Commonwealth, 5 Va. App. 36, 45, 360 S.E.2d 371, 376 (1987)).

"To hold otherwise would invite parties to remain silent at

trial, possibly resulting in the trial court committing needless

error. In order to avoid this result, we adhere to the policy

of placing an affirmative duty on the parties to enter timely

objections to rulings made during the trial." Gardner v.

Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232 (1986).

Hills neither objected nor moved for dismissal of the

prosecution when defense counsel elicited from Detective Studer

the fact that McKendry admitted her "story was going to change"

at trial because of her intoxication on the night of the attack.

Because Hills failed to timely object, as required by Rule

5A:18, his claim is waived, and we find no basis to review his

contention under the "ends of justice" exception to the Rule.

CHAIN OF CUSTODY

Hills also claims the court erred by admitting into

evidence the certificate of blood analysis issued by the state

forensic lab, because the Commonwealth failed to establish a

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proper chain of custody. Hills contends that because the

Commonwealth offered no proof of the identity of the lab

representative who signed for the PERK kit and blood sample from

Detective Studer, 4 the chain of custody was not established and

the evidence should have been excluded from trial. We find no

error in the admission of the certificate of analysis.

4
Defense counsel conducted voir dire of Studer and elicited
the following testimony:

Q. Detective Studer, who did you give these
materials to at the lab?
A. The individual who signed their names on
the lab sheets.
Q. I'm asking you who?
A. I can't read their handwriting. I don't
know their name right offhand.
Q. So you don't know who it was that you
gave it to?
A. Offhand, no.
Q. And you don't know what their role or
what their job at the lab was?
A. The lab is to accept incoming evidence
and to log it in the computer and to make
sure what I'm giving them is what I said I'm
giving them.
Q. [] You don't know who those people were
so you don't know of your own personal
knowledge what their particular job was. Do
you?
A. Their job description, no. In
particular; no, sir.
Q. And you don't know of your knowledge
what their authorization was to receive or
not to receive evidence or things related to
criminal cases, do you?
A. I know that they are authorized to
accept what I give them and they sign for it
and I sign for it.

(Emphasis added).

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 Code § 19.2-187.01 establishes that certificates of

analysis serve as evidence of the chain of custody required for

the particular sample examined. The statute reads, in part:

A report of analysis duly attested by the
person performing such analysis or
examination in any [authorized]
laboratory . . . shall be prima facie
evidence in a criminal or civil proceeding
as to the custody of the material described
therein from the time such material is
received by an authorized agent of such
laboratory until such material is released
subsequent to such analysis or examination.
Any such certificate of analysis purporting
to be signed by such person shall be
admissible as evidence in such hearing or
trial without any proof of the seal or
signature or of the official character of
the person whose name is signed to it. The
signature of the person who received the
material for the laboratory on the request
for laboratory examination form shall be
deemed prima facie evidence that the person
receiving the material was an authorized
agent and that such receipt constitutes
proper receipt by the laboratory for
purposes of this section.

Code § 19.2-187.01 (emphasis added).

Detective Studer testified that she relinquished the DNA

and blood samples to a person at the forensic lab. That person

signed for the material on the request form. Thus, according to

the plain meaning of the statute, the signature constituted

prima facie evidence that the signor was an authorized agent of

the lab and that his receipt of the material constituted proper

receipt for purposes of the chain of custody. Studer's

inability to identify at trial the employee who received the

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samples or to address, other than generally, the employee's

authority to receive evidence, is not sufficient to rebut the

presumption that the chain of custody was properly maintained.

For these reasons, we affirm the decision of the trial court to

admit the certificate of analysis under challenge in this

appeal.

FAILURE TO INSTRUCT THE JURY AND ALLOW
VOIR DIRE INQUIRY ON THE ABOLITION OF PAROLE

A. Jury Instruction

Finally, Hills contends the trial court erred in refusing

to instruct the jury that parole has been abolished in Virginia

and in precluding inquiry during voir dire on the same issue.

The issue raised is controlled by the Virginia Supreme Court's

recent decision in Fishback v. Commonwealth, 260 Va. 104, 532

S.E.2d 629 (2000). 5 In Fishback, the Supreme Court declared a

"new rule," holding that "juries shall be instructed, as a

matter of law, on the abolition of parole for non-capital felony

offenses committed on or after January 1, 1995 pursuant to Code

§ 53.1-165.1." Id. at 115, 532 S.E.2d at ___. 6

5
Because the present case was not yet final when Fishback
was decided, the new rule enacted in Fishback is controlling in
this case. See Mueller v. Murray, 252 Va. 356, 361, 478 S.E.2d
542, 546 (1996).
6
The Court noted that despite the abolition of parole, a
defendant could still be eligible for early release, pursuant to
Code § 53.1-40.01 and Code § 53.1-202.2 et seq., which provide
for geriatric release and sentence reduction for good behavior
credit. See Fishback, 260 Va. at 111-12, 532 S.E.2d at ___.

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 We hold the trial court erred in refusing to instruct the

jury concerning the abolition of parole. In this case, as in

Fishback, the jury specifically inquired as to whether parole is

available in Virginia. Defense counsel for Hills requested that

the jury be instructed that parole is no longer available in

Virginia. As in Fishback, the trial court refused this

requested instruction and instead instructed the jury, "[y]ou

should not concern yourself with this. You should sentence in

accordance with the instructions given to you."

In light of the Fishback decision requiring that juries be

instructed as to the abolition of parole, we conclude the trial

court erred in refusing to so instruct the jury in this case,

and we reverse and remand for resentencing.

B. Voir Dire

Because the issue of proper voir dire on the question of

parole will likely arise again on remand, we further address

this final claim. We hold the trial court erred in limiting

Hills' inquiry on voir dire relative to the abolition of parole.

Because the possibility of geriatric release is predictable at
the time of sentencing, the Court held that "where applicable
juries shall also be instructed on the possibility of geriatric
release . . . ." Id. at 115-16, 532 S.E.2d at ___. However,
because an assessment of the likelihood of sentence reduction
for good behavior credit would include mere speculation as to
the defendant's future conduct, the Court concluded that "juries
are not to be instructed with regard to [the good behavior
sentence credit] statutory provisions." Id. at 116, 532 S.E.2d
at ___.

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 Code § 8.01-358 sets forth the four areas of inquiry upon

which voir dire examination may be based. The statute provides

that the court and counsel may ask potential jurors "any

relevant question to ascertain whether he is related to either

party, or has any interest in the cause, or has expressed or

formed any opinion, or is sensible of any bias or prejudice

therein . . . ." Code § 8.01-358.

The questions asked must be relevant and the trial court,

in its discretion, determines the issue of relevancy. See

LeVasseur v. Commonwealth, 225 Va. 564, 581, 304 S.E.2d 644, 653

(1983). "The test of relevancy is whether the questions relate

to any of the four criteria set forth in the statute. If an

answer to the question would necessarily disclose, or clearly

lead to the disclosure of the statutory factors of relationship,

interest, opinion, or prejudice, it must be permitted." Id.

In this case, defense counsel sought to determine what, if

anything, prospective jurors knew or understood about the status

of parole in Virginia, and to ferret out any existing

misconceptions and/or biases which could taint the jurors'

ability to render a fair and impartial verdict. The Fishback

opinion makes central to the jury's sentencing task its

understanding of a specific legal principle, viz., that whatever

sentence they determine appropriate is no longer subject to a

subsequent shortening by parole.

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 It follows, logically, that an examination of the issue

during voir dire is proper, subject to the discretion of the

court regarding the scope of the inquiry and other pertinent

considerations. Therefore, the trial court erred in not

allowing Hills to examine prospective jurors during voir dire

concerning their understanding of the status of parole in

Virginia.

Affirmed in part, reversed
and remanded in part.

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