Hodges v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia

ANTONIO HODGES
OPINION BY
v. Record No. 2116-94-2 JUDGE ROSEMARIE ANNUNZIATA
NOVEMBER 18, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY
Thomas N. Nance, Judge Designate
Jerry C. Lyell for appellant.

John H. McLees, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

Following a jury trial, appellant, Antonio Hodges, was

convicted of rape and armed burglary. To prove its case, the

Commonwealth relied largely on an apparent match between the

rapist's deoxyribonucleic acid (DNA) and that of appellant. The

Commonwealth's experts testified concerning the statistical

probability that the apparent DNA match could have occurred at

random. Appellant contends that the trial court erred (1) in

allowing the Commonwealth's rebuttal expert witness to offer an

opinion concerning the probability of a random match based on

certain DNA test results which were not considered by the

Commonwealth's other expert during its case-in-chief; (2) in

denying appellant's motion to compel discovery concerning

proficiency testing of the Commonwealth's DNA expert who

conducted the tests and of the laboratory where the tests were

conducted; and (3) in refusing to authorize appellant's
employment, at the Commonwealth's expense, of a third expert

witness to assist in his defense.

Finding no error, we affirm.

I. TESTIMONY CONCERNING RANDOM MATCH PROBABILITIES

The victim, a fifty-year-old high school teacher, lived

alone in a house in Middlesex County. One night she was awakened

from her bed by a masked man standing over her, pressing his

gloved hand against her face. When she resisted, the assailant

placed a knife to her face, threatened to kill her and told her

to "shut the ---- up." The man eventually bound and raped her.
The victim was unable to positively identify her assailant,

but she testified that appellant, whom she knew as a former

student at the high school, was exactly the same height, weight

and build as her attacker. Other evidence showed that appellant

lived approximately one mile from the victim and that he knew

where the victim lived. A hair and fiber expert testified that

three pubic hairs of unknown origin removed from the victim

following the attack were "microscopically alike in all

identifying characteristics" when compared with appellant's pubic

hairs.

The Commonwealth also introduced DNA evidence to identify

appellant as the rapist. The Commonwealth's primary DNA expert

was Robert Scanlon, a forensic scientist at Virginia's Division

of Forensic Science Central Laboratory (central lab). Employing

two analytical testing procedures, known as the polymerase chain

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reaction (PCR) and the restriction fragment length polymorphism

(RFLP), Scanlon compared samples of appellant's DNA with samples

of DNA taken from the rapist's sperm.

Scanlon testified that if the two samples did not match,

then appellant could not have been the rapist. If the samples

matched, however, appellant would be included in a category of

individuals whose genetic pattern was consistent with that of the

rapist. That is, a match would establish that appellant could

have been the rapist.
The results of the PCR analysis showed that appellant's DNA

was consistent with that of the rapist; thus, appellant could not

be eliminated as a suspect. Scanlon testified that approximately

twenty percent of the population shares the same genetic pattern

revealed by the PCR analysis. In other words, following the PCR

analysis, the probability of a random match between the DNA of

the rapist and that of appellant was one in five.

The RFLP technique involves the use of DNA "probes" to

compare the DNA samples. In the present case, Scanlon "ran" five

separate probes. He testified that each of the five probes

showed that appellant's DNA was consistent with that of the

rapist. In two of the five probes, however, the genetic material

of the rapist and that of the victim "overlapped." While it was

clear to Scanlon that these two probes did not exclude appellant

as the rapist, pursuant to central lab's policy, Scanlon did not

include them in formulating his statistical conclusions.

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 Based on his consideration of the remaining three probes,

and in conjunction with the results of the PCR testing, Scanlon

testified that the probability of appellant's DNA randomly

matching that of the rapist was one in 39 million among the

caucasian population, one in 35 million among the black

population, and one in 62 million among the hispanic population.

The Commonwealth asked Scanlon to consider the remaining two

probes as DNA matches and calculate the probability of a random

match based on all five probes. The court sustained appellant's

objection to Scanlon's consideration of the remaining probes,

stating, "if it's not comfortable enough for him, it's not

comfortable enough for me."
Later, in the defense case, defense expert Dr. Peter

D'Eustachio testified on cross-examination that the genetic

patterns from the two probes which Scanlon did not consider in

reaching his statistical conclusions had most likely been

contributed by the rapist and not by the victim. The

Commonwealth then asked Dr. D'Eustachio whether that fact would

more closely associate the sperm donor, i.e., the rapist, with

appellant. Appellant's counsel objected, stating:
[i]f [the Commonwealth is] talking about the
two [probes] that Your Honor disallowed Mr.
Scanlon to give figures on, then our
objection is based on the fact that you
disallowed testimony about those two
[probes]. Why are we back on those two?

The court responded:
I didn't disallow any testimony about those
[probes]. I wouldn't let Mr. Scanlon put a

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 -- figure them in his calculation because he
did not originally use them in his
calculation, and I held him to that. And
it's perfectly proper. This man is a
molecular biologist and knows what he's
talking about, so it's a fair question.

Dr. D'Eustachio acknowledged that consideration of the two

remaining probes more closely associated appellant with the

rapist.

In its rebuttal case, the Commonwealth called Dr. Scott

Raymond Diehl as an expert in molecular biology and population

genetics. Dr. Diehl endorsed Scanlon's method of calculating the

statistical probabilities of a random match between appellant's

DNA and that of the rapist; Dr. Diehl discredited the method

espoused by appellant's expert.
Dr. Diehl further testified, with a high degree of

certainty, that the DNA material on the two probes which Scanlon

had excluded from his consideration had come from the rapist

rather than the victim. Appellant objected to Dr. Diehl's

calculating the statistical probability of a random match based

on all five probes. He complained that Dr. Diehl should not be

allowed "to put in a different case than what Mr. Scanlon has

already testified to." The court overruled the objection in

light of the testimony of both Drs. D'Eustachio and Diehl that

the DNA in question on the two probes had been contributed by the

rapist and not the victim. Dr. Diehl testified that when

considering all five probes, the probability of a random match

between appellant and the rapist was one in 58.3 billion among

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the caucasian population, one in 39.4 billion in the black

population, and one in 13 billion in the hispanic population.

We utilize an abuse of discretion standard to review the

trial court's decision to allow Dr. Diehl to testify concerning

random match probabilities based on all five probes; in absence

of abuse, the court's judgment will not be disturbed on appeal.

See Foley v. Commonwealth, 8 Va. App. 149, 165, 379 S.E.2d 915,

924, aff'd on reh'g, 9 Va. App. 175, 384 S.E.2d 813 (1989) ("[A]

trial court in its discretion may allow the Commonwealth to

present rebuttal evidence even when it would have been more

appropriately introduced as part of the case-in-chief"); cf.
Chrisman v. Commonwealth, 3 Va. App. 371, 375-76, 349 S.E.2d 899,

902 (1986) ("Whether the Commonwealth should be permitted to

introduce additional evidence in chief after it has rested is a

matter for the sound discretion of the trial court."). We find

no abuse of discretion.

The two probes in question were admitted into evidence,

without objection, during Scanlon's direct testimony. Scanlon

testified unequivocally that neither of the two probes excluded

appellant as the rapist. Pursuant to his lab's policy, however,

Scanlon did not consider the two probes when determining the

probability of a random match between appellant and the rapist

because the genetic material in the two probes had "overlapped."

During subsequent cross-examination in the defense case, defense

expert Dr. D'Eustachio acknowledged that the genetic pattern on

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the two probes that had been observed to match that of appellant

had most likely come from the rapist's DNA, not from the victim.

Likewise, Dr. Diehl unequivocally opined that the genetic

material in question on the two probes which had been observed to

match that of appellant had been contributed by the rapist, not

the victim. Appellant raised no objection to the Commonwealth's

questions to Drs. D'Eustacio and Diehl, which sought to elicit an

opinion concerning the identity of the donor of the genetic

material on the two probes in question. Dr. Diehl's computation

of random match probabilities based on all five probes was based

on evidence properly before the court, including the probes

themselves, as well as expert testimony that appellant's DNA

matched that of the rapist in all five probes. We find no abuse

of discretion by the trial court in allowing Dr. Diehl to testify

concerning his consideration of the evidence before the court. 1

II. DISCOVERY OF PROFICIENCY TEST RESULTS

The proficiency of DNA analysts such as Scanlon is gauged,

in part, through participation in blind tests. At issue here are

two proficiency tests conducted through a particular testing

agency, Collaborative Testing Services, Inc. (CTS).

The testing procedure was as follows. Scanlon completed
1
Appellant contends that the court's decision to allow Dr.
Diehl to testify concerning probabilities based on all five
probes violated his statutory right to receive notice of and
copies of any DNA reports that the Commonwealth intended to offer
at trial. However, appellant failed to make such an argument at
trial and is, therefore, procedurally barred from raising it on
appeal. Rule 5A:18.

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sample DNA tests developed by various testing agencies. The

tests were returned to the central lab director, who returned

them to the testing agency. The testing agency evaluated the

results and calculated a proficiency rating for the test-taker.

CTS produces a manual detailing of the results of the proficiency

tests but identifying by code the test-takers and laboratories in

which the tests were taken.

In April, 1994, a discovery order was entered, directing the

Commonwealth to produce, inter alia, "copies of records of

proficiency testing of personnel in the laboratories where [DNA]

analyses were performed." In May, 1994, the parties entered an

agreement on DNA and serology discovery which provided, inter

alia, that "[a] memorandum recounting the proficiency testing of

Mr. Scanlon and the results thereof will be provided by the

laboratory."

The memorandum produced by the Commonwealth identifies four

proficiency tests completed by Scanlon. The tests are identified

by number, manufacturer, sample information and dates of

completion. The memorandum notes that "[n]o deficiencies were

noted in Mr. Scanlon's testing of [three of the tests]" and "[t]o

date, no information has been received from the manufacturer

regarding the results of [the fourth]."

Appellant filed a motion to compel further discovery

concerning the two proficiency tests administered through CTS.

He sought information concerning the details of Scanlon's tests

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and his numerical results, rather than the lab's conclusion that

there were no deficiencies in Scanlon's tests. Specifically,

appellant sought disclosure of the CTS identification code that

corresponded with Scanlon's proficiency test so he could "inquire

as to how [Scanlon] did on this proficiency test." Appellant

argued that the language in the May agreement, directing the

Commonwealth to "recount[] the testing of Mr. Scanlon and the

results thereof," required disclosure of the details of Scanlon's

tests. The court reviewed the memorandum the Commonwealth had

produced and concluded that it was sufficient under the terms of

the agreement. Accordingly, it denied appellant's motion to

compel further discovery.
Appellant argues that without the actual test data he was

unable to determine Scanlon's proficiency for himself. Cf. Ellis

v. Commonwealth, 14 Va. App. 18, 22, 414 S.E.2d 615, 617 (1992)

(accused not required to accept conclusion of chemist, disclosed

in certificate of analysis, that substance accused possessed was

cocaine). We find the trial court did not abuse its discretion

in denying appellant's motion to compel further discovery. The

Commonwealth's production of the memorandum was consistent with

the parties' agreement, which reflected the materials the parties

intended to be disclosed in discovery; i.e., a memorandum
recounting Scanlon's testing and the results thereof.

On appeal, appellant complains that the court's denial of

his further discovery request failed to comport with the April

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discovery order. Appellant failed to raise such an argument

before the trial court. 2 The issue before the court was whether

the Commonwealth's memorandum comported with the May agreement

concerning discovery. The effect of that agreement, if any, upon

the prior discovery order was not raised or addressed below, and

we will not address it for the first time on appeal. Rule 5A:18.

Appellant further complains that he was not provided the

proficiency test results of the entire central lab. He cites an

article by Dr. Jonathan J. Koehler which he claims shows that the

results of the CTS tests in question here reflected errors by the

laboratories taking the tests, including false positive

identifications. In his brief, appellant stresses the importance

of disclosing the results of proficiency testing to the jury and

the need for the trier of fact to consider rates of error. He

complains that the anonymity of the laboratories in the CTS

report prevented him from presenting evidence on the central

lab's overall proficiency and its aggregate rate of error. This,

he claims, violated his right to call evidence in his favor. See

Cox v. Commonwealth, 227 Va. 324, 328-29, 315 S.E.2d 228, 230

(1984); Lomax v. Commonwealth, 228 Va. 168, 172, 319 S.E.2d 763,

765 (1984).

Appellant, however, failed to raise any of these contentions

2
Indeed, the record plainly shows that at the hearing on
appellant's motion to compel further discovery, appellant argued
that the terms of the May agreement compelled production of the
information he sought.

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when he argued his motion to compel further discovery. Before

the trial court, appellant stated, "We would be satisfied if the

laboratory could identify which test corresponds with this

analyst [Scanlon]. That's all we're asking for." He did not

request proficiency testing of the entire central lab. Nor did

appellant refer the trial court to Dr. Koehler's study or argue

the relevance of the central lab's test results. Accordingly, we

find appellant's complaint with respect to the proficiency

testing of the central lab to be procedurally barred. Rule

5A:18.
Furthermore, on this record, we cannot say that appellant

established the relevance of obtaining the results of the central

lab's proficiency tests. See Cox, 227 Va. at 328-29, 315 S.E.2d

at 230-31 (information in question must be material to case);

Patterson v. Commonwealth, 3 Va. App. 1, 7, 348 S.E.2d 285, 289

(1986) (same). Here, nothing suggests that anyone, other than

Dr. Scanlon, performed the tests relied upon in this case, and

nothing in the record supports the conclusion that the lab's

overall proficiency level has any bearing on the proficiency of a

particular examiner or the accuracy of the particular tests

performed in this case.

III. APPOINTMENT OF THIRD EXPERT

In May, 1994, appellant filed a motion seeking authorization

for employment of three experts to aid in his defense at the

Commonwealth's expense. Appellant requested (1) Dr. Peter

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D'Eustachio, to provide a foundation in molecular biology; (2)

Dr. Lawrence D. Mueller, to explain population genetics and

statistics; and (3) Dr. Jonathan J. Koehler, an expert in applied

statistics and psychology, to
take the ball and run with it and explain
what kind of statistics have been used, how
they're prejudicial and give us the
psychological parameter--psychological
dimension, which we've not had before. Dr.
Koehler has expertise in psychology,
especially the psychology of the impact of
this type of information on juries, and
that's an added dimension that we would like
to bring in.

The court granted appellant's motion with respect to Drs.

D'Eustachio and Mueller, but it refused to authorize the

employment of Dr. Koehler, noting its concern that the proffered

testimony would invade the province of the jury. We find no

error in the court's decision.

The Commonwealth must provide indigent defendants with "`the

basic tools of an adequate defense,'" including appointment of

non-psychiatric experts where the accused makes a "particularized

showing of . . . need." Husske v. Commonwealth, 252 Va. 203,

211, 476 S.E.2d 920, 925 (1996) (quoting Ake v. Oklahoma, 470

U.S. 68, 77 (1985)).
"`Mere hope or suspicion that favorable
evidence is available is not enough to
require that such help be provided.' . . .
`This particularized showing demanded . . .
is a flexible one and must be determined on a
case-by-case basis.' . . . The determination
. . . whether a defendant has made an
adequate showing of particularized necessity
lies within the discretion of the trial
judge."

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Id. at 212, 476 S.E.2d at 925-26 (quoting State v. Mills, 420

S.E.2d 114, 117 (N.C. 1992)). The accused must "demonstrate that

the subject which necessitates the assistance of the expert is

`likely to be a significant factor in his [or her] defense,' and

that he [or she] will be prejudiced by the lack of expert

assistance." Id. (quoting Ake, 470 U.S. at 82-83). This burden

is satisfied by showing that an expert's services "would

materially assist [the accused] in the preparation of his [or

her] defense and that the denial of such services would result in

a fundamentally unfair trial." Id. In Husske, the Commonwealth

presented two DNA experts but provided no expert for the indigent

defendant. The Supreme Court upheld the conviction because the

defendant failed to establish the basis for the appointment of an

expert.

In light of the principles established in Husske, we find

the trial court did not abuse its discretion in refusing to

appoint Dr. Koehler. Appellant articulated no particularized

need for the appointment of Dr. Koehler in addition to the two

experts of appellant's choosing that the court provided.

Appellant proffered that he intended to rely on Dr. Koehler

during trial to testify concerning error rates and inferences
3
that may be drawn from statistical evidence. Dr. Mueller

3
Appellant also intended to rely on Dr. Koehler's expertise
in behavioral science to attack the admissibility of the DNA
evidence. However, the admissibility of DNA evidence is firmly
established by Code § 19.2-270.5.

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covered the ground Dr. Koehler would have covered with respect to

statistics and error rates. Dr. Mueller, an expert in population

genetics and statistics, testified at length concerning the

propriety of the statistical methods Scanlon used to calculate

the random match probabilities. Dr. Mueller also testified

concerning proficiency testing and the relationship between a

statistical error rate and a statistical probability of finding a

random match. He opined that the important consideration in

evaluating a statistical conclusion was the error rate rather

than the probability of finding a random match because error

would be more likely to occur.
We find the proffered testimony of Dr. Koehler to be not

material to the preparation of appellant's defense in light of

the assistance he received from Drs. D'Eustacio and Mueller.

Finally, Dr. Koehler's testimony concerning the psychological

impact of statistical evidence on the jury would, in effect,

constitute a comment on the weight to be given such evidence, a

clear and improper invasion of the jury's role. In sum, we find

no basis to conclude that appellant was prejudiced by the court's

decision not to appoint Dr. Koehler.

Appellant's convictions are accordingly affirmed.

Affirmed.

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Benton, J., concurring.

I concur in sections I and III of the majority opinion. I

concur in the result reached in section II but write separately

because I disagree with the majority's analysis.

PRESERVATION OF THE APPEAL

The majority concludes that Hodges failed to raise before

the trial judge his arguments regarding the denial of his Motion

to Compel Discovery. I disagree. First, the majority argues

that Hodges failed to argue that the Commonwealth did not comply

with the trial judge's original discovery order. However, the

written motion filed by Hodges states the following, in pertinent

part:
COMES NOW [Hodges], by counsel, and
represents to the Court that the Commonwealth
has refused to produce discovery in
accordance with the previously entered
discovery order in these cases, to wit:
records of proficiency testing pursuant to
paragraph 2(w) of said order.

Paragraph 2(w) of the April 1994 discovery order required the

Commonwealth to provide Hodges "copies of records of proficiency

testing of personnel in the laboratories where RFLP and PCR

analyses were performed in these cases." The Commonwealth's

argument that the disclosure met the requirements of the parties'

subsequent agreement does not negate the fact that Hodges raised

in his motion the Commonwealth's failure to comply with the April

discovery order. Accordingly, I would hold that Hodges preserved

his objection that the Commonwealth failed to comply with the

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discovery order.

The majority next concludes that Hodges failed to argue

before the trial judge that the anonymity of the laboratories in

the CTS report prevented him from determining the laboratory's

overall proficiency and rate of error. I disagree. At the

hearing on Hodges' Motion to Compel Discovery, the following

discussion occurred:
COUNSEL: . . . Our discovery is incomplete
in one small detail. There have been some
references to forensic proficiency testing
which has been performed or has been based
upon tests submitted to the Virginia
laboratory with the results turned in to an
evaluating agency, and we received the
results; however, these tests are sent out to
many laboratories and the results are
returned to the evaluating agency.
Now, upon evaluating the tests, they
publish these in a book form like this, but
all the laboratories are coded so that you
can't tell who it is without having the
laboratory number. So our request is to have
the laboratory number so that we can more
properly discuss these materials.

* * * * * * *

THE COURT: . . . Why do you need to know
that?

COUNSEL: Well, in this particular case,
we're not concerned with all of the other 39
or 40 laboratories around the country who may
have reported in. We're concerned with the
Virginia laboratory. So in that connection,
we are seeking . . . the identification . . .
which sets of these results correspond to the
laboratory we're interested in discussing
here to see if they did do well on the test
or if they didn't do well on the test or any
questions like that.

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Counsel did state during the argument that he "would be satisfied

if the laboratory could identify which test corresponds with this

analyst." However, later in the discussion counsel resumed his

argument that he needed the laboratory's identification code.

Counsel clearly made the trial judge aware of the relief he

sought and the grounds in support of his assertion. See Code

§ 8.01-384(A) ("[I]t shall be sufficient that a party, at the

time the ruling or order of the court is made or sought, makes

known to the court the action which he desires the court to take

. . . and his grounds therefor. . . ."). Accordingly, I would

hold that Hodges also preserved this argument for appeal.
MERITS

However, the record reveals that Hodges signed an agreement

with the Commonwealth that purported to govern the manner in

which the Commonwealth would satisfy its discovery burden as

provided in the prior discovery order. The agreement, entitled

"Agreement on DNA and Serology Discovery," stated, in pertinent

part, the following:
It is hereby agreed that discovery
related to DNA and serological analyses will
be provided in the manner described in the
paragraphs that follow.

* * * * * * *

6. A memorandum recounting the
proficiency testing of Mr. Scanlon and the
results thereof will be provided by the
laboratory.

The memorandum the Commonwealth later provided to Hodges

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described the nature of each of four tests performed.

Specifically, the report set forth the manufacturer of each test,

the nature of the blood samples used, and the kinds of analyses

completed on the samples. The report stated that no deficiencies

were found in three of the tests. The results from the fourth

test had not been received. Because the memorandum appears to

"recount[] the proficiency testing . . . and the results

thereof," I would hold that the Commonwealth satisfied its burden

under the agreement and the order to which it pertained.

Accordingly, I concur.

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