Keen v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia

DAVID ALAN KEEN
OPINION BY
v. Record No. 0226-96-3 CHIEF JUDGE NORMAN K. MOON

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Donald R. Mullins, Judge
Jerry C. Lyell (H. Shannon Cooke, on brief),
for appellant.

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

David Alan Keen appeals his convictions of rape, sodomy, and

statutory burglary. Keen asserts that the trial court erred in:

(1) denying his motion for production of proficiency test data

and results from the Virginia DNA laboratory ("state

laboratory"); (2) allowing the Commonwealth's DNA expert to

consider the results of DQ-alpha DNA analysis of the rapist's

sperm in calculating the frequency with which a person of the

rapist's genetic profile would be found in the caucasian

population ("random-match" calculation); and (3) denying his

request that cautionary DNA instructions be given to the jury.

We hold that: (1) the trial court erred in denying Keen's

request that he be provided with proficiency testing data of the

state laboratory where the Commonwealth's analysis was conducted

and where the Commonwealth's DNA expert was employed, but that
the error was harmless; (2) the random match frequency offered by

the Commonwealth's expert properly included the DQ-alpha analysis

testified to by the Commonwealth's expert; and (3) that because

the proffered jury instructions were statements of scientific

knowledge and did not pertain to the law of the case, the trial

court did not err in refusing the instructions. Accordingly, we

affirm.

At approximately midnight on December 13, 1994, sixty-four

year old Nancy Greer, who lived alone in her trailer, awoke and

found a naked man kneeling over her. The man hit her repeatedly

in the face, raped her, and anally sodomized her, causing

injuries to her vagina and rectum. Greer struggled with her

assailant and scratched his neck. Because she was not wearing

her glasses, Greer was unable to see the man very well, but she

could tell that he was tall and that he was freshly shaven. After

assaulting Greer, the assailant fled.
A neighbor, awakened by Greer's screams, testified that she

looked out her window and saw a man riding a bicycle toward

Keen's home, which was located approximately one-half mile from

Greer's trailer. Greer ran to a neighbor's home and told them

that she had been raped. The neighbor telephoned the police and,

based on Greer’s description of the assailant, directed the

police to Keen’s residence.

Keen was questioned at his home and denied knowledge of the

incident. The investigating officer noticed scratch marks on

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Keen's neck and inquired about them. Keen responded that he did

not know how he had received the scratches. One of Keen's

neighbors, who had seen him the morning of the incident,

testified that she had not seen any scratches on his neck at that

time.

A police bloodhound was brought to the scene shortly after

the attack, and it followed a scent from the crime scene to

Keen's residence. A forensics team also investigated the crime

scene and determined that the intruder had broken a window pane

in order to enter Greer's trailer. A latent palm print was

discovered on one of the broken panes of glass found inside

Greer's trailer. A state fingerprint examiner testified that the

palm print matched Keen's right palm print.
Greer later identified Keen's photograph when it was shown

to her in a photographic line-up at the Sheriff's Department.

Keen was arrested and taken to the station where he admitted

having broken into Greer's trailer, but stated that he had not

seen Greer inside and that he had only intended to steal money

and pills.

Keen was charged with rape, sodomy, and statutory burglary.

During Keen's jury trial the Commonwealth presented DNA evidence

based on an analysis of a vaginal cervical swab taken from Greer.

Evidence from RFLP and PCR analysis, two methods for testing

DNA, was presented during trial.

Discovery Request

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 Pursuant to Rule 3A:11, Keen requested "records of

proficiency testing of personnel in the laboratories where RFLP

and PCR analyses were performed in these cases" and "records of

laboratory error rates resulting from external blind forensic DNA

analyses or any other studies pertaining to error rates." The

state laboratory and the Commonwealth provided Keen a memorandum

detailing the three proficiency tests the Commonwealth's DNA

expert, Jean Hamilton, a forensic scientist at the state

laboratory, had performed. The memorandum provided details on

proficiency tests 93Q, 940Q, and 9415, and indicated that

Hamilton had passed all three tests.
Keen was not satisfied with the memorandum and produced two

reports published by the Collaborative Testing Services, Inc.

("CTS"), detailing results from laboratories nationwide. One

report addressed proficiency test 93Q and the other addressed

1992 results of test 92-15. The results of the 93Q test were

published using anonymous identification numbers for each person

taking the test at each lab so that it was not possible for

either Keen or Hamilton to identify which results were hers.

However, the state laboratory program manager indicated in the

memorandum detailing Hamilton's performance on the three

proficiency tests that Hamilton had successfully passed the test.

Although the state laboratory had participated in the 92-15

test, Hamilton had not. The laboratory results were published

using anonymous identification numbers for each laboratory. The

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results indicated that two of the participating laboratories had

produced inaccurate results. Keen requested that he be provided

with the Virginia state laboratory identification number so he

could determine if the Virginia laboratory had been one of the

two laboratories to make erroneous findings. The trial court,

finding that Keen was entitled only to test results concerning

Hamilton and that such information had been provided, denied

Keen's objection that the Commonwealth's failure to provide the

requested information rendered Keen's counsel unable to

effectively cross-examine Hamilton.
Keen asserts that the trial court's denial of his discovery

request was error. Specifically, Keen asserts that he was

entitled to the state laboratory's and Hamilton's anonymous

identification numbers so he could make use of CTS's nationwide

test results in presenting his defense. Rule 3A:11(b)(2)

provides that "[u]pon written motion of an accused a court shall

permit the accused to inspect designated books, paper, [and]

documents . . . upon a showing that the items sought may be

material to the preparation of his defense . . . ." We read the

trial court's ruling denying Keen's request as a finding that

Keen failed to meet his burden of proving that the requested

information was "material."

Here, the record reflects that evidence, gathered from the

crime scene, was examined by an employee at one of the

laboratories reported on by CTS. The record also establishes

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that although Hamilton individually performed the analysis of the

evidence, her training and her work facilities were provided by

the state laboratory. The evidence supports Keen's assertion

that the state laboratory's proficiency ratings were probative of

Hamilton's skills as an expert and of the laboratory's results

generally. Thus, for purposes of this opinion we will assume

that the trial court abused its discretion in denying Keen's

discovery request.
However, assuming that the trial court erred in failing to

find the requested proficiency test results to be material, we

nevertheless hold that such error was harmless.

"[N]on-constitutional error is harmless `[w]hen 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.'" Shurbaji v. Commonwealth, 18 Va.

App. 415, 419, 444 S.E.2d 549, 551 (1994) (citations omitted). A

criminal conviction need not be reversed if "`it plainly appears

from the record and the evidence . . . that' the error did not

affect the verdict. 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 same." Id. at 419-20, 444 S.E.2d at 551-52.

Here, the record contains overwhelming evidence of Keen's

guilt. A bicyclist was seen by a neighbor, who was awakened by

Greer's screams, riding in the direction of Keen's home, one-half

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mile from Greer's trailer. Keen's palm print was found on a

broken piece of glass inside Greer's trailer. A blood hound

traced Keen's scent from the trailer to his residence. Greer

testified to having scratched her assailant and Keen had scratch

marks on his neck that were not present earlier in the day.

Finally, Keen lied to the police and ultimately admitted breaking

into Greer's home with the alleged purpose of only stealing money

and pills. Considering the magnitude of the evidence against

Keen, even assuming arguendo that no DNA evidence had been

introduced at trial, it plainly appears that the verdict would

have been the same. Further, even if the information sought had

been admitted and could have been used by Keen to establish that

the state laboratory had previously made erroneous findings, this

information would not have affected the admissibility of the DNA

evidence, but rather, would have only affected the weight the

fact finder accorded the DNA evidence. Accordingly, we hold that

even assuming that trial court's denial of Keen's request was
1
error, such error was harmless.
1
We also note that the record does not support Keen's
counsel's complaints that the trial court's refusal to permit
discovery of the identification numbers seriously impaired
presentation of Keen's defense. Keen complained that he was
unable to effectively cross-examine Hamilton because he did not
have her identification number for the 93Q test. However, the
record establishes that the state laboratory program manager
provided Keen, via the Commonwealth, a complete history of
Hamilton's proficiency testing, including information indicating
that she had passed the 93Q test.
Similarly, Keen's assertion that there was some discrepancy
in the 93Q test results, which Hamilton could not explain,
appears to reflect a failure by Keen to recognize that eleven
laboratories participating in the report performed only DQ-alpha

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 Random-Match Calculation

During trial, Hamilton testified about her analysis of

evidence gathered from the crime scene. Hamilton had been

provided with a vaginal cervical sample from Greer that contained

both cervical material and seminal fluid. Hamilton separated the

material into a "sperm sample," containing the sperm material,

and a "non-sperm sample," containing all other material. She was

also supplied with blood samples from Greer and Keen. Hamilton

testified that she performed two tests on all four samples, using
2
what is known as PCR (polymerase chain reaction) testing.
analysis. Consequently, while the results of those eleven
laboratories differed from the other participants results, who
performed additional testing, the results were nevertheless
accurate.
2
PCR analysis

is employed to amplify small quantities of
deoxyribonucleic acid (DNA), the molecule that carries
genetic information unique to each individual. The
process proceeds in three steps. In the first step,
DNA is extracted from samples of blood, sperm, hair, or
other body tissue, by the use of solvents, filtration,
chemical cleaning, and separation of unwanted fractions
in a centrifuge. This first stage is essentially the
same as that used for the isolation of DNA in the DNA
printing process.
In the second stage, the small quantity of
isolated DNA is added to a buffer solution containing
chemical primers and an enzyme called "TAQ polymerase."
That solution is then placed in a heating device,
controlled by a microprocessor, which cycles the
solution through several successive temperature
plateaus. After 30 or 40 of these cycles, the DNA will
have been denatured, the primers will have annealed to
the DNA, identifying a "gene of interest," and that
gene will have been replicated or amplified by the
enzyme billions of times.
The third stage is the typing of the amplified
gene. Nine "allele-specific probes" are attached to a

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Hamilton explained that she first conducted PCR DQ-alpha testing,

involving a process whereby a piece of DNA is extracted from a

sample and a particular area of the chromosome, identified as the

DQ-alpha locus, is examined. At the DQ-alpha locus, humans

display any two of six different types of alleles (gene types or

"traits") identified as 1.1, 1.2, 1.3, 2, 3, and 4. One allele

at the DQ-alpha locus is inherited from each parent so that every

individual will have either two alleles of the same type or two

different alleles. The pairings of alleles are known as the

"genotype." Based on her analysis of Greer's and Keen's blood

samples, Hamilton determined that they both had the same DQ-alpha

genotype, that is, both had two type 3 alleles at the DQ-alpha

locus.
Hamilton's DQ-alpha analysis of the sperm sample also

revealed a DQ-alpha genotype of 3,3. Based on this analysis,

nylon membrane, and the amplified DNA is flooded over
it. The probes are designed to recognize each of the
variants of the "gene of interest" . . . . The probes
"light up" in the presence of the variants for which
they are specific. [For example, the DQ-alpha] . . .
genetic marker system has six "traits," designated,
respectively, as 1.1, 1.2, 1.3, 2, 3 and 4. These
traits are combined in pairs in each individual,
because one trait is received from each parent. There
are . . . 21 possible combinations of these traits.
These pairings are called "genotypes." The purpose of
the typing is to identify the genotype present in the
amplified DNA.

Spencer v. Commonwealth, 240 Va. 78, 96, 393 S.E.2d 609, 620
(1990).

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Hamilton concluded that Keen could not be eliminated as

contributing the sperm sample found in Greer because the DQ-alpha

of the sperm and Keen's DNA were the same.

Hamilton then performed a second PCR test known as

polymarker analysis, which examines five additional areas of the

DNA, respectively identified as LDLR, GYPA, HBGG, D7S8, and GC.

As with the DQ-alpha locus, Hamilton explained that the alleles

at these five locations can differ from one person to another. 3

Hamilton determined the following profiles for the four samples:
Greer Keen Vaginal Swab: Vaginal Swab:
Blood Sample Blood Sample Sperm Sample Non-sperm
Sample
LDLR BB AB AB BB
GYPA BB AA AA BB
HBGG AA BB BB AA
D7S8 AA BB BB AA
GC AC CC CC AC

Based on this analysis, Hamilton concluded that because the

profile of the DNA extracted from the sperm sample was the same

as Keen's profile, Keen could not be eliminated as the

contributor of the sperm.

Hamilton then calculated the frequency, or random-match

probability, of an individual in the caucasian population

3
At LDLR, GYPA, and D7S8 there are three different possible
combinations any person could have. At HBGG and GC, there are
six possible combinations.

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displaying Keen's profile as determined by the DQ-alpha and

polymarker analysis. By multiplying together the individual

frequencies of the five areas analyzed with the polymarker test,

and then multiplying this result by the frequency in the

caucasian population of people displaying a 3,3 genotype at the

DQ-alpha locus, Hamilton determined that such a combination of

genetic factors, or "genetic profile," would be found in only one

of 15,000 people in the caucasian population. 4

Keen objected to Hamilton's use of the DQ-alpha analysis in

calculating the frequency of Keen's genetic profile in the

caucasian population. Keen asserted that because he and Greer

had the same genotype (3,3) at the DQ-alpha locus, Hamilton could

not say with any scientific certainty whether the 3,3 alleles she

detected in the "crime scene materials" were contributed by Greer

or by Keen. The trial court overruled the objection and
4
Because she had been unable to exclude Keen through either
the DQ-alpha or polymarker tests, Hamilton conducted further
analysis using the RFLP testing procedure.

Restriction Fragment Length Polymorphism
(RFLP) is the most established and widely
used DNA test to date. It has been endorsed
by the Office of Technology Assessment of the
United States Congress as well as the
National Research Council. Like PCR testing,
RFLP produces genetic band patterns that
technicians compare to the sample given by
the test subject.

Paul B. Tyler, The Kelly-Frye "general acceptance" standard
remains the rule for admissibility of novel scientific evidence:
People v. Leahy, 22 PEPP. L. REV. 1274, 1291-92 (1995) (citations
omitted). However, Hamilton testified that she was unable to
obtain conclusive results from the RFLP analysis.

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permitted Hamilton to include the DQ-alpha frequency in her

random-match calculation. Keen also asserted that the DQ-alpha

analysis should not have been used because the amplifications of

the DNA used for the DQ-alpha analysis were performed separately

in the laboratory, "giving rise to the potential for sample

mix-ups or laboratory error."

Keen's first argument fails to acknowledge that the vaginal

cervical sample was separated into two portions, a sperm sample

and a non-sperm sample. At oral argument, Keen's counsel argued

that Hamilton failed to conduct the proper tests to separate

sperm material from the non-sperm material and that based on

evidence he had obtained from other cases, he was aware that the

state laboratory improperly performed such tests. It is

axiomatic that Keen's counsel's alleged knowledge of evidence

from other cases is wholly irrelevant to the merits of this case.

Further, assuming arguendo, that all possible tests were not

performed to distinguish the sperm material from the non-sperm

material, ultimately, Hamilton's analysis clearly established

that her separations were accurate. Hamilton testified that

after separating the material from the vaginal cervical sample

she first conducted the DQ-alpha analysis, which resulted in

findings of identical genotypes at the DQ-alpha locus. She then

performed the polymarker test, which revealed that the two

samples differed in all five locations examined in the polymarker

test. Comparison with analysis of DNA taken from Greer's blood

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sample allowed Hamilton to determine conclusively that the sperm

sample was not contributed by Greer, as the genetic profiles did

not match. Consequently, the evidence supported Hamilton's use

of the DQ-alpha analysis in her random-match calculation, as the

polymarker test allowed her to determine that the 3,3 genotype

was present in the material that was not contributed by Greer,

e.g., the sperm material.

Keen's second argument regarding separate amplification of

the genetic material was not raised at trial and consequently is

barred by Rule 5A:18. Assuming, arguendo, that the matter had

been properly preserved for appeal, it is nevertheless without

merit. The record indicates that, although the samples used for

the DQ-alpha and polymarker testing were separately amplified,

both were obtained from the same extract of the sperm sample.

Jury Instructions

In light of the substantial testimony regarding DNA

evidence, Keen proposed the following six cautionary jury

instructions pertaining to DNA evidence:
A given DNA profile may be shared by two or more people.

The random match probability statistic is not the equivalent
of a statistic that tells the jury the likelihood of whether
the defendant committed the alleged crimes.

The random match probability statistic is the likelihood
that the DNA profile of a random person in the population
would match the DNA characteristics that were found in the
crime scene evidence.

An allele is one of two or more alternative forms of a gene.

An allele frequency is the proportion of a particular allele
among the chromosomes carried by individuals in a

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 population.

Where the known DNA sample from the defendant matches the
unknown sample obtained from the crime scene, it does not
necessarily mean the defendant is the source of the sample
found at the crime scene.

The trial court declined to give any of the six instructions and

consequently the first and fourth of the proposed instructions

were proffered as refused instructions.

Keen argues that because the jury had no prior experience

with DNA evidence and no exposure to the application of forensic

DNA, the cautionary jury instructions, containing "generic"

information applicable "in any case where DNA evidence [was]

offered," should have been given. Keen further argues that

"[j]urors cannot perform their legal duty of fully and fairly

deliberating the evidence if portions of it, i.e., the DNA

evidence, is not understood by them."
The purpose of any jury instruction is to inform the jury of

the law guiding their deliberations and verdict. See Cooper v.
Commonwealth, 2 Va. App. 497, 345 S.E.2d 775 (1986). The

instructions proposed by Keen and rejected by the trial court

were statements concerning scientific knowledge, not legal

principle. The substance of the proposed instructions was

information which was properly imparted to the jury through the

testimony of expert witnesses. Thus, Keen's proposed

instructions would have impermissibly commented upon the

evidence. Levasseur v. Commonwealth, 225 Va. 564, 595, 304

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S.E.2d 644, 661 (1983). Accordingly, we hold the trial court did

not err in refusing Keen's proposed instructions.

Holding that the trial court's error in denying Keen's

discovery request was harmless, that the random-match frequency

was properly calculated using the DQ-Alpha analysis, and that the

trial court did not err in refusing Keen's proffered

instructions, we affirm.

Affirmed.

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