Tony Bernard Brown v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
TONY BERNARD BROWN
MEMORANDUM OPINION * BY
v. Record No. 0074-94-1 JUDGE LARRY G. ELDER
JUNE 27, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
E. Preston Grissom, Judge
Stephen P. Givando (James T. Wise, on brief),
for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General,
on brief), for appellee.
Tony Bernard Brown (appellant) appeals his convictions for
one count of rape in violation of Code § 18.2-61; one count of
abduction in violation of Code § 18.2-47; one count of robbery in
violation of Code § 18.2-58; and one count of assault and battery
in violation of Code § 18.2-51. On appeal, appellant contends
(1) the trial court erred in limiting his cross-examination of
the Commonwealth's DNA expert, (2) that there was insufficient
evidence to support his convictions because the DNA testing
procedure and evidence obtained therefrom were unreliable, and
(3) the Commonwealth failed to prove a proper chain of custody of
semen and blood samples. Because we hold that the trial court
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
committed no error, we affirm appellant's convictions.
On October 4, 1989, Heidi Purdy (the victim) was awakened by
an intruder in her Chesapeake house. Although it was dark, the
victim could see the intruder's arm and ascertain that he was a
black male. The intruder forced the victim to engage in vaginal
intercourse, and after unsuccessfully attempting to take the
victim's stereo system, he fled. Nineteen months later,
appellant was arrested and charged with the rape, abduction,
robbery, and assault and battery of the victim. At trial, the
victim positively identified appellant as someone with similar
characteristics as the man who raped her.
A PERK kit was prepared on the night of the attack, and
testimony detailed the kit's chain of custody. Mr. Richard
Guerrieri, an expert in DNA analysis who worked for the Tidewater
Regional Crime Laboratory, performed DNA analysis on biological
specimens taken from the kit. On May 22, 1991, two vials of
blood drawn from appellant were also sent to the Tidewater
laboratory for the purpose of comparing the blood's DNA with the
DNA taken from the underwear worn by the victim on the night of
the attack.
During the course of the trial Mr. Guerrieri testified that,
based on DNA testing, it was possible to eliminate 99.9999
percent of the black population as the perpetrator; the
percentage of the population that could have matched the DNA
pattern found by Guerrieri was .00013 percent. The trial court
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ruled that Mr. Guerrieri could not be confronted on cross-
examination with a scientific report that he did not accept as
authoritative in the scientific field. At the court's request,
appellant made a proffer as to what the report would have shown.
Appellant presented no expert witnesses on his behalf.
On May 5, 1993, at the conclusion of the evidence, the jury
found appellant guilty of rape, abduction, robbery, and assault
and battery, but not guilty of burglary.
I.
LIMIT ON CROSS-EXAMINATION
First, we hold that the trial court did not err in limiting
appellant's ability to cross-examine Mr. Guerrieri, the
Commonwealth's DNA expert witness. Appellant attempted to cross-
examine Mr. Guerrieri by using the Report of the Committee on DNA
Technology in Forensic Science ("the Report"), issued by the
National Research Council of the National Academy of Science in
April of 1992. However, Mr. Guerrieri refused to recognize the
Report as a standard authority within his field of expertise. We
are guided by the well-accepted rule, as recently articulated by
the Supreme Court of Virginia, that it is improper to allow the
"cross-examination of an expert with an article that the expert
does not recognize as standard and authoritative in a particular
field." Griffett v. Ryan, 247 Va. 465, 473-74, 443 S.E.2d 149,
154 (1994). Therefore, the trial court did not err in deciding
that Mr. Guerrieri could not be cross-examined with the use of
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the Report.
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II.
RELIABILITY OF DNA TESTING PROCEDURE
Appellant contends that the DNA testing procedure and
evidence obtained therefrom, and the population statistics used
to reach the testing results, are unreliable and insufficient to
support a finding that appellant was the perpetrator. As the
Supreme Court of Virginia recently stated, "DNA testing is a
reliable scientific technique." Satcher v. Commonwealth, 244 Va.
220, 241, 421 S.E.2d 821, 834 (1992), cert. denied, __ U.S. __,
113 S. Ct. 1319 (1993); Spencer v. Commonwealth, 238 Va. 275,
289, 384 S.E.2d 775, 782 (1989), cert. denied, 493 U.S. 1036(1990). Moreover, in 1990, the reliability of DNA evidence and
its admissibility as evidence in the courts of Virginia was
codified in Code § 19.2-270.5.
In this case, Mr. Guerrieri, the Commonwealth's DNA expert,
detailed the procedures used to test the DNA samples and
testified as to the population data bases commonly used by
laboratories to reach statistical conclusions about the
probability of a DNA "match." While appellant confronted Mr.
Guerrieri on cross-examination with matters that may have called
into question DNA testing's reliability and validity, "[a]ny
controversy over the results of the testing and the statistical
calculations goes to the weight of the evidence and is properly
left to the trier of fact." State v. Anderson, 881 P.2d 29, 48
(1994).
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Mr. Guerrieri testified that he could not eliminate
appellant as the source of the semen based on the DNA testing
results; the victim testified that she was attacked by a black
male (appellant was a black male); and appellant was similar in
size to the victim's attacker. Viewing this credible evidence in
the light most favorable to the party prevailing below, we hold
that the Commonwealth established the intruder's identity beyond
a reasonable doubt.
III.
CHAIN OF CUSTODY
Lastly, assuming that appellant is not procedurally barred
from raising this issue on appeal by Rules 5A:18 or 5A:12, we
hold that the Commonwealth sufficiently established a chain of
custody for both the semen and blood samples. Appellant
presented no evidence that either sample was contaminated or that
there was a break in the Commonwealth's chain of custody. The
Commonwealth's proof of chain of custody included "a showing with
reasonable certainty that the item[s] [were] not altered,
substituted or contaminated prior to analysis, in any way that
would affect the results of the analysis." Reedy v.
Commonwealth, 9 Va. App. 386, 388, 388 S.E.2d 650, 651 (1990)
(citation omitted). Keeping in mind that "'[t]he Commonwealth is
not required to exclude every conceivable possibility of
substitution, alteration, or tampering,'" id. at 392, 388 S.E.2d
at 653, we hold that the trial court did not abuse its discretion
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in allowing the introduction of the DNA test results.
For the foregoing reasons, we affirm appellant's
convictions.
Affirmed.
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BENTON, J., dissenting.
I.
"The Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged."
In Re Winship, 397 U.S. 358, 364 (1970). The evidence in this
case failed to prove beyond a reasonable doubt that Brown was the
perpetrator of the offense.
The Commonwealth's DNA expert, Richard A. Guerrieri,
testified as follows:
Q Now, it's important in calculating these
figures that we understand exactly what they
mean. And by that question what I am saying
is you are not by any stretch of the
imagination identifying Tony Brown as being
the person who deposited that semen inside of
[the victim's] underwear?
A I'm not. Jurors, this technique is not
done to identify an individual as the
depositor of the stain. But rather I'm doing
the test to determine if I can eliminate the
person that I've been asked to compare.
Q And not being able to eliminate means that
he might be the contributor of the stain?
A Essentially what it means in the instance
we can eliminate a very large percentage of
the population that could not have been the
depositor. But, no, we could not eliminate
Mr. Brown.
The evidence in this case rises no higher than that
testimony.
Based upon a statistical extrapolation, Guerrieri testified
that "Brown cannot be eliminated as a possible donor" of the
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material from which he extracted the DNA. Although he testified
that statistically he "could eliminate 99.9999 percent of the
black population" of the United States as donors of the sample,
he also testified that the "[p]ercentage of [the black
population] who could have donated the stain with the exclusion
of . . . Brown would be approximately .00013 percent." In short,
statistically, 130 persons out of each one million persons in the
black population of the United States could donate the stain.
Moreover, Guerrieri gave no statistics for the probability
of a match within the Hispanic population or any other population
group that includes people with dark skins. The victim testified
that she could only see her attacker's arm. Based upon seeing
his arm, she reported to the police that her attacker was "a
black person." Thus, the DNA statistical assumptions are based
upon the victim's assumption regarding the attacker.
Furthermore, the statistical evidence did not take into
account DNA profiles of persons related to Brown. Guerrieri
testified that his statistical "percentage is based on unrelated
individuals to Mr. Brown." Thus, his testimony did not exclude
persons related to Brown.
"[C]ircumstances of suspicion, no matter how grave or
strong, are not proof of guilt sufficient to support a verdict of
guilty." Clodfelter v. Commonwealth, 218 Va. 619, 623, 238
S.E.2d 820, 822 (1977). At best, the Commonwealth's proof relies
upon an inference drawn from statistical probability. However,
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it is fundamental that "even a probability of guilt . . . is
insufficient to support a criminal conviction." Bishop v.
Commonwealth, 227 Va. 164, 170, 313 S.E.2d 390, 393 (1984). On
its face, the evidence in the record "is insufficient to exclude
a reasonable hypothesis that someone other than [Brown] was the
criminal agent." Christian v. Commonwealth, 221 Va. 1078, 1083,
277 S.E.2d 205, 208 (1981). The victim's testimony that Brown
appeared to be the same height and weight as her attacker did not
exclude persons other than Brown. Without some further proof
linking Brown to the attack, "the evidence is insufficient to
carry the Commonwealth's case from the realm of probability and
supposition into the area of proof beyond a reasonable doubt."
Hall v. Commonwealth, 225 Va. 533, 537, 303 S.E.2d 903, 905
(1983). For these reasons, I would reverse the conviction.
II.
The Commonwealth proffered Guerrieri as an expert "DNA
examiner." After the trial judge ruled that Guerrieri was
qualified as a DNA expert, Guerrieri testified on direct
examination concerning the theory of DNA, the characteristics of
DNA, the details of DNA analysis, and aspects of population
genetics.
Guerrieri also testified on cross-examination that the
population data he used to compute the probability of a "match"
were derived from a data base collected by the F.B.I. He also
acknowledged that the Report of the National Research Council of
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the National Academy of Science recommends the use of a
statistical approach different than that used by his laboratory.
When the Commonwealth objected to the defense counsel
questioning Guerrieri regarding the N.A.S. Report, the trial
judge ruled that "[t]he question is whether or not [the N.A.S.
Report has] been recognized in the field of forensic science."
Guerrieri then responded as follows regarding the N.A.S. Report:
Q I would ask first of all, are you familiar
with the work of the National Research
Counsel?
A Yes.
Q And the council operating under the name
of the National Academy of Science was
commissioned back in 1990, I believe, to do a
study of the DNA analysis and interpretation
of the results, correct?
A That is correct.
Q And that resulted in the publication of
the study in 1992?
A Yes.
Q And contained in that study -- first of
all, the members of the National Research
Council would have included the people who
are experts in the fields of the DNA
analysis, molecular biology, population
genetics, all of those things?
A Yes, a variety of fields.
Q And when they published that study, one of
the recommendations contained within it was
that a more conservative figure be used in
calculating the likelihood of the random
match. And their principle that they
endorsed was known as the [ceiling]
principle, correct?
A That was one of their recommendations,
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yes.
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* * * * * * *
Q Is it not true that the National Academy
of Science may well be the most prestigious
collection of scientists in this country?
A If you're asking in general, yes. If
you're asking with applications for forensic
science to what the work is, then I would
have a different answer.
Q You would give a different answer
concerning forensic scientists?
A My answer would be no.
Q Now, is that your opinion or is it an
opinion that is shared throughout the
community by other forensic scientists?
A It's a universal opinion of forensic
laboratories.
In further response to questioning by the trial judge,
Guerrieri testified as follows:
Q To clear my mind then, is the work
recognized as a standard authority in your
field of forensic science in relation to DNA
testing?
A It's debated. It's not universally
accepted, but it's debated.
Q Are you saying that it is standard or not
standard?
A No, it's not standard. It's just argued
whether it should be accepted as being
standard.
The witness was proffered as an expert in DNA and testified
as such. I believe that the trial judge's ruling denying counsel
the right to question Guerrieri regarding the N.A.S. Report was
based upon the erroneous premise that the N.A.S. Report had to be
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standard in the field of forensic science. Guerrieri was
qualified, however, as an expert in DNA. His testimony was
sufficient to establish that the N.A.S. Report was standard in
the field of DNA. Thus, I would hold that the testimony was
sufficient to allow counsel to examine Guerrieri concerning the
N.A.S. Report.
I dissent.
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