COURT OF APPEALS OF VIRGINIA

ROMINGER LEGAL

Virginia Legal Research & Resources - VA Legal Resources

Need Legal Help?

LEGAL RESEARCH CENTER

LEGAL HEADLINES - CASE LAW - LEGAL FORMS

NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Courts of Virginia. Search our site for more cases - CLICK HERE

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 Greers description of the assailant, directed the
police to Keens residence.
Keen was questioned at his home and denied knowledge of the
incident. The investigating officer noticed scratch marks on
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
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
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
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
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
error, such error was harmless.
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
what is known as PCR (polymerase chain reaction) testing.
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,
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.
Hamilton determined the following profiles for the four samples:

Greer
Blood Sample Keen
Blood Sample Vaginal Swab:
Sperm Sample Vaginal Swab:
Non-sperm
Sample
LDLRBBABABBB
GYPABBAAAABB
HBGGAABBBBAA
D7S8AABBBBAA
GCACCCCCAC

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
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.
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
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
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
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
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.

	ROMINGER LEGAL
		Virginia Legal Research & Resources - VA Legal Resources
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE