Kumar v. Commonwealth
| Decision Date | 05 September 2017 |
| Docket Number | Record No. 1636-15-4 |
| Court | Virginia Court of Appeals |
| Parties | UMESH KUMAR v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges AtLee, Malveaux and Senior Judge Annunziata
Argued at Fredericksburg, Virginia
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Alison G. Powers, Assistant Public Defender, for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
A Fairfax County jury convicted Umesh Kumar of aggravated sexual battery. On appeal, he assigns four errors. He asserts that the trial court erred when it (1) denied his "motion to dismiss for failure to preserve exculpatory evidence"; (2) denied his motion to suppress his statements, because such statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966); (3) admitted certain exhibits, because the Commonwealth did not maintain a proper chain of custody for such exhibits; and (4) denied his request for a jury instruction regarding an inference related to the Commonwealth's destruction of evidence. Finding no error, we affirm.
On appeal of a criminal conviction, "in conformity with familiar appellate principles, we consider the facts in the light most favorable to the Commonwealth." O'Dell v. Commonwealth,234 Va. 672, 679, 364 S.E.2d 491, 495 (1988).1 What follows is a general procedural and factual summary of the case. More specific facts relevant to individual assignments of error are included separately in the respective portions of this opinion.
On December 29, 1994, four-year-old J.C. was at the apartment of her babysitter, Champa Kumar (hereinafter "Champa" to avoid confusion). Appellant Umesh Kumar (hereinafter "Kumar"), thirty-two years old at the time, was also in the apartment that day. Kumar, a live-in relative of Champa, was home sick from work. Champa went to the store to get groceries, leaving J.C. with Kumar. At trial, twenty years later, J.C. testified to what happened next:
[H]e pulled down my pants. My underwear were still on. And he began to—he put his penis in my vagina between the lips and thrusted for a little bit. Then he did the same thing between my butt cheeks . . . . Then that's when he finished, where I thought I had peed my pants and cleaned it up and then that was it.
J.C. testified that she believed she had wet herself because she "felt a liquid come out and then he stopped what he was doing." She recalled that all of this occurred on a bed and that Kumar cleaned up the resulting wetness with a red towel. While the attack was happening, J.C. At the time, she "related it to like a horsey game." That evening at home, J.C. told her mother about the "game" she had played. Her mother, alarmed,called the police and later transported J.C. to the hospital for an examination by a Sexual Assault Nurse Examiner ("SANE").
The SANE, Suzanne Rotolo, a/k/a Sue Brown, examined J.C. in the early morning hours of December 30, 1994. J.C. was wearing the same underwear she had worn at the time of the crime, and had not bathed since then. Using a fluorescent light, Nurse Rotolo swabbed the areas of J.C.'s body that suggested the presence of bodily fluids. She drew a sample of J.C.'s blood and collected a sample of hair from J.C.'s head. She photographed J.C.'s naked body, and testified that she observed "some redness" on J.C.'s genitals. Immediately after completing the examination, Nurse Rotolo placed the samples she had collected, along with J.C.'s underwear, in a sealed Physical Evidence Recovery Kit ("PERK") and gave the PERK to Detective John Pritchyk of the Fairfax County Police Department.
Detective Pritchyk then obtained a warrant for Kumar's arrest for aggravated sexual battery, in violation of Code § 18.2-67.3. Detective Pritchyk maintained possession of the PERK, and after he obtained the warrant, he went to his office at the Massey Building and placed the PERK in a property room locker. Other detectives who worked in the building had access to this locker using a key.
Police arrested Kumar early on the morning of December 30, 1994. Following the arrest, Detective Pritchyk spoke with Kumar at the Criminal Investigations Bureau ("CIB"). Detective Pritchyk spoke with Kumar in English and advised him of his Miranda rights. Kumar told Detective Pritchyk he spoke both English and Hindi. Speaking exclusively in English to Detective Pritchyk for approximately twenty minutes, Kumar denied using drugs or alcohol and stated he had completed tenth grade in school in India. Kumar complained he was not feeling well. He told Detective Pritchyk he had been in the apartment the day before, and Champa'sfriend had visited. Kumar denied any involvement with J.C. He offered to provide his blood, urine, and "anything else" to assist with the investigation. Detective Pritchyk photographed Kumar and called Nurse Rotolo to come to the CIB to take Kumar's blood.
When Nurse Rotolo arrived, Detective Pritchyk introduced her to Kumar and provided her with a room for collecting the blood sample. Detective Pritchyk stood outside the door to the room while Nurse Rotolo collected the blood and placed it into a PERK. When Nurse Rotolo completed her examination, she provided Detective Pritchyk with a sealed PERK. Without opening either Kumar's PERK or J.C.'s PERK, Detective Pritchyk delivered both, in their sealed condition, to the Department of Forensic Science ("DFS") that same day. In a separate package, Detective Pritchyk delivered a towel and bedding collected from Kumar's apartment.
Kumar posted bond, but did not appear for his preliminary hearing. Instead, he fled to India. He would not reappear in the United States for nearly twenty years.
Caroline Zervos was an analytical chemist assistant at the serology section of DFS in 1994 and 1995. Her job duties included conducting inventories of PERKs, as well as storing and preserving evidence in a manner that would facilitate later testing of such evidence. Zervos took an inventory of the two PERKs, which she identified at trial, based on the presence of her initials. Using the blood samples in the PERKs, Zervos created blood stain cards2 for Kumar and for J.C. At trial, Zervos recalled that the blood vials for J.C. and Kumar had purple tops and that, upon creating the blood stain cards, she initialed and dated each one. The blood stain cards alsocontained the assigned DFS case number and the name of the individual whose blood was tested. Zervos testified that she dried the underwear in J.C.'s PERK to preserve any evidence on it.
After Zervos finished with the evidence, Karen Ambrozy, a forensic scientist at DFS, received the two PERKs. Both were sealed. Among the items inside J.C.'s PERK was a paper bag containing a pair of white cotton underwear. Ambrozy tested the crotch panel of the underwear and located a seminal fluid stain in the rear portion. At trial, Ambrozy explained that she cut a swatch of fabric containing the seminal fluid stain from the underwear so that she could conduct additional tests. Ambrozy placed that swatch of fabric in a bag and sealed it and initialed it. She dated it and identified it with the laboratory case number.
Ambrozy also cut samples from the blood stain cards created by Zervos. Upon opening this evidence, Ambrozy placed her initials on the red tape along with the date. Ambrozy extracted DNA from the blood stain cards of Kumar and J.C. and compared it to the DNA extracted from J.C.'s underwear. Based upon her findings, Ambrozy created a certificate of analysis dated March 21, 1995.3 This certificate found that "the DNA profile obtained from the sperm fraction of the underpants stain . . . is consistent with the DNA profile of Umesh Kumar."
Ambrozy placed the two blood stain cards and the underwear swatch, still packaged in separate, sealed bags, in a manila envelope and transferred them to the DFS "security section" for transport to a different DFS laboratory for additional, more sophisticated DNA tests. Ambrozy initialed the items before they were transmitted.
David Pomposini, a forensic scientist for DFS, received the evidence from Ambrozy. Pomposini noted that the evidence was shipped to him via lockbox. At trial, Pomposini identified his initials on various sealed envelopes, which also contained the DFS case number. Based upon a review of his notes, Pomposini testified in detail regarding the tests he performed on the swatch of fabric taken from J.C.'s underwear. After he completed the tests, Pomposini recorded the case number and his initials directly on the fabric. Pomposini also testified that he performed a DNA analysis of the blood on the blood stain cards of both Kumar and J.C. After he was finished, he resealed the items in their original plastic bags before returning them to DFS in northern Virginia in the original manila envelope.
Based upon Pomposini's tests, he created a certificate of analysis, which was admitted at trial. Like the certificate Ambrozy issued, this certificate indicated that "[t]he DNA profile obtained from the underpants stain . . . is consistent with the DNA profile from Umesh Kumar." Here, however, the conclusion was expressed with even greater statistical certainty than the conclusion in the certificate generated by Ambrozy.
No tests were ever performed on the towel and bedding taken from Kumar's apartment. DFS returned the two PERKs, J.C.'s clothing (minus the sample of fabric that Ambrozy cut and retained from the stained crotch of J.C.'s underwear), and the towel and bedding to Detective Pritchyk. DFS retained three items: Kumar's blood stain card, J.C.'s blood stain card, and a sample of fabric cut...
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