Pope v. Commonwealth

• Decision Date: 31 July 2012
• Docket Number: Record No. 2558–10–2.
• Parties: Thomas POPE, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

60 Va.App. 486

729 S.E.2d 751

Thomas POPE, Jr.

v.COMMONWEALTH of Virginia.

Record No. 2558–10–2.

Court of Appeals of Virginia,

Richmond.

July 31, 2012.

Connie Louise Edwards (Connie Louise Edwards, P.C., on briefs), for appellant.

John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: KELSEY, ALSTON JJ., and ANNUNZIATA, Senior Judge.

ALSTON, Judge.

Thomas Pope, Jr. (appellant) appeals his convictions for rape and first-degree murder. He assigns a mixture of eight errors to the trial court's judgment encapsulated as follows: 1) a Batson challenge; 2) chain of custody; 3) hearsay evidence; 4), 5), and 6) presentation of the database match probability statistic; 7) DNA certificates of analysis; and 8) a post-trial motion for a subpoena duces tecum. Finding no error in any aspect that appellant alleges, we affirm his convictions and sentence.

BACKGROUND

Viewing the evidence in the light most favorable to the Commonwealth, as we must when the Commonwealth prevails at trial, see Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008), the evidence indicated that a woman was raped and strangled in her home in Emporia, Virginia, on January 2, 1975. Despite her injuries, the victim managed to call 911 and report that she had been assaulted. When Emporia Police Lieutenant Clyde Harrell (Harrell) arrived at the victim's house, he found the eighty-eight-year-old woman seated in a chair, nude from the waist up. She told Harrell that “a negro man had torn her clothes off and had choked her.” Because the victim was in a state of shock and having difficulty breathing, Harrell did not ask her any more questions while they waited for an ambulance to arrive. The victim was transported to the hospital where she died approximately one hour after she reported the attack.

Harrell “obtained all the evidence that [he] could find in helping to solve this case” from the victim's residence. The next day, January 3, 1975, Virginia State Police Trooper T.J. Roseberry, II (Trooper Roseberry) collected the evidence from Harrell and identified each item in his notes: “A [,] panties; B, slips, plural, two of them; C, a blouse, flowered, red, green, and brown”; and a piece of rug that Harrell cut out.¹ Trooper Roseberry then went back to the victim's home and collected additional evidence. Trooper Roseberry secured all the evidence in his cruiser and took it to the state laboratory on January 10, 1975.

Joan Faunce, an employee of the Division of Forensic Science (“DFS”) ² in 1975, received the evidentiary items directly from Trooper Roseberry. In her examination of the items, Faunce detected sperm, spermatozoa, and seminal fluids on a number of them. Faunce also received vaginal and cervical smears from the victim via Dr. Wiecking of the Medical Exam Section of the Division. Faunce identified the possible presence of seminal fluid in the vaginal smears. Faunce performed a serological ³ examination of the fluids. Curtis Jasper Moore was later developed as a suspect in the attack, but the evidence of the serological examination did not implicate Moore because he was a non-secreter.⁴ When Faunce completed her testing of each item, she placed the sample on the appropriate laboratory worksheet and secured the sample to the sheet with “Scotch” tape. Once Faunce finished with each piece of evidence, she returned that piece to Trooper Roseberry but for the sample taped to the worksheet. The worksheets were retained by DFS with the case file. Faunce never worked with the case file again.

Within one week of the rape and murder of the elderly victim, police questioned Moore about his possible involvement in the crimes. Moore eventually confessed and was tried and convicted. His conviction was later overturned when a federal court granted his petition for a writ of habeas corpus, holding that his confession was obtained in violation of his Fifth Amendment rights. See Moore v. Ballone, 488 F.Supp. 798, 808 (E.D.Va.1980).⁵

The police investigation of the crimes remained open and unsolved, and on June 20, 1986, DFS eventually sent its case records to the State Record Center of the Library of Virginia for storage.

In 2005, Governor Warner ordered a review of all the serology case files worked between 1973 and 1988. The purpose of this review was to locate files that contained evidence and, in cases where the listed suspect was convicted, to have DNA testing conducted on that evidence. As a result of that order, the evidentiary samples from this victim's rape and murder were removed from storage by DFS on June 4, 2007, and sent to a contract laboratory, Bode Technology (“Bode”), for analysis. Analysts at Bode extracted and amplified DNA present in the vaginal smear and oral swab taken from the victim in 1975 to develop a profile of the victim's DNA. The same analysts extracted and amplified DNA from the evidence that Faunce affixed to her worksheets to develop a DNA profile of the perpetrator. The lead analyst prepared a report on the analysis and sent the report, the generated data, and the evidence back to DFS.

Lisa Schiermeier–Wood, a senior analyst at DFS, received the report and the data. She reviewed the data and the analysis done at Bode, formed her own conclusions, and wrote an additional report summarizing her conclusions. As part of Schiermeier–Wood's report, she generated a certificate of analysis which included a profile of the victim's DNA and the DNA of her assailant. Schiermeier–Wood then searched the Virginia database of convicted felons' DNA profiles. From this search, she identified a DNA profile of appellant that was consistent with the DNA profile of the victim's assailant. Next, Schiermeier–Wood requested and obtained a buccal swab from appellant and developed a DNA profile of him that she compared to the previously developed evidentiary profile. Schiermeier–Wood concluded that appellant could not be eliminated as the contributor of the DNA from the crime scene. She performed a statistical analysis of the evidentiary DNA profile and determined its rarity: 1 in 1.1 billion in the Caucasian population, 1 in 81 million in the African–American population, and 1 in 1.7 billion in the Hispanic population. Schiermeier–Wood's analysis led to appellant's indictment for the rape and murder of the victim. On August 11, 2008, appellant was arrested.

A. Motion to Suppress DNA Evidence—Challenge to Certificates of Analysis

On March 19, 2009, appellant filed a motion to suppress the certificate of analysis dated July 21, 2008, that Schiermeier–Wood produced and signed. In his motion, appellant asserted that this certificate did not comply with the requirements of Code § 19.2–187 because it was not signed by the person who performed the examination of the DNA.

In late April 2009, the trial court held a hearing on the motion to suppress. In his opening statement at the hearing, appellant referred to an additional certificate of analysis dated August 20, 2008, and argued that DFS had impermissibly created its own definition of what it means to “analyze” the data. Specifically, he contended that the person who signed the certificates, Schiermeier–Wood, did not do the actual testing and analysis of the data (the actual analysis was done at Bode, according to appellant), but rather merely reviewed the work and signed the certificates. The Commonwealth argued that Schiermeier–Wood did indeed conduct the analysis consistent with statutory requirements by analyzing the data prepared by other technicians and scientists.

Schiermeier–Wood was the only witness to testify at the suppression hearing and stated that Bode did the laboratory work as described above. Specifically, she testified that Bode did the laboratory work to develop the DNA profiles and sent the data back to DFS for review and analysis. She further testified that she reviewed images of the DNA profiles along with numerical interpretations of the profiles that Bode created. As part of her review of the data, Schiermeier–Wood explained that she examined the DNA process performed at Bode, including reviewing the DNA profiles to determine if she agreed with Bode's interpretations, which she did. Schiermeier–Wood testified that after coming to this conclusion, she compared the DNA profiles generated from the evidence with a known DNA profile of the victim. In conducting this comparison, Schiermeier–Wood said she determined that there was a foreign DNA profile in the evidence. The July 21, 2008 certificate of analysis was based on this work.

She further testified that her search of the Virginia convicted offender DNA database returned appellant's name as an individual who had a profile consistent with the foreign DNA profile developed from the evidence. As noted above, Schiermeier–Wood further stated that she requested and received a fresh buccal swab from appellant to compare to the foreign DNA profile developed from the evidence. Working with other DFS employees, she developed a DNA profile of appellant from the buccal swab. She testified that the August 20, 2008 certificate of analysis was based on this work and reflected her conclusion that appellant's new DNA profile, along with his profile in the database, was consistent with the foreign DNA profile from the victim's rape and murder.

Schiermeier–Wood went on to testify that DFS and Bode are accredited laboratories and that the protocol DFS uses is a commonly accepted protocol within the scientific community. She stated that her work, as is all analysis at DFS, was peer-reviewed by other analysts and that her work required an expert to interpret DNA data like the data she received from Bode. As part of the accreditation process, Schiermeier–Wood explained that DFS maintains a quality control manual that inter alia defines terms for use in DNA analysis. During her testimony, Schiermeier–Wood read the definition in the manual for “examination[:]” “the...