Ramsey v. Commonwealth

CourtCourt of Appeals of Virginia
Citation63 Va.App. 341,757 S.E.2d 576
Decision Date13 May 2014
Docket NumberRecord No. 2023–12–4.
PartiesJonathan Nathaniel RAMSEY v. COMMONWEALTH of Virginia.

OPINION TEXT STARTS HERE

Andrew T. Elders (Elders, Zinicola & Blanch, PLLC, Fairfax, on brief), for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: Judges ALSTON, McCULLOUGH and Senior Judge ANNUNZIATA.

ROSEMARIE ANNUNZIATA, Judge.

Jonathan Nathaniel Ramsey appeals his convictions for burglary, abduction with the intent to defile, malicious wounding, and sexual penetration with an inanimate object. Ramsey argues that the trial court erred (1) in denying his motion in limine to exclude the expert opinions of Kathryn Colombo and Dr. Mark Perlin as being based upon hearsay not in evidence; (2) by excluding as irrelevant evidence of third-party guilt of E.V.1; (3) by quashing his subpoena duces tecum and forcing the return of certain documents related to E.V.; and (4) by denying his motion to declare E.V. an adverse witness prior to and during direct examination by defense counsel. We disagree with Ramsey and affirm his convictions.

BACKGROUND

“On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’ Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence proved at approximately midnight on August 27, 2011, A.B. was in her kitchen and noticed nothing out of the ordinary. At approximately 4:00 a.m., A.B. woke up because she heard her five-year-old daughter, V.R., calling, “Mommy, Mommy, Mommy,” from downstairs. A.B. went downstairs and found V.R. naked from the waist down with multiple cuts on her body, leaves in her hair, and her shirt covered in blood. When A.B. put V.R. to bed earlier that evening, V.R. was not covered in blood and she was dressed in a clean shirt, underwear, and leggings.

The window in A.B.'s kitchen had been forced open, and muddy footprints were found on a bench below the window. The footprints matched the shoes taken from Ramsey after his arrest. The authorities determined that palm and fingerprints on the open window were left by Ramsey. Ramsey admitted he broke into A.B.'s home in order to steal items and asserted that E.V. was with him, but A.B.'s purse and several electronic devices in the kitchen and living area were not stolen.

The authorities found V.R.'s underwear and leggings in a wooded area near her residence, lying on top of a Farberware kitchen knife. The items were found in a wooded area that was less than a 60–second walk from V.R's front door and a 40–second walk from Ramsey's front door. The authorities submitted V.R.'s shirt, the underwear, the leggings, and the knife for analysis. During the execution of a search warrant for Ramsey's residence, the authorities found a blood-stained T-shirt in a trash bag and a pair of men's underwear with blood stains in a separate trash bag, together with other trash Ramsey admitted came from his kitchen. One of the bags was found on the back deck of Ramsey's residence; the other bag was found inside a trash can beside the deck. The size and type of the men's underwear were the same as those Ramsey was wearing when he was arrested. The authorities also found a Farberware knife in the sink. The knife had the same handle design as the knife found with V.R.'s clothing.

The blade and handle of the knife tested positive for blood, and V.R. could not be eliminated as a contributor of the DNA profile developed from the blood stains. V.R. could not be eliminated as a contributor of a DNA profile developed from the blood stains found on the front left leg of the men's underwear. Neither V.R. nor Ramsey could be eliminated as a contributor of a mixture profile from the interior waistband of the men's underwear. V.R. could not be eliminatedas a contributor of a blood stain found on the T-shirt seized from Ramsey's trash bag at his residence. Ramsey could not be eliminated from a mixture profile from the interior neck of the T-shirt.

At some point after his arrest, Ramsey learned that his friend, E.V., had been convicted of misdemeanor sexual battery of a seven year old. The offense occurred in February 2010 when E.V. was thirteen years old. Ramsey obtained the details of E.V.'s conviction from the Commonwealth through the discovery process. Prior to trial, Ramsey used a subpoena duces tecum to obtain E.V.'s probation file from the Fairfax County Probation and Parole office. The Commonwealth moved the court pretrial to declare the subpoena duces tecum invalid and order Ramsey to return the documents. The Commonwealth also moved to quash subpoenas for certain mental health professionals providing services to E.V. The trial court granted the Commonwealth's motions.

On the morning of trial, Ramsey moved in limine to exclude the testimony of Colombo, a scientist at the Department of Forensic Science, and Dr. Perlin, the chief scientist and executive officer at Cybergenetics, on the ground that their opinions were based upon hearsay not in evidence. Ramsey specifically sought to exclude their testimony regarding the statistical comparison of DNA profiles because, in determining the statistical comparison, the scientists relied on allele frequency data and “you can't cross-examine an expert on data that they didn't create or they have no direct knowledge of.” According to the Commonwealth's proffer, the allele frequency data was a database compiled and created by the Virginia Department of Forensics and was the type of database commonly relied upon by forensic laboratories. The trial court denied Ramsey's motion.

At trial, Colombo testified regarding forensic tests performed on the knife found with the victim's leggings and underwear. V.R. could not be eliminated as a contributor of the DNA profile developed from blood stains found on the knife. Colombo testified that with respect to blood found on the handle of the knife:

the probability of randomly selecting an [individual who was not related to V.R.] with a DNA profile matching the profile that I developed from the handle of the knife [was] approximately one in one billion in the Caucasian population. [For the Black and Hispanic populations,] [i]t's one in greater than 6.5 billion, which is the approximate world population

Colombo also testified that V.R. could not be eliminated as a contributor to the DNA profile developed from blood stains found on the front left leg of the men's underwear. Colombo explained that the probability of randomly selecting an individual unrelated to V.R. who would have the same DNA profile as the DNA found in the blood stain on the underwear was one in greater than 6.5 billion.

Neither Ramsey nor V.R. could be eliminated as contributors of the “wearer DNA,” a mixture profile from the interior waistband of the men's underwear. V.R. could not be eliminated as a contributor of a blood stain found on the black T-shirt found in the trash bag at Ramsey's residence. Colombo testified the probability of randomly selecting an individual unrelated to V.R. who would have the same DNA profile as the DNA found on the T-shirt was one in greater than 6.5 billion. Ramsey could not be eliminated as a contributor of “wearer DNA” found on the interior neck of the T-shirt. Colombo testified that all the probabilities she calculated were within a reasonable degree of scientific certainty.

Dr. Perlin prepared a report of his findings, and using text and graphs, the report explained how the probability of a DNA match was calculated:

A match between the underpants waistband and Jonathan Ramsey is: 916 million times more probable than a coincidental match to an unrelated Black person[;] 103 million times more probable than a coincidental match to an unrelated Caucasian person[; and] 170 million times more probable than a coincidental match to an unrelated Hispanic person.

* * * * * * A match between the underpants waistband and [V.R.] is: 297 thousand times more probable than a coincidental match to an unrelated Black person [;] 73 thousand times more probable than a coincidental match to an unrelated Caucasian person[; and] 51 thousand times more probable than a coincidental match to an unrelated Hispanic person.

* * * * * *

A match between the black T-shirt and Jonathan Ramsey is: 3,200 times more probable than a coincidental match to an unrelated Black person[;] 228 times more probable than a coincidental match to an unrelated Caucasian person [; and] 220 times more probable than a coincidental match to an unrelated Hispanic person.

When Dr. Perlin testified about these probabilities, he testified they were within a reasonable degree of scientific certainty.

Ramsey testified he broke into A.B.'s residence with E.V., E.V. told him a light was on in the basement and, fearing that someone was awake inside the residence, Ramsey left through the front door. Ramsey further testified he waited on a nearby park bench and he saw E.V. carrying V.R. over his shoulder into a wooded area, whereupon he ran in the opposite direction, hid in a sewer tunnel, smoked marijuana, and later took a circuitous route back to his house to avoid the police. Ramsey's defense sought to establish that E.V. committed the crimes, contending E.V. either wore Ramsey's clothes during the crimes or used his clothing to wipe V.R.'s blood off items implicated in the offense and then discarded the clothing in Ramsey's trash.

THE ADMISSIBILITY OF THE ALLELE FREQUENCY DATA EVIDENCE

Ramsey argues that the statistical analysis used to determine the likelihood that DNA profiles were contributed by the same individual, as testified by Colombo and Dr. Perlin, was inadmissible because the opinions were not based on the witnesses' observations.2 In a statistical analysis of a DNA profile,...

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