Caprio v. Commonwealth

493 S.E.2d 371, 254 Va. 507, 1997 Va. LEXIS 128
CourtSupreme Court of Virginia
DecidedOctober 31, 1997
DocketRecord 962090
StatusPublished
Cited by17 cases

This text of 493 S.E.2d 371 (Caprio v. Commonwealth) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Caprio v. Commonwealth, 493 S.E.2d 371, 254 Va. 507, 1997 Va. LEXIS 128 (Va. 1997).

Opinions

SENIOR JUSTICE POFF

delivered the opinion of the Court.

The dispositive issue framed in this appeal is whether the Court of Appeals of Virginia erred in upholding the trial court’s ruling denying the appellant’s motion for a continuance and allowing the Commonwealth to introduce the testimony of an expert concerning his extrapolation of blood profile frequency based upon his analysis of a series of DNA profiles and reports.

On March 5, 1992, Harry Stephen Caprio was indicted for the murder and robbery of Elizabeth Marie Bickley committed August 5, 1991. In the first of two trials conducted by the Circuit Court of the City of Portsmouth, the judge struck the robbery charge and, when the jury reported that it was unable to reach a verdict on the murder charge, he declared a mistrial.

Following three and one-half days in the conduct of the second trial in October 1995, the foreman of the jury announced that the jury was “deadlocked”. Upon further deliberation required by an Allen instruction, the jury returned a verdict convicting Caprio of second degree murder and fixing his penalty at 15 years in the penitentiary. By final judgment order dated January 10, 1996, and entered February 1, 1996, the court confirmed the verdict and imposed the penalty. The Court of Appeals upheld the several rulings of the trial court challenged by the appellant, and we awarded Caprio this appeal.

Neither Caprio’s testimony at trial nor the investigating officer’s handwritten transcript of Caprio’s statements contained an inculpatory admission, and the record shows that the evidence underlying this conviction was wholly circumstantial. Consequently, we will summarize only those facts in evidence relevant to the issue we consider dispositive.

Ms. Bickley’s corpse was discovered about 11:00 p.m. on August 5, 1991, lying in the middle of a street intersection. After Caprio was identified as a suspect, but before he was arrested, he volunteered to submit blood samples for DNA analysis. Jeffrey D. Ban, Section Chief of the Serology DNA Unit at the Virginia Division of Forensic Science, supervised a series of DNA analyses of these samples, [510]*510samples of the victim’s blood, and samples of genetic materials found on a pair of shorts Caprio had worn on the day of the crime.

In a “certificate of analysis” dated May 17, 1995, Ban stated that “[t]he DNA profile obtained from Harry Caprio’s shorts ... is consistent with the DNA profile of Elizabeth M. Bickley . . . and different from that of Harry Caprio . . . .” Based upon the five tests comprising that analysis, Ban concluded that “[t]he probability of randomly selecting an unrelated individual with a matching DNA profile ... is approximately ... 1 in 210 in the Caucasian population 99 ,

This certificate reaffirmed Ban’s conclusion, based upon a single test that was reported in his certificate issued September 16, 1993, that “the genetic material deposited on Harry Caprio’s shorts cannot be eliminated as originating from Elizabeth Bickley.” Both certificates and a report of enzyme testing by a forensic serologist were timely delivered to defense counsel.

On the day before Ban testified at the second trial, he reviewed the results of the seven DNA tests underlying the two certificates and the serologist’s report and advised the Commonwealth that he would use a chart during his testimony to illustrate the results of that review. The Commonwealth notified defense counsel and, invoking Code § 19.2-270.5, counsel objected to introduction of that evidence and, in the alternative, moved for a continuance. The trial court overruled the objection and denied the motion, and Ban testified as follows:

Taking each of these into account, each of the seven, you have approximately one in a hundred twenty thousand individuals would have a profile that would be consistent with each of these seven different areas that I have tested for in the Caucasian.
[W]e would have to test ... a hundred twenty thousand people before we’d find this profile again . . . [and] we might find that profile again, or we might not.
Basically, we’ve looked at seven different areas, several different tests that we have done; and in each of the tests we’ve [511]*511demonstrated that the profile that we found in Harry Caprio’s shorts is consistent with that of Elizabeth Bickley and different than that of Harry Caprio.

Code § 19.2-270.5, the statute cited by defense counsel, provided at the time of trial in relevant part:

In any criminal proceeding, DNA (deoxyribonucleic acid) testing shall be deemed to be a reliable scientific technique and the evidence of a DNA profile comparison may be admitted to prove or disprove the identity of any person. . . .
At least twenty-one days prior to commencement of the proceeding in which the results of a DNA analysis will be offered as evidence, the party intending to offer the evidence shall notify the opposing party, in writing, of the intent to offer the analysis and shall provide or make available copies of the profiles and the report or statement to be introduced. In the event that such notice is not given, and the person proffers such evidence, then the court may in its discretion either allow the opposing party a continuance or, under appropriate circumstances, bar the person from presenting such evidence.

(Emphasis added.)

The Commonwealth argues that “the statute does not apply” because “the blood profile frequency calculation is not a profile, report, or statement”. We disagree.

“When a statute is plain and unambiguous, a court may look only to the words of the statute to determine its meaning.” Harrison & Bates, Inc. v. Featherstone Assoc., 253 Va. 364, 368, 484 S.E.2d 883, 885 (1997) (citing Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)); accord Doss v. Jamco, Inc., 254 Va. 362, 370, 492 S.E.2d 441, 446 (1997) (this day decided). We have repeatedly articulated the principles of statutory construction:

“While in the construction of statutes the constant endeavor of the courts is to ascertain and give effect to the intention of the legislature, that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity. Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction [512]*512which amounts to holding the legislature did not mean what it has actually expressed.”

Barr v. Town & Country Properties, 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)). See also, Abbott v. Willey, 253 Va. 88, 91, 479 S.E.2d 528, 530 (1997); Weinberg v. Given, 252 Va. 221, 225-26, 476 S.E.2d 502

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Caprio v. Commonwealth
493 S.E.2d 371 (Supreme Court of Virginia, 1997)

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Bluebook (online)
493 S.E.2d 371, 254 Va. 507, 1997 Va. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caprio-v-commonwealth-va-1997.