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COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Frank Argued by teleconference

DAVID LEE HILLS v. Record No. 0367-99-4 OPINION BY JUDGE ROSEMARIE ANNUNZIATA SEPTEMBER 26, 2000

COMMONWEALTH OF VIRGINIA

UPON A REHEARING FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Marcus D. Williams, Judge Peter D. Greenspun (Vladimir I. Arezina; Peter D. Greenspun & Associates, P.C., on brief), for appellant. Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

David Lee Hills appeals from his conviction of rape. contends: 1) the trial court erred in allowing an expert

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witness' testimony based upon statistical data relating to DNA evidence; 2) that DNA evidence offered by the Commonwealth should not have been admitted because he was not given proper notice of the Commonwealth's intent to proffer this evidence; 3) the trial court erred in denying his motions to strike the Commonwealth's evidence at the close of the trial, and to set aside the conviction, because the evidence at trial was insufficient to support the verdict; 4) that the trial court erroneously denied his post-trial Brady v. Maryland motion;

5) the trial court erred by admitting blood analysis results into evidence without an adequate showing of chain of custody; and 6) that the trial court erred in refusing to instruct the jury that parole has been abolished in Virginia and in precluding inquiry during voir dire on the same issue. We

affirm with respect to the first five issues, but find that the trial court erred in refusing to instruct the jury and allow voir dire on the subject of abolition of parole. For the

reasons stated herein, we reverse and remand for resentencing. FACTS "On appeal, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Hunley v. Commonwealth, On November

30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).

7, 1997, Patricia McKendry began drinking beer at approximately 11:30 a.m. in her home in Fairfax, Virginia. Her birthday was

two days away, and she planned to go out for the evening to celebrate. By the time she left her apartment at 7:00 p.m., she She went to P.J. Skidoo's, a nearby She was a frequent

had consumed nine beers.

bar, to continue celebrating her birthday.

customer of P.J. Skidoo's and was known by sight to the bar's doorman. McKendry spent the evening playing darts and talking with a number of the bar's patrons. One of the people she encountered

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was the defendant, David Hills, who was also a regular customer there. McKendry and Hills conversed at the bar between

7:30 p.m. and 8:00 p.m., and, during this time, Hills bought McKendry a drink. The bartender, Todd Doty, realized after he

served the drink to McKendry that she was extremely intoxicated, and he told the other bartenders not to serve any more alcohol to her. Doty also reported McKendry's intoxication to the bar's

general manager, Dimitri Paraskevopoulos, who told one of the doormen, John Brobst, to ask her to leave. As Brobst approached

McKendry to do so, he observed her putting on her coat and, surmising that she was leaving of her own accord, decided not to speak to her. Paraskevopoulos and Brobst both saw McKendry leave the bar, and they each saw Hills leave within a few moments of McKendry's departure. Brobst observed Hills approach McKendry as she stood

beneath the awning of a nearby furniture store, taking shelter from the rain. Brobst watched as they conversed but did not He then saw them walk together

overhear their conversation.

down the alleyway between P.J. Skidoo's and the furniture store, toward the parking lot behind the bar, where they got into a white car which Hills drove. Hills and McKendry remained inside

the car with the engine running for several minutes before they left.

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McKendry testified that Hills approached her as she stood under the store's awning and that he offered her a ride home. She accepted the offer, and the two walked to Hills' car parked in the lot behind the bar. After they left the parking lot and

traveled a short distance on Lee Highway, McKendry realized they were traveling in the opposite direction from her apartment. McKendry protested that they were going in the wrong direction, but Hills continued to drive, eventually proceeding southbound on Route 123. After proceeding south for several miles on Route

123, Hills turned left at Burke Centre Parkway, then into the parking lot of a shopping center, parking the car in the loading area in the back. McKendry asked Hills why they were there, and Hills began

Hills replied, "[y]ou know what we're doing here." to play with McKendry's hair.

McKendry protested, "[t]hat ain't

what we're doing, I don't do things like that," and said she wanted to go home. Hills then reached across to the passenger

side door, unlatched it, and kicked McKendry on the side, saying, "[g]et the f--- out." the car. Hills walked around the car to where McKendry lay, grabbed her by her jacket, and dragged her toward a wooded area near the shopping center's loading dock. Hills stopped near a chain link The kick knocked McKendry out of

fence in the patch of woods and placed McKendry against the fence. He pulled her blouse and bra over her head, and pulled

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down her pants and undergarments, ripping her pants as he did so. Hills then grabbed McKendry's left breast with his hand and McKendry did not consent to

forcibly had intercourse with her. the intercourse.

McKendry cursed and yelled at Hills to stop After a few moments,

and struck him on the head with her hands.

Hills ceased the attack and fled, leaving McKendry lying by the fence. McKendry took several minutes to recover from the assault sufficiently to try to put on her clothing and look for help. She walked out of the woods into the shopping center parking lot, and, seeing that Hills' car was gone, she walked toward Route 123, hoping to find a way home. parked nearby and approached it. She saw a police car

Two police officers were in

the car, and, seeing her approach, they exited their vehicle and asked if she needed assistance. raped. One of the police officers was Mark Gleason, a five-year veteran of the Fairfax County Police. Gleason testified that She told them she had just been

when he saw McKendry approach his police cruiser it was approximately 10:00 p.m., and he could see that McKendry's bra was up over her neck and her sweater was torn. exposed, and they exhibited red marks. leaving her groin area exposed. Her breasts were

Her pants were ripped,

When McKendry reported she had

been raped, Gleason informed his supervisor of her account and

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requested that a K-9 unit respond to the scene.

Gleason asked

McKendry for a description of the attacker, and, after the K-9 unit arrived, he and other officers set out to investigate. After unsuccessfully searching for the crime scene, Gleason transported McKendry to Fairfax Hospital, where she was examined by sexual assault nurse examiner Suzanne Brown. Brown found

five bruises consistent with the impression of fingers on McKendry's left breast, and she noted severe redness and swelling in McKendry's vagina, including abrasions on the labia. Brown used a physical evidence recovery kit ("PERK") to swab McKendry's body, and she took a blood sample from her. Brown

sealed the results of the PERK examination and gave them and the blood sample to Detective Joanne Studer, a sexual assault investigator with the Fairfax County police. Detective Studer

took the sealed evidence to the state crime lab on Braddock Road and gave it to a representative of the lab, who signed for it. On November 19, 1998, Hills was tried before a jury on the charge of rape. Hills objected to the admission of the test

results derived from McKendry's PERK examination and blood samples, as well as to the results of a blood test performed on Hills' blood, on the ground the Commonwealth had failed to establish that the individual who signed for this evidence at the state forensic lab was authorized to do so. Hills also

objected to the testimony of Mary McDonald, a DNA examiner with

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the Virginia Division of Forensic Science, who received McKendry's PERK kit and blood sample and the blood sample taken from Hills. McDonald testified that her analysis of the DNA

recovered from a swab of McKendry's left breast indicated Hills could not be ruled out as a contributor. She further testified

that it was 330 times more likely that this DNA came from Hills than from another, randomly selected, Caucasian person. Hills

objected to McDonald's testimony on the grounds that she did not prepare the statistical database she used to arrive at her conclusions and that her testimony violated Code

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