Deborah Elkins//March 28, 2014
Deborah Elkins//March 28, 2014//
Although defendant denied raping his mentally disabled daughter, DNA testing showed a 99.9999 percent probability that defendant fathered her aborted child, when compared to unrelated males who may have had contact with the young woman, and the Court of Appeals affirms his conviction.
We find ample evidence upon which a rational jury could conclude that defendant raped his mentally challenged daughter. She conceived a child sometime in August 2010. Her severely disabled condition required that she never be left alone. Her mother was with her most of the mornings and took her to the babysitters in the afternoon. Defendant picked her up from the babysitters and was alone with her and her younger sister for several hours at least three times a week during August 2010. Her mother returned home on or after 10:45 p.m.
DNA testing proved there was a 99.9999 per cent probability that defendant was the biological father of the victim’s child when compared to any unrelated males. Investigators also tested the DNA of all related males who had the opportunity to spend time with the victim in August 2010, along with several unrelated males. This testing specifically excluded two of defendant’s brothers, his nephew, as well as several other men who were unrelated to defendant – including a babysitter’s son and two men who live in the babysitter’s residence.
Defendant asserts that it is possible the victim was impregnated with his sperm by some method other than vaginal intercourse, for instance, through wearing his wife’s dirty underwear. The commonwealth’s medical experts said that probability was very remote. Considering this testimony, coupled with their intuitive common sense, the jurors had ample reason to reject this attenuated hypothesis of innocence.
Defendant also asserts a Brady v. Maryland violation based on his allegedly having first learned at trial that one of the several DNA certificates of analysis was a fake prepared by a detective for possible use during a pre-arrest interview of defendant. Defense counsel at trial was given considerable latitude to cross-examine the detective about the fake certificate. The record shows he vigorously took advantage of the opportunity to do so. The record supports the trial court finding that defendant suffered no real prejudice as a result of the mid-trial disclosure and thus did not establish a viable Brady violation. The court also found no evidence suggesting that the initial disclosure of the fake DNA certificate was an intentional act on the part of the prosecutor, much less an appalling and egregious act. It appears to have been a purely innocent mistake. The trial court properly rejected defendant’s request for a dismissal of the rape charge.
Defendant also contends that Facebook communications between one juror and a person with the same last name as the juror required to trial court to initiate an investigation into the possibility of juror misconduct. The Facebook message by the juror stated: “Anyone ever served Jury Duty? I’m wrapping up a criminal trial, hopefully tomorrow (Day 5)! Oh What Joy!!” Someone with the same last name told the juror he was “doing a great job, D. It’s a hard one. I wouldn’t have been as composed as you.” The trial court did not abuse its discretion in denying defendant’s motion for an evidentiary hearing.
Romero v. Commonwealth (Kelsey) No. 0050-13-4, March 25, 2014; Prince William County Cir.Ct. (Johnston) Andrew T. Elders for appellant; Aaron J. Campbell, AAG, for appellee. VLW 014-7-096(UP), 30 pp.