Home / Fulltext Opinions / Supreme Court of Virginia / CAPRIO v. COMMONWEALTH OF VIRGINIA



October 31, 1997

Record No. 962090






Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan,
Kinser, JJ., and Poff, Senior Justice

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, samples 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 . . . ."

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

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

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 demonstrated that the profile that we
found in Harry Caprio’s shorts is consistent with that of
Elizabeth Bickley and different than that of Harry


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
, 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. ___, ___, ___ S.E.2d ___, ___
(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 which 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, 504 (1996); Turner
v. Wexler
, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992); Grillo
v. Montebello Condominium Owners Assoc.
, 243 Va. 475, 477,
416 S.E.2d 444, 445 (1992).

The twenty-one day notice requirement of the statute at bar
applies to "the results of a DNA analysis" to be
"offered as evidence". Copies of "the profiles and
the report or statement to be introduced" must be made
available to the defense. Ban’s 1 in 120,000 extrapolation, a
statistical probability of a DNA match, was clearly a
"report" or "statement" of "the results
of a DNA analysis" conducted in the course of the seven
different tests Ban reviewed. Adhering to the plain meaning rule,
we hold that Ban’s blood frequency extrapolation was a matter
within the contemplation of the statute.

Even so, the Court of Appeals ruled that "[t]he trial
court did not abuse its discretion by denying appellant’s request
for a continuance and appellant’s alternative request to bar the
evidence", and the Commonwealth contends that the statute
should be construed to vest a trial court with such discretion.
True, the statute provides that, in the event timely notice is
not given, "then the court may in its discretion either
allow . . . a continuance or . . . bar
. . . such evidence."

That language expressly limits the court’s discretion by the
disjunctive "or" to a choice of "either" of
two defined options. Stated differently, if, as here, a trial
court determines that the evidence is admissible, the statute
requires the court to grant a motion to interrupt and postpone
the progress of the trial to afford the defense a period of time
for consultation with other experts and preparation of an
appropriate response to the new evidence. Article 1, ‘ 8, of
the Constitution of Virginia guarantees an accused the right
"to call for evidence in his favor", and "although
granting or denying a continuance is within the discretion of the
trial court, it must exercise its discretion ‘with due regard to
the provisions of the Bill of Rights, which secure to one accused
of crime a fair and impartial trial . . . .’"
Gilchrist v. Commonwealth, 227 Va. 540, 546, 317 S.E.2d
784, 787 (1984) (citations omitted). Here, the trial court chose
to reject both options.

Because the trial court erred in not applying the plain
meaning of the statute, and because we cannot say that the
dramatic statistical difference between the blood profile
frequency reported in the certificate of analysis timely
delivered to the defense and that which was not timely disclosed
by the Commonwealth was harmless, we will reverse the judgment of
the Court of Appeals upholding the trial court’s ruling. For the
reasons stated by the Court of Appeals, we affirm its judgment
upholding the other three rulings of the trial court at issue in
this appeal, and we need not address Caprio’s assignments of
error related to those rulings.

We will annul the conviction and remand the case to the Court
of Appeals with direction to remand the case to the trial court
for further proceedings consistent with this opinion.

Affirmed in part,

reversed in part,

and remanded.


JUSTICE KINSER, with whom JUSTICE COMPTON joins, concurring.


I agree with the majority decision in all aspects but one.
Since the Commonwealth’s failure to disclose the new blood
profile frequency extrapolation in a timely fashion was
prejudicial to Caprio, this Court does not need to decide in this
case whether Code ? l9.2-270.5 requires, in every instance,
that the trial court must either grant a continuance or bar
introduction of the evidence, regardless of the degree and nature
of the deviation from the requirements of Code ? l9.2-270.5
or whether the opposing party was prejudiced. The statute plainly
makes the decision whether to use either of these remedies
discretionary with the trial court.

For these reasons, I concur.