Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, Kinser, 

JJ., and Poff, Senior Justice 

HARRY STEPHEN CAPRIO 

 OPINION BY 

v. Record No. 962090 SENIOR JUSTICE RICHARD H. POFF 

 October 31, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 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 
 -2- 

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 
 -3- 

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 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 Caprio. 
 -4- 

 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. ___, ___, ___ 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 
 -5- 

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 
 -6- 

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 
 -7- 

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.