COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Overton 

Argued at Richmond, Virginia 

ANTONIO HODGES 

 OPINION BY 

v. Record No. 2116-94-2 JUDGE ROSEMARIE ANNUNZIATA 

 NOVEMBER 18, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY 

Thomas N. Nance, Judge Designate 

 Jerry C. Lyell for appellant. 

 John H. McLees, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Following a jury trial, appellant, Antonio Hodges, was 

convicted of rape and armed burglary. To prove its case, the 

Commonwealth relied largely on an apparent match between the 

rapist's deoxyribonucleic acid (DNA) and that of appellant. The 

Commonwealth's experts testified concerning the statistical 

probability that the apparent DNA match could have occurred at 

random. Appellant contends that the trial court erred (1) in 

allowing the Commonwealth's rebuttal expert witness to offer an 

opinion concerning the probability of a random match based on 

certain DNA test results which were not considered by the 

Commonwealth's other expert during its case-in-chief; (2) in 

denying appellant's motion to compel discovery concerning 

proficiency testing of the Commonwealth's DNA expert who 

conducted the tests and of the laboratory where the tests were 

conducted; and (3) in refusing to authorize appellant's 
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employment, at the Commonwealth's expense, of a third expert 

witness to assist in his defense. 

 Finding no error, we affirm. 

 I. TESTIMONY CONCERNING RANDOM MATCH PROBABILITIES 

 The victim, a fifty-year-old high school teacher, lived 

alone in a house in Middlesex County. One night she was awakened 

from her bed by a masked man standing over her, pressing his 

gloved hand against her face. When she resisted, the assailant 

placed a knife to her face, threatened to kill her and told her 

to "shut the ---- up." The man eventually bound and raped her. 

 The victim was unable to positively identify her assailant, 

but she testified that appellant, whom she knew as a former 

student at the high school, was exactly the same height, weight 

and build as her attacker. Other evidence showed that appellant 

lived approximately one mile from the victim and that he knew 

where the victim lived. A hair and fiber expert testified that 

three pubic hairs of unknown origin removed from the victim 

following the attack were "microscopically alike in all 

identifying characteristics" when compared with appellant's pubic 

hairs. 

 The Commonwealth also introduced DNA evidence to identify 

appellant as the rapist. The Commonwealth's primary DNA expert 

was Robert Scanlon, a forensic scientist at Virginia's Division 

of Forensic Science Central Laboratory (central lab). Employing 

two analytical testing procedures, known as the polymerase chain 
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reaction (PCR) and the restriction fragment length polymorphism 

(RFLP), Scanlon compared samples of appellant's DNA with samples 

of DNA taken from the rapist's sperm. 

 Scanlon testified that if the two samples did not match, 

then appellant could not have been the rapist. If the samples 

matched, however, appellant would be included in a category of 

individuals whose genetic pattern was consistent with that of the 

rapist. That is, a match would establish that appellant could 

have been the rapist. 

 The results of the PCR analysis showed that appellant's DNA 

was consistent with that of the rapist; thus, appellant could not 

be eliminated as a suspect. Scanlon testified that approximately 

twenty percent of the population shares the same genetic pattern 

revealed by the PCR analysis. In other words, following the PCR 

analysis, the probability of a random match between the DNA of 

the rapist and that of appellant was one in five. 

 The RFLP technique involves the use of DNA "probes" to 

compare the DNA samples. In the present case, Scanlon "ran" five 

separate probes. He testified that each of the five probes 

showed that appellant's DNA was consistent with that of the 

rapist. In two of the five probes, however, the genetic material 

of the rapist and that of the victim "overlapped." While it was 

clear to Scanlon that these two probes did not exclude appellant 

as the rapist, pursuant to central lab's policy, Scanlon did not 

include them in formulating his statistical conclusions. 
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 Based on his consideration of the remaining three probes, 

and in conjunction with the results of the PCR testing, Scanlon 

testified that the probability of appellant's DNA randomly 

matching that of the rapist was one in 39 million among the 

caucasian population, one in 35 million among the black 

population, and one in 62 million among the hispanic population. 

 The Commonwealth asked Scanlon to consider the remaining two 

probes as DNA matches and calculate the probability of a random 

match based on all five probes. The court sustained appellant's 

objection to Scanlon's consideration of the remaining probes, 

stating, "if it's not comfortable enough for him, it's not 

comfortable enough for me." 

 Later, in the defense case, defense expert Dr. Peter 

D'Eustachio testified on cross-examination that the genetic 

patterns from the two probes which Scanlon did not consider in 

reaching his statistical conclusions had most likely been 

contributed by the rapist and not by the victim. The 

Commonwealth then asked Dr. D'Eustachio whether that fact would 

more closely associate the sperm donor, i.e., the rapist, with 

appellant. Appellant's counsel objected, stating: 

 [i]f [the Commonwealth is] talking about the 

two [probes] that Your Honor disallowed Mr. 

Scanlon to give figures on, then our 

objection is based on the fact that you 

disallowed testimony about those two 

[probes]. Why are we back on those two? 

The court responded: 

 I didn't disallow any testimony about those 

[probes]. I wouldn't let Mr. Scanlon put a 
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-- figure them in his calculation because he 

did not originally use them in his 

calculation, and I held him to that. And 

it's perfectly proper. This man is a 

molecular biologist and knows what he's 

talking about, so it's a fair question. 

Dr. D'Eustachio acknowledged that consideration of the two 

remaining probes more closely associated appellant with the 

rapist. 

 In its rebuttal case, the Commonwealth called Dr. Scott 

Raymond Diehl as an expert in molecular biology and population 

genetics. Dr. Diehl endorsed Scanlon's method of calculating the 

statistical probabilities of a random match between appellant's 

DNA and that of the rapist; Dr. Diehl discredited the method 

espoused by appellant's expert. 

 Dr. Diehl further testified, with a high degree of 

certainty, that the DNA material on the two probes which Scanlon 

had excluded from his consideration had come from the rapist 

rather than the victim. Appellant objected to Dr. Diehl's 

calculating the statistical probability of a random match based 

on all five probes. He complained that Dr. Diehl should not be 

allowed "to put in a different case than what Mr. Scanlon has 

already testified to." The court overruled the objection in 

light of the testimony of both Drs. D'Eustachio and Diehl that 

the DNA in question on the two probes had been contributed by the 

rapist and not the victim. Dr. Diehl testified that when 

considering all five probes, the probability of a random match 

between appellant and the rapist was one in 58.3 billion among 
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the caucasian population, one in 39.4 billion in the black 

population, and one in 13 billion in the hispanic population. 

 We utilize an abuse of discretion standard to review the 

trial court's decision to allow Dr. Diehl to testify concerning 

random match probabilities based on all five probes; in absence 

of abuse, the court's judgment will not be disturbed on appeal. 

See Foley v. Commonwealth, 8 Va. App. 149, 165, 379 S.E.2d 915, 

924, aff'd on reh'g, 9 Va. App. 175, 384 S.E.2d 813 (1989) ("[A] 

trial court in its discretion may allow the Commonwealth to 

present rebuttal evidence even when it would have been more 

appropriately introduced as part of the case-in-chief"); cf.

Chrisman v. Commonwealth, 3 Va. App. 371, 375-76, 349 S.E.2d 899, 

902 (1986) ("Whether the Commonwealth should be permitted to 

introduce additional evidence in chief after it has rested is a 

matter for the sound discretion of the trial court."). We find 

no abuse of discretion. 

 The two probes in question were admitted into evidence, 

without objection, during Scanlon's direct testimony. Scanlon 

testified unequivocally that neither of the two probes excluded 

appellant as the rapist. Pursuant to his lab's policy, however, 

Scanlon did not consider the two probes when determining the 

probability of a random match between appellant and the rapist 

because the genetic material in the two probes had "overlapped." 

 During subsequent cross-examination in the defense case, defense 

expert Dr. D'Eustachio acknowledged that the genetic pattern on 
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the two probes that had been observed to match that of appellant 

had most likely come from the rapist's DNA, not from the victim. 

 Likewise, Dr. Diehl unequivocally opined that the genetic 

material in question on the two probes which had been observed to 

match that of appellant had been contributed by the rapist, not 

the victim. Appellant raised no objection to the Commonwealth's 

questions to Drs. D'Eustacio and Diehl, which sought to elicit an 

opinion concerning the identity of the donor of the genetic 

material on the two probes in question. Dr. Diehl's computation 

of random match probabilities based on all five probes was based 

on evidence properly before the court, including the probes 

themselves, as well as expert testimony that appellant's DNA 

matched that of the rapist in all five probes. We find no abuse 

of discretion by the trial court in allowing Dr. Diehl to testify 

concerning his consideration of the evidence before the court.1

II. DISCOVERY OF PROFICIENCY TEST RESULTS 

 The proficiency of DNA analysts such as Scanlon is gauged, 

in part, through participation in blind tests. At issue here are 

two proficiency tests conducted through a particular testing 

agency, Collaborative Testing Services, Inc. (CTS). 

 The testing procedure was as follows. Scanlon completed 

 1Appellant contends that the court's decision to allow Dr. 

Diehl to testify concerning probabilities based on all five 

probes violated his statutory right to receive notice of and 

copies of any DNA reports that the Commonwealth intended to offer 

at trial. However, appellant failed to make such an argument at 

trial and is, therefore, procedurally barred from raising it on 

appeal. Rule 5A:18. 
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sample DNA tests developed by various testing agencies. The 

tests were returned to the central lab director, who returned 

them to the testing agency. The testing agency evaluated the 

results and calculated a proficiency rating for the test-taker. 

CTS produces a manual detailing of the results of the proficiency 

tests but identifying by code the test-takers and laboratories in 

which the tests were taken. 

 In April, 1994, a discovery order was entered, directing the 

Commonwealth to produce, inter alia, "copies of records of 

proficiency testing of personnel in the laboratories where [DNA] 

analyses were performed." In May, 1994, the parties entered an 

agreement on DNA and serology discovery which provided, inter

alia, that "[a] memorandum recounting the proficiency testing of 

Mr. Scanlon and the results thereof will be provided by the 

laboratory." 

 The memorandum produced by the Commonwealth identifies four 

proficiency tests completed by Scanlon. The tests are identified 

by number, manufacturer, sample information and dates of 

completion. The memorandum notes that "[n]o deficiencies were 

noted in Mr. Scanlon's testing of [three of the tests]" and "[t]o 

date, no information has been received from the manufacturer 

regarding the results of [the fourth]." 

 Appellant filed a motion to compel further discovery 

concerning the two proficiency tests administered through CTS. 

He sought information concerning the details of Scanlon's tests 
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and his numerical results, rather than the lab's conclusion that 

there were no deficiencies in Scanlon's tests. Specifically, 

appellant sought disclosure of the CTS identification code that 

corresponded with Scanlon's proficiency test so he could "inquire 

as to how [Scanlon] did on this proficiency test." Appellant 

argued that the language in the May agreement, directing the 

Commonwealth to "recount[] the testing of Mr. Scanlon and the 

results thereof," required disclosure of the details of Scanlon's 

tests. The court reviewed the memorandum the Commonwealth had 

produced and concluded that it was sufficient under the terms of 

the agreement. Accordingly, it denied appellant's motion to 

compel further discovery. 

 Appellant argues that without the actual test data he was 

unable to determine Scanlon's proficiency for himself. Cf. Ellis 

v. Commonwealth, 14 Va. App. 18, 22, 414 S.E.2d 615, 617 (1992) 

(accused not required to accept conclusion of chemist, disclosed 

in certificate of analysis, that substance accused possessed was 

cocaine). We find the trial court did not abuse its discretion 

in denying appellant's motion to compel further discovery. The 

Commonwealth's production of the memorandum was consistent with 

the parties' agreement, which reflected the materials the parties 

intended to be disclosed in discovery; i.e., a memorandum 

recounting Scanlon's testing and the results thereof. 

 On appeal, appellant complains that the court's denial of 

his further discovery request failed to comport with the April 
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discovery order. Appellant failed to raise such an argument 

before the trial court.2

 The issue before the court was whether 

the Commonwealth's memorandum comported with the May agreement 

concerning discovery. The effect of that agreement, if any, upon 

the prior discovery order was not raised or addressed below, and 

we will not address it for the first time on appeal. Rule 5A:18. 

 Appellant further complains that he was not provided the 

proficiency test results of the entire central lab. He cites an 

article by Dr. Jonathan J. Koehler which he claims shows that the 

results of the CTS tests in question here reflected errors by the 

laboratories taking the tests, including false positive 

identifications. In his brief, appellant stresses the importance 

of disclosing the results of proficiency testing to the jury and 

the need for the trier of fact to consider rates of error. He 

complains that the anonymity of the laboratories in the CTS 

report prevented him from presenting evidence on the central 

lab's overall proficiency and its aggregate rate of error. This, 

he claims, violated his right to call evidence in his favor. See

Cox v. Commonwealth, 227 Va. 324, 328-29, 315 S.E.2d 228, 230 

(1984); Lomax v. Commonwealth, 228 Va. 168, 172, 319 S.E.2d 763, 

765 (1984). 

 Appellant, however, failed to raise any of these contentions 

 

 2Indeed, the record plainly shows that at the hearing on 

appellant's motion to compel further discovery, appellant argued 

that the terms of the May agreement compelled production of the 

information he sought. 
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when he argued his motion to compel further discovery. Before 

the trial court, appellant stated, "We would be satisfied if the 

laboratory could identify which test corresponds with this 

analyst [Scanlon]. That's all we're asking for." He did not 

request proficiency testing of the entire central lab. Nor did 

appellant refer the trial court to Dr. Koehler's study or argue 

the relevance of the central lab's test results. Accordingly, we 

find appellant's complaint with respect to the proficiency 

testing of the central lab to be procedurally barred. Rule 

5A:18. 

 Furthermore, on this record, we cannot say that appellant 

established the relevance of obtaining the results of the central 

lab's proficiency tests. See Cox, 227 Va. at 328-29, 315 S.E.2d 

at 230-31 (information in question must be material to case); 

Patterson v. Commonwealth, 3 Va. App. 1, 7, 348 S.E.2d 285, 289 

(1986) (same). Here, nothing suggests that anyone, other than 

Dr. Scanlon, performed the tests relied upon in this case, and 

nothing in the record supports the conclusion that the lab's 

overall proficiency level has any bearing on the proficiency of a 

particular examiner or the accuracy of the particular tests 

performed in this case. 

III. APPOINTMENT OF THIRD EXPERT 

 In May, 1994, appellant filed a motion seeking authorization 

for employment of three experts to aid in his defense at the 

Commonwealth's expense. Appellant requested (1) Dr. Peter 
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D'Eustachio, to provide a foundation in molecular biology; (2) 

Dr. Lawrence D. Mueller, to explain population genetics and 

statistics; and (3) Dr. Jonathan J. Koehler, an expert in applied 

statistics and psychology, to 

 take the ball and run with it and explain 

what kind of statistics have been used, how 

they're prejudicial and give us the 

psychological parameter--psychological 

dimension, which we've not had before. Dr. 

Koehler has expertise in psychology, 

especially the psychology of the impact of 

this type of information on juries, and 

that's an added dimension that we would like 

to bring in. 

The court granted appellant's motion with respect to Drs. 

D'Eustachio and Mueller, but it refused to authorize the 

employment of Dr. Koehler, noting its concern that the proffered 

testimony would invade the province of the jury. We find no 

error in the court's decision. 

 The Commonwealth must provide indigent defendants with "`the 

basic tools of an adequate defense,'" including appointment of 

non-psychiatric experts where the accused makes a "particularized 

showing of . . . need." Husske v. Commonwealth, 252 Va. 203, 

211, 476 S.E.2d 920, 925 (1996) (quoting Ake v. Oklahoma, 470 

U.S. 68, 77 (1985)). 

 "`Mere hope or suspicion that favorable 

evidence is available is not enough to 

require that such help be provided.' . . . 

`This particularized showing demanded . . . 

is a flexible one and must be determined on a 

case-by-case basis.' . . . The determination 

 . . . whether a defendant has made an 

adequate showing of particularized necessity 

lies within the discretion of the trial 

judge." 
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Id. at 212, 476 S.E.2d at 925-26 (quoting State v. Mills, 420 

S.E.2d 114, 117 (N.C. 1992)). The accused must "demonstrate that 

the subject which necessitates the assistance of the expert is 

`likely to be a significant factor in his [or her] defense,' and 

that he [or she] will be prejudiced by the lack of expert 

assistance." Id. (quoting Ake, 470 U.S. at 82-83). This burden 

is satisfied by showing that an expert's services "would 

materially assist [the accused] in the preparation of his [or 

her] defense and that the denial of such services would result in 

a fundamentally unfair trial." Id. In Husske, the Commonwealth 

presented two DNA experts but provided no expert for the indigent 

defendant. The Supreme Court upheld the conviction because the 

defendant failed to establish the basis for the appointment of an 

expert. 

 In light of the principles established in Husske, we find 

the trial court did not abuse its discretion in refusing to 

appoint Dr. Koehler. Appellant articulated no particularized 

need for the appointment of Dr. Koehler in addition to the two 

experts of appellant's choosing that the court provided. 

Appellant proffered that he intended to rely on Dr. Koehler 

during trial to testify concerning error rates and inferences 

that may be drawn from statistical evidence.3

 Dr. Mueller 

 

 3Appellant also intended to rely on Dr. Koehler's expertise 

in behavioral science to attack the admissibility of the DNA 

evidence. However, the admissibility of DNA evidence is firmly 

established by Code § 19.2-270.5. 
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covered the ground Dr. Koehler would have covered with respect to 

statistics and error rates. Dr. Mueller, an expert in population 

genetics and statistics, testified at length concerning the 

propriety of the statistical methods Scanlon used to calculate 

the random match probabilities. Dr. Mueller also testified 

concerning proficiency testing and the relationship between a 

statistical error rate and a statistical probability of finding a 

random match. He opined that the important consideration in 

evaluating a statistical conclusion was the error rate rather 

than the probability of finding a random match because error 

would be more likely to occur. 

 We find the proffered testimony of Dr. Koehler to be not 

material to the preparation of appellant's defense in light of 

the assistance he received from Drs. D'Eustacio and Mueller. 

Finally, Dr. Koehler's testimony concerning the psychological 

impact of statistical evidence on the jury would, in effect, 

constitute a comment on the weight to be given such evidence, a 

clear and improper invasion of the jury's role. In sum, we find 

no basis to conclude that appellant was prejudiced by the court's 

decision not to appoint Dr. Koehler. 

 Appellant's convictions are accordingly affirmed. 

 Affirmed.
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Benton, J., concurring. 

 I concur in sections I and III of the majority opinion. I 

concur in the result reached in section II but write separately 

because I disagree with the majority's analysis. 

PRESERVATION OF THE APPEAL 

 The majority concludes that Hodges failed to raise before 

the trial judge his arguments regarding the denial of his Motion 

to Compel Discovery. I disagree. First, the majority argues 

that Hodges failed to argue that the Commonwealth did not comply 

with the trial judge's original discovery order. However, the 

written motion filed by Hodges states the following, in pertinent 

part: 

 COMES NOW [Hodges], by counsel, and 

represents to the Court that the Commonwealth 

has refused to produce discovery in 

accordance with the previously entered 

discovery order in these cases, to wit: 

records of proficiency testing pursuant to 

paragraph 2(w) of said order. 

Paragraph 2(w) of the April 1994 discovery order required the 

Commonwealth to provide Hodges "copies of records of proficiency 

testing of personnel in the laboratories where RFLP and PCR 

analyses were performed in these cases." The Commonwealth's 

argument that the disclosure met the requirements of the parties' 

subsequent agreement does not negate the fact that Hodges raised 

in his motion the Commonwealth's failure to comply with the April 

discovery order. Accordingly, I would hold that Hodges preserved 

his objection that the Commonwealth failed to comply with the 
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discovery order. 

 The majority next concludes that Hodges failed to argue 

before the trial judge that the anonymity of the laboratories in 

the CTS report prevented him from determining the laboratory's 

overall proficiency and rate of error. I disagree. At the 

hearing on Hodges' Motion to Compel Discovery, the following 

discussion occurred: 

 COUNSEL: . . . Our discovery is incomplete 

in one small detail. There have been some 

references to forensic proficiency testing 

which has been performed or has been based 

upon tests submitted to the Virginia 

laboratory with the results turned in to an 

evaluating agency, and we received the 

results; however, these tests are sent out to 

many laboratories and the results are 

returned to the evaluating agency. 

 Now, upon evaluating the tests, they 

publish these in a book form like this, but 

all the laboratories are coded so that you 

can't tell who it is without having the 

laboratory number. So our request is to have 

the laboratory number so that we can more 

properly discuss these materials. 

* * * * * * * 

 THE COURT: . . . Why do you need to know 

that? 

 COUNSEL: Well, in this particular case, 

we're not concerned with all of the other 39 

or 40 laboratories around the country who may 

have reported in. We're concerned with the 

Virginia laboratory. So in that connection, 

we are seeking . . . the identification . . . 

which sets of these results correspond to the 

laboratory we're interested in discussing 

here to see if they did do well on the test 

or if they didn't do well on the test or any 

questions like that. 
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Counsel did state during the argument that he "would be satisfied 

if the laboratory could identify which test corresponds with this 

analyst." However, later in the discussion counsel resumed his 

argument that he needed the laboratory's identification code. 

Counsel clearly made the trial judge aware of the relief he 

sought and the grounds in support of his assertion. See Code 

§ 8.01-384(A) ("[I]t shall be sufficient that a party, at the 

time the ruling or order of the court is made or sought, makes 

known to the court the action which he desires the court to take 

. . . and his grounds therefor. . . ."). Accordingly, I would 

hold that Hodges also preserved this argument for appeal. 

 MERITS 

 However, the record reveals that Hodges signed an agreement 

with the Commonwealth that purported to govern the manner in 

which the Commonwealth would satisfy its discovery burden as 

provided in the prior discovery order. The agreement, entitled 

"Agreement on DNA and Serology Discovery," stated, in pertinent 

part, the following: 

 It is hereby agreed that discovery 

related to DNA and serological analyses will 

be provided in the manner described in the 

paragraphs that follow. 

* * * * * * * 

 6. A memorandum recounting the 

proficiency testing of Mr. Scanlon and the 

results thereof will be provided by the 

laboratory. 

The memorandum the Commonwealth later provided to Hodges 
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described the nature of each of four tests performed. 

Specifically, the report set forth the manufacturer of each test, 

the nature of the blood samples used, and the kinds of analyses 

completed on the samples. The report stated that no deficiencies 

were found in three of the tests. The results from the fourth 

test had not been received. Because the memorandum appears to 

"recount[] the proficiency testing . . . and the results 

thereof," I would hold that the Commonwealth satisfied its burden 

under the agreement and the order to which it pertained. 

Accordingly, I concur.