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In re Watford

Supreme Court of Virginia

March 1, 2018





         Roy L. Watford, III, ("Watford") petitions this Court to grant a writ of actual innocence based on biological evidence pursuant to Code § 19.2-327.2 et seq.

         I. BACKGROUND

         On September 14, 1977, twelve-year-old A.C. was brought into the emergency room of the Portsmouth Naval Hospital by her mother. A.C. reported that, at around 9:30 p.m. that evening, she had been raped and sodomized. While A.C. was being treated in the Emergency Room, a Physical Evidence Recovery Kit ("PERK") was administered. In a document titled "Doctor's Report of Alleged Rape" (the "Doctor's Report"), the examining physician, Lt. Commander D. Matey ("Dr. Matey"), recorded the alleged offenders as "Skip, Anthony, Vale Waffer."[1] Additionally, a "Request for Laboratory Examination" form dated September 14, 1977, similarly identifies the "suspect(s)" as "Skip, Anthony and Vale Waffer." However, "Skip" and "Vale Waffer" are crossed out. In noticeably different handwriting, "Roy W. III" is written above "Skip" and "Evelio Watford" is written above "Vale Waffer."[2]

         Upon receiving the report of the rape, Detective S. Kaiser of the City of Portsmouth Police Department was dispatched to the emergency room. Detective Kaiser met with A.C. and her mother. A.C. confirmed to Detective Kaiser that she had been "raped by three black males who were known to her." She also reported that she had been anally sodomized.

         Detective Kaiser subsequently took A.C. and her mother back to the area where the crimes occurred, and A.C. pointed out two houses. The first house she identified as the home of one of her attackers. The car parked in the driveway of the house was registered to Watford's father. Watford did not reside with his father; he lived with his grandparents at a different address.[3] However, Watford's younger brothers, Evelio and Anthony, did reside at that house.

         The second house A.C. pointed to was a vacant house on the same side of the street as the first house. A.C. identified this house as the location of the attack. Detective Kaiser then took A.C. and her mother back to the police station, where she attempted to conduct a taped interview with A.C. However, the detective was unable to complete the taped interview because A.C. had "trouble relating the occurrence." A.C. was also unable to complete a written statement.[4]

         The next day, Detective Kaiser interviewed A.C. again. According to A.C., during the attack, "someone had thrown a heavy bedspread or bed sheet over her face to keep her from screaming." Detective Kaiser and three other officers then conducted a search at the vacant house where the attack took place. There, they found a blue-grey quilt. Additionally, they cut a section from the mattress found in the house that appeared to have sperm on it.

         On September 16, 1977, an arrest warrant was issued for Watford. The arrest warrant indicates that it was issued based on a sworn statement from A.C.'s mother. At the time, Watford was eighteen years old.

         A.C.'s PERK, which included saliva, anal, and vaginal swabs, pubic combings, her blue jeans and her underwear, was submitted to the Bureau of Forensic Science ("BFS") for further testing, as was the quilt and the mattress cutting taken from the house. Hair and saliva swabs taken from Watford and his brothers were submitted to the BFS as well. Sperm was found on the vaginal swab, A.C.'s blue jeans, her underwear and the mattress cutting. BFS reported that of the eight hairs collected from the mattress cutting, only one was microscopically similar to Watford's hair;[5] none of the hairs collected from the pubic combings were determined to be microscopically similar to Watford.

         Watford was indicted in the Circuit Court for the City of Portsmouth for rape and sodomy. On March 23, 1978, Watford pled guilty to rape. The circuit court, pursuant to the Commonwealth's motion, dismissed the indictment for sodomy. On June 14, 1978, the circuit court sentenced Watford to ten years' imprisonment, entirely suspended for a period of ten years.[6] Watford did not appeal.[7]

         In 2010, several pieces of evidence in this case were subjected to DNA testing. The Virginia Department of Forensic Science ("DFS") issued a certificate of analysis on August 6, 2010. The certificate of analysis indicated that the DNA recovered from the vaginal swab, A.C.'s blue jeans and the mattress cutting came from three different contributors.[8] A comparison of these DNA profiles against the saliva swabs of Evelio and Anthony eliminated them as possible contributors of the genetic material on the vaginal swabs, A.C.'s blue jeans and the mattress cutting. Watford could not be eliminated as a contributor, as DFS was unable to develop a DNA profile for him from the saliva swab that had previously been collected.

         In 2016, a buccal swab was obtained from Watford. A second certificate of analysis was issued on June 17, 2016, stating that Watford had been eliminated as a possible contributor to the genetic material on the vaginal swab, A.C.'s blue jeans and the mattress cutting.

         On August 15, 2016, Watford petitioned this Court for a writ of actual innocence based on biological evidence, pursuant to Code § 19.2-327.2 et seq. The Commonwealth moved to dismiss the petition. After the parties had filed their briefs, this Court, recognizing that the record in this case was insufficient to resolve Watford's claim of actual innocence, directed the Circuit Court of the City of Portsmouth to conduct an evidentiary hearing pursuant to Code § 19.2-327.4 and to make several factual findings.

         At the evidentiary hearing, A.C. testified regarding what she recalled from the day of the attack. A.C. was specifically asked if she had seen Watford at all on the day of the attack. She responded that she had not. She did, however, see Evelio, after she entered the vacant house, just before she was sexually assaulted. When she was asked if she had named Watford as one of her attackers, she responded "I can't remember I did." When the circuit court pressed her on the matter, she stated, "I don't remember, no. I don't remember naming him." She then stated that she remembered naming Evelio. Additionally, when asked if she knew Watford's nickname at the time of the offense, she said she did not.

         Robert Jenkins ("Jenkins") was also called as a witness. At the time of the attack, Jenkins was 13 years old and lived in the house between the vacant house and the house where Watford's brothers lived. Jenkins testified that he remembered being in front of his house with a friend on the day of the attack. According to Jenkins, he was familiar with Watford and did not see him at all that day.

         The circuit court also heard testimony from Joseph Brown, III ("Brown"), who stated that he and a friend were walking by the vacant house on the day of the attack, when they heard a girl screaming inside. Brown stated that he and his friend went into the house, saw A.C. and some guys Brown did not know, and took A.C. out of the house. Brown further testified that he knew Watford and he did not see him in the house.[9]

         After it heard all of the evidence, the circuit court returned its findings of fact to this Court. Notably, the circuit court found that A.C. was "certain that she saw Evelio Watford immediately before she was attacked and never saw Roy Watford." Further, A.C. "did not know [Watford's] nickname was Skip" and she "could not remember if she specifically named Roy Watford in her description to Detective Kaiser."

         II. ANALYSIS

         In his petition, Watford relies on the fact that his DNA profile does not match the DNA profile developed from the vaginal pool swab or the DNA profile developed from the mattress cuttings. Watford acknowledges that he pled guilty to the crime, but claims that he only pled guilty because his "grandfather prevailed on him to plead guilty and go home that day." Watford further notes that, according to the circuit court files, A.C. ...

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