IN RE: ROY L. WATFORD, III
PETITION FOR A WRIT OF ACTUAL INNOCENCE
E. POWELL JUSTICE.
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.
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." 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
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.
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. However, Watford's younger brothers,
Evelio and Anthony, did reside at that house.
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
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.
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.
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; none of the hairs
collected from the pubic combings were determined to be
microscopically similar to 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. Watford did not appeal.
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. 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.
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.
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.
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.
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.
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
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."
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. ...