IN RE: WINSTON L. SCOTT
PETITION FOR A WRIT OF ACTUAL INNOCENCE
All the Justices
BERNARD GOODWYN JUSTICE.
Lamont Scott (Scott) filed a petition for a writ of actual
innocence based on biological evidence pursuant to Code
§ 19.2-327.2, et seq. Upon reviewing the
totality of the evidence, including the records from the
original case, the evidence presented at the original trial,
the newly discovered DNA evidence, and additional factual
proffers made by the petitioner and the Commonwealth, the
Court is of opinion that the petition should be granted and
the writ of actual innocence be issued.
24, 1975, at approximately 5:25 a.m., the Fairfax County
Police Department received a telephone call about a rape that
had occurred at an apartment in Reston, Virginia. A police
unit arrived a few minutes later and interviewed the victim,
about the attack.
to a report completed by Investigator Larry Wilkins
(Investigator Wilkins), he collected "the clothing that
the victim wore during the attack and the clothing the victim
put on after the attack," which were put in separate
bags and marked. JD was transported to the hospital. The
police unit put "all evidence and property . . . in
separate envelopes," including various samples taken
from Id. at the hospital, and placed them in the
property room at the police station.
the investigation, JD helped the police create a composite
sketch of her attacker. The police presented an initial photo
line-up, but JD was unable to identify a suspect.
September 24, 1975, Fairfax police interviewed a witness
regarding an unrelated crime. They showed the witness the
composite sketch and asked her if she knew anyone resembling
the person in the sketch. The witness suggested that the
composite resembled Scott, her brother's friend. After
retrieving a photo of Scott, the police arranged a photo
line-up for JD on September 26, 1975, which included the
photo of Scott. JD picked the photo of Scott. Scott was
arrested on September 29, 1975.
Trial and Conviction
Circuit Court of Fairfax County tried Scott on January 26,
1976 for one count of rape, one count of carnally knowing the
victim with the mouth, and one count of burglary. Scott pled
not guilty to all three counts.
trial, JD testified that on the night before the attack, she
left her balcony door open before she went to sleep, and that
she was alone in the apartment because her only roommate
spent the night elsewhere. JD said she woke up to see a man
standing beside her bed at about 4:30 a.m. She testified:
"He just told me if I did what he told me to do he
wouldn't hurt me." She immediately felt
"shocked and very frightened."
testified that her drapes were drawn, and the room was dark
except for some light from a "pole light" outside.
She did not get a good look at the man.
testified that he "walked over to the side of the bed .
. . pulled the bed covers off . . . and shone his flashlight
on me." She said he never put the flashlight on his
face, however. JD was only wearing a flannel shirt which the
attacker pulled up around her shoulders. JD testified that
the perpetrator fondled her breasts with his mouth, put his
tongue on her vagina for thirty seconds to a minute, and then
penetrated her with his penis for about a minute before he
climaxed. She testified that the perpetrator asked her
several questions, but she could not speak because she was so
frightened. The perpetrator took some money out of her purse
and then he left. She assumed that he left through the
balcony door. JD estimated that the whole episode lasted
about 15 minutes.
testified that after her attacker left, she got up and called
her boyfriend, RN,  who arrived about 25 minutes later. She
said that RN called the police from her apartment. The police
arrived at her apartment about ten minutes later. She
identified Investigator Wilkins as one of the officers who
eventually arrived at the scene. After the police conducted
their initial investigation, JD testified that she went to
the hospital and was examined by Dr. William Enos (Dr. Enos).
testified she subsequently helped the police create a
composite sketch of her attacker using generic photographs
and descriptions and that she was satisfied with the sketch.
The sketch was admitted into evidence.
testified that Investigator Wilkins showed her some
photographs of men fitting the description several days after
the attack, but she did not identify any of the photographed
men as her attacker. JD stated that Officer Donald Neese
(Officer Neese) showed her a second photo line-up about a
month or so later. She identified one of those photos as her
attacker. It was a photograph of Scott. In the courtroom, JD
identified Scott as her attacker.
Neese testified that he conducted the second photo line-up on
September 26, 1975. He stated that he presented JD with six
photos of males similar to the composite sketch, and that she
identified the photo of Scott as her attacker.
Enos, a pathologist at Northern Virginia Doctors Hospital and
the designated forensic pathologist for the Commonwealth of
Virginia, testified that he examined Id. at about
9:30 a.m. on the morning JD was attacked. He testified that
he found no evidence of recent trauma, such as lacerations or
bruises, and his examination of JD's "labia, vaginal
orifice, hymen, vagina, cervix, et cetera were essentially
negative." He took a vaginal swab.
Enos said he found spermatozoa in JD's vagina. He stated
that he "processed the material from the vaginal wall
for a chemical known as acid phosphatase." The test
suggested to him "that the semen had been deposited
there within a relatively short period of time." He
estimated that the semen was deposited within five hours of
his examination of JD.
Enos testified that Investigator Wilkins brought Scott to Dr.
Enos for a blood draw on November 10, 1975. Dr. Enos said
both JD and Scott had blood type O.
conclusion of the Commonwealth's evidence, Scott moved to
strike the evidence. The circuit court denied the motion.
first witness, Scott called Mary Jane Burton (Burton),
forensic scientist who worked for the Commonwealth at the
Bureau of Forensic Science in Richmond as the head of
forensic serology. The court qualified Burton as an expert
witness in "bodily secretions." She testified that
she analyzed a vaginal swab from JD and a substance found in
the crotch of the jeans "that were reportedly worn by
the victim" after the attack. She identified the
substance on the jeans as sperm.
Scott asked about Dr. Burton's tests of the sperm, the
Commonwealth objected to the chain of custody of the jeans.
In response, Scott called Investigator Wilkins to establish
the jeans' chain of custody.
Wilkins stated that the jeans were handed to him by police
personnel in the apartment the morning of the attack. He said
he put the jeans in a plastic envelope, the Criminal
Investigation Division "bagged and tagged" them,
and then the Division personnel stored them in the property
room the same day as the attack. Investigator Wilkins stated
he sent the jeans to the Northern Virginia Crime Laboratory
twice for testing in Richmond: first on August 18, 1975, and
then again on November 10, 1975. He stated that he stored the
jeans in the same property room between the two tests.
Investigator Wilkins concluded that the jeans he received the
morning of the attack were the same jeans he received from
the lab "[w]ithout any doubt whatsoever."
Commonwealth renewed its objection for lack of a proper chain
of custody. The court noted the chain of custody was properly
established except for this "small link" about who
handed the jeans to Investigator Wilkins. Rather than call JD
back, the circuit court sought an agreement regarding the
chain of custody. The parties agreed. The Commonwealth
stipulated on the record: "[T]he jeans in question are
the victim's jeans that were taken from her apartment
that morning," and were the same jeans transported to
noted that a person's bodily secretions correspond to
their ABO factors in blood. A September 19, 1975 DFS
Certificate of Analysis (September 1975 COA) prepared by
Burton identifying "Item E - Jeans worn by victim"
was admitted into evidence. The COA prepared by Burton states
that "spermatozoa was identified in a stain on the
crotch area of the blue jeans. Further tests on this stain
indicates that the secretions are Type A." Burton
returned to the stand to describe the results of her
serological tests on the substance found in the crotch of the
jeans. Therefore, a "man with type O blood could not
emit type A semen."
explained that because of what Investigator Wilkins referred
to as "a discrepancy in the analysis," the jeans
were resubmitted to the crime lab on November 10, 1975 for
retesting. Upon retesting in November, the retest indicated
that the secretion on the jeans was type O. The resulting
November 1975 COA regarding the retest of the "jeans
worn by victim" was offered into evidence by the
Commonwealth, and was also admitted into evidence by the
explained that the discrepancy between the two test results
could possibly be because the jeans were stored in a plastic
bag while the stain was still wet, and bacteria grew that
caused a different reaction and test result. She testified
that, after realizing there might be "a problem with the
test result," she took a sample from the edge of the
semen stain for the November test-rather than a sample closer
to the middle of the stain like the prior test- because
"this is the part that would have dried before it was
sealed up" and would be less likely to have bacterial
testified that she did not test the original stain for
bacteria, and she did not know whether bacteria were present
in the sample. She admitted that she did not see any, but the
conditions "were right for the growth of bacteria."
She concluded by stating "obviously it cannot be both A
and O, but my tests showed the first time that it was A, the
second time O. Now, if indeed bacteria were present, this
would explain A, but I do not know of my own knowledge that
bacteria were present." In its closing, the Commonwealth
argued that the testing was inconclusive and should not be
considered by the jury. The defense argued that the first
test result indicated Scott's innocence.
testified that on July 23, 1975, he spent the day helping
Bobby Reid (Bobby) paint Bobby's parents' house.
Scott said he remembered this day because Bobby's father
came home with a new lawn mower. He stated he ate dinner at a
shopping mall and stayed out with Bobby and other friends at
the mall until around 11:30 p.m. when he and Bobby returned
to Bobby's house to go to bed. Scott testified that he
slept in Bobby's brother's room alone, and fell
asleep around 1:00 a.m. Scott testified he did not leave the
room during the night. He testified that he did not own a car
at the time. He said he awoke around 8:00 a.m. the next day
to continue painting the house before going to his job at
testified that he remembered his father bought a lawnmower on
July 23, 1975, and that Scott helped him paint that day.
Bobby confirmed that he hung out with Scott at the mall and
returned to his parents' home around 11:00 p.m. with
Scott. He stated that Scott slept in his brother's room,
and said he saw Scott after they woke up the next morning.
Reid, Bobby's mother, testified she remembered July 23,
1975 because her husband bought a lawn mower that day. The
lawn mower's receipt, dated "7/23/75," was
introduced into evidence. She testified that Scott came back
with Bobby around 11:00 p.m., which was Bobby's curfew,
and spent the night. She confirmed Scott slept in Bobby's
brother's room, and she said Scott was in the room when
she checked on him the next day around 7:30 a.m. She also
noted that her room in the house is over the driveway. At the
request of defense counsel, she had measured the distance
between her house and the apartment complex where the crimes
occurred. She testified that the distance ranged between 4.7
to 4.9 miles, depending on the route taken.
the closing arguments, the jury found Scott guilty on all
three counts. The jury sentenced Scott to a total of 14
years' imprisonment: ten years for rape, three years for
carnal knowledge, and one year for burglary. The circuit
court imposed the jury's sentence.
Court refused Scott's appeal of his convictions on April
14, 1977. On March 6, 1978, Scott submitted a petition for
writ of habeas corpus in the circuit court. After the
Commonwealth filed a motion to dismiss the petition, the
court granted leave for Scott to amend his petition. After
the time to amend had passed without an answer from Scott,
the court denied and dismissed the petition because of the
failure to amend. Scott was granted discretionary parole on
May 26, 1981.
2005, Governor Mark Warner ordered the Department of Forensic
Science (DFS) to test biological evidence collected and
retained by DFS relating to criminal cases tried between 1973
and 1988, using DNA testing ...