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In re Scott

Supreme Court of Virginia

March 7, 2019



         PRESENT: All the Justices



         Winston 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.


         A. Criminal Investigation

         On July 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, JD, [1] about the attack.

         According 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.

         During 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.

         On 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.

         B. Trial and Conviction

         The 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.

         At 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."

         JD 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.

         JD 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.

         JD testified that after her attacker left, she got up and called her boyfriend, RN, [2] 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).

         JD 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.

         JD 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.

         Officer 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.

         Dr. 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.

         Dr. 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.

         Dr. 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.

         At the conclusion of the Commonwealth's evidence, Scott moved to strike the evidence. The circuit court denied the motion.

         As his first witness, Scott called Mary Jane Burton (Burton), [3] a 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.

         When 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.

         Investigator 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."

         The 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 the lab.

         Burton 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."

         Burton 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 circuit court.

         Burton 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 growth.

         Burton 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.

         Scott 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 4:00 p.m.

         Bobby 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.

         Beverly 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.

         After 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.

         C. Post-Conviction Proceedings

         This 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.

         D. Biological Testing

         In 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 ...

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