                             COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Alston and Senior Judge Annunziata
Argued at Richmond, Virginia


THOMAS POPE, JR.
                                                                       OPINION BY
v.     Record No. 2558-10-2                                     JUDGE ROSSIE D. ALSTON, JR.
                                                                       JULY 31, 2012
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
                              W. Allan Sharrett, Judge

               Connie Louise Edwards (Connie Louise Edwards, P.C., on briefs),
               for appellant.

               John W. Blanton, Assistant Attorney General (Kenneth T.
               Cuccinelli, II, Attorney General, on brief), for appellee.


       Thomas Pope, Jr. (appellant) appeals his convictions for rape and first-degree murder.

He assigns a mixture of eight errors to the trial court’s judgment encapsulated as follows: 1) a

Batson challenge; 2) chain of custody; 3) hearsay evidence; 4), 5), and 6) presentation of the

database match probability statistic; 7) DNA certificates of analysis; and 8) a post-trial motion

for a subpoena duces tecum. Finding no error in any aspect that appellant alleges, we affirm his

convictions and sentence.

                                         BACKGROUND

       Viewing the evidence in the light most favorable to the Commonwealth, as we must

when the Commonwealth prevails at trial, see Maxwell v. Commonwealth, 275 Va. 437, 442,

657 S.E.2d 499, 502 (2008), the evidence indicated that a woman was raped and strangled in her

home in Emporia, Virginia, on January 2, 1975. Despite her injuries, the victim managed to call

911 and report that she had been assaulted. When Emporia Police Lieutenant Clyde Harrell
(Harrell) arrived at the victim’s house, he found the eighty-eight-year-old woman seated in a

chair, nude from the waist up. She told Harrell that “a negro man had torn her clothes off and

had choked her.” Because the victim was in a state of shock and having difficulty breathing,

Harrell did not ask her any more questions while they waited for an ambulance to arrive. The

victim was transported to the hospital where she died approximately one hour after she reported

the attack.

        Harrell “obtained all the evidence that [he] could find in helping to solve this case” from

the victim’s residence. The next day, January 3, 1975, Virginia State Police Trooper T.J.

Roseberry, II (Trooper Roseberry) collected the evidence from Harrell and identified each item

in his notes: “A[,] panties; B, slips, plural, two of them; C, a blouse, flowered, red, green, and

brown”; and a piece of rug that Harrell cut out. 1 Trooper Roseberry then went back to the

victim’s home and collected additional evidence. Trooper Roseberry secured all the evidence in

his cruiser and took it to the state laboratory on January 10, 1975.

        Joan Faunce, an employee of the Division of Forensic Science (“DFS”) 2 in 1975,

received the evidentiary items directly from Trooper Roseberry. In her examination of the items,

Faunce detected sperm, spermatozoa, and seminal fluids on a number of them. Faunce also

received vaginal and cervical smears from the victim via Dr. Wiecking of the Medical Exam

Section of the Division. Faunce identified the possible presence of seminal fluid in the vaginal

smears. Faunce performed a serological 3 examination of the fluids. Curtis Jasper Moore was


        1
          There is nothing in the record to suggest that anyone other than Harrell had the items
that he recovered prior to turning them over to Trooper Roseberry.
        2
            The Division of Forensic Science was later renamed the Department of Forensic
Science.
        3
            Faunce conducted a serological examination because DNA testing was not available in
1975.
                                                -2-
later developed as a suspect in the attack, but the evidence of the serological examination did not

implicate Moore because he was a non-secreter. 4 When Faunce completed her testing of each

item, she placed the sample on the appropriate laboratory worksheet and secured the sample to

the sheet with “Scotch” tape. Once Faunce finished with each piece of evidence, she returned

that piece to Trooper Roseberry but for the sample taped to the worksheet. The worksheets were

retained by DFS with the case file. Faunce never worked with the case file again.

       Within one week of the rape and murder of the elderly victim, police questioned Moore

about his possible involvement in the crimes. Moore eventually confessed and was tried and

convicted. His conviction was later overturned when a federal court granted his petition for a

writ of habeas corpus, holding that his confession was obtained in violation of his Fifth

Amendment rights. See Moore v. Ballone, 488 F. Supp. 798, 808 (E.D. Va. 1980). 5

       The police investigation of the crimes remained open and unsolved, and on June 20,

1986, DFS eventually sent its case records to the State Record Center of the Library of Virginia

for storage.

       In 2005, Governor Warner ordered a review of all the serology case files worked between

1973 and 1988. The purpose of this review was to locate files that contained evidence and, in

cases where the listed suspect was convicted, to have DNA testing conducted on that evidence.

As a result of that order, the evidentiary samples from this victim’s rape and murder were

removed from storage by DFS on June 4, 2007, and sent to a contract laboratory, Bode

Technology (“Bode”), for analysis. Analysts at Bode extracted and amplified DNA present in

the vaginal smear and oral swab taken from the victim in 1975 to develop a profile of the


       4
         A non-secreter does not produce a water-soluble form of his blood type, and his body
fluids cannot be used to determine his blood type for comparison.
       5
           Moore passed away at some point prior to 2008.
                                              -3-
victim’s DNA. The same analysts extracted and amplified DNA from the evidence that Faunce

affixed to her worksheets to develop a DNA profile of the perpetrator. The lead analyst prepared

a report on the analysis and sent the report, the generated data, and the evidence back to DFS.

       Lisa Schiermeier-Wood, a senior analyst at DFS, received the report and the data. She

reviewed the data and the analysis done at Bode, formed her own conclusions, and wrote an

additional report summarizing her conclusions. As part of Schiermeier-Wood’s report, she

generated a certificate of analysis which included a profile of the victim’s DNA and the DNA of

her assailant. Schiermeier-Wood then searched the Virginia database of convicted felons’ DNA

profiles. From this search, she identified a DNA profile of appellant that was consistent with the

DNA profile of the victim’s assailant. Next, Schiermeier-Wood requested and obtained a buccal

swab from appellant and developed a DNA profile of him that she compared to the previously

developed evidentiary profile. Schiermeier-Wood concluded that appellant could not be

eliminated as the contributor of the DNA from the crime scene. She performed a statistical

analysis of the evidentiary DNA profile and determined its rarity: 1 in 1.1 billion in the

Caucasian population, 1 in 81 million in the African-American population, and 1 in 1.7 billion in

the Hispanic population. Schiermeier-Wood’s analysis led to appellant’s indictment for the rape

and murder of the victim. On August 11, 2008, appellant was arrested.

         A. Motion to Suppress DNA Evidence – Challenge to Certificates of Analysis

       On March 19, 2009, appellant filed a motion to suppress the certificate of analysis dated

July 21, 2008, that Schiermeier-Wood produced and signed. In his motion, appellant asserted

that this certificate did not comply with the requirements of Code § 19.2-187 because it was not

signed by the person who performed the examination of the DNA.

       In late April 2009, the trial court held a hearing on the motion to suppress. In his opening

statement at the hearing, appellant referred to an additional certificate of analysis dated August
                                                -4-
20, 2008, and argued that DFS had impermissibly created its own definition of what it means to

“analyze” the data. Specifically, he contended that the person who signed the certificates,

Schiermeier-Wood, did not do the actual testing and analysis of the data (the actual analysis was

done at Bode, according to appellant), but rather merely reviewed the work and signed the

certificates. The Commonwealth argued that Schiermeier-Wood did indeed conduct the analysis

consistent with statutory requirements by analyzing the data prepared by other technicians and

scientists.

        Schiermeier-Wood was the only witness to testify at the suppression hearing and stated

that Bode did the laboratory work as described above. Specifically, she testified that Bode did

the laboratory work to develop the DNA profiles and sent the data back to DFS for review and

analysis. She further testified that she reviewed images of the DNA profiles along with

numerical interpretations of the profiles that Bode created. As part of her review of the data,

Schiermeier-Wood explained that she examined the DNA process performed at Bode, including

reviewing the DNA profiles to determine if she agreed with Bode’s interpretations, which she

did. Schiermeier-Wood testified that after coming to this conclusion, she compared the DNA

profiles generated from the evidence with a known DNA profile of the victim. In conducting

this comparison, Schiermeier-Wood said she determined that there was a foreign DNA profile in

the evidence. The July 21, 2008 certificate of analysis was based on this work.

        She further testified that her search of the Virginia convicted offender DNA database

returned appellant’s name as an individual who had a profile consistent with the foreign DNA

profile developed from the evidence. As noted above, Schiermeier-Wood further stated that she

requested and received a fresh buccal swab from appellant to compare to the foreign DNA

profile developed from the evidence. Working with other DFS employees, she developed a

DNA profile of appellant from the buccal swab. She testified that the August 20, 2008 certificate
                                               -5-
of analysis was based on this work and reflected her conclusion that appellant’s new DNA

profile, along with his profile in the database, was consistent with the foreign DNA profile from

the victim’s rape and murder.

       Schiermeier-Wood went on to testify that DFS and Bode are accredited laboratories and

that the protocol DFS uses is a commonly accepted protocol within the scientific community.

She stated that her work, as is all analysis at DFS, was peer-reviewed by other analysts and that

her work required an expert to interpret DNA data like the data she received from Bode. As part

of the accreditation process, Schiermeier-Wood explained that DFS maintains a quality control

manual that inter alia defines terms for use in DNA analysis. During her testimony,

Schiermeier-Wood read the definition in the manual for “examination[:]” “the act or process of

conducting or evaluating analytical procedures and tests that contribute to reaching a finding.”

She also read that an “examiner” is “an employee who performs examinations on and/or

develops findings or conclusion [sic] concerning physical evidence, prepares and signs reports,

and testifies in Court as required.” She concluded her testimony by stating that she signed the

certificates of analysis in question based on the work that she had done and on these definitions.

       After Schiermeier-Wood’s testimony, appellant argued that the July 21, 2008 certificate

was not properly signed because Schiermeier-Wood admitted that she did not conduct the

examination of the evidence. Appellant further contended that Schiermeier-Wood merely

certified that the analysis had been done properly at Bode. The Commonwealth responded that

Schiermeier-Wood, an expert in the field, properly signed the certificate because she evaluated

the data and conducted an analysis of it beyond what was done with the evidence at Bode.

       Denying the motion to suppress, the trial court found that it was guided by Code

§ 19.2-187 and that Schiermeier-Wood did perform an analysis. As the basis for its conclusion,

the trial court found that Schiermeier-Wood analyzed the data, examined the data, and reached
                                               -6-
her conclusions based upon those endeavors. The trial court concluded that because the results

in the certificates of analysis were the results of Schiermeier-Wood’s analysis she was the

appropriate person to sign both of them.

                       B. Pretrial Motion for Presentation of DNA Statistics

       After an article appeared in the local newspaper mentioning that appellant was a

convicted sex offender, appellant filed a motion to change venue and a motion in limine to

present the database match probability (DMP) statistic to the jury. At a hearing on both motions,

the trial court took the venue motion under advisement pending jury selection. Regarding DMP,

appellant stated that he wanted “to get before the jury the alternative calculation of the statistics,

[DMP,] that [is] relevant and pertinent in this case.” Appellant advised the trial court that DMP

is an alternative calculation to random match probability (RMP) statistics, which are generally

used in DNA cases. Appellant supported his argument for DMP by pointing to its first

appearance in a 1996 publication from the National Research Council of the National Academy

of Science, The Evaluation of Forensic DNA Evidence, National Academy Press, 1996 (NRC

II). In the publication, DMP was suggested as the appropriate statistic to be used when a suspect

is developed by a search of a DNA database because DMP takes RMP and multiplies it by the

number of samples contained in the database.

       During this same hearing, the Commonwealth advised the trial court that although DFS

follows most of the guidance from the NRC, DFS does not use DMP even in “cold hit” cases. 6

Appellant argued to the trial court that his court-appointed DNA expert also did not use DMP,

nor was it clear that he was familiar enough with the arguments for and against using DMP in

“cold-hit” cases. Appellant requested that the trial court allow him to identify a new expert who


       6
         “Cold-hit” is the term given when a suspect is identified as a result of a DNA
evidentiary profile “matching” a DNA profile contained in a DNA database.
                                              -7-
would be competent to testify about DMP. The trial court granted this request and continued the

decision on the merits of the motion to another hearing.

        At the second hearing on DMP, both counsel informed the trial court that they had been

unable to find any case law regarding the issues associated with the appointment of an individual

with expertise in DMP or any authority recognizing DMP as scientifically accepted. During

argument, appellant stated that the science underpinning both DMP and RMP is the same; they

are “just competing theories over what is the appropriate question to be asked.” Appellant

argued that he had a particularized need for this statistic and an expert on this subject because

DMP “accurately expresses the probability of obtaining a ‘cold-hit’ from a search of a particular

database.” Further, he contended that there was a large difference in the probability statistics

generated by RMP and DMP in the instant case. Finally, he presented a letter from his proposed

DMP expert, Dr. Charles Taylor, which stated in pertinent part, “[t]he statistical and population

genetics community has not been able to come to a satisfactory agreement about which [statistic,

DMP or RMP] is best at this time.”

        Denying the motion, the trial court ruled that it could not and did not “make a threshold

finding of fact with respect to the reliability of the scientific method offered and it is not of a

kind [so] familiar [and accepted as] to require no foundation to establish its fundamental

reliability.” The trial court denied the motion based on: 1) the statement in Dr. Taylor’s letter;

2) the court-appointed DNA expert’s lack of familiarity with DMP; 3) DFS’s decision not to use

DMP; and, 4) the absence of any Virginia court having found DMP reliable.

                 C. Pretrial Motions for Change of Venue and Batson Challenge

        A jury trial commenced on March 22, 2010. Thirty-three persons were called to make up

the venire. During voir dire, twenty-three of the thirty-three veniremen admitted that they had

heard about the case from the media or some source. Four of those veniremen were struck for
                                                 -8-
cause for several comingled reasons regarding each by stipulation of the parties. Two others

were struck for cause. Neither the Commonwealth nor appellant opposed those strikes for cause.

Appellant then made a general motion to strike the jurors who had read about the case because as

the evidence unfolded, the contents of the newspaper articles could be triggered and taint the

proceedings. During this argument, appellant also renewed the previously unadjudicated pretrial

motion for a change of venue. The trial court denied the motion to strike the jurors who had read

about the case in the media, but once again held open the motion for a change of venue.

       The Commonwealth used four of its peremptory strikes to strike four black women,

including Ms. Bonnie Lee. Because appellant is a black man and the Commonwealth struck four

black veniremen, appellant raised a challenge to the striking of these jurors pursuant to Batson v.

Kentucky, 476 U.S. 79 (1986). The Commonwealth responded that within the last several years

it had prosecuted three of the four black women that it struck for various misdemeanors. As to

Ms. Lee, the Commonwealth stated:

               [COMMONWEALTH’S ATTORNEY]: Ms. Lee I struck because
               I had no information on her. On all the paperwork we received,
               she was the only one on here on the whole panel that I had no prior
               knowledge of or information on. She also did not answer any
               questions, which is fine, but it draws me to the fact that she did not
               read the paper, she has not heard anything about this case. It just
               drew my attention that she had not read anything or didn’t appear –
               I had no knowledge about her, Your Honor, that was the reason for
               the strike. I had knowledge on every other person, either where
               they worked or some prior information given to us by the clerk’s
               office.
The trial court and counsel then had the following exchange:

               [APPELLANT’S COUNSEL]: Juror Lee, no knowledge about
               her, we didn’t have -- at least I didn’t, I don’t know whether she
               was able to get that, the no knowledge – the fact she didn’t answer
               the questions, Your Honor, I don’t -- I do kind of challenge that. I
               don’t know how to be more specific than that.
               THE COURT: Well, you need to offer a reason as to why that
               explanation is a mere pretext or not supported by the evidence.
                                               -9-
               [APPELLANT’S COUNSEL]: Well, she didn’t -- I don’t recollect
               that she did answer any questions that would bring attention to
               herself. But, Your Honor, that’s a juror that you’re lucky about,
               that they haven’t read the paper and they haven’t been
               contaminated by the case, so –
               THE COURT: Well, the Court’s not found --it’s not left on any
               juror that’s contaminated with the case, for the record.
               [APPELLANT’S COUNSEL]: No, I wasn’t trying to imply that.

               THE COURT: Okay.

               [APPELLANT’S COUNSEL]: But to say it’s no knowledge and
               the fact she didn’t answer positively to questions brought her
               attention to her, they were other people that didn’t answer
               questions too and they were white.
               THE COURT: The Court agrees with that. The inquiry where the
               Court focuses is that, according to the Commonwealth, Juror Lee
               was the only juror about whom she had no information because the
               juror apparently had not filled out a questionnaire or -- I don’t
               know.
               [COMMONWEALTH’S ATTORNEY]: It’s not on my list.

               THE COURT: Pardon me?

               [COMMONWEALTH’S ATTORNEY]: It’s not on the list that
               was provided to us by the clerk’s office, so they either did not get
               her questionnaire back or not in a timely fashion.
               THE COURT: Okay. You don’t have any information on her?

               [COMMONWEALTH’S ATTORNEY]: No, sir.

               THE COURT: Okay. Do you wish to respond to that, [appellant’s
               counsel]?

               [APPELLANT’S COUNSEL]: No, Your Honor, I leave that.

       The trial court overruled the Batson challenge, finding that the Commonwealth’s

explanations were race neutral and free of any inherent discriminatory intent.




                                               - 10 -
                                               D. The Trial

       After the jury was impaneled and counsel presented opening statements, the

Commonwealth called Harrell, who, in the intervening thirty-five years since the victim’s rape

and murder, had retired from the police force as a deputy sheriff. Harrell, who had also suffered

a stroke in the intervening years, testified that he remembered responding to the victim’s house

on the night of her death, but could not remember what he had done that night or what specific

evidence he collected. Harrell stated that he remembered that he collected evidence and wrote a

report about his actions and observations of that night. After testimony and argument outside the

presence of the jury, the trial court admitted Harrell’s report as a past recollection recorded and

allowed it to be read to the jury. The report described Harrell’s involvement in the case as

recounted above and included the following statement, “I [Harrell] obtained all the evidence that

I could find in helping to solve this case.”

       Before testimony from the Commonwealth’s second witness, Trooper Roseberry, the trial

court allowed counsel to address appellant’s objection to Trooper Roseberry using certain

portions of his original handwritten notes from the investigation into the victim’s rape and

murder. Trooper Roseberry’s notes included information regarding the evidence he received

from Harrell at the police station the day after the victim was attacked. The notes identified the

items and listed where in the victim’s home Harrell maintained that he found the items. Trooper

Roseberry admitted that he made these notes after speaking with Harrell and did not have any

additional personal knowledge regarding those items of evidence and their original locations

within the victim’s home. Appellant objected to this portion of Trooper Roseberry’s notes,

stating: “Your Honor, I guess basically it comes in – it’s a hearsay thing again because this

information as to where the items were located were [sic] told to him by . . . Harrell.” Appellant

added, “So I guess I would object to it on those grounds because he would not know and also he
                                                  - 11 -
can’t testify to where they were kept for that day, I guess.” After the trial court and counsel

examined Trooper Roseberry outside the presence of the jury regarding the elements of past

recollection recorded as pronounced in Ashley v. Commonwealth, 220 Va. 705, 261 S.E.2d 323

(1980), the trial court overruled appellant’s objection.

         In the presence of the jury, Trooper Roseberry testified to his involvement in the

investigation based on his notes, which were never admitted into evidence. Trooper Roseberry

testified that he arrived at the Emporia Police Department on January 3, 1975, and was briefed

on the crimes. Trooper Roseberry stated that after the briefing, Harrell turned several items of

evidence over to Trooper Roseberry and told him that he collected those items in specific

locations of the victim’s house. Trooper Roseberry testified that Harrell “gave [him] -- on [the]

list it’s noted number 5A panties; B, slips, plural, two of them; C, a blouse, flowered, red, green,

and brown”: and item 10 a piece of rug that Harrell cut out. Trooper Roseberry testified from the

same notes about additional items of evidence he collected on January 3, 1975, when he went

back to the victim’s house: item 6, a pillow from a chair; item 7, bottom bedding from the

victim’s bed; item 11, the rug from which item 10 was cut. After collecting these items, Trooper

Roseberry stated that he kept all the items locked in his state police vehicle until he personally

delivered the items to the state laboratory on January 10, 1975. He testified that no one else had

keys to his vehicle, and no one else was inside the vehicle during the week he stored the items

there. Trooper Roseberry further testified that appellant had never been in his police vehicle.

         Following Trooper Roseberry’s testimony, Faunce testified for the Commonwealth

regarding her work with the evidence for DFS shortly after the crime occurred in 1975 as noted

above.

         Prior to bringing the jury out on the second day of trial, the trial court entertained

appellant’s motion to exclude the DNA evidence, arguing that the chain of custody had not been
                                                 - 12 -
established for the physical evidence that DFS analyzed to produce the DNA evidence.

Appellant argued that because Harrell could not remember what he collected, or what he did with

the evidence before turning it over to Trooper Roseberry the next day, a “vital link” was missing

in the chain of custody, which required the trial court to exclude the DNA evidence. Denying

the motion, the trial court stated:

                All right. Trooper Harrell excuse me, Sheriff Harrell, then
                Lieutenant Harrell, testified that he collected the crime scene
                evidence and he turned it over to Trooper Roseberry. He was not
                specific and could not recall the exact things that he collected.
                Trooper Roseberry testified -- he verifies Harrell’s testimony and
                testified that he collected the items that Harrell turned over to him.
                He made notes contemporaneous with that, the originals to which
                still exist and to which Trooper Roseberry referred yesterday
                listing the items that he received.
                         We’re talking about DNA. We’re talking about our
                biological fluid with DNA. If it brushed up against something, it
                might destroy DNA but it’s not going to remake it into something.
                It’s not going to remake one person’s DNA into some other
                person’s DNA. It might make it impossible to find -- determine if
                there is any DNA to be recovered but it’s not -- it can’t morph it or
                change it from one person’s DNA into someone else’s DNA. In
                looking at a chain of custody, the Court looks at -- and I agree with
                the defense that the Court really is a gatekeeper in this, it has to
                make certain that there is a sufficient chain of custody to give
                reliability to the investigation, it can’t allow that to go to the jury.
                         And in looking at this particular set of facts, the testimony
                as it was, and what we’re looking at and looking for, the Court
                believes that the Commonwealth has established sufficient
                reliability in the integrity of the evidence-gathering process and the
                preservation of the particular material for it to continue – I’m not
                going to rule it admissible at this point because we haven’t had the
                rest of it, but for it to continue with its chain of custody pursuit.
                We’ve got it to Roseberry. We’ve got it to the lab. We’ve got it to
                the serologist. I think we’ve got it that far anyhow.
        After denying the motion, the trial court brought the jury back, and the Commonwealth

called Kelli Lewis, a forensic casework supervisor and senior DNA analyst for Bode. Lewis

qualified as an expert in DNA typing and analysis. Although she conducted some of the

                                                 - 13 -
laboratory processing for some of the DNA samples in this case, Lewis testified that she did not

conduct any statistical analysis of the DNA in this case. On cross-examination, Lewis stated that

she had done statistical analysis in other cases and had used two formulas when conducting DNA

statistical analysis: RMP, for single-source profiles, and Combined Probability of Exclusion, for

cases where there is more than one donor of DNA in a sample. Lewis noted that she uses RMP

even when the case is a “cold-hit.” When prompted by appellant’s counsel, Lewis stated that she

was familiar with DMP and had “read a little bit about it.” She acknowledged that the NRC II

report provides guidelines to laboratories which conduct DNA statistical analysis and

recommends using DMP when a suspect is found through a search of a DNA database. Lewis

read from the report that DMP is calculated by multiplying RMP by N, the number of individuals

in the database.

       The Commonwealth then called Schiermeier-Wood to testify about her analysis of the

DNA and statistical calculations. She testified consistently with her testimony at the pretrial

hearing on direct examination. On cross-examination and outside the presence of the jury,

Schiermeier-Wood stated she was familiar with the recommendations in the NRC II and that the

NRC II is a set of guidelines for the forensic community. She further testified, however, that

DFS does not follow all of the guidelines, and specifically, DFS does not calculate DMP. When

questioned about what question DMP answers, Schiermeier-Wood stated that it was her

understanding, based on a 2009 scholarly paper, that DMP truly estimates the expected number

of replicates of such databases in which this profile is expected to be found. She also stated that

she had never used DMP and was unaware of anyone in Virginia using DMP.

       The trial court again ruled that it would not allow evidence concerning DMP because

DMP “has not been accepted ever in a court in Virginia.” The trial court also noted that DFS has

never used DMP, and observed that even appellant’s proposed expert, Dr. Taylor, stated that the
                                               - 14 -
DNA statistics community had not come to a satisfactory agreement on which statistic is best to

use.

       The Commonwealth rested its case-in-chief following Schiermeier-Wood’s testimony,

and appellant presented the following stipulations: 1) the population of Virginia on July 1, 2009,

was 7,882,590; 2) the victim called the police at 7:48 p.m. on January 2, 1975, and stated that she

needed help, had been robbed and choked. She wanted the police to come and remove her

assailant from her house as she could not leave because her assailant had stripped her and raped

her. She described her assailant as a middle-aged Negro man; 3) appellant was nineteen years

old on January 2, 1975; 4) appellant and Curtis Jasper Moore were not related; 5) appellant has

male relatives, a father, brothers, uncles, and cousins of various degrees both living and

deceased. Appellant also introduced a transcript of a police interrogation of Moore and a

sheriff’s testimony at Moore’s trial for the victim’s rape and murder.

       Appellant did not call any witnesses, nor did he move to strike the Commonwealth’s

evidence. The Commonwealth did not introduce any evidence in rebuttal.

       The trial court instructed the jury and released them to deliberate after counsel gave their

closing arguments. The jury found appellant guilty of the victim’s rape and murder in the first

degree and recommended life imprisonment plus thirty-five years, along with a $100,000 fine.

                        E. Post-trial Motion for a Subpoena Duces Tecum

       Prior to appellant’s sentencing hearing before the trial court, appellant filed a request for

a subpoena duces tecum, seeking additional information about the analysis of DNA from Item #5

(victim’s slip). In an affidavit filed with the request, counsel for appellant asserted that

Schiermeier-Wood testified Item #5 “was run through NDIS [National DNA Index] and two

candidate matches were produced” and that both of these candidate matches were eliminated.

Counsel further averred that after trial she asked DFS to explain to her the basis for eliminating
                                                - 15 -
these candidate matches. Counsel stated that she was unable to “get a straight answer” from

DFS and became “concern[ed] that there has been a breach of Broady’s [sic] requirements to

disclose exculpatory evidence to the defendant.” Appellant requested the subpoena to determine

if a Brady7 violation occurred because he believed that DFS’s stated basis to exclude the

candidate matches was inappropriate. Also attached to the motion was a letter from DFS which

stated, “[The] eliminated NDIS candidates possess alleles not detected in the Item 5 profile and

also lack alleles present in the item 5 profile.”

        The trial court held a hearing on the matter during which appellant contended that the

response to his question from DFS concerning the basis for eliminating the candidate matches

did not state a proper basis for eliminating the candidates. Specifically, appellant stated “neither

one of these reasons is a reason for elimination.” In response, the Commonwealth stated that the

letter and the trial testimony clearly indicated why the two candidate matches were eliminated,

but that the Commonwealth’s Attorney was not personally aware of the method behind the

elimination because she did not ask DFS to provide that to her. Appellant’s counsel admitted

that she and the court-appointed DNA expert had access not only to DFS’s material for this case,

but also DFS personnel and laboratories.

        In response to questioning from the trial court, appellant’s counsel stated, “[T]he concern

of counsel is indeed that [the candidate matches] are samples that were not validly eliminated.”

Shortly thereafter, the trial court asked, “So defense does not have any argument that exculpatory

evidence exists that has not been disclosed or that has been willfully withheld; is that correct?”

Appellant’s counsel replied, “I have not filed a Brady motion.” Counsel also confirmed that she

had access to the DFS laboratory, actually went to the laboratory, and had access to the DFS

scientists who testified at trial. When asked by the trial court if the Commonwealth possessed, to

        7
            Brady v. Maryland, 373 U.S. 83 (1963).
                                               - 16 -
the best of its knowledge, any evidence subject to disclosure under Brady, the Commonwealth

replied, “No, sir.” The trial court denied the request for a subpoena, holding that appellant had

failed to meet the requirements for demonstrating a Brady violation.

       The trial court later sentenced appellant consistent with the jury’s recommendation to life

imprisonment plus thirty-five years. This appeal followed.

                                           ANALYSIS

                                       A. Batson Challenge

       Appellant argues that the trial court erred in denying his Batson challenge to the

Commonwealth’s decision to strike Ms. Lee from the jury. Under this assignment of error,

appellant acknowledges that he failed to properly preserve his challenge to this ruling at trial and

requests that we apply one of the exceptions to Rule 5A:18. 8 Assuming without deciding that

appellant has properly requested that we apply either the “ends of justice” or “good cause”

exception to Rule 5A:18, we nevertheless find the issue waived.

       Initially we note that the ends of justice exception “is narrow and is to be used sparingly.”

Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989). “In order to avail

oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has

occurred, not that a miscarriage might have occurred.” Redman v. Commonwealth, 25 Va. App.

215, 221, 487 S.E.2d 269, 272 (1997) (citing Mounce v. Commonwealth, 4 Va. App. 433, 436,

357 S.E.2d 742, 744 (1987)). To establish that a clear miscarriage of justice has occurred, an

appellant must demonstrate that he was convicted for conduct that was not a criminal offense or




       8
          On brief, appellant states that he “invokes Rule 5A:18” regarding this assignment of
error. This imprecise statement does not specify the part of the rule appellant seeks to invoke.
However, for the reasons stated below, even assuming appellant has properly invoked the “ends
of justice” or “good cause” exceptions to Rule 5A:18, we find neither exception applicable.
                                                 - 17 -
the record must affirmatively prove that an element of the offense did not occur. Id. at 221-22,

487 S.E.2d at 273.

       Appellant has not demonstrated that he was convicted for conduct that was not a crime,

nor has the record proven that an element of one of the charged offenses did not occur.

Accordingly, we decline to apply the ends of justice exception to reach the merits of this

assignment of error.

       Similarly, we find no legal basis to apply the good cause exception to Rule 5A:18.

“‘Good cause’ relates to the reason why an objection was not stated at the time of the ruling.”

Campbell v. Commonwealth, 14 Va. App. 988, 996, 421 S.E.2d 652, 656 (1992) (en banc)

(citing Murray v. Carrier, 477 U.S. 478, 488-89 (1968)). When a defendant has ample

opportunity to bring his due process claim to the trial court’s attention but fails to do so, the good

cause exception does not apply. See Andrews v. Commonwealth, 37 Va. App. 479, 493-94, 559

S.E.2d 401, 409 (2002).

       In addressing appellant’s argument, we find Buck v. Commonwealth, 247 Va. 449, 443

S.E.2d 414 (1994), instructive. Buck was an African-American male on trial for possession of

cocaine with intent to distribute. Id. at 450, 443 S.E.2d at 414. The Commonwealth struck two

of three African-American potential jurors, one female and one male. Id. at 451, 443 S.E.2d at

414. In response to Buck’s Batson challenge, the Commonwealth stated that it struck the female

juror because she was relatively young, had no children, and the Commonwealth felt that jurors

with children would be more inclined to convict a drug dealer. Id. As to the male juror, the

Commonwealth stated that it struck him because he was inappropriately dressed for court –

wearing an athletic jacket – and he lived in Petersburg, which has a significant drug problem.

Thus, the Commonwealth believed he would be more “tolerant of this offense.” Id. When given

the opportunity to argue that these reasons were pretextual, Buck simply stated: “My concern
                                                - 18 -
was that the jurors are not representative of the population. There were three blacks on the

panel. We now only have one, and I would think more significant reasons than what was given

should be shown.” Id. at 452, 443 S.E.2d at 416. The trial court overruled Buck’s challenge,

and he appealed.

       On appeal, Buck argued for the first time that the Commonwealth’s reasons were

pretextual because there was another young, white, female juror who had no children, that the

jury list showed that the African-American male juror had a Richmond address, and that there

were five other non-African-American individuals on the list who had Richmond addresses but

were not struck. Additionally, according to Buck, the male juror’s decision to wear an athletic

jacket was appropriate dress for the beginning of winter when the trial occurred. Id. at 452, 443

S.E.2d at 415-16. The Supreme Court held:

               Nothing in [his] statement informed the trial court that Buck
               believed that the reasons advanced were pretextual because they
               were inconsistently applied, nor did Buck’s statement advise the
               court that the reasons were based on a mistake concerning an
               address, an improper assumption of toleration for drug-related
               crimes, or erroneous inferences drawn from the wearing of an
               athletic jacket. Buck’s failure to raise these arguments before the
               trial court precludes him from raising them for the first time on
               appeal.

Id. at 452-53, 443 S.E.2d at 416.

       This particular discussion in Buck is analogous to the case at bar. Just as Buck raised a

Batson challenge to the Commonwealth’s striking members of his own race from the jury,

appellant raised a Batson challenge to the Commonwealth’s striking of four African-American

jurors from the jury. Similar to the trial court in Buck, which gave Buck an opportunity to

challenge the Commonwealth’s stated reasons for striking the jurors, the trial court in this case

gave appellant an opportunity to argue that the Commonwealth’s stated reasons for striking Lee

were pretextual. And like Buck, who raised a distinctly different argument on appeal compared
                                               - 19 -
with his statement at trial, appellant contends that the Commonwealth’s stated reason for striking

Lee – no information – was a pretext for its true reason, that Lee had not read the newspaper

article revealing appellant’s convicted sex offender status. Appellant admits on brief that he

failed to make this argument at trial. Because appellant had an opportunity to present his

argument to the trial court and failed to raise the specific argument that he now raises, the good

cause exception does not apply. See Andrews, 37 Va. App. at 493-94, 559 S.E.2d at 409.

       Finding no basis to apply either exception to Rule 5A:18, we deem this assignment of

error waived and decline to address its merits.

                                       B. Chain of Custody

       Under his second assignment of error, appellant argues that the trial court erred in

“admitting the physical evidence and the DNA typing results obtained therefrom” because the

items Harrell collected from the victim’s home “were not enumerated, described, or identified in

any specific way, nor do we know how they were handled, kept or stored” from the time that

Harrell collected them until he turned them over to Trooper Roseberry the next morning. As an

initial matter, our review of the record indicates that the Commonwealth never introduced the

physical evidence items that DFS extracted DNA evidence from – the victim’s slip, blouse, and

panties. Thus, we will not consider that portion of appellant’s assignment of error.

       The determination on a chain of custody challenge lies within the trial court’s broad

discretion and will not be overturned on appeal absent an abuse of that discretion. See Crews v.

Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994). We find that the trial court

did not abuse its discretion under the circumstances of this case.

       Although the Commonwealth is required to demonstrate evidence supporting every “vital

link in the chain of custody” when introducing the results of chemical analysis of physical

evidence items, Robinson v. Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180 (1971),
                                                  - 20 -
“the burden is not absolute that ‘all possibility of tampering’ be eliminated,” id. (quoting People

v. Riser, 305 P.2d 1, 10 (Cal. 1957)). Moreover, “[a]ll that is required . . . to establish a chain of

custody is that the Commonwealth’s evidence ‘afford reasonable assurance that the exhibits at

trial are the same and in the same condition as they were when first obtained.’” Pope v.

Commonwealth, 234 Va. 114, 121, 360 S.E.2d 352, 357 (1987) (quoting P. Smith v.

Commonwealth, 219 Va. 554, 559, 248 S.E.2d 805, 808 (1978)). In the event that a gap in the

chain of custody is shown, “‘gaps in the chain [of custody] normally go to the weight of the

evidence rather than its admissibility.’” Aguilar v. Commonwealth, 280 Va. 322, 332-33, 699

S.E.2d 215, 220 (2010) (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n.1

(2009)).

       Appellant is correct that the Commonwealth’s evidence demonstrated only that Harrell

collected “all the evidence [he] could find” and that Harrell had custody of the items overnight

before he gave them to Trooper Roseberry the next day. However, under the circumstances of

this case, we do not find that the trial court erred in concluding that Harrell’s failure to enumerate

the items in his report or state how he kept them overnight did not constitute a missing “vital

link” in the chain of custody but rather went to the weight of the evidence. See Robinson, 212

Va. at 138, 183 S.E.2d at 180.

       To the extent that appellant has identified a “‘gap’” in the chain of custody, the trial court

properly concluded that this gap affected the weight accorded the evidence as opposed to its

admissibility. Aguilar, 280 Va. at 332-33, 699 S.E.2d at 220 (quoting Melendez-Diaz, 557 U.S.

at 311 n.1). Understandably, Harrell could not recollect exactly the items that he collected from




                                                - 21 -
the victim’s home over thirty-five years after he responded to her 911 call. 9 Additionally,

Trooper Roseberry’s testimony established that he received the items from Harrell the next

morning and identified them specifically. Trooper Roseberry’s testimony also demonstrated that

the items were stored and kept properly until he delivered them to DFS one week later.

Appellant has not challenged the chain of custody from the time that Trooper Roseberry obtained

the items from Harrell; therefore, we see no need to examine the chain of custody beyond the

morning of January 3, 1975, when Trooper Roseberry received the items from Harrell.

       Because appellant simply identified an evidentiary “gap” in the evidence collection

process instead of demonstrating any lack of assurance regarding the preservation of the

evidence or identifying a missing “vital link” in the chain of custody, we find that the trial court

did not abuse its discretion in overruling appellant’s motion to exclude the analysis of DNA

evidence obtained from the physical evidence items Harrell recovered.

                                       C. Hearsay Evidence

       Appellant contends that the trial court erred in overruling his hearsay objection to

Trooper Roseberry’s testimony regarding what Harrell told him about the physical evidence

Harrell collected from the victim’s home. We decline to consider the merits of this argument for

two procedural reasons. First, appellant failed to meet his burden to provide us with a record

from which we can properly evaluate this alleged error, Smith v. Commonwealth, 16 Va. App.

630, 635, 432 S.E.2d 2, 6 (1993) (citing Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255,

256-57 (1961)). Moreover, referring to the plain language of appellant’s assignment of error, as

we must, we find the argument waived by appellant’s failure to make a specific and

contemporaneous objection to Trooper Roseberry’s testimony. Rule 5A:12; Rule 5A:18.

       9
           In addition to the passage of time, the Commonwealth informed the Court at oral
argument that Harrell had suffered a stroke shortly before the trial and had passed away between
the trial and the appeal.
                                                 - 22 -
       As “[w]e have many times pointed out . . . the burden is on the appellant to present to us

a sufficient record from which we can determine whether the lower court has erred in the respect

complained of.” Smith, 16 Va. App. at 635, 432 S.E.2d at 6 (citing Justis, 202 Va. at 632, 119

S.E.2d at 256-57). The record indicates that Trooper Roseberry was examined outside the

presence of the jury to determine whether he could use his handwritten notes from the

investigation during his testimony as a past recollection recorded. Appellant objected to a

portion of the notes involving Trooper Roseberry’s collection of certain physical items of

evidence that he received from Harrell the day after the victim’s rape and murder. Appellant’s

stated grounds were: “it’s a hearsay thing again because this information as to where the items

were located were [sic] told to him by . . . Harrell” and “because he would not know and also he

can’t testify to where they were kept for that day.” Because Trooper Roseberry’s notes were

neither admitted into evidence nor made part of the record on appeal, we are unable to evaluate

whether the document(s) actually contained an out-of-court statement by Harrell or simply

Trooper Roseberry’s notations about the items. It is unclear whether Trooper Roseberry’s later

testimony about this issue came directly from his notes instead of from his memory.

       As opposed to simply reading his notes in the jury’s presence, Trooper Roseberry used

them as a reference during his testimony. Specific to the challenged portion of the notes,

Trooper Roseberry testified:

               Like I said, I received those from Lt. Harrell at the Emporia Police
               Department. He gave me – on my list it’s noted number 5A
               panties; B, slips, plural, two of them; C, a blouse flowered red,
               green and brown. I was advised by Lieutenant Harrell this was
               found in the living room between the front door and the front
               bedroom. He advised me that he collected these the evening
               before, which would have been January 2nd, 1975.

       Rule 5A:18 requires that an appellant make a specific and contemporaneous objection to

properly preserve an issue for appeal, otherwise this Court will deem the issue waived. Shelton
                                              - 23 -
v. Commonwealth, 274 Va. 121, 126, 645 S.E.2d 914, 916 (2007) (citing Nusbaum v. Berlin,

273 Va. 385, 406, 641 S.E.2d 494, 503 (2007)). Appellant’s objection outside the presence of

the jury focused on the admission of the notes themselves, not Trooper Roseberry’s expected

testimony. Appellant then did not object to the alleged hearsay during Trooper Roseberry’s

testimony. Appellant’s assignment of error refers to Trooper Roseberry’s testimony, not his

notes, and our review is limited to those errors specifically assigned by an appellant. See

Rule 5A:12; Clifford v. Commonwealth, 274 Va. 23, 25, 645 S.E.2d 295, 297 (2007) (holding

that an appellate court may not “recast” arguments). Because appellant failed to object at any

point during or after Trooper Roseberry’s testimony and his assignment of error specifically

challenges the testimony versus the handwritten notes, we deem the argument waived under

Rules 5A:18 and 5A:12.

                        D. RMP versus DMP and Motion for DMP Expert

       In appellant’s contiguous fourth, fifth, and sixth assignments of error, he contends that

the trial court erred in precluding him from introducing DMP, erred in allowing the

Commonwealth to present only RMP, and erred in denying him an expert to assist in presenting

DMP. We review the trial court’s decision on each of these issues for an abuse of discretion.

Herndon v. Commonwealth, 280 Va. 138, 143, 694 S.E.2d 618, 620 (2010) (admission of

evidence); Dowdy v. Commonwealth, 278 Va. 577, 595, 686 S.E.2d 710, 720 (2009)

(defendant’s motion for an expert). Reviewing the trial court’s determinations on these issues

under that standard, we find no abuse of discretion.

       It is well settled in Virginia that “[w]hen scientific evidence is offered, the [trial] court

must make a threshold finding of fact with respect to the reliability of the scientific method

offered, unless it is of a kind so familiar and accepted as to require no foundation to establish the

fundamental reliability of the system.” Spencer v. Commonwealth, 240 Va. 78, 97, 393 S.E.2d
                                                - 24 -
609, 621 (1990). During the pretrial hearing on appellant’s request to present DMP, the trial

court denied the request because it could not make that “threshold finding of fact” about DMP’s

reliability. The trial court based this determination on four specific grounds: 1) the statement in

Dr. Taylor’s letter that the relevant scientific communities had been unable to come to a

conclusion as to which statistic was most appropriate; 2) the court-appointed DNA expert’s lack

of familiarity with DMP; 3) DFS’s decision not to use DMP; and 4) the absence of any Virginia

court having found DMP reliable.

       During appellant’s jury trial, he was able to elicit testimony about DMP from two of the

Commonwealth’s witnesses. Both Lewis and Schiermeier-Wood read the NRC II’s

recommendation regarding DMP and how to calculate it. They agreed with appellant’s previous

arguments that the NRC II recommends using DMP in a cold-hit case but asserted that DFS does

not follow that guidance. They both also asserted that DFS does not utilize DMP, nor were they

aware of anyone in Virginia who regularly calculates DMP.

       Outside the presence of the jury, Schiermeier-Wood further disagreed with appellant

regarding what DMP purports to represent. Appellant repeatedly attempted to assert to the trial

court that DMP validly calculates the probability of coincidentally finding a match between a

DNA profile created from a crime scene sample and a DNA profile found in the Virginia

convicted offender DNA database. 10 On redirect by the Commonwealth, Schiermeier-Wood

asserted that she understood DMP to represent the probability of finding a match between a

DNA profile created from a crime scene sample and the same DNA profile in databases with the

same number of individuals as the Virginia convicted offender DNA database. The trial court


       10
           On appeal, appellant relies upon Crews v. Johnson, 702 F. Supp. 2d 618 (W.D. Va.
2010), aff’d sub nom. Crews v. Clarke, 2011 U.S. App. LEXIS 24292 (4th Cir. 2011) (per
curiam), for a discussion of the relevant terminology. We find Crews inapplicable in the context
of the instant appeal.
                                               - 25 -
again denied appellant’s request to present this statistic to the jury, citing its previous conclusion

that the evidence put forth did not satisfy the reliability requirement for presenting scientific

evidence.

        Faced with these disagreements, we find no error in the trial court’s conclusion that

appellant failed to establish a reliable foundation for introducing DMP without running the risk

of confusing or misleading the jury. See Spencer, 240 Va. at 97, 393 S.E.2d at 621. Due to our

determination that the trial court did not abuse its discretion in denying appellant’s requests to

present DMP, we necessarily find that the trial court did not err in denying appellant’s motion for

an expert on the same topic. Accordingly, we find no error as appellant has argued in

assignments of error four, five, and six.

                                     E. Certificates of Analysis

        Under his seventh assignment of error, appellant contends that Schiermeier-Wood was

not the appropriate person to sign the July 21, 2008 certificate of analysis because she never

worked with the physical evidence until February 2009 when Bode sent the samples back to

DFS. Appellant further contends that Schiermeier-Wood merely reviewed the data and notes

from Bode and then conveniently signed the certificate according to a DFS-created definition of

the word, “examiner.” We disagree.

        “[T]he admissibility of evidence is within the discretion of the trial court and [an

appellate court] will not reject the decision of the trial court unless [it] find[s] an abuse of

discretion.” Midkiff v. Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578 (2010) (citing

Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)). Only when reasonable

jurists could not differ [does this Court] say an abuse of discretion has occurred.” Thomas v.

Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743, adopted upon reh’g en banc, 45

Va. App. 811, 613 S.E.2d 870 (2005) (internal quotations and citations omitted). On appeal,
                                                 - 26 -
“[t]he burden is on appellant to show that the trial court’s admission of evidence constitutes

reversible error.” Dunn v. Commonwealth, 20 Va. App. 217, 220, 456 S.E.2d 135, 136 (1995)

(citing Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991)).

         Code § 19.2-187 provides in part:

               In any hearing or trial of any criminal offense . . . a certificate of
               analysis of a person performing an analysis or examination, duly
               attested by such person, shall be admissible in evidence as
               evidence of the facts therein stated and the results of the analysis or
               examination referred to therein . . . when any such analysis or
               examination is performed in any laboratory operated by the
               Division of Consolidated Laboratory Services or the Department of
               Forensic Science or authorized by such Department to conduct
               such analysis or examination.

(Emphasis added). We have previously examined the purpose behind the General Assembly’s

enactment of this code section and its applicability in cases involving forensic evidence. “Code

§ 19.2-187 was enacted to allow into evidence a written report of an analysis or examination

conducted by specified laboratories, without requiring that the technicians be present.” Myrick

v. Commonwealth, 13 Va. App. 333, 337, 412 S.E.2d 176, 178 (1991). In practice, it “provides a

basis for admitting into evidence the results of an analysis performed by [DFS] . . . when the

certificate showing the results is attested by the person who performed the test.” Galbraith v.

Commonwealth, 18 Va. App. 734, 740, 446 S.E.2d 633, 637 (1994).

       Contrary to appellant’s characterization of Schiermeier-Wood’s testimony,

Schiermeier-Wood conducted additional analysis of the DNA evidence after receiving the

profiles that Bode developed. She testified that she first reviewed the DNA process and the

profiles that Bode developed to determine whether she agreed with their interpretations of the

data. Second, she interpreted the profiles and came to conclusions about whether appellant could

be excluded as a contributor to the sample obtained from analysis of the physical evidence.

Additionally, Schiermeier-Wood made calculations from the data to determine the rarity of
                                               - 27 -
appellant’s profile and the RMP statistic. When denying the motion to suppress the certificates,

the trial court stated that Schiermeier-Wood’s testimony fell squarely under the terms of Code

§ 19.2-187, because she testified that she analyzed and examined the data at issue, as the statute

requires.

       Reviewing the record, we find no error in this analysis. Code § 19.2-187 requires that the

person who signs a certificate of analysis be the same person who conducted “an analysis or

examination.” Its plain language, however, does not require that the person who signs the

certificate be the same person who performed each step of an examination or process that ends in

the evidence being at a certain point where an expert such as Schiermeier-Wood can analyze it.

Assuming without deciding that the “analysis” in this case was the process that led to

Schiermeier-Wood’s determinations that a foreign DNA profile was present in the samples from

the physical evidence and that appellant’s DNA profile was consistent with that foreign profile,

admission of the certificates complied with Code § 19.2-187 because these conclusions are the

substance of the certificates’ contents.

       Although the commonly accepted purpose of the statute is to allow the evidence to come

in without requiring the presence of “technicians” at trial, see Myrick, 13 Va. App. at 337, 412

S.E.2d at 178; Galbraith, 18 Va. App. at 740, 446 S.E.2d at 637, Schiermeier-Wood was present

at both the suppression hearing and at trial and thereby subject to cross-examination. Because

the trial court followed Code § 19.2-187’s plain language in denying the motion to suppress, we

find no abuse of discretion and affirm the trial court’s decision on this issue.

                        F. Post-Trial Request for Subpoena Duces Tecum

       Appellant contends that the trial court erred in denying his post-trial motion for a

subpoena duces tecum for the results of the run of the crime scene sample through NDIS, the



                                                - 28 -
national database, to determine if a Brady violation had occurred. We find no error in the trial

court’s determination on this issue.

       “The trial court’s refusal to issue a subpoena duces tecum . . . is not reversible error

absent a showing of prejudice.” Gibbs v. Commonwealth, 16 Va. App. 697, 701, 432 S.E.2d

514, 516 (1993) (citing Conway v. Commonwealth, 12 Va. App. 711, 716, 407 S.E.2d 310,

312-13 (1991) (en banc)). “[W]here the prosecution and defense are at an impasse in their

respective views of the nature of the evidentiary materials,” the trial court may conduct an in

camera review of the evidence in its discretion. Bowman v. Commonwealth, 248 Va. 130, 135,

445 S.E.2d 110, 113 (1994) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987); United

States v. Agurs, 427 U.S. 97, 106 (1976)). Thus, we review appellant’s challenge under this

assignment of error to determine whether the trial court abused its discretion. Id.

       Factors for consideration when reviewing the trial court’s exercise of discretion include:

the defense’s reasons for “justifying access to the disputed material, the time of the request, or

the amount of material involved.” Id. at 135-36, 445 S.E.2d at 113 (citing Agurs, 427 U.S. at

106). Keeping in mind that the burden is on the appellant to provide us with a record from which

we can determine whether the trial court erred, Oliver v. Commonwealth, 35 Va. App. 286, 297,

544 S.E.2d 870, 875 (2001) (citing Justis, 202 Va. at 632, 119 S.E.2d at 256-57), all that can be

reasonably discerned from this record is that appellant wanted to see the results of the search

conducted through the national database to independently evaluate whether the two potential

matches were validly eliminated.

       Appellant attempted to support his argument with a scientific discussion about specific

alleles involved in DNA testing but could not adequately explain why DFS’s response did not

satisfy his concerns. Because appellant failed to demonstrate a legitimate basis for his belief that

the search results would constitute exculpatory evidence, and the request was made months after
                                               - 29 -
the jury convicted appellant, we find that the trial court did not abuse its discretion in denying the

request. See Bowman, 248 Va. at 135-36, 445 S.E.2d at 113.

                                          CONCLUSION

       Having found no error in the trial court’s judgment, we affirm appellant’s convictions and

sentence.

                                                                                           Affirmed.




                                                - 30 -
