                                              Tuesday        15th

          May, 2001.


Jeffery Andrew Crawford, s/k/a
 Jeffrey Crawford,                                           Appellant,

against      Record No. 0683-99-1
             Circuit Court Nos. CR97-378 through CR97-381

Commonwealth of Virginia,                                    Appellee.


                        Upon a Rehearing En Banc

        Before Chief Judge Fitzpatrick, Judges Benton, Willis,
 Elder, Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements and
                                 Agee

          Jonathan W. Gatewood for appellant.

          Kathleen B. Martin, Assistant Attorney General
          (Mark L. Earley, Attorney General; H. Elizabeth
          Shaffer, Assistant Attorney General, on brief),
          for appellee.


          On September 19, 2000, a divided panel of this Court

reversed the appellant's convictions.    Crawford v. Commonwealth, 33

Va. App. 431, 534 S.E.2d 332 (2000).    We granted the Commonwealth's

petition for rehearing en banc.

          Upon rehearing en banc, the judgment of the trial court is

affirmed on the ground that the appellant did not raise in the trial

court the basis for the objection he argues on appeal.   Rule 5A:18;

McLean v. Commonwealth, 30 Va. App. 322, 329, 516 S.E.2d 717, 720

(1999) (en banc).   At trial, the appellant conceded the proposed DNA

instruction was an accurate statement of the law, but objected on the
ground that it instructed the jury on the "propriety" of the DNA

evidence as a matter of law.    He did not proffer an alternative

instruction, did not offer any alternative language, and did not

specify his objection.   On appeal, the appellant argues the

instruction was improper because it unduly emphasized the DNA

evidence, contained permissive language, and required the jury to

make a distinction they were unqualified to make.   Accordingly, the

opinion previously rendered by a panel of this Court on September 19,

2000 is withdrawn and the mandate entered on that date is vacated.

The appellant shall pay to the Commonwealth of Virginia thirty

dollars damages.

          Chief Judge Fitzpatrick concurs in the result but finds the

issue properly preserved and would affirm for the reasons stated in

the panel dissent.

          Judge Benton, with whom Judge Elder joins, dissents:

          At no stage of this appeal has the Commonwealth argued on

brief that the issue raised by appellant is procedurally defaulted

under Rule 5A:18.    Indeed, the record reflects that the following

colloquy occurred at trial when the prosecutor offered the challenged

instruction:

          [PROSECUTOR]: Your Honor, I pulled it out of the
          Code section, which is there for you to review.
          I think it's an accurate statement of law and I
          think the trier of fact is entitled to know what
          that law is.

          [DEFENSE ATTORNEY]: Well, it may be an accurate
          statement of law, sir, but the reason we're

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             objecting to this instruction entitled, "DNA
             testing is deemed to be a reliable scientific
             technique," is that some of these people in the
             jury may have a question about the propriety of
             the DNA evidence, Judge. And for them to receive
             an instruction read to them by the Court, I think
             essentially tells them that they have to cast
             aside any questions that they might have about
             it.

             THE COURT:   That's not the way I read it.

             [DEFENSE ATTORNEY]:   Well, Judge --

             THE COURT:   I will grant it. . . .

             On appeal, Crawford presents the question, "Whether the

jury instruction regarding DNA was improper."       In support of that

issue, Crawford asserts a variety of reasons why the instruction was

improper.    However, Crawford's argument on brief includes the

following:

                The jury instruction in question compelled a
             particular finding and unduly emphasized a
             particular area of evidence. Such an instruction
             tended to allow the court to persuade, as well
             as, mislead the jury. The instruction allowed
             the Court to place its judicial stamp on
             particular evidence. This effectively prevented
             the jury from questioning such evidence and
             prejudiced the defendant.

             I would hold that Rule 5A:18 does not bar us from

considering on the merits the issue raised by this appeal.       The

contemporaneous objection rule is designed to allow the trial judge

to correct any error that is called to his or her attention in order

to ensure fairness to both parties and to promote judicial

efficiency.     Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737


                                -3-
(1991).   In this case, Crawford's objection clearly fulfilled this

purpose by bringing to the judge's attention "the propriety of the

DNA evidence" in this case.    The jury had the option of disbelieving

this particular evidence even though Code § 19.2-270.5 states that

DNA testing in general is reliable.   The statute also specifically

allows other evidence of identity and evidence challenging the

particular use of DNA evidence in a given trial.    Id.   Crawford had

the right to question the wording of the instruction and object that

the instruction sounded like a judicial endorsement of the

Commonwealth's evidence at the expense of any other evidence.    He

brought those concerns to the attention of the trial judge and makes

the same argument on appeal.    Thus, the trial judge had the

opportunity to rule on this issue, and we may consider it on appeal

without being unfair to the Commonwealth.

           For the reasons fully addressed by the panel majority, see

Crawford v. Commonwealth, 33 Va. App. 431, 534 S.E.2d 332 (2000), I

would reverse the convictions and remand for a new trial.

           It is ordered that the trial court allow counsel for the

appellant a total fee of $925 for services rendered the appellant on

this appeal, in addition to counsel's costs and necessary direct

out-of-pocket expenses.

           The Commonwealth shall recover of the appellant the amount

paid court-appointed counsel to represent him in this proceeding,

counsel's costs and necessary direct out-of-pocket expenses, and the


                               -4-
fees and costs to be assessed by the clerk of this Court and the

clerk of the trial court.

          This order shall be published and certified to the trial

court.

Costs due the Commonwealth
 by appellant in Court of
 Appeals of Virginia:

    Attorney's fee   $925.00    plus costs and expenses


                             A Copy,

                                    Teste:

                                             Cynthia L. McCoy, Clerk

                                    By:

                                             Deputy Clerk




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