                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED

              Present: Chief Judge Huff, Judges Decker and Russell
              Argued at Chesapeake, Virginia

              BENJAMIN JAMES MADONIA
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1716-16-1                                    CHIEF JUDGE GLEN A. HUFF
                                                                                 OCTOBER 17, 2017
              COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                            James Clayton Lewis, Judge

                               Bassel Khalaf, Assistant Public Defender, for appellant.

                               Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Benjamin James Madonia (“appellant”) appeals his conviction of rape, in violation of

              Code § 18.2-61. Following a jury trial in the Circuit Court of the City of Virginia Beach (“trial

              court”), appellant was sentenced to life imprisonment. On appeal, appellant argues that the trial

              court erred in finding during a pretrial motion hearing that the Commonwealth established all

              vital links in the chain of custody for DNA evidence, in allowing the Commonwealth to use

              hearsay evidence to prove the chain of custody during that hearing, and in denying a voir dire

              question requested by appellant. For the reasons that follow, this Court affirms the trial court’s

              rulings.

                                                      I. BACKGROUND

                     On appeal, “we consider the evidence and all reasonable inferences flowing from that

              evidence in the light most favorable to the Commonwealth, the prevailing party at trial.”

              Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows.

                                           The Offense

         On the evening of May 28, 1987, a college student named D.D. met some of her friends

at an oceanfront bar and dance club where they socialized until midnight or shortly thereafter.

Although she had planned to walk home, she accepted when appellant offered to give her a ride.

Rather than driving toward D.D.’s apartment, appellant pulled into a dark lot on a different

street. A struggle ensued, during which appellant attacked and sexually assaulted D.D. Seizing

an opportunity to escape, D.D. ran to some nearby apartments where a resident summoned police

for her. Appellant fled the scene once D.D. escaped.

                                         Chain of Custody

         One of the responding police officers brought D.D. to Virginia Beach General Hospital,

where Dr. Richard Craven (“Dr. Craven”) and Hazel Hoban (“Hoban”), a registered nurse,

collected forensic evidence from D.D.’s person and clothing.1 This evidence, collected in 1987,

eventually linked appellant to D.D.’s rape following its retesting in 2014 by Miriam Vanty

(“Vanty”) of the Virginia Department of Forensic Science. Appellant’s challenge to the chain of

custody for this forensic evidence is limited to the role played by Officer J.M. Stacy (“Stacy”)

during a period of less than two hours on the morning of May 29, 1987. Stacy was unable to

testify as to his role in the chain of custody because he was deceased at the time of appellant’s

trial.

         After collecting the evidence from D.D., Dr. Craven individually sealed each sample and

placed them all inside a sealed container. Hoban testified that the examination concluded at



         1
          Dr. Craven testified only at a pretrial motion in limine hearing, but by agreement of both
parties, his testimony was admitted at trial.
                                                  -2-
3:30 a.m. on May 29 and that she kept the sealed kit in her possession until 4:00 a.m., when she

personally handed it to Detective J.B. Spry (“Spry”). Spry testified that he received the sealed

kit from Hoban at that time and then kept it in his possession until he placed it in a locked

evidence refrigerator at police headquarters at 7:00 a.m. Following police protocol, Spry filled

out an evidence voucher recording that he had placed the kit, which remained sealed, into the

refrigerator. Spry also completed a request for laboratory analysis for the evidence contained in

the kit. Stacy was responsible for transporting the kit to the laboratory.

       Although Spry did not personally hand the sealed kit to Stacy, he identified Stacy’s

signature on several documents concerning the kit’s transportation based on their years of

working together. First, the property voucher form completed by Spry indicates that Stacy

received the evidence on May 29, 1987. Second, the request for laboratory examination

completed by Spry reflects that Stacy relinquished the sealed kit to Vanty on May 29, 1987.

Third, the evidence log associated with the kit contains an entry recording that Stacy had signed

out the kit on May 29, 1987, in order to deliver it to the laboratory. Although she no longer had

personal recollection of that morning’s events, after reviewing the request for laboratory

examination form, Vanty testified that she personally received the sealed kit from Stacy at

8:39 a.m. on May 29, 1987, and she identified her signature on that form indicating she received

the evidence on that date.

       Vanty’s 1987 testing of the physical evidence did not lead to identification of a suspect

for D.D.’s rape. After years in storage, the same evidence kit returned to Vanty for retesting in

2014. Vanty testified that when she received the kit in 2014, it remained under the same seal she

had placed on it after the 1987 analysis and that the contents of the kit appeared unchanged from

that time.




                                                -3-
       Counsel for appellant contented in a pretrial hearing that the evidence adduced by the

Commonwealth was insufficient to establish that Stacy had properly handled the evidence kit in

1987, and thus could not establish a vital link in the chain of custody. The trial court rejected

this argument, concluding that no credible evidence existed to suggest that the evidence kit was

improperly handled at any point after its initial collection and denied appellant’s motion to

exclude that evidence.

                                              Voir Dire

       Before the venire entered the courtroom for voir dire, counsel for appellant sought leave

of court to ask potential jurors the following question:

               If there are two reasonable explanations that can be drawn from the
               evidence, one consistent with innocence, one consistent with guilt,
               you are bound by law to accept the explanation consistent with
               innocence and find the defendant not guilty. Do any of you feel
               that it would be difficult to apply this principle in a case before
               you?

The Commonwealth objected to this question, arguing that it was an incorrect statement of the

law. Counsel for appellant argued that the question was necessary because rape cases evoke

special sympathy from jurors who might vote to convict even in the face of a “reasonable

alternative hypothesis of innocence.” The trial court found that the question was an improper

statement of law and excluded the question.

       The trial court, however, was sympathetic to the concerns of appellant’s counsel,

observing that “I am of the view that the average citizen responds differently to a rape charge

than other more—poor choice of words—run-of-the-mill criminal offenses.” It allowed

appellant’s counsel to ask the venire a similar question:

               There is a presumption that [appellant] remains innocent unless the
               Commonwealth can prove his guilt beyond a reasonable doubt. Do
               any of you believe that it would be more difficult to apply that rule
               in a rape case than it would be in a case involving a less serious
               crime such as shoplifting?
                                                -4-
Additionally, the trial court itself asked jurors the following question on a similar topic:

               Do you understand that in Virginia [appellant] is presumed to be
               innocent of all charges brought against him? Do you understand
               that in Virginia the Commonwealth must prove [appellant’s] guilt
               beyond a reasonable doubt? Do you understand that [appellant] is
               not required to produce any evidence in this—in this state?

Following trial, the jury returned a guilty verdict and this appeal followed.

                                  II. STANDARD OF REVIEW

       “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.” Pope v.

Commonwealth, 60 Va. App. 486, 511, 729 S.E.2d 751, 763 (2012) (citing Crews v.

Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994)). This Court likewise

“review[s] a trial court’s decision to exclude voir dire questions for an abuse of discretion.”

Thomas v. Commonwealth, 279 Va. 131, 162, 688 S.E.2d 220, 237 (2010) (citing Bassett v.

Commonwealth, 222 Va. 844, 853, 284 S.E.2d 844, 850 (1981)). Under the deferential abuse of

discretion standard, this Court will not overturn the trial court’s decision merely because it

disagrees with the trial court; instead, “only in those cases where ‘reasonable jurists could not

differ’ has an abuse of discretion occurred.” Campos v. Commonwealth, 67 Va. App. 690, 702,

800 S.E.2d 174, 180 (2017) (quoting 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)).

                                          III. ANALYSIS

       On appeal, appellant challenges the trial court’s pretrial rulings denying appellant’s

motion to exclude the DNA evidence and associated certificates of analysis and excluding the

proposed voir dire question.




                                                -5-
                                 A. Chain of Custody Evidence

       Appellant first contends that the trial court erred in concluding that the Commonwealth

established all vital links in the chain of custody for the DNA evidence because the only

evidence establishing Stacy’s role in the chain was his signature on the three documents

associated with the evidence. Appellant further argues that those signatures constituted

impermissible hearsay. This Court finds appellant’s arguments unpersuasive.

       When the Commonwealth seeks to introduce evidence that has been seized and analyzed,

the chain-of-custody rule exists “to establish that the evidence obtained by the police was the

same evidence tested.” Hargrove v. Commonwealth, 53 Va. App. 545, 553, 673 S.E.2d 896, 900

(2009) (quoting Brown v. Commonwealth, 21 Va. App. 552, 555, 466 S.E.2d 116, 117 (1996)).

The Commonwealth must present evidence proving each “vital link in the chain of custody,” but

it does not bear an absolute burden of demonstrating that “all possibility of tampering” has been

eliminated. Pope, 60 Va. App. at 511, 729 S.E.2d at 763 (quoting Robinson v. Commonwealth,

212 Va. 136, 138, 183 S.E.2d 179, 180 (1971)).

       As such, “[a] court need not hear . . . from every witness who physically handled the

samples for the [evidence] to be admissible.” Anderson v. Commonwealth, 48 Va. App. 704,

717, 634 S.E.2d 372, 378 (2006). The Commonwealth “need only provide ‘reasonable

assurance’ that the evidence obtained by the police was the same evidence tested.” Id. (quoting

Vinson v. Commonwealth, 258 Va. 459, 469, 522 S.E.2d 170, 177 (1999)). Thus, “where there

is mere speculation that contamination or tampering could have occurred, it is not an abuse of

discretion to admit the evidence and let what doubt there may be go to the weight of the

evidence.” Jeter v. Commonwealth, 44 Va. App. 733, 739, 607 S.E.2d 734, 737 (2005) (quoting

Reedy v. Commonwealth, 9 Va. App. 386, 391, 388 S.E.2d 650, 651-52 (1990)).




                                               -6-
       The Commonwealth’s chain-of-custody evidence addressed the state of the physical

evidence at every stage in the investigation, beginning with the initial collection through the

2014 retesting that connected appellant to the crime. Dr. Craven and Hoban testified that they

delivered the evidence to Spry. Spry testified that he personally locked the evidence in a police

refrigerator and identified Stacy’s signature as signing the evidence out for delivery to the

forensics laboratory. Vanty testified that she personally received the evidence from Stacy after

refreshing her recollection by reviewing Stacy’s signature on the request for laboratory

examination form. Appellant takes issue with the Commonwealth’s reliance on Stacy’s

signatures on these forms, contending that they constituted impermissible hearsay without which

the Commonwealth would be unable to prove Stacy’s role in the chain of custody.

       This Court, however, need not decide whether the signatures are hearsay because under

the Virginia Rules of Evidence, trial courts are not required to adhere strictly to the rule against

hearsay in pretrial motion hearings. Appellant’s assignment of error with respect to the

chain-of-custody evidence expressly limits his challenge to the trial court’s evidentiary ruling at

the pretrial motion in limine hearing. Virginia Rule of Evidence 2:1101(c) provides:

               Except as otherwise provided by statute or rule, adherence to the
               Rules of Evidence (other than with respect to privileges) is
               permissive, not mandatory, in the following situations:
               (1) Criminal proceedings other than (i) trial, (ii) preliminary
               hearings, (iii) sentencing proceedings before a jury, and (iv) capital
               murder sentencing hearings.

This rule indicates that in Virginia, less formal evidentiary standards govern criminal

proceedings other than those enumerated in the rule, including the sort of pretrial hearing at issue

here. Cf. Wolfe v. Commonwealth, 37 Va. App. 136, 142, 554 S.E.2d 695, 698 (2001) (holding

that a trial court may rely on hearsay testimony during sentencing provided the information has

“some indicia of reliability”). Implicit within the trial court’s conclusion that it did not find “any

credible evidence whatsoever” that the DNA evidence had not “been maintained with due
                                                 -7-
integrity since it was collected” is a finding that Stacy’s signatures were sufficiently reliable to

prove his role in the chain of custody. Accordingly, regardless of whether the signatures were

hearsay, this Court concludes that the trial court did not abuse its discretion in relying on them.

       In sum, the trial court, acting as evidentiary gatekeeper, determined that the

Commonwealth met its burden of establishing all vital links in the chain of custody necessary to

introduce the DNA evidence. Because appellant’s challenge to Stacy’s brief handling of the

evidence raises mere speculation that contamination or tampering could have occurred, any such

question went to the evidence’s weight, not its admissibility. Jeter, 44 Va. App. at 739, 607

S.E.2d at 737. This Court therefore holds that the trial court did not abuse its discretion in

denying appellant’s motion to exclude the DNA evidence and associated certificates of analysis.

                                            B. Voir dire

       Appellant next argues that the trial court abused its discretion by excluding a proposed

voir dire question:

               If there are two reasonable explanations that can be drawn from the
               evidence, one consistent with innocence, one consistent with guilt,
               you are bound by law to accept the explanation consistent with
               innocence and find the defendant not guilty. Do any of you feel
               that it would be difficult to apply this principle in a case before
               you?

Because exclusion was appropriate, this Court affirms the trial court’s ruling.

       Voir dire questioning in Virginia is governed by Code § 8.01-358, which provides in part:

               The court and counsel for either party shall have the right to
               examine under oath any person who is called as a juror therein and
               shall have the right to ask such person or juror directly any relevant
               question to ascertain whether he is related to either party, or has
               any interest in the cause, or has expressed or formed any opinion,
               or is sensible of any bias or prejudice therein[.]

This right to examine, however, is not boundless: a criminal defendant has “no absolute right to

have the court ask every question he propounded.” Bassett v. Commonwealth, 222 Va. 844, 853,

                                                 -8-
284 S.E.2d 844, 850 (1981). All the trial court must do is to “afford a party a ‘full and fair’

opportunity to ascertain whether prospective jurors ‘stand indifferent in the cause,’” and “it is

within the trial court’s sound discretion to decide when a defendant has had such an

opportunity.” Thomas, 279 Va. at 162-63, 688 S.E.2d at 237-38 (quoting Buchanan v.

Commonwealth, 238 Va. 389, 401, 384 S.E.2d 757, 764 (1989)). Where the defense had ample

opportunity “to ask relevant questions and where the questions actually propounded by the trial

court were sufficient to preserve a defendant’s right to trial by a fair and impartial jury, we will

generally not reverse a trial court’s decision to limit or disallow certain questions from defense

counsel.” Id. at 163, 688 S.E.2d at 238 (quoting Buchanan, 238 Va. at 401, 384 S.E.2d at 764).

       As counsel for appellant explained in argument following the question’s exclusion, that

question had two main purposes: to ascertain whether potential jurors (1) understood that the

Commonwealth must exclude every reasonable hypothesis of innocence, and (2) would be biased

against appellant because he was on trial for rape as opposed to a less provocative offense.

These concerns were amply addressed by other questions asked of the venire.

       As to the question’s burden-of-proof component, a “statement that circumstantial

evidence must exclude every reasonable theory of innocence is simply another way of stating

that the Commonwealth has the burden of proof beyond a reasonable doubt.” Commonwealth v.

Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003). The trial court fully addressed this

concern when it asked jurors:

               Do you understand that in Virginia [appellant] is presumed to be
               innocent of all charges brought against him? Do you understand
               that in Virginia the Commonwealth must prove [appellant’s] guilt
               beyond a reasonable doubt? Do you understand that [appellant] is
               not required to produce any evidence in this—in this state?

As to appellant’s concern that jurors may be biased against appellant because of the crime’s

nature, the trial court permitted appellant to ask a different question addressing that possibility:

                                                 -9-
                There is a presumption that [appellant] remains innocent unless the
                Commonwealth can prove his guilt beyond a reasonable doubt. Do
                any of you believe that it would be more difficult to apply that rule
                in a rape case than it would be in a case involving a less serious
                crime such as shoplifting?

Because these other questions cover the same ground as the excluded question, this Court holds

that the trial court did not abuse its discretion in refusing appellant’s voir dire question.

                                         IV. CONCLUSION

        For the foregoing reasons, this Court affirms appellant’s conviction.

                                                                                                Affirmed.




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