TIMOTHY WILSON SPENCER IN THE COURTS: VIRGINIA, 1989-1994

Between September and December 1987, four women were raped and strangled in their homes in Virginia: Debbie Dudley Davis and Dr. Susan Hellams, a neurosurgery resident at the Medical College of Virginia, in Richmond; Diane Cho, fifteen, in Chesterfield County; and Susan Tucker in Arlington. Timothy Wilson Spencer was tried four times, once for each killing, and sentenced to death four times. What tied the cases together was DNA. His appeals, decided by the Supreme Court of Virginia in 1989 and 1990, put that new kind of evidence squarely before a state’s highest court.

The first opinion, from the Tucker trial, and the others after it take up the same challenge from several angles: the laboratory work of Lifecodes Corporation, the reliability of the probability figures, and the qualifications of the scientists who explained them. The court upheld its admission each time. The opinions also deal with the modus operandi evidence linking the killings, the handling of jurors questioned about the death penalty, and a challenge to the prosecution’s striking of a Black prospective juror.

The three opinions of the Fourth Circuit, decided in 1993 and 1994, reviewed the denial of his federal habeas petitions in the Davis, Hellams and Tucker cases, and each affirmed. Spencer was executed in the electric chair at Greensville Correctional Center on April 27, 1994.

These opinions describe the evidence as the juries accepted it, and they say little about the question later accounts of the case raise most often: the January 1984 Arlington murder of Carolyn Jean Hamm, which had been treated as solved before an Arlington detective saw its pattern in the Tucker killing. It is not part of this record. The scientific testimony is summarized by the court, not reproduced.

The seven opinions are public records of the Supreme Court of Virginia and the Fourth Circuit. The four women keep their names, as do the police, the laboratory scientists and expert witnesses, the lawyers and judges. We have given initials to the prospective jurors discussed in the opinions, to Diane Cho’s mother, who testified, and to Dr. Hellams’s husband, and we have removed the street numbers of the houses.

The Caselaw Access Project text is printed complete and in date order. The capture keeps some scanning errors, among them “Lifeeodes” for Lifecodes and “Helianas” for Hellams in one opinion, and they are left as they stand. We closed words split across lines only where the whole word appears elsewhere in the text.

238 Va. 275, decided September 22, 1989

Timothy Wilson Spencer v. Commonwealth of Virginia Timothy Wilson Spencer v. Commonwealth of Virginia

Record No. 881268

Record No. 881288

September 22, 1989

Present: All the Justices

Carl G. Womack, Jr.; Thomas J. Kelley, Jr., for appellant. (Record Nos. 881268 and 881288.)

Donald R. Curry, Senior Assistant Attorney General (Mary Sue Terry, Attorney General; Richard A. Conway, Assistant Attorney General, on brief), for appellee. (Record Nos. 881268 and 881288.)

[OPINION BY Justice Stephenson type=majority]

Justice Stephenson

delivered the opinion of the Court.

Timothy Wilson Spencer was indicted for the capital murder of Susan Tucker, i.e., the willful, deliberate, and premeditated murder during the commission of, or subsequent to, rape. Former Code § 18.2-31(e) (1987 Cum. Supp.). Spencer also was indicted for the rape of Tucker.

In a bifurcated trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, a jury convicted Spencer of capital murder and fixed his punishment at death. The jury also convicted Spencer of rape and fixed his punishment at life imprisonment. Following a sentencing hearing, the trial court imposed the sentences fixed by the jury and entered judgments on the jury verdicts.

We have consolidated the automatic review of Spencer’s death sentence with his appeal of the capital murder conviction, Code §§ 17-110.1 (A) and -110.1(F), and have given them priority on our docket, Code § 17-110.2. By order entered November 29, 1988, Spencer’s appeal of the rape conviction was certified from the Court of Appeals and consolidated with the capital murder appeal. Code § 17-116.06.

Under established principles of appellate review, we will view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commonwealth. On the evening of Tuesday, December 1, 1987, the nude body of Susan Tucker was found lying face down on the bed in the ransacked master bedroom of her Arlington townhouse. A slip-knotted rope was tied around Tucker’s neck; the free end of the knotted rope had been used to tie Tucker’s hands behind her back. The medical examiner determined the cause of death to be “[sjtrangulation by ligature.” Tucker had been dead three to five days before her body was found.

When Tucker’s body was discovered, a blue sleeping bag was partially draped over her buttocks, a brown blanket was underneath her, and her nightgown was on the bed. There were large semen stains on all three items. “[P]ubic hairs of Negroid origin” were found on the blanket and in the bathroom sink and on the counter around the sink. Negroid pubic hairs also were found on a washcloth that apparently had been taken from Tucker’s bathroom and dropped on a bush a short distance from Tucker’s home.

Tucker’s murderer had entered the townhouse by breaking a sliding basement window located under the balcony at the rear of the house. Glass samples of the broken window were taken.

On January 20, 1988, Arlington County Police arrested Spencer, a black male, in the City of Richmond on a warrant charging burglary. At the time of his arrest, police seized a camouflage jacket from Spencer. After advising him of his rights, a police officer asked Spencer to voluntarily give blood, hair, and saliva samples. Although the officer told Spencer he was charged with burglary, Spencer asked “if this had anything to do with the rape.” When the officer informed him that the crime had occurred in Arlington, Spencer inquired, “Does this have anything to do with the murder then?” Spencer had visited his mother’s Arlington home over the Thanksgiving holiday, arriving Thanksgiving morning, November 26, and departing the following Sunday, November 29. Spencer’s mother lived approximately seven blocks from Tucker’s townhouse.

The medical examiner who performed the autopsy obtained oral, rectal, and vaginal swabs and a blood sample from Tucker’s body. The vaginal swab was taken by inserting the swab “as high in the vaginal cavity as it will go;” the swab did not contact the external genitalia. The medical examiner’s microscopic examination revealed “four to eight” intact, non-motile sperm in smears made from the vaginal swab. No sperm was observed in the smears made from the anal and oral swabs.

A forensic serologist who subsequently made smears from the swabs taken by the medical examiner found two sperm on the rectal smears but found no sperm on either the vaginal or oral smears. The serologist explained that she had had to rehydrate the dry swabs before testing them. Consequently, the water diluted any seminal fluid present on the swabs, making the sperm more difficult to detect.

Forensic analysis established that the Negroid pubic hairs found on the washcloth, on the blanket from Tucker’s bed, and on the bathroom sink were microscopically consistent “in all identifiable characteristics” with known samples of Spencer’s pubic hair. Forensic scientists also determined that glass fragments found in Spencer’s camouflage jacket matched the optical properties of Tucker’s broken basement window. Only two percent of glass examined at the state laboratory has had the same optical properties.

Analysis of the semen stains found on Tucker’s nightgown, the blanket, and the sleeping bag established that the stains were left by a “secretor,” i.e., a person whose blood characteristics are expressed in other bodily fluids. Analysis further determined that the individual had blood type O and enzyme groupings of PGM type 1, PGM subtype 1+, and peptidase A type 1. Analysis of Spencer’s blood and saliva samples showed that they matched in all respects the secretions found at the crime scene. This particular combination of blood type and enzyme groupings is shared by approximately 13% of the population.

Spencer’s blood sample and the semen collected from the nightgown and the sleeping bag also were subjected to “DNA printing.” “DNA” is the abbreviation for deoxyribonucleic acid, which is the chemical that carries an individual’s genetic information. The DNA printing technique was used to compare DNA molecules extracted from Spencer’s blood with DNA molecules extracted from the semen found at the crime scene. The DNA printing test established that the genetic material in Spencer’s blood sample had the same characteristics as the genetic material in the semen stains on the nightgown and the sleeping bag. Such characteristics would be present in one of every 135 million black individuals. There are approximately ten million adult black males in the United States.

Prior to trial, Spencer moved to dismiss the capital murder indictment on the ground that “imposition of the death penalty constitutes cruel and unusual punishment” in violation of Article I, § 9 of the Constitution of Virginia and the Eighth Amendment of the Constitution of the United States. The trial court denied the motion, and Spencer has assigned error to the ruling.

In numerous cases, we have held that the death penalty does not constitute cruel and unusual punishment. See, e.g., Pope v. Commonwealth, 234 Va. 114, 121-22, 360 S.E.2d 352, 357 (1987), cert. denied, 485 U.S. 1015 (1988); Gray v. Commonwealth, 233 Va. 313, 320, 356 S.E.2d 157, 160, cert. denied, 484 U.S. 873 (1987); Beaver v. Commonwealth, 232 Va. 521, 527, 352 S.E.2d 342, 345-46, cert. denied, 483 U.S. 1033 (1987); Stockton v. Commonwealth, 227 Va. 124, 134-35, 314 S.E.2d 371, 378, cert. denied, 469 U.S. 873 (1984); Whitley v. Commonwealth, 223 Va. 66, 77-78, 286 S.E.2d 162, 168-69, cert. denied, 459 U.S. 882 (1982); Bassett v. Commonwealth, 222 Va. 844, 851, 284 S.E.2d 844, 849 (1981), cert. denied, 456 U.S. 938 (1982); Martin v. Commonwealth, 221 Va. 436, 439-40, 271 S.E.2d 123, 125-26 (1980); Clark v. Commonwealth, 220 Va. 201, 212, 257 S.E.2d 784, 791 (1979), cert. denied, 444 U.S. 1049 (1980); and M. Smith v. Commonwealth, 219 Va. 455, 476, 248 S.E.2d 135, 148 (1978), cert. denied, 441 U.S. 967 (1979). We adhere to our previous holdings and reject Spencer’s contention.

On appeal, Spencer also contends that the death penalty is unconstitutional because a sentencing jury is given excessive discretion and the statutory aggravating factors are “unconstitutionally vague.” These constitutional challenges were not raised at trial and, therefore, are barred from appellate review. Rule 5:25; see Fisher v. Commonwealth, 236 Va. 403, 410, 374 S.E.2d 46, 50 (1988), cert. denied, 490 U.S. __, 109 S.Ct. 1766 (1989).

Ill

The trial court excluded four prospective jurors for cause because they were unwilling to consider imposing the death penalty. Spencer concedes that three of these veniremen stated unequivocally on voir dire that they would not impose the death penalty under any circumstances. Spencer also acknowledges that the Supreme Court in Witherspoon v. Illinois, 391 U.S. 510 (1968), ruled that such an exclusion is proper. He contends, nonetheless, that we have “never addressed whether the exclusion... violates a defendant’s right to [an impartial jury of his peers]” as guaranteed by Article I, § 8 of the Constitution of Virginia.

In Townes v. Commonwealth, 234 Va. 307, 362 S.E.2d 650 (1987), cert. denied, 485 U.S. 971 (1988), however, Townes claimed that such an exclusion violated both his Federal and Virginia constitutional guarantees of trial by an impartial jury of one’s peers. We rejected Townes’ arguments, id. at 327, 362 S.E.2d at 661, and, adhering to our previous rulings, e.g., Pruett v. Commonwealth, 232 Va. 266, 277-78, 351 S.E.2d 1, 7-8 (1986), cert. denied, 482 U.S. 931 (1987), we now reaffirm that the exclusion of such jurors does not violate either the Federal or Virginia Constitutions. See also Lockhart v. McCree, 476 U.S. 162 (1986).

Spencer further contends that the trial court erroneously struck venireman C.R. because he “had not voiced objections to the imposition of the death penalty which would disqualify him.” In a capital case, a venireman properly may be excluded if his views concerning imposition of a death sentence “ ‘would prevent or substantially impair the performance of his duties... in accordance with his instructions and his oath.’ ” O’Dell v. Commonwealth, 234 Va. 672, 695, 364 S.E.2d 491, 504 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)), cert. denied, _ U.S. _, 109 S.Ct. 186 (1988). Moreover, because a trial judge “sees and hears the juror,” Wainwright v. Witt, 469 U.S. 412, 426 (1985), an appellate court must accord the trial judge deference in applying the Adams-O’Dell standard, LeVasseur v. Commonwealth, 225 Va. 564, 584-85, 304 S.E.2d 644, 654-55 (1983), cert. denied, 464 U.S. 1063 (1984). The trial judge’s decision will not be disturbed on appeal absent a showing of “manifest error.” Bennett v. Commonwealth, 236 Va. 448, 469, 374 S.E.2d 303, 316 (1988), cert. denied, 490 U.S. _ (1989).

On three separate occasions during jury voir dire, R. indicated that he could not impose the death penalty. Although R. stated that he might consider imposing the death penalty “ [i]f it was a multiple death involved,... like the murder of two or three people,” he also clearly stated that “if it’s just one [death], I don’t believe in the death penalty.” Moreover, when R. was informed that the present case involved only one murder charge, he unequivocally stated that he could not consider the death penalty. Thus, we conclude that the record supports the trial court’s finding that R.’s views about the death penalty would have substantially impaired the performance of his duties as a juror.

Spencer contends that the evidence is insufficient to prove that he had penetrated the victim’s vagina with his penis. Thus, he asserts, the rape conviction cannot stand. Consequently, he concludes, without proof of a rape, there is no capital murder.

Our standard for reviewing the sufficiency of the evidence is firmly established.

[W]hen the sufficiency of the evidence is challenged on appeal, the evidence and all reasonable inferences fairly drawn therefrom must be viewed in the light most favorable to the Commonwealth. The trial court’s judgment should be affirmed unless it appears that it is plainly wrong or without evidence to support it.

Tuggle v. Commonwealth, 228 Va. 493, 510, 323 S.E.2d 539, 549 (1984), vacated and remanded on other grounds, 471 U.S. 1096 (1985), aff'd on remand, 230 Va. 99, 334 S.E.2d 838 (1985), cert. denied, 478 U.S. 1010 (1986).

Rape is defined as “sexual intercourse with a female by force and against her will.” Id. To prove that sexual intercourse occurred, the evidence must establish that “ ‘there has been an actual penetration to some extent of the male sexual organ into the female sexual organ.’ ” Id. (quoting McCall v. Commonwealth, 192 Va. 422, 426, 65 S.E.2d 540, 542 (1951)).

Penetration, like all other elements of the crime of rape, may be proved by circumstantial evidence. Tuggle, 228 Va. at 510, 323 S.E.2d at 549. When the Commonwealth relies solely on circumstantial evidence to prove a rape, however, the facts and circumstances must exclude all reasonable hypotheses of innocence. Id. at 510-11, 323 S.E.2d at 549-50. Nevertheless, the hypotheses “which must be thus excluded are those which flow from the evidence itself, and not from the imaginations of defense counsel.” Cook v. Commonwealth, 226 Va. 427, 433, 309 S.E.2d 325, 329 (1983).

In the present case, the police discovered Tucker’s nude body lying on a bed “face down” with her hands tied behind her back. The medical examiner took a vaginal swab by inserting the swab “as high in the vaginal cavity as it will go” and without allowing the swab to come in contact with the external genitalia. When the medical examiner microscopically examined the smears made from the vaginal swab, she found “four to eight” intact, non-motile sperm. Additionally, the serologist who later examined the swabs found two sperm on the rectal swab. Large semen stains were found on the victim’s nightgown, the sleeping bag, and the blanket. Spencer’s pubic hairs were found at the scene. Moreover, shortly after the police arrested Spencer and informed him that he was charged with an Arlington burglary, Spencer asked the arresting officer “if this had anything to do with the rape.” (Emphasis added.) When the officer asked Spencer why he had inquired about a “rape,” Spencer responded, “[I]f you want my blood, it must have something to do with the rape.” (Emphasis added.)

In spite of these circumstances, Spencer argues that the evidence does not support the jury’s finding that penetration occurred. He primarily focuses upon the fact that the Commonwealth’s expert serologist found no evidence of sperm on the vaginal swab. The serologist explained, however, that before she could examine the swab, she had had to apply a “small amount of water” which could have “diluted” any “small amount of seminal fluid [on the swab] ... to the point where it’s no longer detectable.”

It was the jury’s function to weigh and reconcile the testimonies of the medical examiner and the serologist. If their testimonies conflicted, the jury was empowered to resolve the conflict. Obviously, the jury accepted the medical examiner’s testimony concerning the presence of sperm in the victim’s vagina, and this alone is sufficient to support the finding that penetration occurred.

Spencer further contends that, assuming arguendo a rape did occur, there is no evidence from which the jury could have concluded that the rape occurred before or at the time of the victim’s death. Spencer asserts that “the victim must be alive when the rape occurs. If [the victim] is already dead, there is no Capital Murder.” Spencer’s contention, however, is directly contrary to our holding in Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d 864 (1983), cert. denied, 465 U.S. 1109 (1984).

In Coleman, a capital murder case, the defendant challenged the following jury instruction that had been granted by the trial court:

When the death of the victim occurs in connection with rape, it shall be immaterial in the prosecution thereof whether the alleged rape occurred before or after the death of the victim.

226 Va. at 51, 307 S.E.2d at 875. In his appeal, Coleman argued that the court erred in granting the instruction because “there was no evidence whether the victim was dead before or after the alleged rape.” Id. Rejecting Coleman’s contention, we said:

[The instruction] was based on Code § 18.2-63.1. The trial court gave it because it was “helpful to the jury.” Without the instruction, the jury might have been misled. Instruction IV [a different instruction] only provided as to the capital murder charged in this case that the Commonwealth must prove beyond a reasonable doubt inter alia that “the killing was of a person during the commission of rape.” The jury reasonably could have inferred from the evidence that the victim was murdered first and then raped. Without the guidance of [the challenged instruction] the jury might have concluded that Coleman could not be found guilty of capital murder if the rape had been committed after the murder. The trial court, therefore, did not err in granting [the instruction].

Id. (footnote omitted) (emphasis added).

In Coleman, we also rejected the defendant’s claim that the evidence was insufficient to support a capital murder conviction. In doing so, we reviewed the evidence and concluded that “[t]he jury reasonably could infer from the evidence that Coleman cut the victim with his knife and raped her either before or after inflicting the fatal blow.” Id. at 52, 307 S.E.2d at 876 (emphasis added).

Spencer, ignoring our holding in Coleman, relies upon Harward v. Commonwealth, 229 Va. 363, 330 S.E.2d 89 (1985). His reliance is misplaced.

In Harward, the sole issue was “whether, under Code § 18.2-31(e), the person murdered can be someone other than the rape victim.” Id. at 364, 330 S.E.2d at 90. We held that the statute “only proscribes the murder of a rape victim and cannot be extended to include the murder of another.” Id. at 367, 330 S.E.2d at 91.

Spencer, however, points to our statement in Harward that the language “during the commission of, or subsequent to” in Code § 18.2-31(e) “excludes a killing which occurs before a rape.” Id. at 366, 330 S.E.2d at 91 (emphasis in original). This statement was dicta and does not affect our clear holding to the contrary in Coleman.

Next, we determine whether the trial court erred in admitting into evidence the results of the so-called “DNA printing” tests. DNA print identification is based upon several well-accepted scientific principles.

Chromosomes, the genetic seats of the human body, are composed of DNA molecules and protein. The DNA molecule carries the genetic blueprint that establishes each person as separate and distinct. Every cell that has a nucleus contains chromosomes and, ultimately, the DNA molecule. The configuration of DNA molecules does not vary from cell to cell in the same human body; each DNA molecule carries the same genetic code in exactly the same sequence. However, the configuration of the molecule is different in every individual with the exception of identical twins.

As one expert explained, an intact DNA molecule can be compared to a closed zipper. The “teeth” of the DNA “zipper” are composed of the chemical bases adenine, thymine, cytosine, and guanine. In the early 1950’s, scientists discovered that these chemical bases, or nucleotides, always pair together in a certain arrangement, i.e., adenine units always pair with thymine units; units of cytosine always pair with units of guanine.

The order in which the nucleotides pair within a DNA molecule governs the genetic code carried by the molecule. In small areas of the DNA molecule, the pairing sequence of the nucleotides is markedly different in every individual except identical twins. These naturally occurring variations are called “polymorphisms.” Techniques that enable the polymorphisms in the DNA of one individual to be detected, labeled, and compared with the polymorphisms in the DNA of another individual or in another cell sample from the same individual are the means of genetic identification used in DNA identity testing.

The first step in the testing process is the chemical extraction of the DNA from the biological specimen, e.g., white blood cells, semen, body hair, and tissue. Next, enzymes called “restriction endonucleases” are applied to the DNA molecule to cut the DNA “zipper” into fragments. The enzymes recognize a certain sequence of paired nucleotides, or “teeth,” and cut the DNA “zipper” at the point of recognition. The resulting DNA fragments differ in length and number for every individual depending on how often the particular sequence of paired nucleotides recognized by the restriction enzyme appears in the DNA specimen.

Using a technique called “electrophoresis,” the DNA fragments are then grouped according to length on a sheet of electrically-charged gel. The electrophoresis procedure arranges the DNA fragments along parallel lines according to the length of the fragments. Once the fragments are arranged by length, a chemical procedure is used to pull apart each fragment of the DNA “zipper” along the “teeth”. In other words, the paired chemical bases that form the “teeth” are “unzipped” or unpaired.

The “unzipped” fragments are then transferred from the electrically-charged gel to a nylon membrane. Next, DNA “probes” tagged with radioactivity are applied to the fragments. A DNA “probe” is essentially half a DNA “zipper.” The probe seeks out locations on the “unzipped” DNA fragments that have “teeth” that match the composition and sequence of the probe’s “teeth.” Every probe is designed to search for different polymorphisms at different locations.

To determine the statistical likelihood of random matches, each probe is tested on data bases of DNA samples obtained from a number of unrelated individuals. At the time of trial, the DNA data bases were maintained in three categories: Negro, Caucasian, and Hispanic. From this testing, the frequency with which the probe’s matching DNA fragment occurs in a given population is determined. Using population genetics equations standardized in the early 1900’s, the individual frequencies are combined to determine the statistical likelihood of the several different DNA fragments appearing in the same sample.

When the radioactive probe finds an exact complementary base sequence, the probe binds to that location, causing radioactivity to accumulate at the bonding site. Any probe that has not bonded to its complementary base sequence is then washed off the nylon membrane. X-ray film exposed to the membrane shows the resulting bands of accumulated radioactivity. The pattern of bands is then compared with the pattern of bands obtained from printing the polymorphisms in the DNA of another individual or in another cell sample from the same individual. In a rape investigation, the DNA pattern of the semen samples collected from the crime scene or from the victim’s body is compared with the DNA pattern of the alleged assailant’s blood. If the semen sample and blood specimen are from the same person, the probes will bond with DNA segments of identical lengths in identical positions, resulting in two identical patterns of bands.

A sample of Spencer’s blood and the semen stains found on the nightgown and the sleeping bag were forwarded to Lifecodes Corporation, a laboratory that performs DNA testing for forensic purposes. Employing this technique, scientists at the laboratory determined that the DNA extracted from the semen stains found on the victim’s nightgown and on the sleeping bag matched the DNA extracted from Spencer’s blood sample.

The parties stipulated that Spencer does not have an identical twin and that none of his blood relatives had committed the murder. Therefore, the chance that anyone other than Spencer produced the semen stains was one in 135 million. There are approximately 10 million adult black males in the United States.

Dr. Richard Roberts, assistant director of the Cold Spring Harbor Laboratory, Dr. Kenneth Kidd, Professor of Human Genetics at Yale University, and Dr. Michael .Baird, Manager of Paternity and Forensic Testing at Lifecodes Corporation, were three of the expert witnesses at trial. The record shows that Dr. Roberts qualified as an expert in the field of molecular biology, and that Dr. Kidd qualified as an expert in the fields of molecular biology and human population genetics. Dr. Baird qualified as an expert in the fields of molecular biology and genetics. These witnesses testified that “DNA printing” is a reliable scientific technique that will not produce a “false positive” result if a sufficient number of probes are used. They also testified that the testing procedure employed in the present case was conducted in a reliable manner. Moreover, the undisputed evidence established that the technique is generally accepted in the scientific community and is used in “[s]everal thousands of laboratories” around the world. Similarly, the undisputed evidence showed that the probes used in this case are reliable and used in “hundreds of laboratories throughout the world.”

Indeed, Spencer acknowledges that the evidence establishes that the DNA tests are accepted “as reliable within the scientific community” and that he “was unable to find or produce one qualified expert to debunk either the theory of DNA printing or the statistics generated therefrom.” While conceding, therefore, that “the trial court had little choice but to accept the DNA printing evidence,” he contends, nonetheless, that we “should hold off until another day any decision that DNA printing is acceptable evidence in the courts of Virginia.” We reject this contention.

Because the undisputed evidence supports the trial court’s conclusion that DNA testing is a reliable scientific technique and that the tests performed in the present case were properly conducted, we hold that the trial court did not err in admitting this evidence.

VII

Spencer contends that the trial court erred in admitting into evidence a photograph of the victim identified as “Commonwealth’s Exhibit 2s.” He contends that the photograph “added nothing to [the jury’s] consideration” and was so inflammatory “that its admission tended toward a guilty verdict despite the other evidence.” We do not agree.

We repeatedly have held that the admission of photographs into evidence rests within the sound discretion of the trial court. Bennett, 236 Va. at 471, 374 S.E.2d at 317-18; Gray, 233 Va. at 342, 356 S.E.2d at 173 (compiling cases). “Photographs of a victim are relevant if they tend to show motive, intent, method, premeditation, malice, or the degree of atrociousness of the crime.” Gray, 233 Va. at 342-43, 356 S.E.2d at 173. If photographs accurately portray the scene created by an accused, they are not rendered inadmissible merely because they are gruesome or shocking. Gray, 233 Va. at 343, 356 S.E.2d at 173.

Exhibit 2s was relevant for a number of reasons. It depicted a close-up view of the neck ligature used by the accused. This method tended to prove motive, intent, malice, and premeditation. It demonstrated more graphically than a verbal description the brutality and atrociousness of the crime.

Additionally, the time of the murder was most relevant. The undisputed evidence established that Spencer left Arlington County on the Sunday following Thanksgiving, which was November 29. The victim’s body was discovered on Tuesday, December 1. The medical examiner opined that the victim had died three to five days prior to the discovery of the body. Her opinion was directly related to the discoloration of the victim’s skin. Exhibit 2s was the only photograph that showed the extreme discoloration of the victim’s face.

Clearly, the photograph was relevant. We hold, therefore, that the trial court did not abuse its discretion in admitting Exhibit 2s into evidence.

VIII

Code § 17-110.1 mandates that we review the death sentence on the record. In addition to considering the assigned errors in the trial, we must consider and determine:

1. Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and

2. Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Code § 17-110.1(C).

In fixing Spencer’s punishment at death, the jury found that both the “future dangerousness” and “vileness” predicates had been proved beyond a reasonable doubt. Spencer contends that “his death sentence cannot stand the scrutiny of these criteria.” We do not agree.

On September 4, 1987, Spencer was released from prison to a “halfway” house located in Richmond. As a resident at the “halfway” house, Spencer was still in the custody of the Department of Corrections. Forensic evidence presented during the penalty phase established that within 30 days of his release from prison, Spencer had raped and murdered two women in Richmond. The facts and circumstances of those rape-murders were strikingly similar to those in the present case. Both victims had been strangled to death in a mode similar to the strangulation of Tucker.

Spencer was arrested by Arlington County Police at the “halfway” house in Richmond. When arrested, Spencer was found in possession of a large screwdriver, a knife, and a box of .25 caliber ammunition. Additionally, Spencer has been convicted of six burglaries, three as a juvenile and three as an adult.

In the penalty phase of the trial, Spencer called seven witnesses, in addition to himself, who gave mitigating testimony. A community center director testified that Spencer “was a loner [who] didn’t cause us no problem,” and that he had never seen Spencer act aggressively.

A supervisor of the “halfway” house in Richmond stated that Spencer was “[f]riendly, quiet,” and did not have a reputation for violence. One of Spencer’s junior high school teachers noted that, prior to 1975, when Spencer was his pupil, he had had little self-confidence and was “pretty much alone.”

Spencer’s mother testified that Spencer had been a “quiet” child, a “good idd.” Spencer denied killing Susan Tucker and the two women in Richmond and asked for any sentence except the death penalty.

Unquestionably, the evidence of Spencer’s conduct in committing the offense supports the jury’s finding of the “vileness” predicate. The victim was naked, and she had been tied in such a position that any struggle by her would have hastened her strangulation. She was then raped, and finally, strangled to death. Evidence of such conduct is sufficient to support a finding of every factor of the vileness predicate. Thus, we hold that Spencer’s “conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind [and] aggravated battery to the victim.” Code § 19.2-264.4(C).

After considering all aggravating and mitigating factors, we also hold that the evidence supports the jury’s finding that, based upon Spencer’s past criminal record, prior history, and the circumstances surrounding the commission of the offense charged, there is a probability that Spencer “would commit criminal acts of violence that would constitute a continuing serious threat to society.” Id. Moreover, we find nothing in the record to suggest that the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor.

Pursuant to Code § 17-110.1(E), we have accumulated the records of all capital murder cases reviewed by this court. After considering those records, we conclude that Spencer’s sentence of death was not excessive or disproportionate to sentences generally imposed by other sentencing bodies in Virginia for comparable or similar crimes. See, e.g., Hoke v. Commonwealth, 237 Va. 303, 377 S.E.2d 595, cert. denied, 491 U.S. 303 (1989) (capital murder in the commission of robbery, abduction, and rape, both future dangerousness and vileness found); Stout v. Commonwealth, 237 Va. 126, 376 S.E.2d 288, cert. denied, 492 U.S. __, 109 S.Ct. 3263 (1989) (capital murder in the commission of robbery, both future dangerousness and vileness found); Gray, 233 Va. 313, 356 S.E.2d 157 (capital murder in the commission of robbery, both future dangerousness and vileness found); Pruett, 232 Va. 266, 351 S.E.2d 1 (capital murder in the commission of rape and robbery, both future dangerousness and vileness found); Edmonds v. Commonwealth, 229 Va. 303, 329 S.E.2d 807, cert. denied, 474 U.S. 975 (1985) (capital murder in the commission of robbery, both future dangerousness and vileness found); Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985), cert. denied, 475 U.S. 1099 (1986) (capital murder in the commission of robbery, both future dangerousness and vileness found); Clozza v. Commonwealth, 228 Va. 124, 321 S.E.2d 273 (1984), cert. denied, 469 U.S. 1230 (1985) (capital murder in the commission of rape, both future dangerousness and vileness found); Coleman, 226 Va. 31, 307 S.E.2d 864 (capital murder in the commission of rape, both future dangerousness and vileness found); Quintana v. Commonwealth, 224 Va. 127, 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029 (1983) (capital murder in the commission of robbery, both future dangerousness and vileness found); Clanton v. Commonwealth, 223 Va. 41, 286 S.E.2d 172 (1982) (capital murder in the commission of robbery, both future dangerousness and vileness found); James Dyral Briley v. Commonwealth, 221 Va. 563, 273 S.E.2d 57 (1980) (capital murder in the commission of rape and robbery, both future dangerousness and vileness found); Linwood Earl Briley v. Commonwealth, 221 Va. 532, 273 S.E.2d 48 (1980), cert. denied, 451 U.S. 1031 (1981) (capital murder in the commission of robbery, both future dangerousness and vileness found); Mason v. Commonwealth, 219 Va. 1091, 254 S.E.2d 116, cert. denied, 444 U.S. 919 (1979) (capital murder in the commission of rape, both future dangerousness and vileness found); M. Smith, 219 Va. 455, 248 S.E.2d 135 (capital murder in the commission of rape, both future dangerousness and vileness found).

We have considered all of Spencer’s assignments of error and find no reversible error. We also have made the review of the death sentence mandated by Code § 17-110.1 and conclude that the sentence should be affirmed. Accordingly, the judgments of the trial court will be affirmed.

Record No. 881268—Affirmed.

Record No. 881288—Affirmed.

Part VI, Infra, contains a detailed explanation of the DNA printing procedure.

For the same reason, we reject Spencer’s contention that the trial court erred in refusing to grant him a new trial because of an alleged violation of the court’s witness exclusion order. Spencer failed to make a timely objection that would have afforded the trial court an opportunity to take appropriate corrective measures, if any were required; therefore, we will not consider this contention on appeal. Rule 5:25.

See Appellant’s Opening Brief in Townes (Record Nos. 860793, 860794) at page 42 where this contention is made.

The jury was instructed that:

Sexual intercourse means an actual penetration, no matter how slight, of the defendant’s penis into the sexual organ of the [victim]. It is not necessary that there be an ejaculation by the male.

Effective July 1, 1988, the General Assembly amended Code § 18.2-31(e) to provide that “[t]he willful, deliberate and premeditated killing of any person in the commission of, or subsequent to, rape” constitutes capital murder. Acts 1988, c. 550 (emphasis added).

Nearly every cell in the human body is nucleated. The only major cell type that has no nucleus is a red blood cell.

In scientific parlance, a DNA molecule is described as a “double-helix” and physically resembles a twisted ladder or a spiral staircase.

For example, the three probes used in this case were pAC 255/locus D2S44, pAC 256/locus D17S79, and pAC 225/locus DXYS14. Probe pAC 255/locus D2S44 was tested on a data base comprised of 274 unrelated American blacks. Probe pAC 256/locus D17S79 was tested on 201 unrelated black individuals. The black data base for probe pAC 225/locus DXYS14 consisted of 220 unrelated individuals. These tests showed that the statistical likelihood of each probe’s matching DNA fragment appearing in the DNA of unrelated black individuals is 1/657, 1/1292, and 1/159, respectively. The overall likelihood of finding all three fragments in the same sample is determined by multiplying 1/657 x 1/1292 x 1/159, resulting in an overall likelihood of 1/135,000,000.

As one expert explained, the number of individuals in the data base is constantly increasing. Consequently, the statistical likelihood of the probes’ matching DNA fragments appearing in a given population will increase from one in 135 million to “some higher number,” depending on the number of individuals in the data base.

Indeed, Dr. Roberts testified that a carelessly conducted test or the use of severely degraded or damaged DNA would result in a “false negative,” i.e., no match at all.

We recently rejected the adoption of the so-called “Frye test.” O’Dell, 234 Va. at 695-96, 364 S.E.2d at 504. To meet the Frye test, a trial court must be convinced not only that the evidence is reliable but that it is generally accepted by the scientific community. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). Consequently, even if Frye were the test in Virginia, DNA printing would meet that test.

238 Va. 295, decided September 22, 1989

Timothy Wilson Spencer v. Commonwealth of Virginia Timothy Wilson Spencer v. Commonwealth of Virginia

Record No. 890096

Record No. 890097

September 22, 1989

Present: AH the Justices

Jeffrey L. Everhart; David J. Johnson (Tuck and Everhart, on brief), for appellant. (Record Nos. 890096 and 890097.)

Donald R. Curry, Senior Assistant Attorney General (Mary Sue Terry, Attorney General; Richard A. Conway, Assistant Attorney General, on brief), for appellee. (Record Nos. 890096 and 890097.)

[OPINION BY Justice Stephenson type=majority]

Justice Stephenson

delivered the opinion of the Court.

In one indictment, Timothy Wilson Spencer was charged with capital murder, i.e., the willful, deliberate, and premeditated killing of Debbie Dudley Davis during the commission of, or subsequent to, rape. Former Code § 18.2-31(e) (1987 Cum. Supp.). In a second indictment, Spencer was charged with the rape of Davis. A third indictment charged Spencer with burglary, i.e., breaking and entering Davis’ dwelling house in the nighttime with intent to commit rape. The three indictments were tried together, and a jury found Spencer guilty on each charge. The jury fixed his punishment at life imprisonment for rape and at 20 years’ imprisonment for burglary. Following the penalty phase of the capital murder trial, the jury fixed Spencer’s punishment at death. After a sentencing hearing, the trial court sentenced Spencer in accordance with each jury verdict.

Spencer’s appeal of the capital murder conviction has been consolidated with the automatic review of his death sentence, Code §§ 17-110.1 (A) and -110.1(F), and we have given them priority on our docket, Code § 17-110.2. By order entered January 26, 1989, Spencer’s appeals of the rape and burglary convictions were certified from the Court of Appeals and consolidated with the capital murder appeal. Code § 17-116.06.

FACTS

Under settled principles of appellate review, we will recite the evidence and all inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party at trial. On Saturday, September 19, 1987, between T.00 a.m. and 2:00 a.m., a Southside Richmond resident noticed a strange automobile parked outside his home. When he awoke at 6:30 a.m. Saturday morning, the car was still parked in front of his house, the keys were in the ignition, and the engine was running. The resident called the Richmond Bureau of Police to report the abandoned automobile.

The police checked Division of Motor Vehicles records, which revealed that the automobile was registered to Debbie Dudley Davis. The address listed for Davis was an apartment four blocks from where the car had been abandoned.

When the police arrived at Davis’ apartment at 9:35 a.m., they found Davis’ body lying face down on her bed. She was clad only in a pair of shorts. Around her neck was a black sock used as a ligature. The ligature was tied around a section of vacuum cleaner pipe, which had been used as a ratchet-device to tighten the sock around Davis’ neck. Tied to the neck ligature were shoestrings that bound the victim’s left wrist in front of her and her right wrist behind her.

The medical examiner determined that the cause of death was “[ljigature strangulation” caused by “very extreme pressure.” The ligature, tightened down and “twisted two or three times” with the vacuum cleaner pipe, had cut “into the larynx, the voice box, [and] the muscles on the side of the neck.” The “intense blood pressure congestion” in the victim’s head due to the ligature had caused hemorrhage in one of her eyes. The victim also suffered bruising to her nose and mouth.

Three semen stains were found on the comforter from the victim’s bed. The fitted bed sheet contained four semen stains. Two “characteristically negroid” hairs were found when Davis’ pubic area was combed. The posterior portion of the victim’s vagina was bruised. Microscopic examination of smears made from the rectal and vaginal swabs obtained from Davis’ body revealed the presence of spermatozoa.

Entry to Davis’ apartment had been gained by raising the screen in a kitchen window located approximately eight feet above the ground. Under the window was a rocking chair that had been stolen from the porch of a nearby residence between Friday afternoon and Saturday morning. Inside the kitchen immediately beneath the window was the kitchen sink and counter top. There was no evidence of disarray in Davis’ apartment, except that her eyeglasses and toothbrush were found on the floor of the hallway leading to her bedroom.

At the time of Davis’ murder, Spencer was living in a Richmond residence approximately 2.7 miles from Davis’ apartment. A walk between Davis’ apartment and Spencer’s residence takes about 37 minutes. Spencer had left his residence at 7:30 p.m. on Friday, September 18, and had not returned until 12:30 a.m. on Saturday, September 19. Davis, who had had a telephone conversation with her parents Friday evening, was last known to have been alive between 8:30 p.m. and 9:00 p.m. Friday.

Forensic analysis established that the two Negroid hairs combed from Davis’ pubic area “were consistent with” Spencer’s underarm hair. Analysis of the semen stains found on Davis’ comforter and bed sheet showed that the stains had been deposited by a “secretor,” i.e., one whose blood characteristics are expressed in other bodily fluids. Analysis of Spencer’s blood and saliva samples established that Spencer, who is a secretor with blood type O, PGM type 1, PGM subtype 1 +, and peptidase A type 1, was “included in a group [comprising approximately 13 percent of the population] that could have contributed the seminal fluid” found on the comforter and bed sheet.

Spencer’s blood sample and the semen collected from the comforter and from the bed sheet were subjected to a forensic procedure that detects and labels the unique configurations of an individual’s deoxyribonucleic acid (DNA) molecules, the substance that carries a person’s genetic information. This “DNA print identification” technique established that the DNA molecules extracted from Spencer’s blood were identical to the DNA molecules extracted from the semen stains. Spencer is a black male. The statistical likelihood of finding duplication of Spencer’s particular DNA pattern in the population of North American blacks is one in 705 million. There are approximately 10 million black males in North America.

PRETRIAL MATTERS

Constitutionality of the Death Penalty

By a pretrial motion to dismiss, Spencer challenged the constitutionality of the death penalty. The trial court rejected his several contentions, and Spencer assigns error to the rulings.

Spencer first contends that “[t]he death penalty is, in all circumstances, cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the United States Constitution.” He further contends that the “facts and circumstances” in the present case do not justify imposition of the death penalty; thus, he asserts, the death penalty statute is “cruel and unusual punishment” as applied to him. Reaffirming our previous holdings, we reject Spencer’s contention that the death penalty constitutes “cruel and unusual punishment.” See, e.g., Spencer v. Commonwealth, 238 Va. 275, 281, 384 S.E.2d 775, 777-78 (1989) (this day decided) (compiling cases) (Spencer I).

We also reaffirm our previous holdings and reject Spencer’s claims that a capital sentencing jury is vested with an unconstitutional degree of discretion, see, e.g., M. Smith v. Commonwealth, 219 Va. 455, 476, 248 S.E.2d 135, 148 (1978), cert. denied, 441 U.S. 967 (1979), and that Virginia’s statutory aggravating factors are unconstitutionally vague, see, e.g., Hoke v. Commonwealth, 237 Va. 303, 305, 377 S.E.2d 595, 597, cert. denied, 491 U.S. _, 109 S.Ct. 3201 (1989); Gray v. Commonwealth, 233 Va. 313, 320-21, 356 S.E.2d 157, 161, cert. denied, 484 U.S. 873 (1987) (compiling cases).

Right of Spencer to Act as Co-counsel

Spencer also filed a pretrial motion requesting that he be permitted “to participate as co-counsel in the presentation of his own defense.” He contends that he has the constitutional right to act as co-counsel. We do not agree.

Spencer, of course, has a Sixth Amendment right to counsel. See, e.g., Gideon v. Wainwright, 372 U.S. 335 (1963). He also has the right to conduct his own defense. Faretta v. California, 422 U.S. 806 (1975). See also Townes v. Commonwealth, 234 Va. 307, 318, 362 S.E.2d 650, 656 (1987), cert. denied, 485 U.S. 971 (1988). Spencer, however, did not assert his right to conduct his own defense. Instead, he asserted a “hybrid” right, i.e., both the right to the assistance of counsel and the right to serve as co-counsel.

Under Faretta, a pro se defendant retains actual control over the case he chooses to present. McKaskle v. Wiggins, 465 U.S. 168, 178 (1984). Indeed, control “is the core of the Faretta right.” Id. Conversely, when a defendant does not assert his Faretta right, counsel has control over the presentation of the case. See Townes, 234 Va. at 320, 362 S.E.2d at 657.

If a defendant were permitted to act as co-counsel, however, such a “hybrid” representation could promote a conflict over who controls tactical trial decisions, thereby frustrating the orderly conduct of the trial. '‘'‘Faretta does not require a trial judge to permit ‘hybrid’ representation,” McKaskle, 465 U.S. at 183, and we hold that no such constitutional right exists.

Discovery Claims

Spencer filed a pretrial motion seeking, inter alia, written scientific reports and the “work notes [or] memoranda” that were the basis of the reports. The trial court granted the motion as to the reports, but ruled that the “work notes are not discoverable.” We agree.

Spencer’s discovery rights are controlled by Rule 3A:11. While that Rule permits a defendant to discover written “scientific reports,” by its very terms the Rule “does not authorize the discovery ... of reports, memoranda or other internal Commonwealth documents made by agents in connection with the investigation or prosecution of the case... .” See Bunch v. Commonwealth, 225 Va. 423, 436, 304 S.E.2d 271, 278, cert, denied, 464 U.S. 977 (1983); Bellfield v. Commonwealth, 215 Va. 303, 306, 208 S.E.2d 771, 774 (1974), cert, denied, 420 U.S. 965 (1975).

Moreover, contrary to Spencer’s assertion that the Due Process Clause mandates discovery of the material, “[t]here is no general constitutional right to discovery in a criminal case.” Lowe v. Commonwealth, 218 Va. 670, 679, 239 S.E.2d 112, 118 (1977) (citing Weatherford v. Bursey, 429 U.S. 545, 559 (1977)), cert. denied, 435 U.S. 930 (1978). Indeed, “the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded.” Wardius v. Oregon, 412 U.S. 470, 474 (1973).

Spencer also argues that the trial court erred in permitting the Commonwealth to introduce updated statistics on the probability of the DNA extracted from the semen stains found at the crime scene matching the DNA extracted from Spencer’s blood samples. He admits that, pursuant to the discovery order, he received a copy of the written report concerning DNA print identification testing prior to trial. The report stated that the chance that anyone other than Spencer produced the semen stains was one in 135 million.

Dr. Kevin C. McElfresh, an expert in molecular and population genetics and the manager and supervisor of the forensic and paternity laboratories at Lifecodes Corporation in New York, testified on behalf of the Commonwealth at a pretrial hearing concerning the admissibility of the DNA printing evidence. Spencer admits that Dr. McElfresh testified that the probability figure contained in the written report had been calculated in March 1988 and that an August 30, 1988 update of the data base had increased the probability of a random match to one in 705 million. Nonetheless, Spencer contends that the Commonwealth violated its continuing duty under the discovery order by failing to provide him a written report of the updated statistics and that the trial court therefore erred in permitting Dr. McElfresh to testify at trial about the new probability figure.

Significantly, Spencer does not allege, and, indeed, we cannot discern from the record, any element of prejudice or surprise resulting from the timing of the disclosure of the new statistics. As previously noted, Spencer was made cognizant of the updated probability figure before trial. Prior to his cross-examination of Dr. McElfresh at trial, Spencer requested and was granted an overnight recess to consult with a scientist about the new figure.

Following the overnight recess, Spencer did not request a continuance nor did he indicate that he was unprepared to cross-examine Dr. McElfresh. Indeed, Spencer’s cross-examination of Dr. McElfresh was skilled and thorough. We hold, therefore, that Spencer’s claim concerning the admission into evidence of the updated statistics is without merit.

Pretrial Testimony of Dr. Richard J. Roberts

In a pretrial hearing on the admissibility of the DNA print test evidence, Dr. Richard J. Roberts, Assistant Director of the Cold Spring Harbor Laboratory in New York, testified as an expert for the Commonwealth. While qualifying Dr. Roberts as an expert, the Commonwealth, over Spencer’s objection, was permitted to show that the director of the laboratory had won the Nobel Prize. On appeal, Spencer contends that the trial court “violated [his] rights to due process, equal protection and a fair trial as guaranteed by the 5th, 6th and 14th Amendments to the United States Constitution.” The contention is meritless.

Assuming, without deciding, that the testimony was inadmissible, a trial court, as opposed to a jury, is presumed to separate “the admissible from the inadmissible,” and to have considered only competent evidence. Richard Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981). Moreover, Dr. Roberts’ qualifications were substantial and unchallenged by Spencer. Indeed, whether Dr. Roberts qualified as an expert was a matter within the trial court’s sound discretion, Lane v. Commonwealth, 223 Va. 713, 718, 292 S.E.2d 358, 361 (1982), and we find no abuse of that discretion.

During the same pretrial hearing, Dr. Roberts testified unequivocally that there was no disagreement in the scientific community about the reliability of DNA print testing. Spencer contends that the trial court limited his cross-examination of Dr. Roberts on this point. Because Spencer failed to proffer the questions he wanted to ask Dr. Roberts and the answers Dr. Roberts would have made, we are unable to review Spencer’s claim. See Mackall v. Commonwealth, 236 Va. 240, 256-57, 372 S.E.2d 759, 769 (1988), cert. denied, 492 U.S. __, 109 S.Ct. 3261 (1989).

Ill

JURY MATTERS

Voir Dire

During the voir dire of prospective juror P.J., Spencer’s counsel asked J. the following question in an attempt to show bias: “If an individual who is a scientist, an expert gets on the stand and tells you a fact, would you accept that as fact simply because he is a scientist?” The trial court ruled the question improper on the ground that Spencer was “asking the juror to pass on testimony before the whole evidence is there.” Spencer assigns error to., the court’s ruling.

Spencer further contends that the trial court erred by asking J. during voir dire if she “would impose the death penalty.” Spencer asserts that, under Witherspoon v. Illinois, 391 U.S. 510 (1968) and Wainwright v. Witt, 469 U.S. 412 (1985), the appropriate question “is whether or not one can consider imposition of the death penalty, not whether or not one would actually vote for it.” (Emphasis in original.)

Under Rule 5:25, certain principles govern our review of assignments of error concerning the voir dire of prospective jurors. If a party objects to rulings made during the voir dire of a prospective juror, but subsequently fails to object to the seating of that juror, the party has waived the voir dire objections. Grounds of objections to the seating of a juror that are not stated with sufficient specificity at the time of the trial court’s ruling will not be considered on appeal.

Although Spencer objected to the court’s rulings during voir dire, he voiced no objection when the court seated J. on the jury panel. We hold, therefore, that Spencer waived the objections he made during the voir dire of J.. Rule 5:25.

Exclusions

The trial court excluded for cause two prospective jurors, M.G. and A.W., on the ground that they were unwilling to consider imposing the death penalty. Spencer acknowledges that a trial court in a capital case properly may exclude a juror whose views concerning imposition of a death sentence “ ‘would prevent or substantially impair the performance of his duties ... in accordance with his instructions and his oath.’ ” O’Dell v. Commonwealth, 234 Va. 672, 695, 364 S.E.2d 491, 504 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)), cert. denied, 488 U.S. -, 109 S.Ct. 186 (1988). Spencer asserts, however, that G. does not fall into this category. Although G. initially stated she did not believe in the death penalty, Spencer contends that he successfully rehabilitated her.

Because a trial judge “sees and hears the juror,” Wainwright, 469 U.S. at 426, an appellate court must accord the trial judge deference in applying the Adams-O’Dell standard, LeVasseur v. Commonwealth, 225 Va. 564, 584-85, 304 S.E.2d 644, 654-55 (1983), cert. denied, 464 U.S. 1063 (1984). Absent a showing of “manifest error,” we will not disturb the trial judge’s decision on appeal. Bennett v. Commonwealth, 236 Va. 448, 469, 374 S.E.2d 303, 316 (1988), cert. denied, 490 U.S. _, 109 S.Ct. 1765 (1989).

Prior to Spencer’s attempt to rehabilitate G., she stated unequivocally on seven separate occasions that, if given a choice between voting for life imprisonment and voting for the death penalty, she would vote for life imprisonment. In addition, she responded to a question from the trial judge by indicating that she would not, under any circumstances, vote for the death penalty. During Spencer’s rehabilitation attempt, G. unequivocally stated on four different occasions that she “would vote for life.” Nonetheless, Spencer says the following exchange successfully rehabilitated G.:

MRS. GREENE: I would have some... recommendations for them to contain this individual [in prison].

[DEFENSE COUNSEL]: As a juror, you can’t make those recommendations. The question is, could you consider both options [if an imprisoned individual is still a future danger] ?

MRS. GREENE: Okay. He or she runs the risk of killing the prison personnel?

[DEFENSE COUNSEL]: Let’s assume that. You are convinced of that beyond a reasonable doubt.

MRS. GREENE: Well, I guess I could consider it.

We do not agree that G.’s equivocal response to Spencer’s strained hypothetical successfully rehabilitated G.. We must consider G.’s response in light of the entire voir dire examination, see Wise v. Commonwealth, 230 Va. 322, 325-26, 337 S.E.2d 715, 717-18 (1985), cert. denied, 475 U.S. 1112 (1986), during which she unequivocally stated 12 different times that she would vote only for life imprisonment. We conclude that the record clearly supports the trial court’s finding that G.’s views about the death penalty would have substantially impaired the performance of her duties as a juror.

Retention

Spencer contends that the trial court should have excluded for cause venireman A.K. because she had been exposed to pretrial publicity about another murder allegedly committed by Spencer in the City of Richmond. The trial judge, who saw and heard the examination of K., ruled that she could be fair and impartial. That finding is entitled to great weight and will not be reversed absent a showing of abuse of discretion or manifest error. Mackall, 236 Va. at 252, 372 S.E.2d at 767.

“[I]t is not necessary that prospective jurors be entirely ignorant of the facts and issues in the case.” Pope v. Commonwealth, 234 Va. 114, 124, 360 S.E.2d 352, 358 (1987), cert. denied, 485 U.S. 1015 (1988). All that is required is that the venireman “can lay aside [his] impressions or opinions and render a verdict based on the evidence presented in court.” Washington v. Commonwealth, 228 Va. 535, 544, 323 S.E.2d 577, 584 (1984), cert. denied, 471 U.S. 1111 (1985). See also Irvin v. Dowd, 366 U.S. 717, 723 (1961).

In this case, venireman K. specifically stated that, based on what she had read, heard, or seen, she had neither expressed nor formed any opinion as to Spencer’s guilt or innocence. She further stated that she could “be impartial in terms of reviewing any evidence in court.” Thus, we conclude that the court did not abuse its discretion in retaining K. as a juror. Clearly, the record supports the trial court’s ruling.

Batson Issue

Relying upon Batson v. Kentucky, 476 U.S. 79 (1986), Spencer contends that the Commonwealth “systematically excluded] Blacks from the jury panel through the use of [its] peremptory strikes.” The final jury panel consisted of 20 individuals, 13 of whom were black and 7 of whom were white. The Commonwealth peremptorily struck four blacks. Spencer used two of his peremptory strikes to remove black individuals. The final 12-person jury consisted of seven blacks and five whites.

The Supreme Court held in Batson that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” 476 U.S. at 89. To establish a prima facie case of purposeful discrimination in the selection of the jury based on the prosecutor’s use of peremptory challenges, the defendant

first must show that he is a member of a cognizable racial group... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.”... Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Id. at 96 (citations omitted).

In the present case, the Commonwealth’s Attorney explained his reasons for each of the four peremptory strikes. The trial judge expressly ruled that he was “convinced, beyond a doubt, [the reasons were] not racial.” The court noted that, as a general matter, juries drawn from the Richmond jurisdiction are predominantly black. The court further noted, and defense counsel agreed, that the Commonwealth’s Attorney had never exhibited a pattern of racially discriminatory jury strikes in the cases he tried. Because the trial court’s findings largely “turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.” Batson, 476 U.S. at 98 n.21.

Assuming, without deciding, that Spencer established a prima facie case of purposeful discrimination under the Batson criteria, we conclude that the record clearly establishes that the Commonwealth’s Attorney had racially-neutral reasons for striking each of the four veniremen. The Commonwealth’s Attorney observed that one venireman had a record of criminal activity dating to 1938. The Commonwealth’s Attorney also opined that, another venireman was lacking in knowledge of matters that would make her a competent juror. The prosecutor struck two other veniremen because he felt they gave internally inconsistent responses during voir dire about their respective abilities to consider imposing the death penalty.

We conclude, therefore, that the record supports the trial court’s findings that the Commonwealth’s Attorney articulated reasonable, nonracial bases for each of the strikes.

GUILT PHASE

Opening Statement

Spencer contends that the trial court erred in limiting the scope of his opening statement. Spencer’s counsel began his opening statement by telling the jury of the seriousness of the case, of Spencer’s presumption of innocence, and of the Commonwealth’s burden of proving Spencer guilty by evidence beyond a reasonable doubt. Spencer’s counsel conceded that Davis had been the victim of a violent crime, but told the jury that Spencer “did not commit that crime.”

Spencer’s counsel then proceeded to tell the jury what he expected the Commonwealth’s evidence would show. At that point, the Commonwealth’s Attorney objected on the ground that Spencer’s opening statement should be limited to what Spencer’s evidence would show. The trial court sustained the objection because Spencer’s counsel had been “arguing” his case. The court stated:

The purpose of the opening statement is to tell the jury where your evidence anticipates going. That allows you to show what your evidence might be. Your case might be based on weaknesses that you will point out of the Commonwealth’s case. But this is not the time for argument.

(Emphasis added.)

Although Spencer contends that his counsel “was entitled to discuss the anticipated evidence,” it is clear from the trial court’s ruling that his counsel was not in fact precluded from doing so. Indeed, the court told defense counsel that Spencer’s case might be based on weaknesses in the Commonwealth’s evidence that counsel “will point out.” Moreover, the record discloses that when defense counsel resumed his opening statement, he repeatedly told the jury what he anticipated the Commonwealth’s evidence would show. He also stated that the defense would endeavor to discredit the Commonwealth’s expert testimony.

While Spencer had a statutory right to an opening statement, Code § 19.2-265, the trial court may exercise “broad discretion in the supervision of opening statements,” O’Dell, 234 Va. at 703, 364 S.E.2d at 509. Clearly, the trial court did not abuse its discretion in ruling that Spencer’s counsel could not use the opening statement “for argument.”

Admission into Evidence of Photographs and Videotape

Spencer contends the trial court erred in admitting into evidence three still photographs and a videotape of the crime scene. The admission of photographs into evidence rests within the sound discretion of the trial court. Bennett, 236 Va. at 471, 374 S.E.2d at 317-18; Gray, 233 Va. at 342, 356 S.E.2d at 173 (compiling cases). Likewise, the admission into evidence of a crime-scene videotape is discretionary with the trial court. Stamper v. Commonwealth, 220 Va. 260, 270-71, 257 S.E.2d 808, 816 (1979), cert. denied, 445 U.S. 972 (1980).

Spencer does not claim that the photographs are inaccurate. He merely asserts that “the horrific nature of the photos, coupled with their redundancy when combined with the videotape, render the photos prejudicial to the extent that any probative value is clearly outweighed.” Nor does Spencer claim that the videotape is inaccurate. He argues, however, that “the introduction of the graphic videotape, coupled with the still photographs, was inflammatory to the point of tending to induce a guilty verdict regardless of any other evidence.”

The photographic evidence in the present case, as in Stamper, “portrayed a scene of otherwise indescribable violence.” 220 Va. at 271, 257 S.E.2d at 816. The evidence was relevant because it tended to show motive, intent, method, malice, premeditation and the atrociousness of the crimes. Gray, 233 Va. at 342-43, 356 S.E.2d at 173. Where as here, photographic evidence accurately portrays the crime scene created by an accused, the evidence is not rendered inadmissible simply because it is gruesome or shocking. Id. at 343, 356 S.E.2d at 173. We conclude, therefore, that the trial court did not abuse its discretion in admitting this photographic evidence.

Qualifying an Expert Witness

Spencer contends that the trial court erred in qualifying Dr. McElfresh as an expert in the fields of molecular and population genetics. In doing so, Spencer asserts, the trial court “violated [his constitutional] rights to due process, equal protection and a fair trial.”

Whether a witness may qualify as an expert is a matter that rests largely in a trial court’s discretion. The trial court’s decision will not be disturbed on appeal unless it clearly appears that the witness was not qualified. Freeman v. Commonwealth, 223 Va. 301, 315, 288 S.E.2d 461, 469 (1982).

As previously stated, Dr. McElfresh is the manager and supervisor of the forensic and paternity testing laboratories at Lifecodes Corporation. In addition to his supervisory duties at the laboratory, Dr. McElfresh has personally used the DNA printing technique “over a hundred times” at Lifecodes’ laboratory and approximately “[a] thousand” times at other locations. He previously had qualified as an expert witness in the fields of molecular genetics and population genetics on eight occasions. Both counsel and the court examined Dr. McElfresh about his professional qualifications and his expertise in the DNA printing technique.

From the examination, the court found that Dr. McElfresh was “eminently qualified” to render an opinion in the fields of molecular and population genetics. Clearly, in making this finding, the trial court did not abuse its discretion.

DNA Printing

Spencer assigns error to the trial court’s admitting into evidence the results of the DNA print identification test. We briefly summarize the test as described by the expert witnesses.

The DNA molecule is described as a double-helical strand and physically resembles a twisted ladder. The molecule is contained in every cell that has a nucleus, which includes nearly all the cells of the human body. The configuration of the DNA molecule differs in every individual with the exception of identical twins. The DNA molecule’s configuration is the same in every nucleated cell of a particular person, and its characteristics do not change during the life of that individual.

The DNA molecule is very complicated, and certain chemical procedures must be performed to “read” the genetic information contained in the molecule. Once the DNA is chemically extracted from the biological specimen, enzymes called “restriction endonucleases” are applied to the molecule. These enzymes recognize particular sequences of genetic information coded by certain chemicals. At the precise point of recognition, the enzymes cut the DNA strand into fragments. Next, a procedure called “electrophoresis” is used to separate the different lengths of the DNA fragments. The DNA fragments are then transferred to a piece of nylon membrane. Next, radioactive probes are added, which identify and bind to particular fragments that the probes are designed to recognize. The resulting accumulation of radioactivity exposes X-ray film that is placed next to the nylon membrane. Developing the X-ray film reveals bands of DNA. The pattern of the bands is then compared to the pattern of DNA bands obtained from testing other specimens.

A sample of Spencer’s blood and the semen stains discovered at the crime scene were forwarded to Lifecodes Corporation for DNA print identification testing. The tests established that the DNA extracted from the semen stains matched the DNA extracted from Spencer’s blood sample. The statistical likelihood that anyone other than Spencer produced the semen stains is one in 705 million.

Spencer argues that the DNA tests results were inadmissible because the Commonwealth failed to establish the test’s reliability as required by O’Dell, 234 Va. 672, 364 S.E.2d 491. We do not agree.

The record is replete with uncontradicted expert testimony that no “dissent whatsoever [exists] in the scientific community” concerning the reliability of the DNA printing technique. Unrebutted expert testimony further established that the testing procedure performed in this case was conducted in a reliable manner. Indeed, defense counsel admitted to the trial judge that he had no evidence to contradict the testimony of the Commonwealth’s experts.

Because the undisputed evidence supports the trial court’s conclusion that DNA testing is a reliable scientific technique and that the tests performed here were properly conducted, we hold that the trial court did not err in admitting into evidence the results of the DNA testing.

Jury Instruction “A”

Spencer contends the trial court erred in refusing Jury Instruction “A,” which states that “[a] reasonable doubt is a doubt based on your sound judgment after a full and impartial consideration of all the evidence in the case.” Because the precise language is contained in the third paragraph of granted Instruction 1, Spencer’s contention is without merit. See, e.g., Mackall, 236 Va. at 254, 372 S.E.2d at 768; Tuggle v. Commonwealth, 228 Va. 493, 508, 323 S.E.2d 539, 548 (1984), vacated and remanded on other grounds, 471 U.S. 1096 (1985), aff'd on remand, 230 Va. 99, 334 S.E.2d 838 (1985), cert. denied, 478 U.S. 1010 (1986); Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 384, cert. denied, 469 U.S. 873 (1984).

Sufficiency of the Evidence

Spencer contends that the evidence is insufficient as a matter of law to support the jury’s finding that a rape and capital murder occurred. More specifically, he asserts that there is insufficient evidence that his penis penetrated the victim’s vagina. We do not agree.

When the victim was discovered, she was nude except for a pair of shorts. She had been bound, beaten, and strangled to death. The posterior of her vagina was bruised. Sperm were found in her vagina and in her rectum. Viewing this evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commonwealth, we hold that the evidence clearly supports the jury’s finding of penetration. See, e.g., Spencer I, 238 Va. at 284, 384 S.E.2d at 779-80; Tuggle, 228 Va. at 509-12, 323 S.E.2d at 549-50.

PENALTY PHASE

Facts

Spencer had been released from prison to a “halfway” house in Richmond on September 4, 1987, just two weeks before he raped and murdered Davis. Forensic evidence presented during the penalty phase established that Spencer also raped and murdered another Richmond woman in October 1987, and raped and murdered a woman in Arlington in late November 1987. Each of these victims had been strangled to death by strikingly similar methods.

Spencer has been convicted of six prior burglaries, three as an adult and three as a juvenile. His past criminal record also disclosed that Spencer has been convicted of three counts of trespassing.

Spencer presented six witnesses who gave testimony in mitigation. According to these witnesses, Spencer had been a shy, quiet, nonviolent person. He was a “loner.” None of these witnesses could believe that he committed the crimes against Davis.

Unadjudicated Crimes

Spencer contends that the trial court erred in admitting evidence concerning the rape-murder of the other Richmond woman and the rape-murder of the woman in Arlington. He asserts that only evidence of adjudicated criminal conduct is admissible. We do not agree.

In the penalty phase of a capital murder case, a jury shall consider “evidence of the prior history of the defendant” in determining whether he “would constitute a continuing serious threat to society.” Code § 19.2-264.4(C). We have construed this provision to permit the admission into evidence of unadjudicated misconduct. See, e.g., O’Dell, 234 Va. at 700, 364 S.E.2d at 507; Pruett v. Commonwealth, 232 Va. 266, 285, 351 S.E.2d 1, 12 (1986), cert. denied, 482 U.S. 931 (1987); Watkins v. Commonwealth, 229 Va. 469, 488, 331 S.E.2d 422, 436 (1985), cert. denied, 475 U.S. 1099 (1986). Spencer acknowledges these prior holdings, but claims that unadjudicated conduct is admissible only when the evidence consists of “extrajudicial statements” by the defendant. We rejected a similar claim in Pruett.

There, the defendant contended that evidence of unadjudicated crimes “should have [been] limited ... to his videotaped confession.” 232 Va. at 283, 351 S.E.2d at 11. Rejecting this contention, we said that “the trial court was [not] bound to limit the evidence of prior unadjudicated conduct to what was revealed by the videotape,” id. at 284, 351 S.E.2d at 12, and concluded that “evidence of prior criminal acts of violence, whether adjudicated or not, is relevant to a determination of future dangerousness,” id. at 285, 351 S.E.2d at 12. For the same reason, we conclude that the trial court here did not err in admitting evidence of the Richmond and Arlington rape-murders.

Jury Instruction “B”

Spencer contends that the trial court erred in refusing Instruction “B,” which reads as follows:

In order to return a sentence of death, it is absolutely necessary that all twelve jurors agree on the sentence. If any juror does not believe beyond a reasonable doubt after consideration of all the evidence and the instructions given that a sentence of death is appropriate or if the jury is unable to reach a unanimous decision of a sentence of death, then the Court will impose a sentence of life imprisonment.

In Justus v. Commonwealth, 220 Va. 971, 979, 266 S.E.2d 87, 92 (1980), cert. denied, 455 U.S. 983 (1982), we said:

The court properly refused an instruction... which would have told the jury that if it could not reach agreement as to the appropriate punishment, the court would dismiss [the jury] and impose a life sentence. While this was a correct statement of law it concerned a procedural matter and was not one which should have been the subject of an instruction. It would have been an open invitation for the jury to avoid its responsibility and to disagree.

See also Pruett, 232 Va. at 279 n.6, 351 S.E.2d at 9 n.6. We therefore reject this contention.

SENTENCE REVIEW

Spencer does not claim that the death sentence was imposed arbitrarily. Nonetheless, Code § 17-110.1 requires us to review the death sentence on the record to determine “[wjhether the sentence... was imposed under the influence of passion, prejudice or any other arbitrary factor.”

We find nothing in the record to suggest that the sentence is the product of any arbitrary factor. To the contrary, after considering all aggravating and mitigating factors, we conclude that the evidence supports the jury’s findings that (1) based on Spencer’s prior history and the circumstances surrounding the commission of the offense, there is a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society, and (2) Spencer’s conduct in committing the offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, and aggravated battery to the victim. Code § 19.2-264.4(C).

Code § 17-110.1 also requires us to determine “[wjhether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Accordingly, we have accumulated the records of all capital murder cases reviewed by this Court, and having considered those records, we hold that Spencer’s death sentence was not excessive or disproportionate to sentences generally imposed by other sentencing bodies in Virginia for comparable or similar crimes. See, e.g., Hoke, 237 Va. 303, 377 S.E.2d 595 (capital murder in the commission of robbery, abduction, and rape, both future dangerousness and vileness found); Stout v. Commonwealth, 237 Va. 126, 376 S.E.2d 288, cert. denied, 492 U.S. __, 109 S.Ct. 3263 (1989) (capital murder in the commission of robbery, both future dangerousness and vileness found); Gray, 233 Va. 313, 356 S.E.2d 157 (capital murder in the commission of robbery, both future dangerousness and vileness found); Pruett, 232 Va. 266, 351 S.E.2d 1 (capital murder in the commission of rape and robbery, both future dangerousness and vileness found); Edmonds v. Commonwealth, 229 Va. 303, 329 S.E.2d 807, cert. denied, 474 U.S. 975 (1985) (capital murder in the commission of robbery, both future dangerousness and vileness found); Watkins, 229 Va. 469, 331 S.E.2d 422 (capital murder in the commission of robbery, both future dangerousness and vileness found); Clozza v. Commonwealth, 228 Va. 124, 321 S.E.2d 273 (1984), cert. denied, 469 U.S. 1230 (1985) (capital murder in the commission of rape, both future dangerousness and vileness found); Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d 864 (1983), cert. denied, 465 U.S. 1109 (1984) (capital murder in the commission of rape, both future dangerousness and vileness found); Quintana v. Commonwealth, 224 Va. 127, 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029 (1983) (capital murder in the commission of robbery, both future dangerousness and vileness found); Clanton v. Commonwealth, 223 Va. 41, 286 S.E.2d 172 (1982) (capital murder in the commission of robbery, both future dangerousness and vileness found); James Dyral Briley v. Commonwealth, 221 Va. 563, 273 S.E.2d 57 (1980) (capital murder in the commission of rape and robbery, both future dangerousness and vileness found); Linwood Earl Briley v. Commonwealth, 221 Va. 532, 273 S.E.2d 48 (1980), cert. denied, 451 U.S. 1031 (1981) (capital murder in the commission of robbery, both future dangerousness and vileness found); Mason v. Commonwealth, 219 Va. 1091, 254 S.E.2d 116, cert. denied, 444 U.S. 919 (1979) (capital murder in the commission of rape, both future dangerousness and vileness found); M. Smith, 219 Va. 455, 248 S.E.2d 135 (capital murder in the commission of rape, both future dangerousness and vileness found).

VII

CONCLUSION

We have considered all 44 of Spencer’s assignments of error. We also have reviewed the death sentence mandated by Code § 17-110.1. We find no error in the trial court’s judgments, and therefore, we will affirm them.

Record No. 890096—Affirmed.

Record No. 890097—Affirmed.

For a concise explanation of the DNA printing procedure, see Part IV, infra.

To the extent that Spencer seeks to raise an “equal protection” claim in this appeal, such claim, not having been raised at trial, is defaulted. Rule 5:25. Also defaulted for the same reason is Spencer’s claim on appeal that the death penalty statute is “vague” because it “does not specify which party bears the burden of proof on the question of mitigation, and does not specify the standard of proof for carrying that burden.”

Because of our holding on this issue, we need not address Spencer’s other contentions relating to his alleged right to act as co-counsel.

For an explanation of how a larger data base increases the statistical likelihood of finding matching DNA patterns in a given population, see Spencer I, 238 Va. at 288 n.8, 384 S.E.2d at 782 n.8.

Alleging a third violation of the discovery order, Spencer has assigned error to the trial court’s permitting Dr. McElfresh to testify about the written protocol that delineates the specific procedures followed by Lifecodes laboratory personnel in the conduct of a DNA print test. During the pretrial hearing, Dr. McElfresh stated that he would “[gjladly” give Spencer a copy of the protocol if he wanted it. Spencer did not indicate that he found this remedy unsatisfactory, and he never again brought the matter to the trial court’s attention. He, therefore, has waived this claim for purposes of appeal. Rule 5:25.

Prior to trial, the court, over Spencer’s objection, permitted the Commonwealth to obtain “hair, blood and saliva samples” from Spencer. The ground for Spencer’s objection was that the Commonwealth had failed to establish “probable cause.” When the evidence was introduced at trial, however, Spencer voiced no objection to its admissibility. Because Spencer did not object at trial to the admissibility of this evidence, we will not consider the issue on appeal. Rule 5:25.

We likewise reject Spencer’s claim of error concerning the voir dire of prospective juror S.S. Spencer made no objection to S.’s being seated on the jury panel and, therefore, waived any objection he made to the trial court’s voir dire ruling. Rule 5:25.

The exclusion claim concerning W. that Spencer raises on appeal is not the same claim he raised when the trial court excluded W.. Therefore, we will not consider his claim on appeal. Rule 5:25.

Spencer raises two other contentions respecting Dr. McEIfresh’s testimony that are frivolous and without merit.

For a detailed explanation of the DNA print identification technique, see Spencer I, 238 Va. at 286-89, 384 S.E.2d at 781-82.

Spencer further contends that the Commonwealth failed to establish that DNA print identification testing also is generally accepted in the scientific community as required by Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In O’Dell, we rejected adoption of the so-called “Frye test,” 234 Va. at 695-96, 364 S.E.2d at 504. Even if Frye were the test in the Commonwealth, however, the DNA print technique would satisfy the requirements of Frye.

We express no opinion, however, with respect to the correctness of this language.

Spencer also contends that the evidence is insufficient to support the burglary conviction because the element of “unauthorized entry” was not sufficiently established. This contention was not advanced at trial, and, therefore, we will not consider it on appeal. Rule 5:25.

Nor will we consider Spencer’s claim that the trial court erred in refusing to permit Detective Williams to state whether in his opinion “anyone could have climbed in [the victim’s kitchen] window and left it in the shape that that’s in now.” Because the record contains no proffer of what Williams’ answer would have been, the issue has not been properly preserved. See, e.g., Mackall, 236 Va. at 256-57, 372 S.E.2d at 769; O'Dell, 234 Va. at 697-98, 364 S.E.2d at 505-06.

238 Va. 563, decided November 10, 1989

Timothy Wilson Spencer v. Commonwealth of Virginia Timothy Wilson Spencer v. Commonwealth of Virginia

Record No. 890579

Record No. 890580

November 10, 1989

Present: Carrico, C.J., Compton, Stephenson, Russell, Thomas, Whiting, and Lacy, JJ.

Jeffrey L. Everhart (David J. Johnson; Tuck & Everhart, on brief), for appellant. (Record Nos. 890579 and 890580)

Donald R. Curry, Senior Assistant Attorney General (Mary Sue Terry, Attorney General; Richard A. Conway, Assistant Attorney General, on brief), for appellee. (Record Nos. 890579 and 890580)

Justice Thomas participated in the hearing and decision of this case prior to the effective date of his resignation, November 1, 1989.

[OPINION BY Justice Stephenson type=majority]

Justice Stephenson

delivered the opinion of the Court.

In a bifurcated jury trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, Timothy Wilson Spencer was convicted of the capital murder of Dr. Susan Hellams, i.e., the willful, deliberate, and premeditated murder during the commission of, or subsequent to, rape, former Code § 18.2-31 (e) (1987 Cum. Supp.). The jury also convicted Spencer of the rape of Hellams, of the forcible sodomy of Hellams, and of burglary, i.e., breaking and entering Helianas’ dwelling house in the nighttime with intent to commit rape.

The jury fixed Spencer’s punishment at death for the capital murder conviction, at life imprisonment for both the rape and the sodomy convictions, and at 20 years’ imprisonment for the burglary conviction. Following a sentencing hearing, the trial court imposed the penalties fixed by the jury and entered final judgments on the jury verdicts.

We consolidated Spencer’s appeal of the capital murder conviction with the automatic review of his death sentence, Code §§ 17-110.1(A) and -110.1(F), and gave them priority on our docket, Code § 17-110.2 (Record No. 890579). On May 17, 1989, we ordered that Spencer’s appeals of the rape, sodomy, and burglary convictions be certified from the Court of Appeals for our review (Record No. 890580). We consolidated these appeals with the appeal and review of the capital murder conviction and death sentence.

Pursuant to well-established principles of appellate review, we must view the evidence and all inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party at trial. Dr. Hellams, a resident in neurosurgery at the Medical College of Virginia, was last seen alive about 10:50 p.m., on October 2, 1987. At that time, she was in the area of 9th and Capitol Streets in the City of Richmond and was preparing to return to her Southside Richmond home located at West 31st Street.

On October 2, 1987, Spencer resided at Porter Street in the City, a distance of approximately 1.8 miles from Hellams’ residence. The record shows it takes approximately 17 minutes to walk that distance. Spencer left his residence at 7:45 p.m., on October 2, and did not return until 1:45 a.m., on October 3.

Dr. Hellams’ husband, M.S., returned to the couple’s home about 1:30 to 1:40 a.m., on October 3. After taking a shower, S. observed that his wife was not in their bed, and shortly thereafter he discovered her dead body on the floor of the bedroom closet. The police received S.’s telephone call for assistance at 1:56 a.m.

Hellams’ body was nude above the waist. Her skirt and slip had been pulled up, and her underpants had been removed. She was wearing red socks and a red shoe on her left foot.

Two ligatures were around Hellams’ neck, one made from a red belt and the other from a blue cloth belt. Hellams’ wrists were tied tightly together behind her back with an electrical extension cord and another blue belt. Another belt was around the lower portion of Hellams’ left leg.

A six-foot high security fence enclosed the rear yard of the victim’s residence. A second-story porch was immediately outside Hellams’ bedroom window. A large portion of the screen from the bedroom window had been cut and removed and was found by the police on the floor of the porch. The screen and window were intact when S. last left the house.

The medical examiner testified that “ligature strangulation” caused Hellams’ death. The medical examiner also testified that the victim had sustained a fractured nose, a blunt force injury to the lower lip that had caused bleeding and swelling, and various other contusions and abrasions. “[Cjurva-linear marks” with “black material embedded in the abrasion” were found on the back of the victim’s right leg. The medical examiner opined that such marks are typical of those made by the edge of a shoe.

The medical examiner also found body fluids on the victim’s back and in the gluteal fold, right beneath the buttocks. This fluid had the strong musky odor of seminal fluid. The victim had sustained small mucosal tears of the anal ring. The medical examiner testified that these injuries are consistent with the anus having been penetrated “by a hard object, such as a penis.”

The Commonwealth’s expert serologist identified spermatozoa on the swabs taken from the victim’s vagina, rectum, and perianal region. The serologist also identified seminal fluid and spermatozoa on Hellams’ skirt and slip.

A sample of Spencer’s blood was analyzed by the serologist. The analysis revealed that Spencer is a type O secretor, PGM type 1, PGM subtype 1 +, and peptidase A type 1. Only 13 percent of the population, including men, women, and children, have this particular combination of blood types.

Hellams was a nonsecretor, PGM type 2-1, PGM subtype 2+1-, and peptidase A type 1. Hellams’ husband is a nonsecretor, PGM type 2-1, and PGM subtype 2+1 +.

The serologist identified, type O secretions on the swabs taken by the medical examiner from the victim’s perianal area. The serologist also identified type O secretions in the seminal fluid found on the victim’s skirt and slip. The serologist testified that the identified secretions must have originated from a third party because both Hellams and S. were non-secretors. The expert further stated that the secretions in the seminal fluid found on the victim’s skirt and slip were consistent with Spencer’s type and inconsistent with S.’s type. Additionally, the secretions in the seminal fluid found on the perianal swabs were consistent with a combination of the blood types of Spencer and the victim and inconsistent with a combination of the blood types of the victim and her husband.

Spencer’s blood sample and a sample of the seminal fluid found on the victim’s slip were subjected to a “DNA Printing” procedure. The DNA printing procedure established that the DNA molecules extracted from Spencer’s known blood sample matched the DNA molecules extracted from the seminal fluid found on the victim’s slip.

The defense presented no evidence in the guilt phase of the trial.

As in Spencer v. Commonwealth, 238 Va. 275, 281, 384 S.E.2d 775, 777 (1989) (Spencer I), and in Spencer v. Commonwealth, 238 Va. 295, 302, 384 S.E.2d 785, 790 (1989) (Spencer II) (which were decided the same day), Spencer again challenges the constitutionality of the death penalty statutes, “both on their face and as applied.” He first contends that “[t]he death penalty is, in all circumstances, cruel and unusual punishment prohibited by the eighth and fourteenth Amendments to the United States Constitution.” We considered and rejected this contention in Spencer I and in Spencer II. In doing so, we adhered to our repeated holding that the death penalty does not constitute cruel and unusual punishment. See, e.g., Hoke v. Commonwealth, 237 Va. 303, 306, 377 S.E.2d 595, 597, cert. denied, 491 U.S. __ (1989); Pope v. Commonwealth, 234 Va. 114, 121-22, 360 S.E.2d 352, 357 (1987), cert. denied, 485 U.S. 1015 (1988); Gray v. Commonwealth, 233 Va. 313, 320, 356 S.E.2d 157, 160-61, cert. denied, 484 U.S. 873 (1987); Beaver v. Commonwealth, 232 Va. 521, 527, 352 S.E.2d 342, 345-46, cert. denied, 483 U.S. 1033 (1987); Stockton v. Commonwealth, 227 Va. 124, 134-35, 314 S.E.2d 371, 378, cert. denied, 469 U.S. 873 (1984); Whitley v. Commonwealth, 223 Va. 66, 77-78, 286 S.E.2d 162, 168-69, cert. denied, 459 U.S. 882 (1982); Bassett v. Commonwealth, 222 Va. 844, 851, 284 S.E.2d 844, 849 (1981), cert. denied, 456 U.S. 938 (1982); Martin v. Commonwealth, 221 Va. 436, 439-40, 271 S.E.2d 123, 125-26 (1980); Clark v. Commonwealth, 220 Va. 201, 212, 257 S.E.2d 784, 791 (1979), cert. denied, 444 U.S. 1049 (1980); and Smith v. Commonwealth, 219 Va. 455, 476, 248 S.E.2d 135, 148 (1978), cert. denied, 441 U.S. 967 (1979). Accordingly, we reject Spencer’s contention that the death penalty constitutes cruel and unusual punishment.

Spencer also contends that the death penalty statutes are unconstitutional because the sentencing procedure provided for in the statutes “gives improper and excessive authority to the jury.” We previously rejected this claim in Smith, 219 Va. at 476-78, 248 S.E.2d at 148-49, and we reaffirm that holding.

We also reject Spencer’s contention that the statutory aggravating factors are unconstitutionally vague. See, e.g., Spencer II, 238 Va. at 302, 384 S.E.2d at 790; Hoke, 237 Va. at 305, 377 S.E.2d at 597; Gray, 233 Va. at 320-21, 356 S.E.2d at 161 (compiling cases).

Ill

In a pretrial hearing on the admissibility of the DNA print identification evidence, Dr. Richard J. Roberts, Assistant Director of the Cold Spring Harbor Laboratory in New York, testified as an expert for the Commonwealth. While qualifying Dr. Roberts as an expert, the Commonwealth, over Spencer’s objection, was permitted to show that the director of the laboratory had won the Nobel Prize. On appeal, Spencer contends that this testimony was irrelevant and prejudicial, and, therefore, the trial court “violated [his] rights to due process, equal protection and a fair trial as guaranteed by the 5th, 6th and 14th Amendments to the United States Constitution.”

Spencer contended the same in Spencer II, and we concluded that the contention was meritless. Again, assuming, without deciding, that the testimony was inadmissible, we reject the contention for the reasons previously stated in Spencer IP.

[A] trial court, as opposed to a jury, is presumed to separate “the admissible from the inadmissible,” and to have considered only competent evidence. Richard Eckhart v. Common wealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981). Moreover, Dr. Roberts’ qualifications were substantial and unchallenged by Spencer. Indeed, whether Dr. Roberts qualified as an expert was a matter within the trial court’s sound discretion, Lane v. Commonwealth, 223 Va. 713, 718, 292 S.E.2d 358, 361 (1982), and we find no abuse of that discretion.

238 Va. at 305, 384 S.E.2d at 792.

At the same pretrial hearing, Dr. Roberts testified unequivocally that there was no disagreement in the scientific community about the reliability of DNA print testing. Spencer contends that the trial court erred in limiting his cross-examination of Dr. Roberts on this point. Spencer, however, made no proffer of the questions he wanted to ask Dr. Roberts and of the answers Dr. Roberts would have given. Spencer’s failure to make such a proffer precludes appellate review of this claim. Spencer II, 238 Va. at 305, 384 S.E.2d at 792; Mackall v. Commonwealth, 236 Va. 240, 256-57, 372 S.E.2d 759, 769 (1988), cert. denied, 492 U.S. __ (1989).

The trial court excluded venireman M.O. from the jury upon a finding that O. “wouldn’t impose [the death penalty] under any circumstances.” Spencer contends that the court erred in excluding O..

During jury voir dire, the following exchange occurred between the trial judge and O.:

[TRIAL JUDGE]: Do you have any religious or conscientious scruples against the imposition of the death penalty in the proper case?

OWENS: Yes, I do.

[TRIAL JUDGE]: Are you saying no matter what would happen, you would not impose the death penalty?

OWENS: Yes, sir.

[TRIAL JUDGE]: Under no circumstances, would you impose the death penalty?

OWENS: No, sir, I couldn’t.

When Spencer’s counsel attempted to rehabilitate O., the following exchange occurred:

OWENS: I wouldn’t want to put myself in that position if it could be avoided. My religious convictions are such that I don’t believe in the death penalty, regardless of what the individual has done.

[DEFENSE COUNSEL]: You could not follow the law as the Judge instructed you?

OWENS: I mean, I couldn’t break the law, if that is the law. Obviously, I would have to go along with it. All I am saying is, I wouldn’t want to put myself in that position, if it could be avoided.

[DEFENSE COUNSEL]: Assume then, if you will, with me, that a duty that you might have as a citizen of the Commonwealth would be to put yourself in that position. I am asking, in light of, or in spite of your religious or moral convictions against the death penalty, could you at least open your ears, your mind to your fellow jurors, to the evidence of the Commonwealth, to the evidence of the defense, and to the law of the Commonwealth of Virginia as Judge Wilkinson will instruct you? Could you consider imposing the death penalty?

OWENS: If I had to do that, yes, sir, I would. If I was, if I had to follow the dictates of the law, then, yes, I would.

The voir dire of O. concluded with the following exchange between O. and the prosecutor:

OWENS: I find it to be a very difficult position. Because I want to do what is right as a citizen, to be a juror. However, I do not believe in the death penalty. I would consider it. But as far as making a determination, I would have to say no.

[PROSECUTOR]: That you could not impose it?

OWENS: I couldn’t impose it. And I thought I had made myself clear when I said that. Maybe I haven’t.

[PROSECUTOR]: Would there be any arguments advanced that would enable you to impose it? Either gruesomeness of the offense or anything like that, or is it just your belief that you cannot impose the death penalty?

OWENS:! personally don’t believe that we have the right to take someone else’s life, no matter what the individual has done.

A trial court in a capital case may properly exclude a juror whose views about the imposition of a death sentence “ ‘would prevent or substantially impair the performance of his duties... in accordance with his instructions and his oath.’ ” O’Dell v. Commonwealth, 234 Va. 672, 695, 364 S.E.2d 491, 504 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)), cert. denied, _ U.S. _, 109 S.Ct. 186 (1988). Accord Wainwright v. Witt, 469 U.S. 412, 424 (1985).

In Spencer II, we stated the appropriate standard of appellate review:

238 Va. at 307, 384 S.E.2d at 793.

In the present case, O. repeatedly and unequivocally stated that she could not impose the death penalty under any circumstances. We, therefore, cannot say that the trial court abused its discretion. Indeed, the court’s finding is clearly supported by the record.

In the present case, the undisputed evidence established that the DNA print identification test was properly conducted. Spencer contends, however, that the trial court erred in admitting into evidence the results of the DNA print identification test “because the Commonwealth failed to establish its reliability and its general acceptance in the scientific community.” Spencer contended the same in Spencer I and in Spencer II. In those cases, in which the issue was one of first impression, we held that DNA testing is a reliable scientific technique. 238 Va. at 290, 384 S.E.2d at 783; 238 Va. at 315, 384 S.E.2d at 797. We adhere to those holdings. Thus, the trial court did not err in admitting the DNA print evidence.

Spencer also contends that the trial court erred in qualifying Dr. Kevin C. McElfresh as an expert in the fields of molecular and population genetics. Spencer claims that “[t]he Commonwealth failed to establish [McElfresh’s] qualifications as an expert and his testimony violated [Spencer’s] rights to due process, equal protection and a fair trial as guaranteed by the 5th, 6th and 14th Amendments to the United States Constitution.” We do not agree.

Whether to qualify a witness as an expert rests largely within a trial court’s discretion. Spencer II, 238 Va. at 313, 384 S.E.2d at 796; Freeman v. Commonwealth, 223 Va. 301, 315, 288 S.E.2d 461, 469 (1982). The court’s decision will not be disturbed on appeal unless the record clearly shows that the witness was not qualified. Id.

Dr. McElfresh is the manager and supervisor of the forensic and paternity laboratories at Lifecodes Corporation. He has extensive education and experience in the specialized fields of molecular and population genetics. He has written numerous articles in his speciality fields. In addition to his supervisory duties at the laboratories, Dr. McElfresh has used the DNA printing technique over a hundred times at Lifecodes and approximately a thousand times at other places. Prior to the present trial, Dr. McElfresh has served as an expert 17 times in 11 different states.

After both counsel and the trial court examined Dr. McElfresh about his expertise regarding the DNA printing technique, the court concluded that the witness was eminently qualified to render opinions in the fields of molecular and population genetics. The record supports that conclusion, and we hold that the trial court did not abuse its discretion.

VII

Spencer further contends that the evidence is insufficient to support his convictions of rape and capital murder. This is so, he asserts, because the evidence failed to prove beyond a reasonable doubt that his penis penetrated the victim’s vagina. This contention is meritless.

As previously noted, when the victim was found she was nude above the waist. Her skirt and slip had been pulled up, and her underpants had been removed. She had been bound, beaten, and strangled to death. Sperm was found in her vagina and in her rectum. Seminal stains found on the victim’s skirt and slip were positively linked to Spencer by the DNA print test.

We conclude that the evidence and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth, fully support the jury’s finding of penetration. Therefore, we affirm the convictions of rape and capital murder. See, e.g., Spencer I, 238 Va. at 292, 384 S.E.2d at 784; Spencer II, 238 Va. at 315-16, 384 S.E.2d at 798; Tuggle v. Commonwealth, 228 Va. 493, 509-12, 323 S.E.2d 539, 549-50 (1984), vacated and remanded on other grounds, 471 U.S. 1096 (1985), aff'd on remand, 230 Va. 99, 334 S.E.2d 838 (1985), cert. denied, 478 U.S. 1010 (1986).

VIII

Spencer contends that the facts and circumstances of the present case do not warrant imposition of the death penalty. Before imposing a death sentence, a jury must find from the evidence beyond a reasonable doubt that there is a probability, based upon evidence of the prior history of the defendant or of the circumstances surrounding the commission of the offense of which he is accused, that he would commit criminal acts of violence that would constitute a “continuing serious threat to society,” or that the defendant’s conduct in committing the offense was “outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery to the victim.” Code § 19.2-264.4(C). After the presentation of evidence in the penalty phase of the trial, the jury fixed Spencer’s sentence at death based upon findings that both the “future dangerousness” and “vileness” predicates had been proved beyond a reasonable doubt.

The evidence reveals that in September 1987, Spencer was released from prison to a “halfway” house located in the City of Richmond. While at the “halfway” house, Spencer remained in the custody of the Department of Corrections. Within 30 days of his release from prison, Spencer raped and murdered two women in the City of Richmond, Debbie Dudley Davis and Hellams. In late November 1987, he raped and murdered Susan Tucker in Arlington County. The facts and circumstances of the three rape-murders were remarkably similar. All three of Spencer’s victims died from ligature strangulation.

Spencer had six prior burglary convictions, three as a juvenile and three as an adult. He also had been convicted of three charges of trespassing.

Spencer’s conduct in committing the offenses against Hellams was especially egregious. He not only raped and sodomized Hellams, but he beat, bound, and strangled her. Such a method of killing involved both physical and psychological “torture” of the victim, and evinced “depravity of mind,” i.e., “a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation.” See Smith, 219 Va. at 478, 248 S.E.2d at 149. Also, Spencer’s conduct unquestionably involved “aggravated battery” to the victim because his battery of her was “qualitatively and quantitatively... more culpable than the minimum necessary to accomplish an act of murder.” Id.

Spencer presented three witnesses who gave evidence in mitigation of punishment. A community center employee and lifetime friend of Spencer’s described him as a “normal young person” who caused no problems at the community center and who always was mannerly and respectful to others. Spencer’s mother and grandmother also testified. His grandmother, who raised Spencer until age nine, stated that Spencer was never a problem to her.

Having considered all aggravating and mitigating factors, we hold that the evidence clearly supports the jury’s findings of both the “future dangerousness” and the “vileness” predicates.

Code § 17-110.1(C) mandates that we review the death sentence on the record to consider and determine:

1. Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and

2. Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

We have accumulated the records of all capital murder cases reviewed by this Court, Code § 17-110.1(E), and after considering those records, we conclude that Spencer’s sentence of death was not excessive or disproportionate to sentences generally imposed by other sentencing bodies in Virginia for comparable or similar crimes. See, e.g., Spencer I, 238 Va. at 292-93, 384 S.E.2d at 784-85 (compiling cases). Additionally, nothing in the record suggests that the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor.

We have considered all assignments of error that Spencer argued on brief and find no reversible error. We also have reviewed the sentence of death as mandated by Code § 17-110.1 and hold that the sentence should be affirmed. Accordingly, the trial court’s judgments will be affirmed.

Record No. 890579—Affirmed.

Record No. 890580—Affirmed.

“DNA” is the abbreviation for deoxyribonucleic acid, the chemical that carries ah individual’s genetic information. No two individuals, except identical twins, have the same DNA pattern, and the parties stipulated that Spencer does not have an identical twin.

Spencer is a black male. Based upon statistical data, the chance that Spencer’s DNA pattern would be found at random “in the North American black population would be 1 in 705 million.” There are approximately ten million adult black males in North America.

On appeal, Spencer contends that the death penalty statute is “vague” because it “does not specify which party bears the burden of proof on the question of mitigation, and does not specify the standard of proof for carrying that burden.” This contention was not presented to the trial court. Thus, we will not consider it on appeal. Rule 5:25. Similarly, to the extent that Spencer undertakes to raise an “equal protection” claim on appeal, such claim, not having been raised at trial, also is defaulted.

The DNA print identification test consists of a series of chemical procedures that break down the DNA molecule into fragments of various lengths. The DNA fragments are arranged along parallel lines according to the length of the fragments. The resulting pattern of fragments is unique to each individual. In a rape investigation, the pattern of fragments of the semen samples collected from the crime scene is then compared with the pattern of fragments obtained from the alleged assailant’s blood sample. If the semen and blood samples are from the same person, the fragment patterns will be identical.

For a detailed explanation of the DNA print identification technique, see Spencer I, 238 Va. at 286-89, 384 S.E.2d at 781-82, and Spencer II, 238 Va. at 313-14, 384 S.E.2d at 797.

Spencer urges upon us the so-called “Frye test.” To meet the Frye test, a trial court must be convinced not only that the evidence is reliable but that it is generally accepted by the scientific community. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). We have rejected the adoption of the Frye test. Spencer I, 238 Va. at 290 n.10, 384 S.E.2d at 783 n.10; O’Dell, 234 Va. at 695-96, 364 S.E.2d at 504. However, even if the Frye test applied, DNA printing would satisfy the test.

Dr. McElfresh summarized his education and experience as follows:

1 received a bachelor of science in biology with a minor in chemistry and pathology from Florida International University, in Miami, Florida; followed that with a mas: ters degree in molecular, cellular, and developmental biology in Iowa University, with a specialty in genetics; followed that by my molecular and population genetics from the University of Georgia in Athens. Subsequent to that time — which that was February of 1984 — I received my doctorate. Since then, I have done postdoctoral work for the bio-technology, bio-resources program at the University of Georgia for which I had a grant. After that, I did a second short postdoctoral study in the Department of Plant Pathology at the University of Florida. Then I took a position with the United States Department of Agricultural Research Service Experimentation in Gainesville, Florida. And then I went to work for LIFECODES.

During that period of time, I did extensive study on the general structure and function of a number of organisms and how those genes, as a result of their structure and function, might be found in a variety of populations. That is correlating how a gene was built and how that gene functioned, and then how that allowed an organism to function within a population of organisms in the environment.

I am also ... an adjunct professor of microbiology in Valhalla, New York, [where I] teach a course in human molecular genetics ....

Spencer did not argue on brief assignments of error numbered 8, 9, 15, 17, and 18. Consequently, those contentions have been waived. O’Dell, 234 Va. at 679, 364 S.E.2d at 495.

240 Va. 78, decided June 8, 1990

Timothy Wilson Spencer v. Commonwealth of Virginia

Record Nos. 900001 and 900002

June 8, 1990

Present: All the Justices

Christopher J. Collins (Jeffrey L. Everhart on brief), for appellant.

Donald R. Curry, Senior Assistant Attorney General (Mary Sue Terry, Attorney General; Richard A. Conway, Assistant Attorney General, on brief), for appellee.

[OPINION BY JUSTICE RUSSELL type=majority]

JUSTICE RUSSELL

delivered the opinion of the Court.

In this appeal, we review a capital murder conviction and a death penalty imposed upon Timothy Wilson Spencer. Recently, we have affirmed three other such convictions and sentences imposed upon Spencer which involve unrelated but strikingly similar crimes, reported as Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989), cert. denied, 493 U.S__, 110 S.Ct. 1171 and 110 S.Ct. 759 (1990) (Spencer I); Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989), cert. denied, 493 U.S__, 110 S.Ct. 1171 (1990) (Spencer II); and Spencer v. Commonwealth, 238 Va. 563, 385 S.E.2d 850 (1989), cert. denied, 493 U.S_, 110 S.Ct. 1171 (1990) (Spencer III).

I. PROCEEDINGS

In the present case, Spencer was indicted for rape, breaking and entering with intent to commit rape, and capital murder, i.e., willful, deliberate, and premeditated murder during the commission of, or subsequent to, rape, former Code § 18.2-31(e), now Code § 18.2-31(5). At the first stage of a bifurcated jury trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, Spencer was convicted of all three offenses, and his punishment was fixed at life imprisonment for rape and 20 years imprisonment for burglary. At the penalty phase of the trial, after hearing evidence in aggravation and mitigation, the jury found both the “future dangerousness” and “vileness” predicates to be present and unanimously fixed Spencer’s punishment at death for capital murder. After considering a probation officer’s report and conducting a sentencing hearing, the court, by final orders dated October 17, 1989, entered judgments confirming the jury’s verdicts.

We have consolidated Spencer’s appeal of the capital murder conviction in Record No. 900001 with the automatic review of his death sentence to which he is entitled, Code §§ 17-110.1A and -110.IF, and have given them priority on our docket. Code § 17-110.2. We have also certified Spencer’s appeals of his rape and burglary convictions, Record No. 900002, from the Court of Appeals, and have consolidated the two records for our consideration.

II. THE EVIDENCE

We will review the evidence in the light most favorable to the Commonwealth. Diane Cho was a fifteen-year-old girl of Korean descent who lived with her parents and brother in a Chesterfield County apartment complex. On the night of Saturday, November 21, 1987, Diane retired to her bedroom about 10:00 p.m. Her parents heard her typing in her room about 11:30 p.m., but heard no sounds from her room thereafter. Early the next morning, her parents left the apartment to go to work and assumed that Diane was still asleep.

Mr. and Mrs. Cho returned home about 2:00 p.m. that afternoon. They found Diane’s body face down on the bed, partially covered by a sheet. Her hands had been bound securely behind her back with a length of rope. Another rope was tied tightly around her neck with a slip knot. The end of that rope came over her back and was tied to her hands. Her body was nude, and her mouth was covered with duct tape. A “figure 8” or “infinity sign” had been painted on her left hip with fingernail polish. She was dead as the result of “ligature strangulation.”

The medical examiner examined Diane’s body at the crime scene and estimated the time of death at six to twelve hours earlier. There were no signs of struggle in the room and nothing was disturbed in the apartment except the screen covering the window in Diane’s room. The window was unlocked and the screen was found on the ground outside. The screen frame had been broken and removed from the window.

The victim’s body showed acute vaginal and anal injuries and two bruises on top of the head. There were smears of blood on the buttocks and genital area. Seminal fluid was found in the victim’s vagina, and an unusually large amount of seminal fluid was found in three separate stains on a sheet taken from the victim’s bed. Bloodstains were also found on the sheet, as well as a single Negroid hair. Mr. and Mrs. Cho stated that no black persons had ever visited them in the apartment.

As a result of a prior penitentiary sentence, Spencer was residing in a “halfway house” on Porter Street, in Richmond, at the time of Diane’s murder. The “halfway house” was about six miles from the Cho’s apartment. On the night of November 21, 1987, he had “signed out” and left at 7:15 p.m. He did not return until 8:25 p.m. on November 22. He was arrested on January 20, 1988, at the “halfway house.” At the time of the arrest, the police discovered, on the fabric covering the box spring under Spencer’s mattress, a “figure 8” or “infinity sign.” The words “I hope” were printed above this mark.

A serologist examined a known sample of Diane’s blood, a known sample of Spencer’s blood, secretions found on vaginal swabs taken from the victim, and the material taken from the stains on the bedsheet. A microscopic examination of the hair taken from the bedsheet revealed that it was “microscopically similar” to a known sample of Spencer’s underarm hair.

The serologist made a comparative blood type and enzyme analysis of the blood samples, secretions, and stains. The victim was identified as a Type A secretor, PGM type 2-1, PGM subtype 2 + 1+ and peptidase A type 1. Spencer was identified as a Type O secretor, PGM type 1, PGM subtype 1 +, and peptidase A type 1. The expert testified that a bedsheet stain “would probably be pure seminal fluid.” This sample corresponded to Spencer’s bloodtype and enzyme grouping in all respects. Spencer belongs to a group comprising approximately 13% of the population which could have been the source of this stain. The vaginal specimen and the other bedsheet stains were mixed with blood. They were consistent with a mixture of Spencer’s bloodtype and enzyme grouping with that of the victim.

DNA printing analysis of the bloodstained material from the bedsheet was unsuccessfully attempted, using the techniques described in Spencer I, II, and III. Only an insufficient quantity of DNA could be isolated from the stains, probably due to dilution by the victim’s vaginal bleeding. Nevertheless, a DNA analysis was made by a process known as PCR DNA amplification. This process, discussed below, replicates isolated DNA to permit a comparative analysis. The analysis thus made identified Spencer’s “DQ-Alpha genotype” as 1.2 and 2, which occurs in about 5 % of the population. The victim’s “DQ-Alpha genotype” was 3 and 4. The “DQ-Alpha genotype” found in the DNA isolated from the victim’s vaginal smear, as well as that found on the three bedsheet stains, was identical to Spencer’s and unlike the victim’s. This particular “DQ-Alpha genotype,” combined with Spencer’s bloodtype and enzyme grouping, results in a combination that occurs in slightly less than 1 % of the population.

III. ISSUES PREVIOUSLY DECIDED

Spencer’s appeal raises a number of legal issues which are resolved by our previous decisions. Accordingly, we will not discuss them beyond giving citations to representative cases in which those issues were decided adversely to Spencer’s claims. The issues raised here which have been expressly rejected previously are:

A. The death penalty constitutes cruel and unusual punishment. See Spencer III, 238 Va. at 568-69, 385 S.E.2d at 853.

B. The categories of aggravating circumstances in the capital murder statutes are unreasonable and arbitrary, facially and as applied. See id. at 568-69, 385 S.E.2d at 853-54.

C. The aggravating circumstances set forth in the capital murder statutes are unconstitutionally vague. See id. at 569, 385 S.E.2d at 853-54.

D. Jurors have excessive authority in determining punishment. See id. at 569, 385 S.E.2d at 853.

E. The defendant should have been allowed additional peremptory strikes. See Buchanan v. Commonwealth, 238 Va. 389, 405, 384 S.E.2d 757, 767 (1989), cert. denied, 493 U.S. _, 110 S.Ct. 880 (1990).

F. The guilt phase and the penalty phase of the trial should have been tried by different juries. See Pruett v. Commonwealth, 232 Va. 266, 277-78, 351 S.E.2d 1, 7-8 (1986), cert. denied, 482 U.S. 931 (1987).

G. The defendant should have been able to argue to the jury, at the penalty phase, that if he received life imprisonment he would be ineligible for parole because of prior convictions. See Watkins v. Commonwealth, 238 Va. 341, 351, 385 S.E.2d 50, 56 (1989), cert. denied, 494 U.S. _, 110 S.Ct. 1797, 108 L.Ed.2d 798 (1990).

IV. ISSUES PROCEDURALLY DEFAULTED

Spencer assigns error to a series of rulings by the trial court to which no contemporaneous objection was stated with reasonable certainty. Those assignments are:

A. The defendant was denied a right to a speedy trial pursuant to Code § 19.2-243.

B. The court should have granted a change of venue.

C. The court should have excused a group of veniremen which had been instructed that the defendant had a right not to testify.

D. The court erred in permitting the introduction of videotape evidence from Spencer’s former trials.

E. The court erred in allowing the Commonwealth to prove that from January 1, 1987 until the date of trial, there had been no similar crimes in the areas of Arlington, Richmond, or Chesterfield, except for the four murders in which Spencer was implicated.

F. The court should not have permitted the Commonwealth to argue that certain differences between the four crime scenes could be explained by the murderer’s skill increasing with experience.

G. The court should have instructed the jury to disregard a part of the Commonwealth’s closing argument which, the defendant contends, was not supported by the evidence.

Because of Spencer’s failure to state the reasons for his objections to the foregoing with reasonable certainty at the time of the rulings, we will not consider those assignments of error. Rule 5:25.

V. PUBLIC TRIAL

The court conducted a pretrial hearing on January 30, 1989, to consider a number of motions. The case had attracted public attention and was being reported in the news media. Members of the public, television representatives, and news reporters were present in the courtroom, and the proceedings were subsequently reported by the media. Nevertheless, on March 23, the defense filed a motion for a rehearing of all the January 30 motions, or a dismissal of all charges, on the ground that a courtroom door had been locked during the January 30 hearing, thus denying Spencer a public trial.

In support of his motion, Spencer presented the testimony of a single witness, an attorney named David P. Baugh. Mr. Baugh, who was not involved in the Spencer case, testified that he had gone to the back door of the courtroom between 10:00 and 10:30 a.m. on January 30 for the purpose of speaking with one of Spencer’s counsel. Finding the door locked, Mr. Baugh knocked. A deputy sheriff appeared and told him: “The courtroom is closed. You cannot come in.”

It is undisputed that the trial judge was unaware of this event at the time, that the court had given no instructions to anyone to close the courtroom or to lock the back door, that the public appeared to be taking advantage of its right to be present, and that the matter was not called to the court’s attention while the hearing was in progress.

The Sixth Amendment right to a public trial extends to pretrial hearings. Richmond Newspapers v. Commonwealth, 222 Va. 574, 588, 281 S.E.2d 915, 922 (1981). Nevertheless, that right is not impaired where there is no record of purposeful exclusion of the general public by order of the court. Flores v. State, 475 P.2d 37, 39 (Alaska 1970) (courtroom door locked during deliberations); State v. Clayton, 109 Ariz. 587, 594-95, 514 P.2d 720, 727-28 (1973) (courtroom door locked during voir dire); People v. Frisco, 4 Ill. App. 3d 1034, 1036-37, 283 N.E.2d 277, 278-79 (1972), cert. denied, 410 U.S. 941 (1973) (courtroom door locked during jury selection); Norwood v. State, 258 So.2d 756, 762-63 (Miss. 1972) (courtroom doors locked during pretrial suppression hearing). Even where the court orders the courtroom doors locked during the hearing, there is no constitutional violation where members of the public and the news media are actually in attendance, having entered before the hearing. Lacaze v. United States, 391 F.2d 516, 520-21 (5th Cir. 1968) (courtroom door locked during part of trial); State v. Herring, 210 Conn. 78, 97-99, 554 A.2d 686, 696-97, cert. denied,_U.S.__, 109 S.Ct. 3230 (1989) (courtroom temporarily closed by judge while instructing jury); State v. Foster, 510 So.2d 717, 729 (La. App. 1987) (judge ordered courtroom doors locked during trial for security reasons); State v. Letcher, 772 S.W.2d 795, 799-800 (Mo. App. 1989) (courtroom doors locked to prevent disruption of defendant’s testimony). In the circumstances of this case, we hold that Spencer’s right to a public trial was unimpaired.

VI. OTHER CRIMES

One of the matters considered by the court at its January 30 hearing was the Commonwealth’s motion for permission to introduce, at the guilt phase of the trial, evidence of Spencer’s involvement in the three other rape-murders described in Spencer I, II, and III. The Commonwealth contended that the evidence should be admitted on the issue of “identity of the perpetrator.” The Commonwealth pointed out numerous similarities among those crimes inter se and with the present case. After reviewing the proffered evidence, the court concluded that the other crimes bore such similarity to the present case that the probative value of the evidence outweighed its prejudicial effect.

At trial, the Commonwealth introduced evidence of numerous details of the other three crimes, showing Spencer’s involvement with each of them, as well as their similarities with the case on trial. Spencer assigns error to the admission of this evidence.

In support of its contention, the Commonwealth relies on the following points of similarity:

A. Each of the crimes occurred during a 90-day period while Spencer was residing in a Richmond “halfway house” following his release from the penitentiary and each occurred when he had “signed out” of the “halfway house” overnight. The Arlington crime (Spencer I) occurred while he was “signed out” to visit his mother in Arlington.

B. Each of the four victims was killed by ligature strangulation.

C. Each of the four victims had been subjected to forcible rape and sodomy.

D. Each of the four victims was overcome quickly, without an opportunity to struggle or call for help. None showed defensive injuries and there was no sign of a struggle. The evidence was consistent with the victims’ being overcome while asleep. In no case was there evidence of injury by a weapon.

E. In each case, entry to the victim’s home was gained through a window.

F. Each of the victims was described as a white (or in the present case, Asian) female of a “stocky” body-build.

G. Each victim was found strangled by a neck ligature and with the hands tied. In three of the four cases, the neck ligature was also tied to the bindings around the hands.

H. All four victims were found in their bedrooms.

I. The murderer had made an effort to hide or partially cover each body before leaving the scene.

J. Each of the killings occurred during a weekend.

K. Unusually large amounts of seminal fluid were found outside the body of each victim.

L. The source of the seminal fluid was, in each case, a person having Spencer’s blood and enzyme types, a combination found in 13% of the population.

M. In each of the four cases, the source of the seminal fluid was a person having either the same “DNA print” or the same “DQ-Alpha genotype” as Spencer. As previously noted, the “DQ-Alpha genotype” present in this case, when combined with the bloodtype and enzyme characteristics, resulted in a combination found in less than 1 % of the population. In the other three cases, where DNA printing could be utilized, the probability of the source being anyone other than Spencer was infinitesimally small.

The question of the circumstances justifying the admission of evidence concerning other crimes has been a troubling one. Generally, evidence of other offenses should be excluded if offered merely to show that the accused is a person likely to commit the crime charged. Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). But there are important exceptions to that rule. See Cheng v. Commonwealth, 240 Va. 26, 393 S.E.2d 599 (this day decided). Evidence of other crimes is admissible if it tends to prove any fact in issue, even though it also tends to show the defendant guilty of another crime. Woodfin v. Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380-81 (1988), cert. denied, 490 U.S. 1009 (1989); Scott v. Commonwealth, 228 Va. 519, 527, 323 S.E.2d 572, 577 (1984).

As Spencer concedes, one of the issues upon which “other crimes” evidence may be admitted is that of the perpetrator’s identity, or criminal agency, where that has been disputed. See Woodfin, 236 Va. at 95, 372 S.E.2d at 381; Huffman v. Commonwealth, 168 Va. 668, 683-84, 190 S.E. 265, 272 (1937); C. Friend, The Law of Evidence in Virginia § 152, at 397-98, § 153, at 402 (3rd ed. 1988). Proof of modus operandi is competent evidence where there is a disputed issue of identity. Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805.

The trial court instructed the jury:

Where evidence of a separate crime is used to establish the identity of the accused, more is required than merely proving the repeated commission of crimes of the same class. Generally, the device used to commit the crime, or the manner in which the crime was committed, must be so distinctive as to indicate a modus operandi, or to act as a signature.

The instruction was given without objection, and is therefore the law of the case. Infant C. v. Boy Scouts of America, 239 Va. 572, 579, 391 S.E.2d 322, 326 (1990). The court’s use of the “signature” homology was evidently based upon the Court of Appeals’ decision in Sutphin v. Commonwealth, 1 Va. App. 241, 246-47, 337 S.E.2d 897, 900 (1985). The term is a useful one if it is understood only in the sense of requiring a distinctive modus operandi, such that the evidence of other crimes so resembles the pattern of the offense charged as to raise the probability of a common perpetrator. However, the term “signature” can also be misunderstood to require that evidence of other crimes may not be admitted unless they are virtual carbon copies of the case on trial. That, in our view, is an unwarranted restriction of the modus operandi exception.

We adopt the standard articulated by the Seventh Circuit in United States v. Hudson, 884 F.2d 1016 (7th Cir. 1989): evidence of other crimes, to qualify for admission as proof of modus operandi, need not bear such an exact resemblance to the crime on trial as to constitute a “signature.” Rather, it is sufficient if the other crimes bear “a singular strong resemblance to the pattern of the offense charged.” 884 F.2d at 1021 (quoting United States v. Shackleford, 738 F.2d 776, 783 (7th Cir. 1984)). That test is met where the other incidents are “sufficiently idiosyncratic to permit an inference of pattern for purposes of proof,” id., thus tending to establish the probability of a common perpetrator.

Ultimately, the question whether to admit evidence of other crimes involves the same considerations as any other circumstantial evidence. “Every fact, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue, is relevant, and if otherwise admissible, should be admitted.” Harrell v. Woodson, 233 Va. 117, 122, 353 S.E.2d 770, 773 (1987) (citation omitted). “Other crimes” evidence bearing sufficient marks of similarity to the case on trial to establish the probability of a common perpetrator is, therefore, usually relevant. The question remains, however, whether it is “otherwise admissible.” That question requires the trial court to weigh its probative value against its prejudicial effect. “Whenever the legitimate probative value outweighs the incidental prejudice to the accused, evidence of prior offenses, if otherwise competent, is admissible.” Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983).

The responsibility for balancing the competing considerations of probative value and prejudice rests in the sound discretion of the trial court. The exercise of that discretion will not be disturbed on appeal in the absence of a clear abuse. Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986).

The other crimes presented to the jury in the present case were not carbon copies of the crimes on trial. The defense points out a number of differences among them: the materials used to strangle the victims differed; two of the women were single, one was married, and one was separated; Diane Cho was younger and smaller than the others; she was the only victim found with duct tape over her mouth; she was the only one marked with a “figure 8” or “infinity sign.” Nevertheless, the similarities between the offenses, particularly the indications of a common modus operandi and the scientific evidence that the defendant was the common criminal agent, strongly support the trial court’s ruling. Although there was undoubtedly a prejudicial effect upon the defendant, we cannot say that the trial court abused its discretion in ruling that the prejudicial effect was outweighed by the probative value of that evidence.

Under a separate assignment of error, Spencer contends that even if the court decided to admit evidence of the other three rape-murders, it was improper for the court to admit the results of the serological tests and the “DNA fingerprinting” that had been accomplished in those cases. He contends that the evidence was unnecessary because he offered, at trial, to stipulate that he was the person who had been “convicted” of those crimes. The Commonwealth points out that Spencer did not offer to stipulate that he was the person who had committed the crimes, and that the serological and DNA evidence were the links, in addition to modus operandi, which showed that all four crimes had a common perpetrator.

A defendant in a criminal case may not preclude the Commonwealth from introducing otherwise admissible evidence by offering to stipulate the facts which the evidence would show. See Clanton v. Commonwealth, 223 Va. 41, 51, 286 S.E.2d 172, 177 (1982). A fortiori, a defendant may not preclude the introduction of otherwise admissible evidence by an offer to stipulate less than the evidence would show.

The purpose of the “other crimes” evidence was proof of criminal agency, or identity. We agree with the Commonwealth’s contention that the serological and DNA evidence from the Spencer I, II, and III cases furnished an important link with the scientific evidence adduced in this case, tending to prove the identity of the perpetrator. Therefore, the court did not err in admitting it.

VII. VOIR DIRE

Spencer assigns error to the seating of two prospective jurors, J.S. and B.J. Through preliminary questions, the trial judge ascertained that Mr. S. would, if the defendant were found guilty of capital murder, be able to choose between capital punishment and life imprisonment solely on the basis of the evidence at trial, and that he had no predisposition either toward the death penalty or against it. Defense counsel then examined the venireman as follows:

MR. COLLINS: All right. Is it fair to say, then, that you believe, in an appropriate case, capital punishment is proper?

MR. SINGLETON: It all depends on the evidence.

MR. COLLINS: Okay. Are there some types of cases, in your mind, where a death sentence is the only proper punishment?

MR. SINGLETON: Again, I would say it would depend on the evidence.

MR. COLLINS: Well, I understand that, Mr. S.. What I’m saying is, not necessarily in this case, but could you envision a case, in your mind, where you would feel that death would be the only appropriate sentence?

MR. SINGLETON: I think so, yes.

MR. COLLINS: What type of case would that be?

MR. SINGLETON: Well, I would say, depending on the reason why the defendant, whoever it is, committed the crime.

MR. COLLINS: All right. What if there is no reason?

MR. SINGLETON: To me, if there is no exact reason for a person to murder somebody or something like that, I think they should get the death penalty. Something like self-defense, something like that, then it can be considered different.

MR. COLLINS: All right. So in a case where a particular defendant, with no reason, may not even know the victim, brutalizes and kills the victim, your feeling is the death sentence is the proper punishment?

MR. SINGLETON: I think so, yes.

MR. COLLINS: That’s all the questions I have.

Later, Mr. S. reiterated his view that he would not automatically vote either for or against the death penalty, but would reserve judgment until he had heard all the evidence.

In response to defense counsel’s challenge for cause, the court stated:

I was concerned when I heard the initial answer, but as I view the entire voir dire, I find, and I am convinced, that [Mr. S.] would consider all of the testimony before he would impose the appropriate penalty, so I would overrule your motion to strike for cause....

Mr. J.’s voir dire examination covers 30 pages of the trial transcript. The court first ascertained that Mr. J. had heard and read about Spencer’s earlier convictions but that he believed himself able to decide the present case solely on the evidence to be adduced. He also said that he had no predisposition for or against capital punishment and would base that decision solely on the evidence, if the defendant were found guilty.

Defense counsel then asked Mr. J. whether, if the evidence in this case were “approximately the same” as his understanding of the evidence in Spencer’s prior cases, he would think it would merit the death penalty. Mr. J. answered “Yes, sir.” Later, counsel asked the prospective juror whether he could consider life imprisonment if the evidence in the present case should be “more severe” than that in Spencer’s prior cases. Mr. J. answered, “If it was more severe, I would be more inclined to give the death penalty, I believe.”

Mr. J. repeatedly stated that he would not automatically impose a death sentence, but would consider life imprisonment with an “open mind,” even if the evidence in this case were “comparable” to the other cases, and that his knowledge of the other cases would not make it more difficult to consider life imprisonment as an option in this case. He reiterated that after hearing all the evidence, he would give both options “equal consideration.” The trial judge, in overruling Spencer’s challenge for cause, observed that Mr. J. was “probably the most candid juror we had here, and he’s a little bit tortured by it. ... I perceive a lot of emotion in his answers. I didn’t think he was dissembling.... I’m persuaded by his response, that T would give this a fair consideration’... .”

The record gives every indication that the trial judge gave close and conscientious attention to the demeanor of the veniremen. The court’s comments with respect to Mr. J. are particularly illustrative of the reason for the great deference which an appellate court must accord to the decision of a trial judge in deciding a challenge for cause. The trial judge sees and hears the prospective juror, and is in a position to weigh the “inflections, tone, and tenor of the dialogue, and the general demeanor of the prospective juror.” LeVasseur v. Commonwealth, 225 Va. 564, 584, 304 S.E.2d 644, 655 (1983), cert. denied, 464 U.S. 1063 (1984) (quoting M. Smith v. Commonwealth, 219 Va. 455, 464-65, 248 S.E.2d 135, 141 (1978), cert. denied, 441 U.S. 967 (1979)).

For that reason, the trial court’s decision will not be disturbed on appeal in the absence of “manifest error.” Spencer II, 238 Va. at 307, 384 S.E.2d at 793; see also Wainwright v. Witt, 469 U.S. 412, 424-26 (1985); Patton v. Yount, 467 U.S. 1025, 1038 n.14 (1984). The record discloses no such “manifest error” and no abuse of the trial court’s discretion in denying Spencer’s challenges for cause.

VIII. MOTIONS FOR MISTRIAL

The Commonwealth’s first witness was K.C., the victim’s mother. Mrs. Cho spoke only Korean and testified through an interpreter. Before she began to testify, the interpreter informed the court that Mrs. Cho wanted “to pray by herself just a few moments because she can’t say anything.” No objection was made. Mrs. Cho then stood and began an “emotional outburst” in Korean, in a loud and angry tone of voice, turning her eyes to the defendant. Although neither the court nor the jury could understand her words, which were not translated or recorded, the court promptly instructed the jury that her words were not evidence and were “not to be considered part of the case.” The defense moved for a mistrial and the court denied the motion.

On the sixth day of trial, the proceedings were interrupted for over two hours because of an anonymous call made over the telephone to the offices of a Richmond newspaper, wherein the caller threatened to detonate a bomb in a courthouse in Richmond, or in the counties of Henrico or Chesterfield. Spencer moved for a mistrial, which the court denied. The court, at the end of the recess, made a statement on the record that the caller had been identified to the satisfaction of the police as a mental patient who had made similar calls in the past, and that the incident was entirely unrelated to the Spencer trial. The court then instructed the jury to the same effect, asked the jurors to disregard the interruption, and inquired: “[A]re there any of you who feel you cannot go on with the trial as jurors in view of the... explanations I have given you?” None answered in the affirmative and the trial proceeded.

At another point during the trial, a severe electrical storm interrupted the power supply to the courthouse. The lights in the courtroom, which had no windows, were temporarily extinguished but an emergency power supply began to operate almost immediately, producing dim light. The court recessed the proceedings and explained the cause to the jury. The defendant made no objection, but argues on appeal that this occurrence, in combination with the two incidents described above, subjected the jury to an “emotional roller coaster,” rendering a fair trial impossible. He contends that the combination of these interruptions necessitated a mistrial.

We do not agree. On each of these occasions, the court gave the jury a prompt and appropriate curative instruction. When a motion for mistrial is made, based upon an allegedly prejudicial event, the trial court must make an initial factual determination, in the light of all the circumstances of the case, whether the defendant’s rights are so “indelibly prejudiced” as to necessitate a new trial. LeVasseur, 225 Va. at 589, 304 S.E.2d at 657. Unless an appellate court can say that determination was wrong as a matter of law, it will not be disturbed on appeal. Id. Further, it is always to be presumed that the jury followed an explicit cautionary instruction promptly given, unless the record clearly shows that the jury disregarded it. Id. The record in the present case gives no indication that the jury disregarded the court’s instructions.

IX. PCR DNA

As noted above, the Commonwealth submitted samples of seminal fluid deposits from the vaginal swabs and bedsheet stains for “DNA printing” or “DNA fingerprinting” analysis, employing the techniques described in Spencer I, 238 Va. at 286-89, 384 S.E.2d at 781-83. The DNA samples were too degraded in quality, however, to permit analysis by that method. A sufficient quantity of DNA was isolated from sperm cells found in the samples to permit, instead, analysis by a process known as PCR DNA amplification. The Commonwealth introduced the evidence thus obtained over the defendant’s objection. Spencer assigns error to this ruling on the ground that PCR DNA amplification has not been shown to be reliable and that it was not established as being generally accepted in the scientific community.

PCR is an abbreviation for “polymerase chain reaction.” The technique is employed to amplify small quantities of deoxyribonucleic acid (DNA), the molecule that carries genetic information unique to each individual. The process proceeds in three steps. In the first step, DNA is extracted from samples of blood, sperm, hair, or other body tissue, by the use of solvents, filtration, chemical cleaning, and separation of unwanted fractions in a centrifuge. This first stage is essentially the same as that used for the isolation of DNA in the DNA printing process.

In the second stage, the small quantity of isolated DNA is added to a buffer solution containing chemical primers and an enzyme called “TAQ polymerase.” That solution is then placed in a heating device, controlled by a microprocessor, which cycles the solution through several successive temperature plateaus. After 30 or 40 of these cycles, the DNA will have been denatured, the primers will have annealed to the DNA, identifying a “gene of interest,” and that gene will have been replicated or amplified by the enzyme billions of times.

The third stage is the typing of the amplified gene. Nine “allele-specific probes” are attached to a nylon membrane, and the amplified DNA is flooded over it. The probes are designed to recognize each of the variants of the “gene of interest” which, in this case, was “DQ-Alpha.” The probes “light up” in the presence of the variants for which they are specific. This genetic marker system has six “traits,” designated, respectively, as 1.1, 1.2, 1.3, 2, 3 and 4. These traits are combined in pairs in each individual, because one trait is received from each parent. There are, according to the expert testimony, 21 possible combinations of these traits. These pairings are called “genotypes.” The purpose of the typing is to identify the genotype present in the amplified DNA.

As stated above, the DNA extracted from the sperm found in the victim’s vagina and on the bedsheet was analyzed by the foregoing method and was found to contain the DQ-Alpha genotype 1.2 and 2. The victim’s DQ-Alpha genotype was 3 and 4. Spencer’s DQ-Alpha genotype was 1.2 and 2. That genotype occurs in approximately 5 % of the population. A combination of that genotype with Spencer’s blood antigen types and enzyme types occurs in less than 1 % of the population.

The Commonwealth introduced the testimony of two witnesses with respect to the reliability of PCR DNA amplification. Dr. Edward T. Blake, a forensic serologist from California, had conducted the tests and described the process. Dr. Haig Kazazian, a pediatrician and board-certified geneticist from the Johns Hopkins University School of Medicine also described the technique. Both were qualified as experts by the court, and both testified that the PCR DNA technique was scientifically reliable. The theory was conceived about ten years ago and has become one of the most widely-used technical procedures in molecular biology since 1985, being used in many diagnostic applications having “life or death” implications. The use of the system in forensics is relatively new, although Dr. Blake testified that he had been accepted as an expert witness, relying on PCR DNA evidence, in the courts of four other states. The testimony of Drs. Blake and Kazazian was unrefuted.

We have declined to adopt the “Frye test” in Virginia. Spencer III, 238 Va. at 573 n.5, 385 S.E.2d at 856 n.5; O’Dell v. Commonwealth, 234 Va. 672, 695-97, 364 S.E.2d 491, 504, cert. denied, 488 U.S. 871 (1988). When scientific evidence is offered, the 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, such as fingerprint analysis, Avent v. Commonwealth, 209 Va. 474, 478, 164 S.E.2d 655, 658 (1968); or unless it is so unreliable that the considerations requiring its exclusion have ripened into rules of law, such as “lie-detector” tests, Robinson v. Commonwealth, 231 Va. 142, 156, 341 S.E.2d 159, 167 (1986); or unless its admission is regulated by statute, such as blood-alcohol test results, Code §§ 18.2-268(0), -268(Y).

In making the threshold finding of fact, the court must usually rely on expert testimony. If there is a conflict, and the trial court’s finding is supported by credible evidence, it will not be disturbed on appeal. Even where the issue of scientific reliability is disputed, if the court determines that there is a sufficient foundation to warrant admission of the evidence, the court may, in its discretion, admit the evidence with appropriate instructions to the jury to consider the disputed reliability of the evidence in determining its credibility and weight. See O’Dell, 234 Va. at 696-97, 364 S.E.2d at 505.

If admissibility were conditioned upon universal acceptance of forensic evidence, no new scientific methods could ever be brought to court. Indeed, if scientific unanimity of opinion were necessary, very little scientific evidence, old or new, could be used. Wide discretion must be vested in the trial court to determine, when unfamiliar scientific evidence is offered, whether the evidence is so inherently unreliable that a lay jury must be shielded from it, or whether it is of such character that the jury may safely be left to determine credibility for itself.

In the present case, the court made a finding, based upon credible and unrefuted evidence, that the PCR DNA test results were sufficiently reliable to warrant submission to the jury. We will not disturb that finding.

X. CIRCUMSTANTIAL EVIDENCE

Spencer assigns error to the court’s admission of evidence tending to show his three Richmond-area victims had something in common — a propensity to frequent Cloverleaf Mall, a shopping center in Chesterfield County. Spencer was also seen there during the times of those crimes, and the Commonwealth argued that the jury could infer from the evidence that Spencer went to that area to choose his victims and then followed them to their homes.

Debbie Davis, the victim in Spencer II, worked in a bookstore in Cloverleaf Mall. Dr. Susan Hellams, the victim in Spencer III, went shopping there and had negotiated checks on September 22, 1987 at the bookstore where Debbie Davis worked. Diane Cho and her best friend frequented the mall, as well as a shopping center across from the mall where a drugstore is located. An open jar of Vaseline found at the Hellams crime scene had been purchased at that drugstore after June 15, 1987.

On January 9, 1988, at night, a detective observed Spencer “standing around” in Chesterfield Mall for about an hour. Diane Cho lived nearby and had often gone there. After leaving Chesterfield Mall, Spencer went to Cloverleaf Mall, where he remained inside for about half an hour. When he was arrested on January 20, Spencer falsely denied that he had ever been to either place.

As noted above, Diane Cho’s body was marked with a “figure 8” or “infinity sign” on the left hip, and when Spencer was arrested, a similar sign was found drawn on the fabric covering the box spring under his mattress. Over the symbol the words “I hope” were printed. Handwriting analysis of these markings proved inconclusive. Spencer objected on the ground that there was no evidence to attribute these marks to him.

The evidence in the present case is wholly circumstantial. In Stamper v. Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), cert. denied, 445 U.S. 972 (1980), we said:

For many years, we have approved the principle that every fact, however remote or insignificant, that tends to establish a probability or improbability of a fact in issue is admissible

In determining whether evidence is admissible, much must be left to the sound discretion of the trial court. Especially is this true where the evidence is circumstantial. Where the determination of facts depends upon circumstantial evidence, in no case is evidence to be excluded of facts or circumstances connected with the transaction from which an inference can be reasonably drawn as to the truth of the disputed fact.

Id. at 269-70, 257 S.E.2d at 815 (citations omitted).

The trial court determined that inferences could reasonably be drawn from the foregoing evidence which would tend to establish the probability of Spencer’s guilt. The weight of the evidence was properly left to the jury. We find no abuse of discretion in the court’s rulings.

XI. MOTIONS TO STRIKE THE EVIDENCE

Spencer assigns error to the court’s refusal to grant his motions to strike the evidence made at the conclusion of the Commonwealth’s case and renewed at the conclusion of all the evidence. The only ground stated on brief in support of this assignment is “[f]or the reasons stated in the defendant’s motions to strike.” That ground is purely conclusory and is tantamount only to an assertion that the court’s rulings were “contrary to the law and the evidence.” Rule 5:25. An appellant who asserts that a trial court’s ruling was erroneous has an obligation to state clearly to the appellate court the grounds for that assertion. A cross-reference to arguments made at trial is insufficient. Accordingly, we treat this assignment as procedurally defaulted and will not consider it.

XII. PROPRIETY OF THE DEATH PENALTY

Spencer contends that it was error for the court to permit the jury to consider the death penalty because neither the “future dangerousness” nor the “vileness” predicate was established, and the facts and circumstances of this case do not warrant the imposition of that penalty. He also argues that in the circumstances of this case, capital punishment is “excessive and unnecessary.”

Before imposing a death sentence, a jury must find from the evidence, beyond a reasonable doubt, that there is a probability that the defendant would commit criminal acts of violence that would constitute a “continuing serious threat to society, or that his conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery to the victim.” Code § 19.2-264.4C. After hearing the evidence in aggravation and mitigation presented at the penalty phase of the trial, the jury found unanimously that both the “future dangerousness” and the “vileness” predicates had been established beyond a reasonable doubt, and fixed Spencer’s punishment at death.

With respect to “future dangerousness,” the evidence showed that Spencer had six prior convictions for burglary, three as a juvenile and three as an adult. Two weeks after he was released from the penitentiary to enter a “halfway house,” he committed the first of a series of brutal rape-murders of women. Within 90 days, he had committed three similar murders, employing the same modus operandi. By the time of trial, he had already received three sentences of death for his prior convictions. Proof of “future dangerousness” has seldom been more overwhelming.

With respect to “vileness,” the evidence shows that Spencer violently raped and sodomized his child victim, severely injuring her before strangling her to death. He subjected her to both physical and psychological torture before strangling her so tightly that the rope left a “deep dent” in her neck. His conduct surpassed the degree of “depravity of mind” which we have held sufficient to establish the “vileness” predicate. See Spencer III, 238 Va. at 576, 385 S.E.2d at 857-58. His conduct toward his victim also constituted an “aggravated battery.” See Stout v. Commonwealth, 237 Va. 126, 134, 376 S.E.2d 288, 292, cert. denied, 492 U.S. 925 (1989). Thus, the “vileness” predicate was fully supported by the evidence.

XIII. PASSION, PREJUDICE, AND PROPORTIONALITY

Code § 17-110.1C requires us to review the death sentence on the record to consider and determine:

1. Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and

2. Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

We have accumulated the records of all capital murder cases reviewed by this Court, pursuant to Code § 17-110.IE, and after considering those records, we conclude that Spencer’s sentence of death was not excessive or disproportionate to sentences generally imposed by other sentencing bodies in Virginia for comparable or similar crimes. See, e.g., Spencer I, 238 Va. at 292-93, 384 S.E.2d at 784-85 (compiling cases). Additionally, nothing in the record suggests that the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor.

XIV. CONCLUSION

We find no reversible error among the issues presented by Spencer’s appeal. Having reviewed the sentence of death pursuant to Code § 17-110.1, we decline to set it aside. Accordingly, we will affirm the judgments in both cases.

Record No. 900001 - Affirmed.

Record No. 900002 - Affirmed.

Defense counsel excepted to the court’s denial of a motion for change of venue. The court indicated that the ruling would be reconsidered if renewed at the time of jury selection. A jury was selected with little difficulty. Under these circumstances, the motion was rendered moot and was not renewed. Epperly v. Commonwealth, 224 Va. 214, 234, 294 S.E.2d 882, 894 (1982).

Prior to closing arguments of counsel, Spencer requested that the Commonwealth refrain from arguing that Spencer committed the rape-murders in “a sequence of events.” The court declined to make a preventive ruling and instead directed counsel to wait and object, if need be, during the Commonwealth’s closing argument. The defense failed to make any objection until the Commonwealth’s argument was concluded. That objection came too late. See Russo v. Commonwealth, 207 Va. 251, 256-57, 148 S.E.2d 820, 824-25 (1966), cert. denied, 386 U.S. 909 (1967); Pullen & McCoy v. Nickens, 226 Va. 342, 346-47, 310 S.E.2d 452, 454-55 (1983).

The Court of Appeals, for instance, held in White v. Commonwealth, 9 Va. App. 366, 369, 388 S.E.2d 645, 647 (1990), that accosting women at knifepoint while they were standing at sinks in women’s restrooms, in similar restaurants, in the same vicinity, along the same highway, on the same evening, was “not so unusual as to serve as a signature.”

5 F.3d 758, decided September 16, 1993

Timothy W. SPENCER, PetitionerAppellant, v. Edward W. MURRAY, Director, Respondent-Appellee.

No. 92-4006.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 28, 1992.

Decided Sept. 16, 1993.

J. Lloyd Snook, III, Snook & Haughey, Charlottesville, VA, argued (William T. Linka, Boatwright & Linka, Richmond, VA, on brief), for petitioner-appellant.

Donald Richard Curry, Sr. Asst. Atty. Gen., Richmond, VA (Mary Sue Terry, Atty. Gen. of Virginia, on brief), for respondent-appellee.

Before WIDENER, PHILLIPS, and WILLIAMS, Circuit Judges.

[OPINION BY WIDENER, Circuit Judge: type=majority]

OPINION

WIDENER, Circuit Judge:

Timothy Wilson Spencer attacks a Virginia state court judgment sentencing him to death for the murder of Debbie Dudley Davis. We affirm.

The gruesome details of the murder of Debbie Davis can be found in the Supreme Court of Virginia’s opinion on direct review, Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989); cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990). For our purposes, a brief recitation will suffice. Miss Davis was murdered sometime between 9:00 p.m. on September 18, 1987. and 9:30 a.m. on September 19, 1987. The victim’s body was found on her bed by officers of the Richmond Bureau of Police. She had been strangled by the use of a sock and vacuum cleaner hose, which had been assembled into what the Virginia Court called a ligature and ratchet-type device. The medical examiner determined that the ligature had been twisted two or three times, and the cause of death was ligature strangulation. The pressure exerted was so great that, in addition to cutting into Miss Davis’s neck muscles, larynx, and voice box, it had caused blood congestion in her head and a hemorrhage in one of her eyes. In addition her nose and mouth were bruised. Miss Davis’s hands were bound by the use of shoestrings, which were attached to the ligature device. 384 S.E.2d at 789.

Semen stains were found on the victim’s bedclothes. The presence of spermatozoa also was found when rectal and vaginal swabs of the victim were taken. In addition, when the victim’s pubic hair was combed, two hairs were recovered that did not belong to the victim. 384 S.E.2d at 789. The two hairs later were determined through forensic analysis to be “consistent with” Spencer’s underarm hair. 384 S.E.2d at 789. Further forensic analysis was completed on the semen stains on the victim’s bedclothes. The analysis revealed that the stains had been deposited by a secretor whose blood characteristics matched a group comprised of approximately thirteen percent of the population. Spencer’s blood and saliva samples revealed that he is a member of that group. 384 S.E.2d at 789.

Next, a sample of Spencer’s blood and the semen collected from the bedclothes were subjected to DNA analysis. The results of the DNA analysis, performed by Lifeeodes Corporation, a private laboratory, established that the DNA molecules extracted from Spencer’s blood matched the DNA molecules extracted from the semen stains. Spencer is a black male, and the evidence adduced at trial showed that the statistical likelihood of finding duplication of Spencer’s particular DNA pattern in the population of members of the black race who live in North America is one in 705,000,000 (seven hundred five million). In addition, the evidence also showed that the number of black males living in North America was approximately 10,000,-000 (ten million). 384 S.E.2d at 790.

On September 22, 1988 a Richmond jury found Spencer guilty of rape, burglary, and capital murder. The jury unanimously fixed Spencer’s punishment at death, which was affirmed on direct appeal. Spencer then filed a petition for habeas corpus with the state trial court, which was dismissed. He appealed to the Virginia Supreme Court, but because his appeal was filed one day out of time, the Virginia Supreme Court refused the petition. Spencer then filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Virginia. The district court denied his petition. Spencer v. Murray, No. 3:91CV00391 (E.D.Va. April 30, 1992).

On appeal, Spencer raises essentially five issues: (1) the DNA evidence in this case is unreliable; (2) defense counsel was denied an opportunity to adequately defend against the DNA evidence because the trial court denied a discovery request for Lifeeodes’ worknotes and memoranda, the trial court refused to provide funds for an expert defense witness, and the prosecution did not reveal evidence of problems with Lifecodes’ testing methods; (3) the trial court should not have admitted the DNA evidence; (4) the prosecution improperly struck Miss C.S. from the jury for racially-motivated reasons,as prohibited by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (5) the future dangerousness aggravating factor in Virginia’s, capital sentencing scheme is unconstitutionally vague.

Issues and Claims Precluded From Review

The majority of Spencer’s claims under issues (1) and (2) cannot be considered. The Circuit Court of the City of Richmond dismissed Spencer’s habeas petition on October 10, 1990. Spencer v. Murray, No. ML2223 (Cir.Ct. for the City of Richmond, Manchester Courthouse, Oct. 10, 1991). Spencer’s habeas appeal to the Virginia Supreme Court was filed on January 11, 1991, which was one day after the deadline for filing set by Rule 5:17(a)(l), Rules of Va.Sup. Ct., had expired. Spencer also filed a request to extend the time for filing that petition for appeal. On March 18, 1991, the Supreme Court of Virginia denied Spencer’s motion for extension of time and dismissed the habeas appeal, citing Rule 5:17(a)(1). Spencer v. Murray, No. 910055 (Va. March 18, 1991) (two documents). Because the reason for dismissing Spencer’s habeas appeal given by the Virginia Supreme Court was a clearly stated adequate and independent state ground, federal habeas review of claims raised in his state habeas appeal is foreclosed unless those claims were otherwise exhausted by being raised on direct appeal. See Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308 (1989); see also Coleman v. Thompson, — U.S. —, 111 S.Ct. 2546, 115 L.Ed.2d 640 (U.S.1991); Grundler v. North Carolina, 283 F.2d 798, 800 (4th Cir.1960) (“If a question is presented and adjudicated by the state’s highest court' once, it is not necessary to urge it upon them a second time under an alternate procedure.”). The claims barred from consideration include the claims now made as we have detailed herein about the unreliability of the DNA evidence (issue 1), as well as the claim that the defense could not adequately prepare because the trial court did not provide a defense expert (a part of issue 2).

The claim that the defense could not adequately prepare because the trial court did not grant its request for discovery of Lifeeodes’ worknotes and memoranda (a part of issue 2) appears to have been raised on direct appeal, see Opening Brief of Appellant in the Supreme Court of Virginia, Nos. 890096 & 890097, at 10. We do not consider this claim, however, because it was not raised in the district court. McGowan v. Gillenwater, 429 F.2d 686 (4th Cir.1970) (per curiam). The claim that the defense could not adequately prepare because the prosecution, and its agent, Lifeeodes, failed to disclose problems with Lifeeodes’ testing methods that they knew or should have known existed (a part of issue 2) is not considered because it appears never to have been raised in any state court and therefore is not exhausted. See 28 U.S.C. § 2254(b). Although one claim nominally has been denominated as a Brady claim in the federal habeas petition, the district court correctly held that to have been precluded from consideration by the late filing of the state habeas appeal.

The claims properly before us because they were raised in Spencer’s direct appeal to the Virginia Supreme Court are issues 3, 4, and 5.

Ill

Admissibility of the DNA Evidence

Spencer’s first claim that we consider is whether Spencer was denied due process of law because the trial court improperly admitted the results of the DNA testing. It has been settled in this circuit for years that a claim about the admissibility of evidence under state law rarely is a claim upon which federal habeas corpus relief can be granted. In 1960 we decided:

Normally, the admissibility of evidence, the sufficiency of evidence, and instructions to the jury in state trials are matters of state law and procedure not involving federal constitutional issues. It is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented. The role of a federal habeas corpus petition is not to serve as an additional appeal.

Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.1960).

The Supreme Court recently issued a similar holding in Estelle v. McGuire, — U.S. —, 112 S.Ct. 475, 116 L.Ed.2d 385 (U.S. 1991). In McGuire, the Supreme Court was confronted with a ruling under California law that allowed prosecutors to introduce evidence of prior injuries to a child to prove “battered child syndrome” in the context of a murder trial. The Court of Appeals held that the defendant’s due process rights were violated in part because the court concluded that the evidence was improperly admitted under state law; The Supreme Court stated that “[sjuch an inquiry” into the application of state evidence law

is no part of a federal court’s habeas review of a state conviction. We have stated many times that federal habeas corpus relief does not lie for errors of state law. Today we reemphasize that it is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.

McGuire, — U.S. at —, 112 S.Ct. at 480 (citations and internal quotation marks omitted).

In light of the Supreme Court’s directive and our own precedent on this subject, we are of opinion that the admission of the DNA test results into evidence did not create “circumstances impugning fundamental fairness or infringing specific constitutional protections.” Grundler, 283 F.2d at 802. The errors Spencer argues might have occurred with his DNA test, see infra, note 5, are not even remotely suggested by the record in this case. The admissibility of the DNA evidence was contested at trial despite the fact that the defense -could find no expert witnesses to assist it. See Affidavit at ¶ 8, J.A. at 264-65. On direct review the Virginia Supreme Court applied the Virginia admissibility test of O’Dell v. Commonwealth, 234 Va. 672, 364 S.E.2d 491, cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988), and specifically found DNA evidence in general and in this case in particular to be admissible. After reviewing the trial record, the Court noted:

Spencer, 384 S.E.2d at 797 (emphasis added). Further, the New York trial court case of People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985 (N.Y.Sup.Ct. Bronx County 1989), on which Spencer relies for its argument that DNA tests performed by Lifecodes are inherently suspect does not support that proposition and also is decided under New York law. The errors in Castro— contaminated DNA probes, bacterially contaminated samples, and procedures used in that particular test — do not appear in the record of Spencer’s case.

After a review of the record with respect to the admissibility of the DNA evidence, which includes 150 pages on the motion to prohibit the introduction of the evidence, consisting largely of expert testimony, and 230 pages at trial, again consisting largely of expert testimony, the state Supreme Court affirmed the trial court’s holding that the evidence was admissible under the test in O’Dell, that the test was reliable. After a review of the same record, we think the decisions of the state courts are not only free from constitutional error under the due process clause, no error at all has come to our attention. Three expert witnesses from Lifecodes, including the people who performed the tests, testified, as did three independent experts not connected with Lifecodes. The gist of all of their testimony was that the tests were rehable and properly performed, and that the DNA evidence showed Spencer to have been the man whose seminal fluid was found in Miss Davis’s bed. With the district court, we see nothing improper or fraudulent about the DNA test results or any evidence of improper procedures in this case.

We are- of opinion the DNA evidence was eonstitutionahy admitted, and so hold.

Batson Claim

Spencer’s next challenge is to the Commonwealth’s use of a peremptory challenge to strike Miss C.S. from the jury. The record reveals the following exchange on voir dire between Miss S., the trial court, and Mr. Everhart, one of Spencer’s attorneys:

THE COURT: ....

This case involves, allegedly, the burglary, rape and murder. The victim’s name is Debbie D. Davis. It happened in the Southside of Richmond September, last. The défendant’s name is Timothy Spencer. The press'has — not necessarily Mr. Spencer, but the person who committed these crimes — has given them the name of the Southside Strangler.

Have you heard anything about these cases?

MS. SHELTON: No.

THE COURT: You haven’t read or heard anything about the cases at all?

MS. SHELTON: No.

THE COURT: Then you could sit impartially?

MS. SHELTON: Yes.

MR. EVERHART: Ma’am, you say you haven’t heard anything about this case?

MS. SHELTON: No.

MR. EVERHART: Have you read any articles or heard any reports about a scientific process called DNA fingerprinting, or DNA printing?

MS. SHELTON: No.

MR. EVERHART: You don’t recall that, and you advised [the trial judge] you don’t have any predisposition against the death penalty, is that correct, ma’am?

MS. SHELTON: Yes.

The Commonwealth’s Attorney later exercised one of his peremptory challenges to strike Miss S.. When Spencer’s counsel made a Batson motion concerning Miss S. and three other potential jurors whose exclusions are not raised to this court, the Commonwealth’s Attorney explained his striking Miss S. as follows:

Next, we had C.S., who hadn’t heard anything about the ease. Quite frankly, I am concerned about the literacy and the educational level of someone who has not heard anything about either DNA, or anything about the Southside Strangler, or Timothy Spencer by now in this jurisdiction. The publicity has been extensive, and I am afraid if you heard nothing, as she indicated, she is not an informed citizen. So I did not want that type of individual on the jury.

Spencer argues, that the Commonwealth’s Attorney’s reasons are race-based. He argues that any questions about the degree of Miss S.’s literacy or that she is not properly educated is evidence of veiled racial bias. In addition, Spencer argues that the objection that Miss S. had not heard of DNA fingerprinting was improper because almost none of the potential jurors had heard of it.

We are mindful of our obligation to prevent the use of racially-based motives in the exercise of peremptory challenges. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). However, we find that the Commonwealth’s Attorney offered a “neutral explanation for challenging [Miss S.].” Batson, 476 U.S. at 97, 106 S.Ct. at 1723. Although there may be times when a prosecutor’s questions and statements during voir dire examination may support an inference of discriminatory purpose, see Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723, this is not one of those times. After a review of the jury selection proceedings, we note that virtually all of the other members of the jury panel had at least heard something about the Southside Strangler. The Commonwealth’s Attorney was entitled to strike a potential juror if he found it odd that a juror had heard nothing about a highly publicized case, whether because he believed the potential juror was not being candid with the court or merely found su.ch obliviousness strange. Batson prohibits only the use of discriminatory motives when exercising challenges, nothing more and nothing less. We find no evidence of improper motive here. Spencer’s argument about the Commonwealth’s Attorney’s references to DNA and education takes the remarks out of context, and he offered nothing to the trial court to show that the Commonwealth’s Attorney’s stated reasons were pretextual or showed any evidence of discriminatory motive. See United States v. Joe, 928 F.2d. 99, 102 (4th Cir.), cert. denied, — U.S. —, 112 S.Ct. 71, 116 L.Ed.2d 45 (1991); see also Hernandez v. New York, — U.S. —, 111 S.Ct. 1859, 114 L.Ed.2d 395 (U.S.1991). Accordingly, we affirm the district court’s finding that there was no merit to Spencer’s Batson claim.

■Constitutional Challenge to Aggravating Factor

Spencer also challenges the future dangerousness aggravating factor contained in Va.Code Ann. § 19.2-264.2. The relevant part of that statute provides:

In assessing the penalty of any person convicted of an offense for which the death penalty may be imposed, a sentence of death shall not be imposed unless the court or jury shall ... find that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society. ...

Va.Code Ann.- § 19.2-264.2. Spencer argues that this provision has not been meaningfully construed by the Virginia Supreme Court and that the provision fails to channel the jury’s discretion in sentencing. We rejected an almost identical challenge in Giarratano v. Procunier, 891 F.2d 483, 489-90 (4th Cir.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 222, 112 L.Ed.2d 178 (1990), and have previously rejected like challenges. See, e.g.; Briley v. Bass, 750 F.2d 1238, 1245 (4th Cir.1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985). We not only have no authority to depart from our prior holdings on this point, see Caldwell v. Ogden Sea Transp., Inc., 618 F.2d 1037, 1041 (4th Cir.1980); see also U.S. Dep’t of Health & Human Servs. v. FLRA, 983 F.2d 578, 583 (4th Cir.1992) (Judge Murnaghan, concurring and dissenting) (collecting cases), we are not inclined to do so and decide the argument is without merit.

Actual Innocence Claims

Spencer’s argument (issue 1) about the problems with the reliability of DNA evidence is proffered in his brief as not being proeedurally barred because it is “RELEVANT TO THE CONSIDERATION OF THE ACTUAL INNOCENCE’ OF TIMOTHY SPENCER.” Spencer argues that the DNA evidence against him at trial was crucial and that the Commonwealth otherwise would have been unable to convict him. Spencer further argues that because of the alleged errors in the testing process his DNA results were flawed and he is “actually innocent.” Spencer’s argument misses the point of the actual innocence inquiry. “[A] claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrera v. Collins, — U.S. —, —, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (U.S.1993).

Spencer’s argument boils down to an assertion that the DNA results were flawed and he was wrongly convicted. This is a claim of factual innocence. The errors he points to — potential errors in the results of the DNA test — are errors of fact, not law.

We first note that the potential errors to which Spencer points are not, as he contends, newly discovered evidence in the sense that he has produced affidavits from potential witnesses or otherwise, but instead has proffered rulings- from other cases and courts and pre- and post-trial articles from law reviews and scientific journals. Even if we construe his articles and cases as newly discovered evidence, he is not entitled to a hearing or habeas relief. The Supreme Court recently instructed in Herrera v. Collins, — U.S. —, 113 S.Ct. 853, 122 L.Ed.2d 203 (U.S.1993), that “[cjlaims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state proceeding.” Herrera, — U.S. at —, 113 S.Ct. at 860. The Court then stated:

We may assume, for sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of “actual innocence” made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high.

— U.S. at —, 113 S.Ct. at 869. The Court then decided that Herrera’s evidence, which tended to show that his brother had committed the crime and which consisted of sworn affidavits from his brother’s son and his brother’s lawyer, did not meet the extraordinarily high burden the Court had assumed. — U.S. at —, 113 S.Ct. at 869.

Although the Supreme Court did not articulate a standard for the “extraordinarily high burden” a defendant claiming factual innocence would have to show, we conclude with little trouble that Spencer has not met it. His “evidence” of innocence consists of conjecture from articles about potential problems with DNA testing. Spencer also proffers the Supreme Court of New York for Bronx County’s trial court decision in People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985 (1989), a case which took place after Spencer’s trial. As we discussed supra, the Castro decision does not hold that Lifecodes’ methods are so flawed that its test results are inadmissible. The Castro court was faced with flaws in the particular test at issue there. There is not a shred of evidence that those flaws occurred here. Further, in their affidavit submitted to the state habeas court, Spencer’s trial attorneys in this case noted that they had worked with the attorneys who represented Spencer in an earlier murder case in. the same series of serial killings in Arlington. Spencer’s attorneys had attended the trial and had access to all of the Arlington attorneys’ data, including all of the prosecution evidence, which included information about the murder of Miss Davis involved here. Affidavit ¶¶ 5, 7, 9, J.A. at 264-65. In addition, the Arlington attorneys had been successful in having the trial court authorize an independent DNA test from a different laboratory, Cellmark, which confirmed the results from Lifecodes. Affidavit ¶ 9, J.A. at 265. However, Spencer’s trial attorneys in this case still kept looking into Lifecodes’ testing and submitted the DNA sample to Lifecodes “under a fictitious name and in the guise of a fictitious paternity case.” Affidavit ¶ 12, J.A. at 266-67. “The results of this ‘blind’ testing, however, only confirmed Lifecodes’ previous conclusion that the DNA pattern from Spencer’s blood matched the DNA pattern from the DNA found in the body fluids at the crime scene.” Id. Despite all of Spencer’s attorneys’ efforts, it is clear that there is no reason to believe that Lifecodes’ procedures were in error in this case. Spencer is not entitled to another hearing or habeas relief under the factual innocence exception of Herrera.

To the extent that Spencer has argued ineffective assistance of counsel because of his trial counsel’s performance in contesting the DNA evidence, the affidavit submitted to the state habeas court belies such a claim. To thoroughly discuss his trial counsel’s effectiveness would require us to overlook the fact that the claim is defaulted, which we are not willing to do, but we are sure that the outcome would not be any different if we were to reach the merits.

Sawyer Claim

Finally, Spencer asks us to reach the merits of his defaulted claim that defense counsel was denied an opportunity adequately to defend against the DNA evidence because the trial court denied a discovery request for Lifeeodes’ worknotes and memoranda, the trial court refused to provide funds for an expert defense witness, and the prosecution did not reveal evidence of problems with Lifeeodes’ testing methods. To reach these claims under the actual innocence exception of Sawyer v. Whitley, — U.S.—, 112 S.Ct. 2514, 120 L.Ed.2d 269 (U.S.1992), we must find that Spencer has shown “by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.” — U.S. at —, 112 S.Ct. at 2515.

Even if we assume, without deciding, that the three alleged errors Spencer points to are of constitutional dimension, we have difficulty in applying the Sawyer test. We note that Spencer has not articulated what effect the absence of these presumed errors would have had on a reasonable juror. Instead, this entire case has consisted of possible mistakes he might find and argue to the jury if his requests were granted. Elsewhere we have examined the admissibility of the DNA evidence and found no error, so, to give validity to Spencer’s contention, we assume that the argument goes that his cross-examination of the Commonwealth’s witnesses would have been helped. We are of opinion, and so hold, that this record does not support a finding that, even if the claimed errors had not occurred, no reasonable juror would have found Spencer eligible for the death penalty under applicable state law.

It is the duty of federal courts on habeas review to “sit to ensure that individuals are not imprisoned in violation of the Constitution.” Herrera, — U.S. at —, 113 S.Ct. at 860. We must always be mindful of our duty to correct these errors, but not to go so far afield that we are invading the province of the States. We find no error concerning the Commonwealth’s treatment of the DNA evidence in this case. Before we can grant habeas relief, a petitioner must show us a violation of the Constitution, laws, or treaties of the United States, and not the mere possibility that one might have occurred.

The judgment of the district court denying Spencer’s application for a writ of habeas corpus is accordingly

AFFIRMED.

NOTES TO THE OPINION

We have some problem in determining the precise issues raised in Spencer’s brief as there phrased and believe that our statement of the issues is at least inclusive. Compare "Argument” in the table of contents (four principal and fourteen sub-issues), with "Questions Presented,” Appellant’s Brief at 1, (eight issues), and "Assignments of Error,” id. at 2 (eight issues).

Spencer’s contention that the trial court denied him funds for an expert if not frivolous, is little better. When Spencer’s counsel argued his motion for funds for an expert on August 2, 1988, the attorneys advised the court that the "motion was filed merely to put the Court on notice that we will be making the motion.” At that time the defense did not have an expert at hand, and the court and Mr. J., one of Spencer’s lawyers, had an extended discussion with respect to that subject: THE COURT: I want to know what the experts are going to say before I appropriate funds. MR. JOHNSON: I am not asking you to do that. We will have that at the appropriate time. THE COURT: You need an expert to come down here for everything if the money is enough. MR. JOHNSON: That's true. If we could get them. THE COURT: Most experts boil down to, how much am I getting paid? A lot of them. So basically, it is, if I know, then we can do it, I will not do that. I see what you are driving at. If you have got somebody to say, an expert, DNA is not a reliable test, I would think that would be a proper issue for the jury to believe, which is what you want. But I am not going to take some doctor, or lawyer, or Indian chief, or what have you, you know, over a whole business world. But I want to know some of his reputation and so forth that would come down to what he really knows about the subject. MR. JOHNSON: Yes, sir. THE COURT: Don’t you ever fear that we are going to deny any defense that you might have. I do not want to go so far as to allow frivolous defenses, and I don't think you want to present those, either. Because that would be damaging to your case. So when you come in, get your expert, what his credentials are to become an expert. [Y]ou will certainly talk to him, what he is going to say or what he can possibly say. We can find that out. I have so many experts. I believe there is a handwriting expert. It was supposed to be out in the west. The lady at the trial delayed the trial for three months, sent it out west and came back and said he would testify to the one thing the day before trial. And he eventually said, the State expert is exactly right. I agree with him 100 percent. That’s what I am talking about. When you get that, you let me know. MR. JOHNSON: Yes, sir, Judge. Any expert we desire, (emphasis added) So, the trial judge not only assured the defense that it could have an expert witness, but also encouraged the defense to get one that would truly be helpful to its case, Spencer’s present argument that it was improper for the trial judge to-refuse to appropriate funds without the defense actually having an expert (and, in fact, admitting that its motion was for notice purposes only) and without knowing that the witness would actually aid the defense is a mischaracteri-zation of the trial judge’s thoughtful remarks.

Spencer argues that this is a claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Spencer’s reference to the Commonwealth's Attorney’s remark that he wanted to get a jury of "elevated intelligence" also takes the remark out of context. The Commonwealth’s Attorney made the remark after giving his reasons for each individual strike, and he was commenting on the fact that another one of the jurors he struck apparently did not know the meaning of the word "impartial.” .Specifically, Spencer points to a laundry list of problems that might have occurred with his DNA test, including: 1. Bandshifting that may have occurred because the tests were not run on same gel; 2. Cross-contamination or bacterial contamination of the samples because Lifecodes’ procedures do not guard against these threats; 3. Invalidity because of the lack of data on the reliability of DNA testing of degraded forensic samples; 4. Incorrect matching because visual inspection, rather than computer calculations, were used to declare a match; ■ 5. Invalidity that may have resulted from potentially poor quality control or proficiency standards; 6. Impossibility of verifying results because Lifecodes did not record what voltage they applied to gel; 7. Inability to know whether Lifecodes properly performed tests because there are no standards for licensure or required tests that labs must complete; 8. Improper testimony at trial about the statistical likelihood of finding someone else with same DNA type because of potentially improper application of the product rule; 9. Lack of validation studies to prove reliability of DNA testing in forensic setting and of using sperm to DNA type; and 10. Possible inaccuracies resulting from Lifecodes’ use of certain probes. For an explanation of DNA testing and the techniques used therein, see the trial court's opinion in People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985 (N.Y.Sup.Ct. Bronx County 1989). .Spencer repeatedly has urged, in his brief and at oral argument, that the main reason the DNA evidence in this case was found to be admissible is because it was "too new” to have been criticized, because the criticisms were published after his trial, and because Spencer was, according' to counsel, the first person ever convicted with DNA evidence in Virginia.

We express no view on whether Spencer has any "state avenue open to process [his] claim.” Herrera, — U.S. at —, 113 S.Ct. at 869. Because he has not met his burden of proving his entitlement to a hearing, it is not necessary for us to take up the question of possible state relief.

Once again, Spencer's brief does not make clear in exactly what context Spencer asserts this claim. Whether proffered as part of his factual innocence claim, as a freestanding constitutional claim, or as excuse for his procedural default, the claim must be exhausted before we can entertain it, which Spencer has failed to do in this case. See, e.g., Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

For example, in arguing why it was error for the trial court to deny his request for Lifeeodes' worknotes and memoranda, Spencer states: "Had the defense had access to Lifeeodes’ underlying data, and had funds for an expert been approved, it is quite possible that some of the serious problems with Lifeeodes’ procedures could have been developed in this trial." Appellants’ brief at 42.

18 F.3d 229, decided February 3, 1994

Timothy W. SPENCER, Petitioner-Appellant, v. Edward W. MURRAY, Director; Commonwealth of Virginia, Respondents-Appellees.

No. 93-4002.

United States Court of Appeals, Fourth Circuit.

Argued Sept. 30, 1993.

Decided Feb. 3, 1994.

Rehearing and Rehearing En Banc Denied Feb. 28, 1994.

ARGUED: William Theodore Linka, Boat-wright & Linka, Richmond, Virginia, for Appellant.

Donald Richard Curry, Senior Asst. Atty. Gen., Office of the Attorney General, Richmond, Virginia, for Appellees.

ON BRIEF: Stephen D. Rosenthal, Attorney General of Virginia, Office of the Attorney General, Richmond, Virginia, for Appellees.

Before WIDENER, PHILLIPS, and WILLIAMS, Circuit Judges.

With concurrences of Judges Phillips and Williams.

[OPINION BY WIDENER, Circuit Judge: type=majority]

OPINION

WIDENER, Circuit Judge:

Timothy Wilson Spencer attacks a Virginia state court judgment sentencing him to death for the murder of Dr. Susan Hellams. The district court denied Spencer’s petition for a writ of habeas corpus. We affirm.

Dr. Susan Hellams was a resident in neurosurgery at the Medical College of Virginia in Richmond. She was murdered in her home on the night of October 2, 1987 or the early morning of October 3,1987. The police were notified by her husband after he returned home and discovered her partially-clothed body on the floor of the couple’s bedroom closet. Dr. Hellams’s attacker apparently gained access to the house by cutting out a large portion of a second-story bedroom window screen.

The medical examiner testified at trial that the cause of Dr. Hellams’s death was ligature strangulation, apparently caused by two belts found around her neck. The medical examiner also testified that Dr. Hellams sustained other injuries, including a fractured nose, a blunt force injury to the lower lip, various bruises and scrapes, and an injury consistent with one made by a shoe on the back of her right leg. In addition, the medical examiner had found fluid consistent with seminal fluid on her back and in the gluteal fold. The medical examiner also observed small mucosal tears of the anal ring, which were “consistent with the anus having been penetrated ‘by a hard object, such as a penis.’ ” 238 Va. 563, 385 S.E.2d at 852.

The presence of spermatozoa was found on swabs taken from the vagina, rectum, and perianal area. Seminal fluid and spermatozoa also were found on Dr. Hellams’s skirt and slip. The swab from the perianal area, as well as the stains on Dr. Hellams’s skirt and slip, were examined by the Commonwealth’s expert serologist and compared to Spencer’s blood. Based on her analysis of identifiable secretions, the serologist testified at trial that the source of the secretions was a third party, because neither Dr. Hellams nor her husband could have produced the secretions. The serologist further stated that the secretions in the seminal fluid found on the skirt and slip were consistent with Spencer’s secretion type and inconsistent with Dr. Hellams’s husband’s type. The secretions in the seminal fluid found on the perianal swabs were consistent with a combination of Spencer’s and Dr. Hellams’s blood types and inconsistent with a combination of the blood types of Dr. Hellams and her husband.

A sample of Spencer’s blood and a sample of the seminal fluid found on Dr. Hellams’s slip were subjected to DNA analysis. The two samples matched. This evidence was admitted at trial.

Proceedings

The trial commenced in the Circuit Court of the City of Richmond, Manchester Courthouse, on January 17, 1989. The jury convicted Spencer of capital murder, rape; sodomy, and burglary. 238 Va. 563, 385 S.E.2d at 351. At the penalty phase of the trial, the jury fixed Spencer’s punishment for the capital murder at death. Spencer appealed his convictions and death sentence to the Supreme Court of Virginia, which affirmed. Spencer v. Commonwealth, 238 Va. 563, 385 S.E.2d 850 (1989). The United States Supreme Court denied Spencer’s petition for a writ of certiorari. Spencer v. Virginia, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990).

Spencer next filed a petition for a writ of habeas corpus with the state trial court on September 10, 1990. The petition was dismissed on November 15, 1990. Spencer v. Murray, No. ML2232 (Cir.Ct. for the City of Richmond, Manchester Courthouse, Nov. 15, 1990). The Supreme Court of Virginia affirmed. Spencer v. Murray, No. 910252 (Va. June 4, 1991). Spencer then turned to the United States District Court for the Eastern District of Virginia. The district court denied his habeas petition. Spencer v. Murray, No. 3:92CV160 (E.D.Va. Jan. 21, 1993). Spencer then asked the district court, on February 11,1993, for a Certificate of Probable Cause to appeal to this court. That request was denied. Spencer v. Murray, No. 3:92CV160 (E.D.Va. March 30, 1993).

Spencer filed his Notice of Appeal in the district court on April 29, 1993. Spencer then applied to this court for a Certificate of Probable Cause on May 25, 1993. Appellee Murray responded with a motion to dismiss the appeal on May 11, 1993. By order filed June 21, 1993, we denied Murray’s motion to dismiss and, as individual judges, granted Spencer’s application for a Certificate of Probable Cause. Spencer v. Murray, No. 93-4002 (4th Cir. June 21, 1993).

The Execution Order and Stay

On the same day that we entered our order, the Commonwealth sought and received from the state trial court an execution date of August 26, 1993, in this case. Commonwealth v. Spencer, Nos. 88-181-F to 88-184-F (Cir.Ct. for the City of Richmond, Manchester Courthouse, June 21, 1993). On July 23, 1993, Spencer applied to this court for a stay of execution, which we granted on July 27,1993, for the pendency of this appeal or until further order of this court. Spencer v. Murray, No. 93 — 1002 (4th Cir. July 27, 1993).

On appeal, Spencer raises seven issues: (1) his trial counsel were ineffective because they failed to secure a DNA expert for the defense; (2) he is “actually innocent” of the crime for which he was sentenced to death, and he would not have been convicted if he had been able to challenge the DNA evidence and if the “prejudicial injection of astronomical probability ratios” into the trial had not occurred; (3) his trial counsel were ineffective because they did not conduct voir dire on the issue of racial prejudice; (4) Virginia’s proportionality review is unconstitutional, and her application of procedural default rules was unconstitutional because it did not make “rational exceptions”; (5) the jury instructions at trial on mitigating evidence were constitutionally inadequate; (6) his trial counsel were ineffective because they did not explore or present certain mitigating evidence; (7) the DNA analysis used on the evidence in this case was subject to error and produced unreliable results, the results should not have been admitted, and his trial counsel were ineffective in handling this evidence.

Issues Precluded from Review

We do not consider Spencer’s Issues 4 (proportionality review and default rules), 5 (jury instructions on mitigating evidence), and 7 (DNA analysis claims), except to the extent that in Issue 7 he alleges his counsel were ineffective in their handling of the DNA evidence and to the extent he raised a challenge to the admissibility of the DNA evidence on direct review. The Supreme Court of Virginia held that these issues were proeedurally defaulted under the rule of Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975). Spencer v. Murray, No. 910252 (Va. June 4, 1991). When a habeas petitioner has defaulted in a federal claim in state court pursuant to an independent and adequate state procedural rule, federal review of the defaulted claim is barred, absent two exceptions not urged upon us by Spencer. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640, (U.S.1991). We address each of Spencer’s remaining issues, turning first to his allegations of ineffective assistance of counsel, and then to his actual innocence claim.

Ineffective Assistance of Counsel

Claims of ineffective assistance of counsel are governed by the now-familiar standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on an ineffective assistance of counsel claim, the petitioner must show that counsel’s performance was deficient and that the petitioner suffered prejudice as a result. 466 U.S. at 687,104 S.Ct. at 2064. The petitioner must show both defi-eient performance and prejudice; the two are separate and distinct elements of an ineffective assistance claim. See 466 U.S. at 687, 104 S.Ct. at 2064.

In examining a claim that counsel’s performance was deficient, we examine whether counsel’s performance was reasonable under prevailing professional norms. 466 U.S. at 688, 104 S.Ct. at 2064. We conduct this review not by asking whether we would have defended the petitioner in the same way, but instead with a deferential eye, and we presume that challenged acts are likely the result of a sound trial strategy. 466 U.S. at 689, 104 S.Ct. at 2065.

Just as the petitioner carries the burden of proving that counsel’s performance was deficient, the petitioner also carries the burden of affirmatively proving that prejudice resulted from counsel’s deficient performance. 466 U.S. at 693, 104 S.Ct. at 2067. The petitioner must affirmatively prove “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S.Ct. at 2068. Further, when it is a conviction the petitioner is challenging, “the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting gufit.” 466 U.S. at 695,104 S.Ct. at 2068-69. When it is a death sentence that the petitioner is challenging, “the question is whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” 466 U.S. at 695, 104 S.Ct. at 2069. Keeping the proper standard in mind, we turn to each of Spencer’s allegations of ineffective assistance of counsel.

Issue 1 — DNA Expert

Spencer’s Issue 1 on appeal is that his trial counsel were ineffective because they failed to procure a defense DNA expert. At this point, we feel it necessary to point out that Spencer was tried twice for capital murder in the Circuit Court for the City of Richmond by the same trial judge and defended by the same attorneys, Jeffrey L. Everhart and David J. Johnson. The first trial commenced on September 19, 1988, and Spencer was found guilty of the capital murder of Miss Debbie Davis. That trial has been before us for review and is the subject of our recent opinion Spencer v. Murray, 5 F.3d 758 (4th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994). We mention the earlier trial because the state trial judge, confronted with two very similar trials just four months apart, allowed the parties to file consolidated motions for both cases.

On June 15,1988, Spencer’s attorneys filed a motion for funds for experts with the trial court to put the court on notice that they intended to seek such funds. The court had an extended discussion with Spencer’s counsel about the motion and procuring an expert. Spencer, 5 F.3d at 760 n. 2. Spencer now argues that trial counsel’s performance was deficient because

[njothing in the record reveals that counsel did anything to follow through with this motion. No mention is made anywhere in the record of any additional requests for hearings or experts.

As counsel recognized the need for specific experts, some affirmative steps should have been taken to secure them.... If nothing else, counsel should have read the current literature dealing with forensic DNA.

Spencer’s attorneys filed an affidavit with the state trial court concerning the allegations made in the state habeas petition. The affidavit details the research Spencer’s attorneys conducted into DNA evidence. Spencer’s attorneys also questioned at least four experts and attempted to find one who would be willing to serve as a defense witness, but they “were unable to find an expert who was willing to accept such an appointment.” So Spencer’s attorneys did take affirmative steps to secure a DNA expert. The fact that they could not find one cannot be charged to them as deficient performance. See also Spencer v. Murray, No. 3:92CV160, slip op. at 4-5, (E.D.Va. Jan. 21, 1993) (supplying additional reasoning for rejecting claim). Further, we doubt very much from the record we have in front of us that Spencer is correct when he charges in his brief that his attorneys did not read the current literature. Spencer has the burden of proof on the issue of deficiency, and he has not carried it. We note that the attorneys even attended Spencer’s Arlington trial in these serial killings and had a blind DNA test run by an independent laboratory, which only corroborated the Commonwealth’s evidence.

Issue 3 — Voir Dire

Spencer charges that his counsel’s performance was deficient because they did not conduct voir dire on the issue of racial bias. The affidavit submitted by Spencer’s attorneys shows that they made a strategy decision not to conduct voir dire on this issue:

Prior to trial, because of the publicity from the first Richmond trial, we asked for and obtained a change of venire and the jury selection actually took place in Norfolk. We also asked for and obtained individual voir dire. During jury selection, the questions we asked any given juror were based upon our combined professional judgment as to how best to determine whether the juror was impartial or would be favorable or unfavorable to the defense. If a prospective juror’s answers gave us any doubt about his or her impartiality, we either challenged the juror for cause or followed up with additional questions until, in our judgment, the doubt was removed or we believed the juror’s answers warranted a challenge for cause. In our view, particularly because of the change of venire, race was simply not an issue in the case. We had no reason to believe that any prospective juror harbored any racial bias against Spencer, and our decision not to ask any questions on voir dire that might have injected race into the case was a matter of trial tactics.

Under Strickland, we defer to counsel’s sound trial strategy decisions. 466 U.S. at 689, 104 S.Ct. at 2065.

Issue 6 — Mitigating Evidence

Spencer also argues that his counsel were ineffective because if they had adequately investigated his case, they would have discovered that his presentence report, school history, and Department of Corrections reports show that he was a troubled child, that he was emotionally damaged by being told his father was dead when he in fact was alive, that he used a dangerous drug, PCP, and that he may suffer from organic brain damage. He also argues that they failed to seek the appointment of a psychologist to evaluate his mental state. Once again, we turn to counsel’s affidavit.

The record shows that they conducted a thorough investigation of Spencer’s background, both personally and through the use of a private investigator. Counsel or their investigator interviewed family members, neighbors, teachers, employers, and halfway house personnel. We therefore reject Spencer’s claim of deficient investigation. In addition, counsel had observed the mitigation witnesses in the Arlington trial and in the first Richmond trial. To the extent that Spencer argues that there were witnesses other than mental health experts who should have been presented, Spencer’s attorneys formulated a trial strategy based on their “combined professional judgment to determine which persons would make good witnesses and which ones would be poor witnesses.”

As for Spencer’s claims about his mental state, Spencer’s attorneys assert that they never had any reason from their own experiences in talking with him to doubt his sanity or his ability to recall his whereabouts at the times of the crimes. They also had never encountered any evidence of drug use, other than two urinalyses in the halfway house that had shown marijuana use.

Spencer’s attorneys knew that the attorneys who represented Spencer in the Arlington trial had hired both a psychiatrist and a psychologist who had found a complete lack of any mitigating circumstances. The Arlington attorneys did not want to inquire further because they feared they would find information that would harm the defense. Rather than request a court-appointed expert in the ease, Spencer’s Richmond counsel first asked members of the Richmond criminal defense bar to recommend a psychiatrist. Spencer’s attorneys then hired a psychiatrist, Dr. Mullaney, who evaluated Spencer before his first Richmond trial. Dr. Mullaney found nothing of any real help to the defense. However, the report did contain an opinion that Spencer’s crimes were “victim specific,” and his imprisonment would minimize his future dangerousness to society. However, Spencer’s attorneys decided against using Dr. Mullaney. Their reasoning is spelled out in their affidavit:

We decided ... not to use Dr. Mullaney as a witness for several reasons. The sole “plus” of his testimony would have been an opinion that Spencer’s future dangerousness would be minimized if he were kept in prison. In our judgment, this “plus” was negligible and we were able to argue that same theory to the jury even without Dr. Mullaney’s testimony. Moreover, the minimal “plus” was outweighed by the fact that, if Mullaney were to testify at the penalty stage, the jury would have already found that Spencer committed the offense, and Mullaney would have to admit that Spencer continued to deny his guilt- and had shown absolutely no remorse.

Further,

we knew that if we wanted to use Dr. Mullaney, then pursuant to Virginia Code § 19.2-264.3:1F the prosecution would be entitled to have Spencer evaluated by its own expert. Based upon what we knew about Spencer and his offenses, we had no doubt that the state’s experts would render an opinion that Spencer was, in fact, “future dangerous.” We affirmatively wanted to avoid an expert opinion to that effect. Based upon all of this information we made a strategic decision not to request a court-appointed expert and not to present any mental health evidence at the penalty stage.

In light of the reasonable strategy decision made by Spencer’s counsel, we do not find their performance deficient.

Claim 7 — Deficient Handling of DNA Evidence

Spencer’s final claim is that his counsel were ineffective because they “were unable to cope with the tremendous volume of DNA evidénce presented by the Commonwealth through its witnesses.” The affidavit submitted by counsel once again belies the claim.

Counsel conducted a thorough investigation of DNA evidence. They contacted several experts, and even had expert help throughout the trial from experts unwilling to testify. A claim of ineffective assistance of counsel requires us to look at counsel’s conduct, not at the experts who aided counsel. See Pruett v. Thompson, 996 F.2d 1560, 1573 (4th Cir.), cert. denied, — U.S. -, 114 S.Ct. 487, 126 L.Ed.2d 437 (U.S.1993). Spencer would have us find fault with his counsel’s conduct because they could not bring to light arguable flaws in DNA testing that the experts in the field did not themselves know about at the time and that are still far from certain today. We cannot fault Spencer’s lawyers for an inability to find something that did not then exist. Their conduct was not deficient, and Spencer therefore cannot prevail under Strickland.

Actual Innocence Claim

Spencer claims that he is “actually innocent” of the crime for which he was sentenced to death, and he would not have been convicted if the “prejudicial injection of astronomical probability ratios” into the trial had not occurred. Spencer’s specific faultfinding with the probability statistics is a claim that is procedurally defaulted because not presented to the Virginia Supreme Court on direct appeal. See Part II, supra. If we construe Spencer’s claim as an assertion that he is innocent of the crime for which he was convicted, we cannot entertain his claim because “a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim heard on the merits.” Herrera v. Collins, — U.S. -, -, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (U.S.1993). A claim of factual innocence, in the I-didn’t-do-it sense, and actual innocence, which excuses procedural default of a constitutional claim, are two different things. See Spencer, 5 F.3d at 765. We have very limited discretion, if any, to consider claims of factual innocence, and Spencer has not produced any evidence that would cause us to undertake such an inquiry. See id. at 765-66. Therefore, we must assume that Spencer is asserting actual innocence in an attempt to have the merits of his defaulted probability claim heard.

At the outset, we note that the district court was concerned that we may hold that the actual innocence test for defaulted claims under Sawyer v. Whitley, — U.S. -, 112 S.Ct. 2514, 120 L.Ed.2d 269 (U.S. 1992), applies only to penalty-phase errors and not to guilt-phase errors. See Spencer v. Murray, No. 3:92CV160, slip op. at 8 n. 13 (E.D.Va. Jan. 21, 1993). We have implicitly held that Sawyer is not so limited by applying it to guilt-phase errors in Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir.), cert. denied, — U.S. -, 114 S.Ct. 487, 126 L.Ed.2d 437 (U.S.1993), and we now explicitly hold that Sawyer applies to such errors.

Spencer’s claim is that he would not have been convicted if the probability statistics had not been admitted. To have a defaulted claim reviewed, a petitioner must first prove, under the actual innocence test of Sawyer, “by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.” Sawyer, — U.S. -, -, 112 S.Ct. 2514, 2515, 120 L.Ed.2d 269 (U.S.1992). Spencer’s claim fails at the outset because he cannot show a constitutional error that could have infected the jury’s verdict.

The question of whether the probability statistics should have been admitted is a question of state law that does not involve a federal constitutional issue. It is only in extraordinary circumstances that federal review of these questions is warranted. Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.1960); see also Spencer, 5 F.3d at 762. Here, we find that the state trial court carefully considered the DNA evidence, including the population statistics. Spencer’s counsel cross-examined the Commonwealth’s experts about the Hardy-Weinberg equilibrium, and they had obtained and reviewed the transcripts from cases in Florida and New York where some of the Commonwealth’s DNA experts had previously testified. The state trial court heard the information about the limitations of the statistics along with the rest of the information about DNA evidence and decided to admit the statistics. We simply cannot find any constitutional error in the admission of the statistics, and we therefore must decline Spencer’s invitation to reach the underlying merits of the probability statistics either through the Sawyer actual innocence inquiry or otherwise. Even if his claim were not defaulted, the result would not be any different, for under our holding in Grundler we leave these questions to the state courts.

Ill

We hold that Spencer’s trial counsel were not ineffective within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We further hold that Spencer’s claim of actual innocence does not state a constitutional claim, and to the extent that his argument is an attempt to have the merits of his defaulted probability statistics claim heard, we find that he is not entitled to have that claim reviewed.

The judgment of the district court is accordingly

AFFIRMED.

NOTES TO THE OPINION

Our recitation of the facts is condensed from the Virginia Supreme Court’s opinion in this case, Spencer v. Commonwealth, 238 Va. 563, 385 S.E.2d 850, 851-53 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990).

Spencer is a type O secretor, PGM type 1, PGM subtype 1+, and peptidase A type 1. Spencer shares this type with only 13% of the population. 238 Va. 563, 385 S.E.2d at 852. Dr. Hellams was a nonsecretor, PGM type 2-1, PGM type 2+ 1 -, and peptidase A type 1. Her husband is a nonsecretor, PGM type 2-1, and PGM subtype 2+ 1 +. Id.

The two exceptions are (1) cause for the default and actual prejudice that results from the violation of the petitioner’s federal rights, see Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), or (2) failure to review the claims would result in a fundamental miscarriage of justice within the meaning of the actual innocence test of Sawyer v. Whitley, - U.S. -, 112 S.Ct. 2514, 120 L.Ed.2d 269 (U.S. 1992). See Coleman, 501 U.S. at -, 111 S.Ct. at 2551.

Spencer’s claim regarding the admissibility of the DNA evidence in this case was raised on direct appeal to the Virginia Supreme Court, Spencer v. Commonwealth, 238 Va. 563, 385 S.E.2d 850, Brief of Appellant at 9 (4th Cir. J.A. at 65), and it therefore is not defaulted for our purposes. See Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 644-45, 103 L.Ed.2d 308 (1989); Grundler v. North Carolina, 283 F.2d 798, 800 (4th Cir.1960); see also Spencer v. Murray, 5 F.3d 758, 761 (4th Cir.1993), petition for cert. filed, No. 93-7475 (Jan. 11, 1994). However, we decided essentially the same question against Spencer once before, see Spencer, 5 F.3d at 762-63, and adhere to that decision in the present case.

In addition to the murder of Miss Davis, which was before us in our earlier case reported at 5 F.3d 758, Spencer was tried and convicted of the capital murder of Susan Tucker in Arlington County. We referred to the Arlington trial in our earlier reported opinion, and an appeal concerning that trial is pending on our docket as Case Number 93-4004.

Spencer argues that his trial counsel erred in making this determination in light of Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), which holds that a capital murder defendant "accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.” 476 U.S. at 36-37, 106 S.Ct. at 1688. Turner does not apply to Spencer's case, for in Turner the trial judge refused to allow questioning on bias after defense counsel requested it. Turner specifically states that a court does not have to raise the question sua sponte and that the issue of whether such questioning is appropriate is left to the discretion of counsel. 476 U.S. at 37 & n. 10, 106 S.Ct. at 1688 n. 10. .Spencer was living in a halfway house in Richmond when he murdered Dr. Hellams.

The habeas petition filed with the district court is difficult to construe. This claim is embedded in Claim K of the petition, which concerns discovery violations. The district court held that Claim K was procedurally defaulted. Spencer v. Murray,- No. 3:92CV160, slip op. at 3 (E.D.Va. Jan. 21, 1993). The same claim appears in the brief submitted to this court as part of Claim 7 concerning DNA evidence, which was Claim III and Claim N, because of a lettering error, on habeas appeal to the Virginia Supreme Court. The Virginia Supreme Court specifically excepted the question of ineffective assistance of counsel from its procedural default ruling. Spencer v. Murray, No. 910252 (Va- June 4, 1991). We address this claim to give Spencer the benefit of any doubt in light of the Virginia Supreme Court's ruling, but we do not mean our finding to be a comment on the admirable job the district court did in sorting out a confusing and ambiguous petition.

Actually, the district court discussed Sawyer in the context of Spencer’s factual innocence claim. This is understandable because the district court issued its opinion before the Supreme Court decided Herrera.

The formula by which Lifecodes, the DNA laboratory, arrived at its population statistics. Spencer’s counsel cross-examined the Commonwealth’s DNA witness with reference to the population statistics in a joint suppression hearing held, by agreement of the parties, in this case and in the other Richmond case involving the murder of Miss Davis. Spencer's counsel also cross-examined the Commonwealth’s DNA witness with reference to the population statistics at the trial of this case in the presence of the jury. The transcript of the joint suppression hearing is a part of the state record, both in this case and in the case involving the murder of Miss Davis.

18 F.3d 237, decided March 1, 1994

Timothy W. SPENCER, Petitioner-Appellant, v. Edward W. MURRAY, Director, Respondent-Appellee.

No. 93-4004.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 7, 1993.

Decided March 1, 1994.

ARGUED: William Theodore Linka, Boat-wright & Linka, Richmond, Virginia, for Appellant. Donald Richard Curry, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee. ON BRIEF: Stephen D. Rosenthal, Attorney General of Virginia, Office of the Attorney General, Richmond, Virginia, for Appellee.

[OPINION BY WIDENER, Circuit Judge: type=majority]

OPINION

Before WIDENER, PHILLIPS, and WILLIAMS, Circuit Judges.

WIDENER, Circuit Judge:

Timothy Wilson Spencer attacks a Virginia state court judgment sentencing him to death for the murder of Susan Tucker in Arlington County, Virginia. The district court denied Spencer’s petition for a writ of habeas corpus and dismissed his case. We affirm.

On December 1, 1987, the nude body of Susan Tucker was found in her Arlington townhouse. She had been raped and murdered by ligature strangulation. Because most of the underlying facts of the murder are not critical to our discussion, we refer for them to the Virginia Supreme Court’s opinion on direct review in this case. Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989).

Spencer was convicted and sentenced to death by a jury on July 16,1988. He appealed his convictions and sentences to the Virginia Supreme Court, which affirmed. Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989). The United States Supreme Court denied Spencer’s petition for a writ of certiorari. Spencer v. Virginia, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990).

Spencer next petitioned the Circuit Court of Arlington County for a writ of habeas corpus. His petition was dismissed and denied on July 17,1990. Spencer v. Thompson, No. 90-424 (Cir.Ct. of Arlington County, July 17,1990). On October 15,1990, the record in the state habeas case was filed with the Virginia Supreme Court, but no petition for appeal was filed with the Virginia Supreme Court within the time allowed by law. Accordingly, the Virginia Supreme Court ordered that the record be returned to the Circuit Court of Arlington County on April 24, 1991. On October 3, 1991, Spencer requested leave to file a petition for appeal out of time. The Virginia Supreme Court denied Spencer’s motion on October 22, 1991.

Spencer then turned to the United States District Court for the Eastern District of Virginia. By order dated May 7, 1993, the district court denied Spencer’s petition for a writ of habeas corpus and dismissed the case. Spencer v. Murray, No. 3:92CV507 (E.D.Va. May 7,1993). On June 4,1993, Spencer filed a notice of appeal and an application for a certificate of probable cause to appeal. The district court denied Spencer’s application on July 8, 1993. Spencer v. Murray, No. 3:92CV507 (E.D.Va. July 8, 1993).

Without applying for a certificate of probable cause, Spencer prosecuted his appeal in this court. Spencer raises three issues here: (1) The jury instructions and verdict form at the sentencing phase do not adequately address mitigating evidence; (2) Virginia’s appellate review of death sentences is inadequate; and (3) forensic DNA profiling is unreliable.

Spencer’s first claim regarding the jury instructions and verdict form’s failure to adequately address mitigating evidence must be denied because Spencer did not exhaust his state remedies. 28 U.S.C. § 2254(b). This claim was not raised in Spencer’s direct appeal to the Virginia Supreme Court. There, Spencer raised vagueness challenges to the vileness aggravating factor under the Virginia sentencing scheme and claimed the jury had excessive discretion. See Spencer, 384 S.E.2d at 778. No mention was made in his brief to the Virginia Supreme Court of mitigating evidence with respect to jury instructions or verdict forms. The Virginia Supreme Court held that the vagueness claim concerning the vileness factor and the claim of excessive jury discretion were not raised at trial and were defaulted under Va. Sup.Ct.R. 5:25. Spencer, 384 S.E.2d at 788. It was not until he reached the federal district court that Spencer raised the issue of jury instructions and verdict forms in the mitigating evidence context. The district court’s holding that the claim was raised on direct review but procedurally defaulted under Va.Sup.Ct.R. 5:25 may not be correct, but apparently results from understandable confusion in construing Spencer’s assignments of error on direct review. The district court was correct, however, in dismissing the claim, because the claim before us concerning mitigating evidence has not been presented to the state courts and therefore is not exhausted.

Spencer’s second claim, which attacks Virginia’s appellate review, must also be denied because it was not raised in his direct appeal to the Virginia Supreme Court. Spencer has not exhausted his state remedies on this claim, and we therefore deny relief on that account. 28 U.S.C. § 2254(b).

Spencer’s third claim is that forensic DNA profiling is unreliable. Spencer has not stated a federal claim with respect to his allegations, and we therefore cannot entertain his petition on this ground. 28 U.S.C. § 2254(a). Further, even if we were to construe his petition as alleging a denial of due process, the result would not be any different.

The claim would be dismissed for failure to exhaust under Section 2254(b), except to the extent it argues that the DNA evidence should not have been admitted at trial. Spencer’s claim that the DNA evidence was inadmissible was raised on direct appeal, but the admissibility of evidence under state law is not a question we consider on the merits on habeas review. Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.1960); see also Spencer v. Murray, 5 F.3d 758, 762 (4th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994). Spencer attempted to raise a claim that his counsel were ineffective in handling the DNA evidence in his petition for appeal from the state trial court’s decision on his habeas petition, but he was denied leave to file his petition out of time. Because his ineffective assistance claim in the state habeas ease was not presented to the highest state court for review, it, too, must be denied for failure to exhaust. 28 U.S.C. § 2254(b). Therefore, we do not review any aspect of Spencer’s DNA evidence claim.

Ill

All of Spencer’s claims for relief must be denied for failure to exhaust his state remedies or failure to state a cognizable federal habeas corpus claim.

The judgment of the district court is accordingly

AFFIRMED.

NOTES TO THE OPINION

This is the third murder and rape committed by Spencer which has come to this court. Both of our earlier cases arose out of convictions obtained in the City of Richmond. Spencer v. Murray, 18 F.3d 229, (4th Cir.1994) (murder of Susan Hellams) (published); Spencer v. Murray, 5 F.3d 758 (4th Cir.1993) (murder of Debbie Davis), cert. denied, - U.S. -, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994).

When no application for a certificate of probable cause is filed after the district court’s denial of the certificate, the notice of appeal is treated as a request addressed to the judges of the court. Fed.R.App.P. 22(b). Accordingly, as individual judges, the members of this panel grant a certificate of probable cause to appeal in this case.

The result would not be any different if the claim were exhausted because we have repeatedly held that this claim is without merit. See, e.g., Jones v. Murray, 947 F.2d 1106, 1119-20 (4th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992); Briley v. Bass, 750 F.2d 1238, 1242-44 (4th Cir. 1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985).

Again, even if this claim were exhausted, we would not afford Spencer habeas relief because the claim is without merit. We have examined and rejected substantially the same claim before in Peterson v. Murray, 904 F.2d 882, 887 (4th Cir.), cert. denied, 498 U.S. 992, 111 S.Ct. 537, 112 L.Ed.2d 547 (1990). See also Clozza v. Murray, 913 F.2d 1092, 1105 (4th Cir.1990) (deciding question under specific facts involved), cert. denied, 499 U.S. 913, 111 S.Ct. 1123, 113 L.Ed.2d 231 (1991). .Indeed, Spencer’s petition on this point cites no constitutional amendment nor mentions any constitutional right infringed by the supposed unreliability of the test. Also, the district court correctly held that it would not consider the point made here because no federal constitutional claim in this regard was presented on direct appeal to the Virginia Supreme Court.

The fact that the Virginia Supreme Court refused to allow Spencer to file his appeal because of his failure to comply with Virginia's procedural law supplies us with an additional ground to affirm the district court. Crowell v. Zahradnick, 571 F.2d 1257, 1258 n. 1 (4th Cir.1977), cert. denied, 439 U.S. 956, 99 S.Ct. 357, 58 L.Ed.2d 348 (1978).