David Lee and Jesse Lee Hills Dear Lee I first want to start off by thanking my wife. She has been behind me from the start 110%. And if it takes me 100 years I will make her life the best one man can provide. In my last letter to you I told you if someone asked me to fight for my country I would tell them to jump off a cliff. I just want people to understand that I love my country and I would give up my life for it and the people. The problem is not the people or the country it is the ones that we let run it. The people that we vote into office. They think we work for them when they work for us. And as the people of America we have to hold the government responsible for their action. We need to stand up for the rights of the people. We need to get back to basics and put God and family and people first. The people that run the government do not fear God or us as a people and when one of the people like myself get convicted of a crime that he did not commit, all they say is“Too bad Well, that is not good enough. We as a people should make them look at these ”. things to make sure that a wrong has not been done. You see next time it might be you or someone that you know then you will lose all what
you worked for. And as for the people of America we must help them do the right thing. And if we put more into God, family and the people of this country we would be great. Like it was meant to be. But all we think about today is money and power but, if we put the people first then why a place like Fairfax county ADC in Fairfax VA. When they do wrong we need to make them pay for it. I know I am one man but is that not where it starts? One person, one vote and then together we can make a difference and will put an end to this wrong doing that the people with the power over us. David Hills
What we do for our Soldiers
My name is David Lee Hills, as you know by now. My wife Donna has told you about what the state of Virginia. I am at Fairfax County Detention Center in Fairfax, Virginia. I want to tell you a little about my family to start. My forefather came here in 1632, his name was Joseph E Hills, he came from Malden, England and landed in Massachusetts where he founded his own town and called it Malden Massachusetts and is still there, so is the church. He wrote the first written law of this county and was one of the first speakers of the house and one of my forefathers was one of the only commission officers on the battlefield of Lexington by Washington himself. We have served this county since all the way up to my father and me. My father was in Vietnam and I was in Desert Storm. I served in the US army for 10 years. I was in the United States Presidential 3 US INF Old Guard. But my wife has sent you all that. I used to think that you are innocent until proven guilty. But now you are guilty until proven innocent. I used to believe in my country not so anymore for example you should see what they feed is here in ADC. Just last week for six days all I got was one or two Hotdogs and some peas or greens or what I call grass on a hamburger patty. They make us sit on the floor and have us out of our cells and there are ten of us in this block but were made for four people. The block is 8 ft by 40 and we have to eat, shit and piss all in the same place. I thought I live in the USA not the USSR. If you asked me to fight for my country I think I would tell you to go jump off a cliff. The things they do to keep us in line, they should be in jail. So now they say I have to spend 6 years in here and I may not make it because of my heart. The doctor told me that I will need a new heart in about 5 years. So you see they should have just given me life. I have so many medical problems, like my hip, pelvis. My wife can tell and show you all that stuff.
Well, that’s it for now. I never done anything like this before so if you will help me and just tell me some of the stuff you want to here I will tell you all about it. Thank you for your time it helps to know there are people out there that will listen. Thank you David L Hills
The Badge
We the people will give people all kinds of badges. Some are good and some are abuse of power. The fireman wares a badge and he does all kinds of good. We give a badge to a kid to help others kids across the street. But we give people a badge like police, Sheriff. FBI, CIA, ATF and so many more and most of these people do right by us. They help us and put their lives on the line for us. The people that I am talking about are the one that abuse their powers. They get the badge just so they can have the power to tell people what to do, where to do it and how to do it. A lot of these people behind the badge should be behind bars. The same bars that they are trying to put the people behind. I can tell you from what I seen during my stay here at Fairfax VA ADC. Those who have the badges use their power against us because they have the power. They treat people like their not human. The people that have these badges should be held to a higher standard. It seems to me that when these people break the law or abuse their power we let them off so easy all because they ware a badge. When they abuse their power we should make them pay a higher price than the average person because they know the law better than the average person. They are the ones that are to up hold the law so when they break or abuse the law we need to make them pay a higher price and when we find out that they lie about a case they should be made to give up that badge because they showed use they can not be trusted. But we do not do this and we are telling them that it is ok for them to do what ever they want. You would not let your kids get away with this so why we let them get away with it. When we are driving down the road and we get pulled over, the person behind that badge looks down on you and this is not just you are sitting. They think they are better just because they have the badge. If they are wrong who are the court going to believe, them or you and it is because they have the badge. Do not get me wrong there are a lot of them that do the right thing and help us and they put their life on the line everyday. But it seems to me that there are more of them that abuse their powers. They forget who they work for and who pays them and we need to hold the one that want to wear the badge accountable all the way to the top. I see it all of the time here at Fairfax VA ADC. They abuse their power and they get away with it. There is no one to stop them. They should be behind the bars that they are watching. I think a lot of this goes on because the people do not want to see it and to deal with it. If it is out of sight out of mind as long as it does not happen to me it is ok. But the problem is that you don=t know when one of these people that have the badge is going to use their power against you. What we need to do is reform all of the standards for the ones that want to wear the badge and maybe, just maybe, it will stop the abuse of power. If I could show you all the abuse in Fairfax VA ADC you would not be able to sleep.
A Brief Chronology of David L. Hills Military Career, Medals, and Awards
David enlisted in the Army June 8, 1982. He entered the service in Los Angeles, California. He received 22 weeks of Infantry training at Fort Benning, Georgia. From there he went to Fort Meyer in Arlington, Virginia where he received 4 weeks of training to enter The Presidential Old Guard. He was stationed with the 3rd US Infantry at Fort McNair. While in the Presidential Old guard he performed many duties, including holding a top secret security clearance at the White House. He performed many duties at Arlington Cemetery as well. He left the old Guard after 2½years for medical reasons. He had surgery on both of his knees and could no longer perform the duties that the Presidential Old Guard requires. From Washington he was transferred to Fort Irwin, California. He was stationed at the National Training center with the 6/31st Infantry. He was there for 4½years. He received numerous letters of recommendation while there. These can be furnished to you should you desire to read them. From Fort Irwin he was transferred to Germany. He was with the 3rd Armored Division. He was a Bradley Tank Gunner, Driver, and Commander. He left the Army on April 8, 1989. From there he was enlisted in the Reserves attached to the National Guard. The National Guard called him to duty in November 1990. He received 6 weeks of Military Police Training at this time. He was called to active duty in January 1991. He received orders to go to Desert Shield, Desert Storm, and Desert comfort. He was released from his duties on July 11, 1991. He has worked as a mechanic since that time. He is a currently an ASE Certified Master Mechanic. He has been employed by Harley Davidson of Washington since 1999. AWARDS AND MEDALS Army Service Ribbon Overseas Service Ribbon 3 Army Achievement Medals March 1985, February 1986, 1988 3 Certificates of Achievement January 1983, December 1984, January 1986
3 Good Conduct Medals June 1982, June 1985, May 1991 National Defense Medal Southwest Asia Service Medal for service in Desert Storm 1991 Bronze Star for Courage Under Fire 1991 Expert Marksmanship Badge with Rifle Bar Sharpshooter Marksmanship Badge with Grenade Bar Expert Infantryman Badge Driver and Mechanic Badge Citation for Outstanding Performance In The Spirit of America Presentation 4 Honorable Discharges
STATEMENT OF THE CASE
On December 10, 1997 Detective Joanne Studer of the Fairfax County Police Sex Squad obtained a warrant, alleging that David Lee Hills raped Patricia McKendry on November 7, 1997. Mr. Hills surrendered himself on the issued warrant and was released on a $5000 personal recognizance bond. This matter proceeded to preliminary hearing on May 11, 1998 in the Fairfax County General District Court and was certified to the Grand Jury, which returned an indictment on May 18, 1998. The case was originally set for trial on July 7, 1998, but was continued for the Commonwealth to allow for further DBA testing. Trial began on November 17, 1998 before a jury, and was presided over by the Honorable Marcus D. Williams. After jury selection, opening statements were made and the Commonwealth presented evidence. At the conclusion of the Commonwealth’s case, Mr. Hills made a Motion to Strike the Commonwealth’s evidence, which was denied. After presentation of substantial evidence, including the testimony of Mr. Hills, the Defense rested. Mr. Hills again moved the Court to strike the Commonwealth’s evidence, which was also denied. The jury was instructed and received arguments of counsel. On Friday, November 20, 1998 the jury deliberated approximately eight hours, eventually returning a verdict of guilty. Within moments of the conclusion of the sentencing argument, the jury inquired of the Court “Is parole available to the person convicted of the crime of rape in the Commonwealth of Virginia? The Court refused the Defense request ” that the jury be instructed as to the lack of parole in Virginia, and told the jury only,“You should not concern yourself with this. You should sentence in accordance with the instructions given to you. The jury returned a recommended sentence of six years in ” prison. On January 8, 1999, the Court denied Mr. Hills’ Motion for Post– Trial Brady v. Maryland Evidence and Relief and Motion for Judgment of Acquittal Not Withstanding the Verdict or in the Alternative for a New Trial. Thereafter, the Court imposed the sentence of six years in prison, recommended by the jury. On February 10, 1999, the Court granted the Defendants motion to have the Fairfax County Police file and the file of the Commonwealth Attorney filed, under seal, in the Clerks Office of the Circuit Court, to be forwarded to the Clerk of the Court of Appeals as part of the record herein. As well the Court granted the Defendants Motion that an appeal bond be set in the total amount of $30,000 corporate surety.
STATEMENT OF FACTS On November 7, 1997 the Complainant, Patricia McKendry began drinking 12- ounce cans of Milwaukee’s Best Beer during the 11:30 a. m. to 12:00 noon time frame at her apartment near Fairfax Circle, in the Fairfax City, Virginia area. Ms. McKendry, who had purchased a 12 pack of beer to drink that afternoon, consumed 9 of the 12 beers steadily throughout the course of the day at a pace of a beer every 45 minutes to one hour. (11/18/98, P.19) Ms. McKendry planned to celebrate her 40th birthday by going to local bars that evening. After cooking and eating dinner, she went to the nearby bar, Fast Eddy’s, but not seeing anyone she knew, walked approximately 10 minutes to P. J. Skidoos, a well known bar/ restaurant within Fairfax City. (11/18/98, P22) Ms. McKendry testified that she arrived at the earliest, during the 7:15 to 7:30 p. m. time frame. (11/18/98, P23) Upon arriving, the complainant claimed to have gone to the restroom, where she fashioned a homemade tampax out of rolled up paper towels, as she was having her menstrual cycle. (11/18/98, p.73) Ms. McKendry then stated that she had nothing further to drink a P. J. Skidoos, while playing darts for approximately 45 minutes. (11/18/98, pp.23 and 24) She did not consume any drugs and was not drunk, only eventually having a “buzz ”. (11/18/98, pp. 27 and 28) Ms. McKendry asked the bartender for a cup of ice and engaged David Hills in conversation at that time. She asserted that she was offered a drink by Mr. Hills, and ordered a bourbon and ginger ale. (11/17/98, p292) After playing darts, Ms. McKendry approached the bar trying to engage different men in conversations, and was eventually told that she was going to have to leave P. J. Skidoos by restaurant personnel, as she was getting disorderly. (11/17/98, p295) At the time she left, Ms. McKendry asserted that it was pouring rain, so she stood in the doorway for a few minutes for the rain to slow down before walking the two miles back to her apartment. (11/17/98, p295) After a few minutes, Ms. McKendry asserts that Mr. Hills came out of the bar and offered her a ride while she was still standing under the eaves at the doorway of the restaurant entrance. (11/17/98, p.295) As one leaves the front entrance of P. J. Skidoos, Lee Highway, Route 29/211 is directly in front of the restaurant with an adjacent alley and furniture store to the left, parking in the front, and more parking and a Denny’s restaurant to the right. Ms. McKendry walked
with Mr. Hills to the right front part of the parking lot over toward the Denny’s restaurant adjacent thereto. “It’s right in the front, next to Lee Highway. (11/17/98, pp. 296 and ” 297) The car warmed up for perhaps five minutes, while Ms. McKendry and the driver engaged in small talk. (11/17/98, pp. 297 and 298) Nothing unusual occurred and the car pulled out of the parking lot, turning westbound on Lee Highway, and then making a left turn up Rebel Run, past Fairfax High School, to Old Lee Highway, opposite the direction of her house near Fairfax Circle. (11/17/98, pp 299 and 300) Ms. McKendry testified that she was concerned at that time, but not really concerned until later on. At Old Lee Highway, the vehicle turned right, going into the old part of Fairfax City, and eventually making a left on south 123, Chain Bridge Road. (11/17/98, p 300) She kept saying to him that she lived down by Fairfax Circle, the opposite direction from where the vehicle was headed, several miles away. Eventually the car made a left turn at Burke Centre Parkway, and into a parking lot of a big shopping center. (11/17/98, p.300) The car was driven to an area where tractor trailers empty their load. Everything was pretty empty, as it was getting late, 9:15 to 9:30. At this point, Ms. McKendry testified that her assailant started messing with her hair, playing with it to which she responded, “ That ain’t what we’re doing, I don’t do things like that. (11/17/98, p. 303) ” She told the driver that she wanted to go home and call her boyfriend. Ms. McKendry new that she left P. J. Skidoos at 8:55 to 9:00, as that was the time she needed to leave to call her boyfriend. The area where the car was parked was empty. Ms. McKendry’s assailant then reached across her, opened the door, took his foot and violently kicked the side of her left leg, stating“Get the fuck out causing her to roll on the ground in the rain. ” The man came around the car and grabbed her leather bomber jacket and literally dragged her from the area of the car to a tree area up against a chain link fence. McKendry described the area as being under trees and by a chain link fence, which she was put up against, and her head banged against while being assaulted. (11/17/98 p. 306) Her blouse and bra were pulled up over her head, which covered her head. (11/17/98 p.307) Her pants waistband was grabbed and pulled down, along with her underpants, to her knees. After grabbing and holding her breast, the assailant inserted his penis and Ms. McKendry“ started banging away on his head, telling him to get off and eventually getting her blouse down so that she could see his hair hanging down around his face and
going back and forth. The assailant stopped after being hit on the head three or four timed, and left, getting back into the car and driving away. (11/17/98 p. 309) The Complainant pulled up her torn pants, pulled down her blouse, and walked quickly to Officer Gleason of the Fairfax County Police, who was stopped nearby in his cruiser in front of the Hechinger’s store at 10:06 p. m. (11/17/98, p312) After speaking with Officer Gleason, Ms. McKendry was taken to Fairfax Hospital, where examination revealed that there were bruises on the complainant’s left breast, finger mark bruises around her waist area, a large black bruise on the left side of the left knee from being kicked with the foot out of the car. (11/17/98, p.319) The pressure of the intercourse was so great, the banging, that she could not sit for TWO OR THREE DAYS. (11/17/98, P.319) Ms. McKendry stated further that she did not consume the drug phencyclidine (PCP) at anytime, but had consumed marijuana within two weeks prior to the date of this incident. After making her report to Officer Gleason, she was taken to Fairfax Hospital where Sexual Assault Nurse Examiner (sane) Sue Brown performed an examination typical for a complaint of sexual assault, including the taking of photographs, various swabs, head hair, and pubic hair combings for trace evidence, blood samples for analysis, and a history. Office Gleason testified for the Commonwealth that he was doing paperwork in his cruiser at 10:06 p. m. when he was approached by a lady yelling and screaming, and coming from the wooded area near the Hechinger’s store adjacent to Burke Center Parkway. (11/17/98, p. 156) Her clothing was disheveled and torn. (11/17/98 p. p. 147 and 148) A request for a canine police dog was made, and a description requested by the complainant of the person she claimed had assaulted her. Ms. McKendry tried to explain to Officer Gleason the nearby location of the incident. Officer Gleason was immediately struck by the obvious intoxication of Ms. McKendry, which contributed to his difficulty in obtaining information from her. She had difficulty answering the officer’s questions, had slurred speech and could only provide a brief description of her assailant. In fact, the Complainant could give only very little information, and could not even give a description of the car, the clothing that the person was wearing, and few details about the person who has assaulted her. (11/17/98, pp.158and 159) Ms. McKendry arrived at Fairfax Hospital at 11:30 p. m., perhaps 12:00 a. m and was soon turned over to Detective Joanne Studer and Sane Nurse Brown. (11/17/98, p. 161)
Before leaving the scene at Hechinger’s, Officer Gleason knew that several police officers arrived within a short period of time, including a canine unit and other r officers who conducted a thorough search of the area in an attempt to find a crime scene. The police were never able to find the place Ms. McKendry claims to have been assaulted within a short area of the police car. (11/17/98, pp. 162 and 163) The police dogs could not obtain a location as well. Despite the fact that several officers walked the entirety of the area with flash and search lights, the location of the assault could not be found. The police did not find any disturbed area of debris, torn pieces of clothing, hair, fibers, or paper towel soaked in blood, fashioned into a homemade tampon. (11/17/98, p. 170) Officer Gleason did determine that the complainant had been at P. J. Skidoos earlier and made sure that another officer responded promptly to P. J. Skidoos within a short time after Ms. McKendry’s report. Officer Gleason further testified that his cruiser was facing the area from which the Complainant walked out of the woods. The assailant’s car would have had to pass literally in front of the officer to exit the parking lot. The officer never saw a car pull out in front of him. (11/17/98, p.175) Todd Doty, a career bartender, was working on the evening in question. Mr. Doty’s shift began at 6:30, and Mr. Hills was present at the time he arrived. Mr. Hills, who previously had gone to P. J. Skidoos on a regular basis when he had worked nearby, had given Mr. Doty his new business card. Mr. Doty saw the Complainant hanging around bar areas that night. She was the subject of comments by other customers, talking about her level of intoxication. Mr. Doty recalls that Mr. Hills bought the Complainant a “shot of Zambuca for her birthday. (11/17/98, ” p.189) Mr. Doty realized that Ms. McKendry was intoxicated to the extent that he made a mistake serving her any more liquor, and advised the other bartenders that he had “cut her off. (11/17/98, p. 191 ” Mr. Doty testified further that Mr. Hills would almost always be out of P. J. skidoos by the 7:30 or 8:00 time frame. (11/17/98, p. 197) Mr. Doty saw Ms. McKendry approaching any number of different people, walking up to them and engaging men in a forward, or flirtatious manner, which was uninvited by the men, and initiated by her.(11/17/98, p. 201) Her level of intoxication was apparent by her walking, muscular movement, and body language. She looked drunk. (11/17/98, pp. 201 and 202)
She was beyond drunk for driving purposes to the extent of being “drunk at the time he ” arrived at 6:30 p. m. The shot of Zambuca was bought in the 7:15 to 7:30 time frame, and the purchase was initiated at the request of Ms. McKendry, not volunteered by Mr. Hills. Mr. Hills did not pay affirmative attention to Ms. McKendry and had nothing more to do with her after the drink was bought. (11/17/98, pp. 203 and 204) Mr. Doty was in a position to see any interaction, or lack there of, between Mr. Hills and the complainant. Mr. Hills was only at P. J. Skidoos for another half hour to 45 minutes after the purchase of the Zambuca shot. Mr. Hills left somewhere in the 8:00 to 8:15 time frame. (11/17/98, p.204 Mr. Doty opined that Mr. Hills was fine to drive, and that he had only two, maybe three drinks in total. (11/17/98, p. 205) Mr. Hill’s manner, demeanor and appearance were not unusual, and he was dressed as he had been many times before. Mr. Hills was wearing a khaki style army hat, which he usually wore. A couple of customers had come up to the bar and complained about Ms. McKendry. Further, when Mr. Hills left, he was alone and without Ms. McKendry. Later that evening, Officer Shaner of the Fairfax County Police came to P. J. Skidoos and spoke to Mr. Doty, who described his observations to the Officer, including that Ms. McKendry had acted in a forward, flirtatious manner with any number of different customers. Those customers were identified to Officer Shaner by name. The officer did not question any patrons who Ms. McKendry or Mr. Hills had contact with that night, or who had been there for an extended length of time. Mr. Hills left P. J. Skidoos at approximately 8:15 p. m., and was not seen again by Mr. Doty that night. (11/17/98, p.227) The General Manager of P. J. Skidoos, Dimitria Paraskevopolos, Identified the Complainant as being at P. J. Skidoos during the happy hour time period and as early as 5:00 p. m. . (11/17/98, pp.227 to 234) She was bothering people she didn’t know, and Mr. Paraskevopoulos asked one of his doormen to tell the lady to leave. She left within five to ten minutes. Mr. Paraskevopoulos testified that the Complainant was at the front door of P. J. Skidoos, at which time Dave Hills, who was already outside the building to the left of the entrance, indicated to her“Lets go. She followed him from the front door to the left down an alley ” between the restaurant and adjacent furniture store. (11/17/98, p. 229) This is the direction opposite that which the Complainant testified to having gone to the right front parking area, toward Denny’s and Lee Highway. Ten to Fifteen minutes later, Mr. Paraskevopoulos checked the parking lot behind the restaurant and saw a car in which he believes was occupied by Ms. McKendry in the passenger seat, with the window halfway down. Ms. McKendry caused problems in the 6:30 to 7:00 time frame, at which time she was told to leave the restaurant. Further, Mr. Hills had left the restaurant before Ms. McKendry was told to leave. Mr.
Paraskevopoulos testified that Mr. Hills would have Left P. J. Skidoos sometime before, or just at or just after 7:00 p. m. (11/17/98, p.250) Both he and the Complainant were no longer there at 7:30, 8:00, or 8:30. The lady Mr. Paraskevopoulos saw seated in the car was smoking a cigarette. (11/17/98, p. 255) Neither the Complainant nor any other witness confirmed that Ms. McKendry smoked a cigarette on the evening in question, or that she, in fact, smokes at all. Contrary to the testimony of Ms. McKendry, the car was never approached by Mr. Paraskevopoulos or Mr. Brobst. Mr. Brobst testified further that he was the bouncer on duty at P. J. Skidoos on November 7, 1997. He came on duty at 7:15 and noticed Ms. McKendry in the bar area with a bottle of beer, and also a shot of Zambuca. Ms. McKendry left the restaurant, and Mr. Brobst saw her speaking with Mr. Hills, who left after her by the awning area at the furniture store to the left. He saw the two people eventually walk down the alleyway and get into a car, with the person he identified as Ms. McKendry putting the window down, her arm out, with a lit cigarette in her hand. (11/17/98, p. 271) He checked on the vehicle again four or five minutes later and the car was gone. (11/17/98, p. 272) Mr. Brobst testified he was “one hundred percent sure that Mr. Hills left the restaurant ” after Ms. McKendry, contrary to his boss’s testimony. (11/17/98, p. 277) While Mr. Brobst was observing Ms. McKendry inside the bar, she had very little contact with Mr. Hills, and was playing Darts, or approaching other people. It was not pouring rain when Ms. McKendry was leaving the restaurant. Ms. McKendry left the restaurant at approximately 8:00 p. m. according to Mr. Brobst. Sue Brown, the SANE nurse at Fairfax Hospital, testified to her examination of Ms. McKendry, the pictures she took, swabs and blood samples preserved. Ms. Brown described her collection of trace evidence, and the importance of that type of evidence, including a description of the transfer of fibers, hair, and other physical items which may be of use and of evidentiary value in ongoing investigations. (11/18/98, pp. 188 and 189) The clothing was collected to be able to compare fibers which may have been collected from a suspect person or vehicle. Ms. McKendry, during the history given to Nurse Brown, stated that her assailant had rubbed the outside of her mouth with his penis. (11/18/98, p. 125) There was a strong odor of alcohol, and Ms. McKendry was described by Nurse Brown as confused, disoriented, and suffering from a high degree if intoxication. (11/18/98, p. 126)
Ms. McKendry’s blood and urine were drawn at 2:00 a. m. for examination purposes and revealed a blood alcohol level of 261 milligrams per deciliter, or, in lay terms, a 0.26 blood alcohol level. (11/18/98, p. 129) Ms. McKendry’s urine screen was positive for phencyclidine (PCP). It was negative for marijuana, which Nurse Brown testified stays in the system for at least three weeks. PCP stays in the system from days up to a week. (11/18/98, p. 130) The Commonwealth also sought the admission of testimony related to DNA analysis. Ultimately the Court did allow testimony from Mary MacDonald, a forensic scientist employed by the Commonwealth of Virginia Division of Forensic Science, who performed DNA testing on the samples attributed to Ms. McKendry and Mr. Hills. As set forth below, substantial objection to the analysis and results were made. Ultimately, the witness testified that neither Ms. McKendry nor Mr. Hills could be eliminated as possible co- contributors to the genetic material found on the left breast swab taken from Ms. McKendry. The witness testified further “Assuming only one foreign contributor to the mixture detected on the left breast swabs, the likelihood of the foreign genetic material coming from David Lee Hills as compared to a randomly chosen individual is 330 times more likely in the Caucasian population, 280 times more likely in the black population, and 140 times more likely in the Hispanic population. (11/18/98, p. 232) ” Several witnesses were called on behalf of Mr. Hills who significantly impeached the credibility of the Complainant and the theory and substance of the Commonwealth’s case, as well as supported the fact that Mr. Hills left P. J. Skidoos before Ms. McKendry, and was home in Prince William County, Virginia well before she was assaulted between 9:30 and 10:00 in Burke, Fairfax County. James Valentour, the Chief Forensic Toxicologist for the State Division of Forensic Science, an expert who has testified between 600 and 1000 times throughout Virginia, with 95% of those incidents being as a witness for the Commonwealth, testified as an expert witness regarding drug and alcohol issues. Dr. Valentour, based on facts in evidence, opined to reasonable degree of certainty within his field that based upon Ms. McKendry’s description of the alcohol she had to drink during the course of the entirety of the date, that the blood alcohol level of 0.26 at 2:00 a. m. on November 8, 1997 She would have had to have had double the amount of alcoholic beverage drinks she described. In addition, Dr. Valentour gave his expert opinion that he expected the blood alcohol level at between 9:30 and 10:00 p. m. to have been approximately 0.32 to 0.34 percent (11/18/98, p. 278) At a .30 percent blood alcohol level, a person is three- fourths of the way to a level that can produce coma, or death in most people. In addition, there would be marked affects on the person’s ability to react, or to have any physical coordination at all. There would be unsteadiness, stumbling, changes in speech pattern, that might be reflected affected by severe slurring or excessive profanity, or some change in context, or ability to speak clearly. Also the ability to understand and comprehend would be severely diminished. In addition, PCP causes a wide range of bizarre effects on people ranging from stupor, passing out to extreme agitation, anxiety, and hallucinations, which are common. Diminished awareness of where the person is and what’s going on around them is
common with people under the influence of PCP. (11/18/98, p. 280) Sue Brown testified further as a defense witness as to the availability and nature of examination which could be made of a man suspected of raping a woman who had been bruised, scratched and assaulted in the manner described by Ms. McKendry and found by Nurse Brown. There would have been a likelihood of blood transfer from Ms. McKendry to her assailant given the fact that she was within her menstrual cycle, as well as the possibility of hair and fiber transfer. Sane nurses are available 24 hours a day, seven days a week, for such examination purposes. Such evidence collection could occur within up to 24 hours from the time of the alleged assault, including obtaining the underpants and clothing that he suspected assailant was wearing. (11/19/98, pp. 27 to 37) Other witnesses who were present at P. J. Skidoos testified as to Mr. Hills' appearance, manner, demeanor, and the timing of his departure. All witnesses testified that Mr. Hills was gone in the 8:00 p. m. time frame. As well, Mr. Hills' hair did not hang around his face. Detective Studer reported to Fairfax Hospital, and by late Friday night, November 7th, or very early Saturday morning, November 8th, 1997 had the name of David Hills from Officer Shaner or another police officer, as having been associated with Ms. McKendry that night. (11/19/98, pp79 and 80) Despite admitting that she had forensic evidence training, and had knowledge of the importance of trace evidence, and the importance of obtaining such evidence at an early stage of an investigation such as this, she did nothing to locate Mr. Hills, question him, and seek the ability to obtain trace evidence for further evaluation by consent or search warrant. (11/19/98, pp. 83 to 87) Detective Studer, despite having the ability through computer and other communications systems to locate Mr. Hills, approach him, and obtain the ability to search his vehicle that night, made no such efforts at all. In fact, no attempt was made to contact Mr. Hills until December 1, 1997 when Mr. Hills was approached at work by Detective Studer. Mr. Hills was interrogated by the Detective and answered her questions and cooperated fully with her. Ms. McKendry had described her assailant as being 5’8 pr 5’9 and bald on the top of his ” ”, head. Ms. McKendry denied being at P. J. Skidoos at 5:00 to ; 00 despite the testimony of other Commonwealth witnesses. (11/18/98, p. 51) Ms. McKendry further described that her assailant, during the forced intercourse, entered her ten or more times, and had never pulled out the homemade tampon. (11/18/98, pp. 73 and 74) Detective Studer knew that Ms. McKendry was having her period. The person who assaulted Ms. McKendry never wore a hat on the night of the incident, (11/18/98, p. 75) and the persons hair was an inch or so below the ear. The hair was straight over the ears and flyaway, not in the manner of a 12 or 15 inch ponytail pulled back in a rubber band. (11/18/98, pp.75 and 76)
Ms. McKendry was never behind P. J. Skidoos and did not walk down the alley with any person. (11/18/98, pp. 76 and 77) The car she was in was a midsize, car, and the person was wearing a regular T-shirt without insignia, and blue jeans. (11/18/98, p. 79) The person who assaulted Ms. McKendry was a little bit taller than her height of 5’4 ”, maybe 3 to 4 taller than her, but certainly not 6’ or 6’1 The person weighed about 200 to ” ” ”. 210 pounds, and not any more than her husband who weighed 220 pounds, and certainly not 30 or more pounds more than her husband. (11/18/98, pp. 89 and 90) The man was not clean shaven, and had two or three days of facial growth. Ms. McKendry testified that there was no contact between the man’s penis and her mouth, and that she never told anyone that had occurred. Detective Studer testified at length regarding the several inconsistent statements given to her by Ms. McKendry on November 7 or 8, 1997, November 10, 1997, December 1, 1997 January 12, 1997, and in other pre-trial meetings. Detective Studer’s testimony reveals numerous inconsistent statements regarding a variety of different drinks Ms. McKendry told the Detective she had been bought a P. J. Skidoos, different times of arrival and departure, and various other significant inconsistencies. It was revealed for the first time during Detective Studer’s testimony that Ms. McKendry, on November 10, 1997, was changing her story. Detective Studer testified“If I can quote what she said. She told me that her story was going to be different because she was “ fucked up because she had had ten beers before she left the house. She stated “My story is ” going to change; I was“fucked up. (11/18/98, pp. 113 and 114) ” That statement had never been provided to the defense counsel despite the fact of its clear nature as exculpatory evidence. Detective Studer also acknowledged that unknown hair samples received during the SANE examination of Ms. McKendry, which did not match either Mr. Hills or Ms. McKendry, were never sent for further analysis, or comparison. (11/18/98, pp.128 and 129) Detective Studer also testified that Mr. Hills was at the time of her interview with him, 6 feet tall and 240 pounds. Leeann Hooper was called a witness regarding forensic DNA analysis as an employee at the Cellmark Diagnostic Laboratory in Montgomery County, Maryland. Ms. Hooper, a highly skilled and qualified DNA evaluator, examined the Virginia laboratory’s DNA paperwork, analysis and results. Ms. Hooper described her review of the documents received from the Virginia laboratory, and her opinion and conclusions in that regard. Ms. Hooper opined to a reasonable degree of scientific certainty that the DNA analysis results were in conclusive as to whether or not David Lee Hills could be included as a source of the DNA based upon the fact that Mr. Hills types or alleles are not present in the STR portion of the test results, which is separate from the DQA1 and polymarker tests. The types of alleles which are present in the STR test are consistent with Ms.
McKendry, and no foreign DNA appears to be present. No DNA other than those types appear to be present and, therefore, no conclusion can be made. (11/18/98, pp.178 and 179) Further, no conclusion of statistical frequency could be given based upon the inconclusive nature of the test results and the very small sample of genetic material available for testing. (11/18/98, p. 187) Mr. Hills testified that on the date in question, he was at P. J. Skidoos, along with other friends. The Complainant was bothering one of Mr. Hills’ friends who was trying to eat her dinner. Therefore, Mr. Hills distracted the Complainant. During this time frame, the Complainant reached over and grabbed Mr. Hills’ Butt, and said that she loved him. He told her to stop, and during that time frame bought her a shot for her birthday. Mr. Hills left P. J. Skidoos at approximately 8:15 p.m. and drove directly home to Woodbridge, Virginia, stopping only at 7-11 to get a soda. He also pit air in a tire and continued home to Woodbridge, arriving home at approximately 9:15 p. m. He and his fianc Donna ée, Embrey, ordered Chinese food. Mr. Hills remained home during the entirety of the remainder of the evening. Mr. Hills had come to P. J. Skidoos from work after stopping at Brown’s Lincoln Mercury to meet with a former coworker. Mr. Hills was clean shaven and wearing his work uniform that included blue work pants, and a blue and gray striped shirt, with patches on the uniform shirt. Mr. Hills bought Ms. McKendry a drink to get rid of her. The distance from P. J. Skidoos to Mr. Hills' home in Woodbridge is 25 miles. On a Friday evening, when leaving Fairfax City at approximately 8:00 p. m., the trip would typically take approximately 45 minutes to an hour and a half. (11/19/98, p. 256) Mr. Hills adamantly denied assaulting, raping, or in any manner interfering with Ms. McKendry’s rights. He did not drive her to the wooded area behind Hechinger’s in Burke. In addition, photographs were admitted of Mr. Hills in the car he was driving on November 7, 1997, showing it to be virtually impossible for Mr. Hills to have raised his foot and kick Ms. McKendry in the manner and with the force necessary to immediately cause the significant bruising in the area and manner described on the left leg. Donna Embrey, Mr. Hills' fianc saw Mr. Hills come home during the evening of ée, November 7, 1997 at 2008 Radford Drive, Woodbridge, Virginia. He was wearing his work uniform, a gray and blue striped shirt, dark gray slacks, and in clean and good condition when he came home. She testified that Mr. Hills never wore only a T- shirt to work, wore a Desert Storm army style hat on a daily basis. Ms. Embrey and other witnesses described Mr. Hills' hair on November 7, 1997 as being long and pulled back in a ponytail. His hair, if not held in a ponytail by a rubber band, would be mid- shoulder length, not just over the ear. Mr. Hills never wore his hair down around his face or over his ears. He is 6 feet tall and weighed approximately 250 pounds at that time, much taller and larger than the person who assaulted Ms. McKendry. (11/19/98, p 223) Ms. Embrey testified that Mr. Hills came home approximately 9:15 p.m. She had just begun watching a television show called Millennium, which began at 9:00 at that time
she ordered Chinese food and paid by check which is in evidence, in the amount of $39.00, when it was delivered before 10:00. Neither Mr. Hills nor Ms. Embrey had any idea that Mr. Hills was a suspect in this matter until December 1, 1997, when he was interrogated by Detective Studer. As such, they made no effort to confirm or otherwise document Mr. Hills' whereabouts on November 7, 1997 before that time. Ms. Embrey saw Mr. Hills after he had taken off his outer clothes, and saw nothing unusual about his appearance consistent with a man who had been involved in a wooded area assault as described by Ms. McKendry. (11/19/1998, p. 232) Mr. Hills told Ms. Embrey that he had been at P. J. Skidoos when he came home.