Metropolitan News-Enterprise


Friday, May 9, 2008


Page 3


Murder Defendant Not Entitled to Independent DNA Test—Court of Appeal

Justices Find No Abuse in Discretion After Defense Would Not Agree to Disclose Result


By STEVEN M. ELLIS, Staff Writer


A trial judge did not abuse his discretion when he denied a defendant’s request to conduct an independent DNA test on the only remaining portion of a blood sample tying him to a murder after the defense said it would not agree in advance to disclose the result to the prosecution, the Fourth District Court of Appeal ruled yesterday.

Holding that the case fell along a spectrum having, at one end, cases presenting only a single piece of evidence that would be used up by testing, and, at the other end, cases presenting multiple pieces of evidence that would allow multiple tests, Div. One ruled that San Diego Superior Court Judge Michael D. Wellington’s ruling reflected an “acceptable exercise of discretion” because it “protected the interests of both parties and advanced the interest of determining the truth.”

Parakkamannil Koshy Bilji Varghese had requested the test on the remaining portion of a spot of blood found near a light switch in the house of Haval Ravin after the latter’s murder when a DNA test conducted by the prosecution indicated that the blood belonged to Varghese.

Ravin was stabbed to death in 2004, and police who responded found large pools of blood and bloody shoeprints, in addition to the blood spot, as well as bloody swirl marks that appeared as though someone had tried to clean up using bleach.

Outside the home, they found a dress shoe with both Ravin’s blood on it and Varghese’s semen in it, and blankets with Ravin’s blood on them.

Varghese, a large man who was an expert in several martial arts, including swordsmanship, had reportedly been upset that Ravin was dating Varghese’s estranged wife and had allegedly been stalking the pair for some time.

When police arrived at Varghese’s home they noticed a strong smell of bleach on and around him, as well as cuts and scratches on his hands, forearm and neck.

Police executed two search warrants, the first to locate items showing that Varghese had dominion and control over the premises, and the second with respect to a laptop computer they located in Varghese’s car. They found a bag with a spot of Ravin’s blood on it and receipts for bleach and other cleaners inside the house, and, on the laptop, evidence that Varghese had conducted searches on his estranged wife and Ravin, as well as searches on the terms “revenge,” “adultery” and “law.”

At Varghese’s murder trial, the defense argued that the defendant’s by- then-ex-wife had killed Ravin with an accomplice, citing a police criminalist’s conclusion that the evidence indicated a third person had been present during the murder or the cleanup.

When prosecutors sought to introduce evidence that Varghese had left the blood spot, Varghese sought his own test. Although he initially conceded that the test would likely consume the remainder of the sample, he asked that his expert be under no obligation to reveal the results of the testing to the prosecution.

However, the prosecution objected, stating that it too wished to conduct a test on the remaining sample in the event that the defense challenged its expert witness and corroboration of the earlier test result became necessary. As a compromise, it suggested that a third party conduct the test and provide the results to both parties.

Concluding that there was only enough of the sample for one more test, and that the prosecution was entitled to corroborate its findings, Wellington ruled that the defense could conduct the test, provided the result was given to the prosecution.

Varghese declined to accept the proposed solution, and was later convicted of first degree murder and sentenced to a prison term of 26 years to life.

On appeal, Varghese argued that his right to counsel required the trial court to allow him to conduct the DNA test without a requirement that he report the results, but the Court of Appeal, in an opinion by Justice Patricia D. Benke, disagreed.

Noting the difference between cases where only one sample was present and a defendant was entitled to independent review, and cases where multiple samples were present and a defendant had no obligation to disclose independent test results to the prosecution, Benke said that the circumstances—two samples, one of which was already used up—supported Wellington’s decision.

She said the function of the second sample was important “because it must protect and serve the needs of both the prosecution and defense, and at the same time its use must not subvert the truth-finding role of the criminal justice process.”

She continued:

“This is a weighty task. Viewed in this light, the second test should permit the defense to scrutinize the evidence to assure the prosecution test is proper and correct. At the same time, it cannot be given over to the defense, destroyed through its testing procedures, thereby leaving it unusable as corroboration if at trial the defense challenges the prosecution’s testing.”

Benke also rejected Varghese’s argument that the search of his computer had been improper under both warrants, noting that it was reasonable for police officers to conclude under the first warrant that the computer was one used by Varghese and might contain information relevant to his control of the residence, and that probable cause supported the second warrant.

Justices Alex C. McDonald and Joan Irion joined Benke in her opinion.

The case is People v. Varghese, 08 S.O.S. 2725.


Copyright 2008, Metropolitan News Company