David Lee Hills

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 fiancée, Donna
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' fiancée, saw Mr. Hills come home during the evening of
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.