## Facts

- Shortly after midnight on September 7, 1970, Nathaniel Whaley entered, without breaking, the Petersburg home of Edward Lee Bell.
- Bell, asleep downstairs, was awakened when Whaley brandished a pistol and demanded money; Bell said he had none.
- Whaley ordered Bell upstairs to check if anyone else was in the home.
- Bell led Whaley to a room where Arleather Hill, age sixteen, was sleeping; she was awakened.
- Whaley ordered Hill outside to a wooded area and, at gunpoint, forced her to undress and have sexual intercourse.
- Officers found Hill near the home in bushes with lacerations, a knot on her forehead, and nearby blood spots, scuff marks, and a billfold containing Whaley’s Selective Service card.
- A physician observed blood in Hill’s vaginal area.
- Whaley was arrested at his home; his undershorts had red stains visible when he dressed at home and when he later disrobed at the station.
- Whaley claimed the stains were blood from his girlfriend rather than from Hill.
- An officer seized the undershorts, turned them over to a property custodian, and later identified them at trial as substantially unchanged; the undershorts were admitted without chemical analysis.
- A jury convicted Whaley of rape and statutory burglary and imposed penitentiary sentences of twenty years (rape) and five years (burglary).

## Issues

1. Whether the trial court committed reversible error by refusing a properly requested instruction on the presumption of innocence where it gave only a reasonable-doubt instruction.
2. Whether blood-stained undershorts were inadmissible due to an inadequate chain of custody and the absence of scientific testing to establish the stains were blood or linked to the victim.
3. Whether the trial court erred by instructing the jury on a statutory burglary punishment range inconsistent with the statute charged in the indictment.

## Decision

- The court reversed both convictions and remanded for a new trial.
- It held the refusal to give a properly amended presumption-of-innocence instruction was reversible error, and a reasonable-doubt instruction did not adequately substitute for it.
- It held the burglary punishment-range instruction was erroneous because it did not conform to the statute charged and the corresponding penalty range.
- It upheld admission of the undershorts, finding the foundational showing and chain of custody sufficient and holding chemical analysis was not required.

## Legal Principles

- The presumption of innocence is a substantive right that attends the accused throughout trial and must be expressly conveyed to the jury when requested in correct form; a reasonable-doubt instruction alone is insufficient.
- Physical evidence may be admitted when an adequate foundation shows the item is what it purports to be and is substantially unchanged; gaps go to weight unless the evidence of alteration is substantial.
- A chemical test is not required to prove an exhibit contains blood; jurors may assess apparent bloodstains based on inspection and surrounding evidence, including testimony that the victim bled.
- Jury instructions on the permissible range of punishment must match the offense and penalty provisions of the statute charged in the indictment; a mismatch is prejudicial error.

## Conclusion

The court ordered a new trial because the jury was not properly instructed on the presumption of innocence and was given an incorrect statutory burglary punishment range, while also ruling that the blood-stained undershorts were properly admitted based on sufficient identification, custody evidence, and lay evaluation without scientific testing.


Whaley v. Commonwealth, 214 Va. 353, 200 S.E.2d 556 (Va. 1973)