Home / Fulltext Opinions / Virginia Court of Appeals / BEVERLY v. COMMONWEALTH

BEVERLY v. COMMONWEALTH


BEVERLY

v.

COMMONWEALTH

(unpublished)


JUNE 29, 1999

Record No. 0852-98-2

EDWARD WAYNE BEVERLY

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ORANGE COUNTY

Lloyd C. Sullenberger, Judge

Present: Judges Coleman, Elder and Bumgardner

Argued at Richmond, Virginia

MEMORANDUM OPINION* BY JUDGE LARRY
G. ELDER

Roy D. Bradley (Bradley Law Firm, P.C., on
briefs), for appellant.

Eugene Murphy, Assistant Attorney General (Mark
L. Earley, Attorney General, on brief), for appellee.


Edward Wayne Beverly (appellant) appeals from
his jury trial convictions for abduction with intent to defile,
forcible sodomy and first-degree murder. On appeal, he contends
the trial court erroneously (1) admitted DNA evidence in
violation of Code Sect. 19.2-270.5; (2) excluded blood
typing evidence; (3) refused to appoint a handwriting expert
and a fingerprint expert to aid appellant’s defense; and (4)
admitted without proper foundation Commonwealth’s exhibits 2
through 9–a road atlas and other documents allegedly found by a
witness who had died prior to trial. For the reasons that follow,
we hold that the trial court committed no reversible error, and
we affirm appellant’s convictions.

1. ADMISSIBILITY OF DNA EVIDENCE
UNDER CODE Sect. 19.2-270.5

Appellant objects to the admission of the DNA
tests for which notice was filed on February 13, 1998 (the second
DNA notice), on the ground that no probability report accompanied
the December 1, 1997 certificate of analysis as required by Code
Sect. 19.2-270.5.
[1] He objects to admission of the DNA test for which
notice was filed on February 17, 1998 (the third DNA notice), on
the ground that the notice was filed less than twenty-one days
prior to trial and that no probability report accompanied the
certificate of analysis. We reject both contentions.

The second DNA notice states specifically that
"the Commonwealth has attached the following written
profiles, reports, or statements concerning [the DNA evidence
sought to be admitted] to the copy of this notice sent to counsel
for [appellant]: . . . Division of Forensic Science
Certificate of Analysis dated December 1, 1997, F.S. Lab No
N89-09248." The complete December 1, 1997 certificate of
analysis, including page 4’s probability analysis, was
provided to appellant on February 6, 1998, as part of the
Commonwealth’s supplemental answer to appellant’s
discovery. Code Sect. 19.2-270.5 does not require that
copies of the profiles, statements or reports to be introduced
must be attached to the notice; it requires only that they be
"provide[d] or [made] available." Because it is
undisputed that the Commonwealth made available the probability
calculations contained in the December 1, 1997 certificate of
analysis in a timely fashion, the requirements of the statute
were met, and the trial court did not err in admitting the
certificate into evidence.

The court also did not err in admitting into
evidence the certificate named in the third DNA notice. That
notice listed only the FBI report dated July 22, 1993, a two-page
report which the Commonwealth previously timely had provided as
an attachment to both its first and second DNA notices. Because
the report had already been timely filed under Code
Sect. 19.2-270.5, the Commonwealth was not required to file
it again. Therefore, the Commonwealth’s filing of the third
DNA notice less than twenty-one days before trial was irrelevant
to the report’s admissibility.

We also reject appellant’s argument that
the July 22, 1993 report was inadmissible because it was not
accompanied by a statistical probability analysis. That report
was a two-page analysis excluding Thomas Kidd as a
potential contributor to the DNA detected in the sperm fraction
of the anal swabs taken from the victim. Where a suspect is
excluded as a contributor, the likelihood that a particular
suspect was the contributor of the sample found is zero, and no
probability calculation is necessary. See National
Research Council, The Evaluation of Forensic DNA Evidence
51 (1996).

For these reasons, we hold that the trial court
did not abuse its discretion in admitting the challenged DNA
evidence.

2. EXCLUSION OF BLOOD TYPING
EVIDENCE

Appellant contends that blood typing results
produced by Nancy Avery indicating his blood is Type A when, in
reality, appellant’s blood is Type O, show that the blood
was tampered with or inadvertently switched. He argues that the
trial court abused its discretion in excluding this exculpatory
evidence while simultaneously admitting DNA evidence resulting
from tests performed on the same blood sample. Again, we
disagree.

We hold first that appellant may not object on
appeal to the admission of the DNA evidence due to alleged
tampering with the sample. Appellant moved to suppress the DNA
evidence on this ground prior to trial, but during argument on
that motion, appellant withdrew his motion to suppress.
Therefore, appellant did not preserve this issue for appeal, see
Rule 5A:18, and we consider only whether the court erroneously
excluded the results of Avery’s blood typing test indicating
that the blood tested was Type A.

Second, we hold that the expert testimony
regarding the reliability of Avery’s typing test on the
dried blood removed from the stoppers was conflicting at best and
justified exclusion of the blood type evidence. See Spencer
v. Commonwealth
, 240 Va. 78, 97-98, 393 S.E.2d 609, 621
(1990) (holding that when scientific evidence is offered,
"the court must make a threshold finding of fact with
respect to the reliability of the scientific method offered"
and that "[if there is a conflict [in the evidence regarding
reliability], and the trial court’s finding is supported by
credible evidence, it will not be disturbed on appeal").
Avery herself testified that she had virtually no experience
testing dried samples; she told the officers who brought her the
sample that she did not know what test was appropriate for a
dried sample and that she would perform the only test she knew.
Deann Dabbs, who qualified as an expert in forensic serology and
had tested thousands of dried blood samples during her career,
testified that the method used by Avery was unapproved and
unreliable for testing dried samples. Finally, when Avery used
this method to test other dried samples of known type, her
results were correct only fifty-eight percent of the time.
Dabbs’ testimony and Avery’s test results provide
credible evidence supporting the trial court’s finding that
the method Avery used "to type the blood taken from the
. . . test tube stoppers was unreliable and not
scientifically accepted." Therefore, we hold that the trial
court did not abuse its discretion in refusing to admit the
evidence.

3. REFUSAL TO APPOINT
FINGERPRINT AND HANDWRITING EXPERTS

The Commonwealth, upon request, is required to
"provide indigent defendants with ‘the basic tools of
an adequate defense,’ and . . . in certain
circumstances, these basic tools may include the appointment of
non-psychiatric experts." Husske v. Commonwealth, 252
Va. 203, 211, 476 S.E.2d 920, 925 (1996) (citation omitted), cert.
denied, 519 U.S. 1154, 117 S. Ct. 1092, 137 L. Ed. 2d
225 (1997). "[A]n indigent defendant seeking the appointment
of an expert has the burden of showing a particularized need
therefor." Barnabei v. Commonwealth, 252 Va. 161,
171, 477 S.E.2d 270, 276 (1996), cert. denied, 520
U.S. 1224, 117 S. Ct. 1724, 137 L. Ed. 2d 845 (1997). A
defendant may not prevail in his pursuit of an expert merely
because the science involved is advanced or complicated, see
Husske, 252 Va. at 213, 476 S.E.2d at 926, or because he
has a mere "hope or suspicion that favorable evidence may be
procured," see Barnabei, 252 Va. at 171, 477
S.E.2d at 276.

We hold that the trial court did not abuse its
discretion in denying appellant’s motion for appointment of
a fingerprint expert and a handwriting expert. See Downing
v. Commonwealth
, 26 Va. App. 717, 723, 496 S.E.2d 164, 167
(1998). The argument advanced by appellant prior to trial
indicated, at best, that the Commonwealth intended to offer both
fingerprint and handwriting evidence. The evidence introduced at
trial linked appellant to exhibits 6, the note proposing sex, and
10, the list of ways to disguise oneself, by handwriting, and
exhibit 7, another note, by fingerprints. However, exhibits 6 and
10 were identified by Timothy Trent as having been in
appellant’s car; appellant admitted that exhibit 10 was his;
and exhibit 7 was found with exhibit 6, which, as set out above,
had been linked to appellant by Timothy Trent. We hold,
therefore, that the trial court did not abuse its discretion in
holding that appellant failed to demonstrate a particularized
need for either expert.

4. FOUNDATION FOR ADMISSION OF
ATLAS AND OTHER DOCUMENTS

Appellant contends that the trial court
erroneously admitted the atlas and other items Thomas Kidd gave
to Deputy Dickson. He asserts that, without Kidd’s
testimony, the Commonwealth provided an insufficient foundation
for admission of the items. In addition, he contends that
Kidd’s conduct in giving the items to Deputy Dickson was a
non-verbal assertion constituting hearsay and should have been
excluded.

We note first that appellant did not object to
Deputy Dickson’s testimony at trial that Thomas Kidd gave
him the atlas and other items. Further, in his pretrial motion,
appellant objected only to the admission of Kidd’s
statements to Dickson, not to any testimony about Kidd’s
conduct. Therefore, Rule 5A:18 bars our consideration of this
issue on appeal. We also find no reason to invoke the good cause
or ends of justice exceptions to the rule. In addition,
appellant’s assignment of error on appeal asks only whether
the trial court abused its discretion in denying the motion to
exclude the atlas and other documents. Because appellant did not
raise the issue of the admissibility of Kidd’s conduct in
his pretrial motion, no appeal was granted on this issue.
Therefore, Rule 5A:12(c) also bars our consideration of this
issue on appeal.

"The admissibility of evidence is within
the broad discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of
discretion." Blain v. Commonwealth, 7 Va. App. 10,
16, 371 S.E.2d 838, 842 (1988). To establish the necessary
foundation for the admission of real evidence, the party offering
it must show that it is both relevant and authentic. See 1
Charles E. Friend, The Law of Evidence in Virginia 13-5,
at 546 (4th ed. 1993).

Regarding relevancy, "‘[a]ny fact,
however remote, that tends to establish the probability or
improbability of a fact in issue is admissible.’" Wynn
v. Commonwealth
, 5 Va. App. 283, 291, 362 S.E.2d 193, 198
(1987) (citation omitted). Authenticity of "a tangible,
solid object [for which] no chemical analysis is involved"
may be established through circumstantial evidence "that the
item is what it purports to be . . . and that its
condition has not changed materially since its initial
discovery." Friend, supra, at 546; see Wileman
v. Commonwealth
, 24 Va. App. 642, 648, 484 S.E.2d 621, 624
(1997). "‘The court must determine if the
circumstantial evidence is sufficient to justify the
document’s admission; the jury will then, as in all cases,
make an independent decision as to whether the document is
genuine.’" Duncan v. Commonwealth, 2 Va. App.
717, 726-27, 347 S.E.2d 539, 544 (1993) (citation omitted).

The evidence in the record is sufficient to
establish both the relevance and the authenticity of
Commonwealth’s Exhibits 2 through 9, despite the inability
of Thomas Kidd to testify at trial about where he obtained the
items. The evidence established that, on the morning of April 13,
1989, Joann and Thomas Kidd were concerned about the victim.
Thomas Kidd went to the victim’s house, phoned Joann Kidd
sounding "concerned," and immediately returned home
"upset." After calling several relatives to try to
locate the victim, Joann and Thomas Kidd reported the victim
missing and gave to Officer Daniel Dickson the atlas,
Commonwealth’s exhibit 2, with several other items,
Commonwealth’s exhibits 3 through 9, tucked inside it. Joann
Kidd and the victim’s husband testified that they had never
seen the atlas or any of the other items prior to April 13, 1989,
and that, to their knowledge, neither they nor Thomas Kidd nor
the victim had any connection to the Knight’s Inn or the
Post Oak Market and none had purchased the lottery tickets.

Deputy Dickson testified that within hours of
receiving the atlas and other items from Thomas Kidd, he found at
the victim’s nearby residence (1) a map page,
Commonwealth’s exhibit 12, which had been torn out of the
atlas he received from Thomas Kidd, and (2) a list,
Commonwealth’s exhibit 10. This circumstantial evidence
supported a finding that Thomas Kidd found the atlas and other
items, Commonwealth’s exhibits 2 through 9, at the
victim’s residence and turned them over to Deputy Dickson,
thereby establishing their authenticity.

Other evidence–including appellant’s
statements to police, the testimony of Timothy Trent and the
owner of the Post Oak Market, and the fingerprint and handwriting
evidence–supported a finding that the atlas and other items
belonged to appellant. The challenged exhibits were relevant in
that they tended to prove that appellant was both in Orange
County and on the victim’s property about the time she
disappeared. Because the circumstantial evidence supported a
finding that Commonwealth’s exhibits 2 through 9 were both
relevant and authentic, the trial court did not abuse its
discretion in admitting them into evidence.

For these reasons, we hold that the trial court
did not err in admitting the contested DNA evidence, excluding
the challenged blood typing evidence, refusing to appoint a
fingerprint or handwriting expert, and admitting the atlas and
other items Thomas Kidd gave to Deputy Dickson. Therefore, we
affirm appellant’s convictions.

Affirmed.

* Pursuant to Code Sect. 17.1-413,
recodifying Code Sect. 17-116.010, this opinion is not
designated for publication.

 

FOOTNOTES:

[1] On brief,
appellant objected to the absence of a "profile" rather
than a "probability report." However, his description
of what he sought makes clear his objection was to the absence of
evidence of the random-match probability, which we refer to
herein as a probability calculation or probability report. See
National Research Council, The Evaluation of Forensic DNA
Evidence
2, 12-14, 25, 29-31, 217 (1996); see also
Code Sect. 19.2-310.2 (in statute requiring certain
convicted felons to provide samples for DNA analysis, referring
to "[DNA] analysis to determine identification
characteristics specific to the person" as "the
profile"). A probability calculation or probability report
indicating the "statistical probability of a DNA match"
constitutes a profile, report or statement within the meaning of
Code Sect. 19.2-270.5. See Caprio v. Commonwealth,
254 Va. 507, 512, 493 S.E.2d 371, 373-74 (1997).

Scroll To Top