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HUSSKE v. COMMONWEALTH


Present: Carrico,
C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., and Poff, Senior Justice

Record No.
951880

PAUL JOSEF
HUSSKE

v.

COMMONWEALTH OF
VIRGINIA

FROM THE COURT
OF APPEALS OF VIRGINIA

OPINION BY
JUSTICE LEROY R. HASSELL, SR.

September 13,
1996

The primary issue we consider
in this appeal is whether an indigent defendant
has made the particularized showing necessary to
require the Commonwealth, under the Due Process
and Equal Protection clauses of the Fourteenth
Amendment of the federal Constitution, to supply
at its expense a DNA expert to assist the
defendant.

I.

Paul Josef Husske was convicted
in a bench trial of breaking and entering with
intent to commit rape and the offenses of
forcible sodomy, rape, and robbery. He was
sentenced as follows: 20 years’ imprisonment,
suspended after serving 10 years, for breaking
and entering with the intent to commit rape; 20
years’ imprisonment, suspended after serving 10
years, for forcible sodomy; 40 years’
imprisonment, suspended after serving 20 years,
for rape; and 10 years’ imprisonment, suspended
after serving five years, for robbery.

The defendant appealed to the
Court of Appeals, and a panel of that Court
reversed the judgment of the trial court. The
panel held that the defendant had a
constitutional right to the appointment of a DNA
expert at the Commonwealth’s expense to assist
him, and that the trial court erred by admitting
in evidence certain statements that the defendant
had made to mental health workers. Husske
v. Commonwealth, 19 Va. App. 30, 448
S.E.2d 331 (1994). The Court of Appeals granted
the Commonwealth’s petition for a rehearing en
banc, vacated the panel’s judgment, and,
by an equally divided Court, affirmed the
judgment of the trial court. Husske v. Commonwealth,
21 Va. App. 91, 462 S.E.2d 120 (1995). We awarded
the defendant an appeal.

II.

The victim, a young woman,
lived in an apartment complex in Henrico County.
One night as she was asleep in bed, she was
awakened by being struck in the face with a hard
object. She observed that her assailant, who was
wearing a stocking over his face, was a white
male with brown hair. He wore fabric gloves and
threatened to kill her unless she was quiet. She
recognized the attacker’s voice because, on
several earlier occasions, he had placed
telephone calls to her home and left sexually
obscene comments recorded on her telephone
answering machine.

The assailant forced the victim
to commit an act of oral sodomy upon him. He then
placed a knife against her throat, and he moved
the blade of the knife over her breasts, stomach,
and toward her genital area. He committed an act
of oral sodomy upon her and then raped her.

The assailant directed the
victim "to go to her bathroom and
shower." She turned on the water, but she
did not bathe. The assailant took a purse,
containing about $500 in cash, from the victim’s
room.

After the attacker fled, the
victim went to her neighbors’ apartment. Police
officers were summoned, and the victim was taken
to a hospital where a physical evidence recovery
kit was prepared. Hospital personnel used swabs
to take specimens from the victim’s mouth, upper
thigh, vulva, and vaginal vault. A nurse also
extracted blood from the victim which, along with
the specimens, were placed in sealed containers
and given to a police investigator, who took them
to a laboratory for testing.

About four months after the
victim was assaulted, a Henrico County police
officer saw the defendant standing near the rear
of an apartment located about 200 feet from the
victim’s apartment. The officer arrested the
defendant and charged him with two "peeping
tom" offenses.

Two days after his arrest, the
defendant voluntarily contacted the Henrico
County Mental Health and Retardation Services
offices. An intake referral form was completed,
and a notation was made on that form that the
defendant had been referred by an attorney. The
form contained a place to mark whether the
contact was court ordered. A block containing the
word "no" was marked.

On October 17, 1990, Ann C.
Creed, an employee of Henrico County Mental
Health and Retardation Services, completed a
"Brief Evaluation Form and Client Data
Form" for the defendant. Creed noted on the
form that the defendant was depressed and
chronically suicidal, and that his condition was
exacerbated by his arrest on the "peeping
tom" charges. The defendant stated that even
though this was his first arrest on such a
charge, he had been engaging in this behavior for
20 years and had gone "one step
further." He told Creed that he felt shame
about his behavior and that he was "not
worried about court involvement but [was] concerned over family’s reaction to learning of
his behavior."

The defendant appeared in the
Henrico County General District Court on October
31, 1990, and pled guilty to the "peeping
tom" offenses. He was sentenced on each
charge to 12 months in jail with 12 months
suspended, conditioned upon being of good
behavior and keeping the peace for five years,
and monitoring by the Community Diversion
Incentive Program. The defendant was also
required to continue participation in the Henrico
County Mental Health and Retardation Services
treatment program as a condition of his suspended
sentence. On November 9, 1990, the defendant met
with Dr. Michael Elwood, an employee of Henrico
County Mental Health and Retardation Services.
Dr. Elwood and the defendant discussed the
defendant’s arrest on the "peeping tom"
charges and the problems the arrest had caused
with the defendant’s marriage.

The defendant met with Dr.
Elwood on December 28, 1990, for "a suicide
screening." The defendant had attempted
suicide a week earlier. Dr. Elwood made
arrangements for the defendant to be admitted on
a voluntary basis to a hospital. The defendant’s
wife, who was present at this meeting, told the
defendant that he should tell Dr. Elwood
"what else was troubling him." The
defendant’s wife left, and Dr. Elwood asked the
defendant about his wife’s comments. The
defendant stated that he had attempted rapes in
the past and that he had "completed a
rape." Dr. Elwood did not question the
defendant about the crimes at that time.

The defendant remained in the
hospital for a few weeks, and Dr. Elwood did not
contact him. Dr. Elwood met with the defendant on
January 17, 1991. During that session, the
defendant told Dr. Elwood that the defendant had
attempted three rapes in the midwest and that he
had "completed a rape" in the Richmond
area about six months earlier in the same complex
where he had been arrested for
"peeping." The defendant said that he
had watched the victim for several days before he
raped her, and he conveyed to Dr. Elwood the
details of his "successful rape." The
defendant mentioned that he had used a rubber
mallet to stun his victim, that he had pulled her
nightclothes over her head, and that he ordered
her "to shower" after the attack. Dr.
Elwood did not insist upon details from the
defendant, but listened to his statements.

Dr. Elwood recommended that the
defendant be considered for participation in a
sexual offenders’ group. Subsequently, Dennis K.
Kilgore and Patricia L. Winterberger, employees
of Henrico County Mental Health and Retardation
Services, evaluated the defendant. Dr. Elwood was
present and did not observe anyone threaten or
coerce the defendant during the session. The
defendant essentially made the same statements
about the "completed rape" to Kilgore
and Winterberger that he had made to Dr. Elwood.
The defendant’s incriminating statements were
subsequently communicated to the police, and he
was arrested and charged for these offenses.

III.

Several months before trial,
the defendant filed a motion asserting his
indigency and requesting that the trial court
appoint an expert, at the Commonwealth’s expense,
to help him challenge the DNA evidence that the
Commonwealth intended to use. The trial court
denied the motion. Two months later, the
defendant renewed his motion for the appointment
of an expert. He attached an affidavit from an
attorney, William T. Linka, who had read
extensively on the subject of DNA and who held
himself out as an attorney familiar with issues
surrounding the forensic applications of DNA
technology. Even though the trial court denied
the defendant’s motion, the court appointed Linka
as co-counsel to assist the defendant.

On the morning of trial, the
defendant again asserted that he was entitled to
the appointment of an independent defense expert
in the forensic applications of DNA science and
technology. The trial court informed the
defendant’s counsel that it had appointed Linka
to serve as co-counsel for the defendant because
the defendant’s primary counsel had represented
to the court that Linka was "the most
knowledgeable member of the local bar in the area
of forensic DNA application." The trial
court denied the defendant’s request for the
appointment of a DNA expert at the Commonwealth’s
expense.

Marion S. Vanti, an employee of
the Commonwealth’s Division of Forensic Science,
and Dr. Bruce Spencer Weir, a Professor of
Statistics and Genetics at North Carolina State
University, testified at trial for the
Commonwealth as expert witnesses on the subject
of DNA analysis. Both witnesses testified that
the defendant’s DNA profile matched the profile
of the individual who had attacked the victim.
Vanti testified that the DNA analysis did not
exclude the defendant as a contributor of the
genetic material that the assailant left on the
victim’s body and clothing. She further stated
that the statistical probability of randomly
selecting a person unrelated to the defendant in
the Caucasian population with the same DNA
profile was 1 in 700,000. Weir also testified
that the likelihood of a randomly selected
Caucasian bearing the same DNA profile as the
defendant was 1 in 700,000.

The defendant, relying
principally upon Ake v. Oklahoma,
470 U.S. 68 (1985), asserts that the Due Process
and Equal Protection clauses of the Fourteenth
Amendment required that the trial court appoint,
at the Commonwealth’s expense, an expert to help
him challenge the Commonwealth’s forensic DNA
evidence. The Commonwealth asserts that the
defendant has no constitutional right under the
Due Process or Equal Protection clauses for the
appointment, at the Commonwealth’s expense, of a
DNA expert.

In Ake, the Supreme
Court considered whether an indigent defendant
has a constitutional right to a psychiatric
examination and psychiatric assistance necessary
to prepare an effective defense based on his
mental condition, when his sanity at the time he
committed the criminal offense is seriously in
question. The Court stated:

"This Court has long
recognized that when a State brings its
judicial power to bear on an indigent
defendant in a criminal proceeding, it must
take steps to assure that the defendant has a
fair opportunity to present his defense. This
elementary principle, grounded in significant
part on the Fourteenth Amendment’s due
process guarantee of fundamental fairness,
derives from the belief that justice cannot
be equal where, simply as a result of his
poverty, a defendant is denied the
opportunity to participate meaningfully in a
judicial proceeding in which his liberty is
at stake."

Id. at 76. The Supreme
Court, holding that an indigent defendant is
entitled to the appointment of a psychiatrist to
assist him in his defense, explained its
rationale:

"We recognized long
ago that mere access to the courthouse doors
does not by itself assure a proper
functioning of the adversary process, and
that a criminal trial is fundamentally unfair
if the State proceeds against an indigent
defendant without making certain that he has
access to the raw materials integral to the
building of an effective defense. Thus, while
the Court has not held that a State must
purchase for the indigent defendant all the
assistance that his wealthier counterpart
might buy, see Ross v. Moffitt,
417 U.S. 600 (1974), it has often reaffirmed
that fundamental fairness entitles indigent
defendants to ‘an adequate opportunity to
present their claims fairly within the
adversary system,’ id., at 612. To
implement this principle, we have focused on
identifying the ‘basic tools of an adequate
defense . . .’ Britt v. North
Carolina
, 404 U.S. 226, 227 (1971), and
we have required that such tools be provided
to those defendants who cannot afford to pay
for them."

Id. at 77. The Supreme
Court concluded that the Due Process clause’s
guarantee of fundamental fairness is implicated

"when [an indigent] defendant demonstrates to the trial judge
that his sanity at the time of the offense is
to be a significant factor at trial, [and
that in such circumstances] the State must,
at a minimum, assure the defendant access to
a competent psychiatrist who will conduct an
appropriate examination and assist in
evaluation, preparation, and presentation of
the defense."

Id. at 83.

In Caldwell v. Mississippi,
472 U.S. 320 (1985), the Supreme Court noted that
a trial court had properly denied an indigent
defendant’s requests for the appointment of a
criminal investigator, a fingerprint expert, and
a ballistics expert, and also that the Supreme
Court of Mississippi properly affirmed the trial
court’s decision because the defendant’s requests
were accompanied by no showing of reasonableness.
The Supreme Court stated:

"[T]he defendant’s
request for a ballistics expert included
little more than ‘the general statement that
the requested expert "would be of great
necessarius witness."’ . . . Given that
petitioner offered little more than
undeveloped assertions that the requested
assistance would be beneficial, we find no
deprivation of due process in the trial
judge’s decision. . . . We therefore have no
need to determine as a matter of federal
constitutional law what if any showing would
have entitled a defendant to assistance of
the type here sought."

Id. at 323 n.1.

Our research reveals that most
courts which have considered the question whether
an indigent defendant is entitled to the
appointment of a non-psychiatric expert have
applied the rationale articulated in Ake,
and, those courts have held that the Due Process
and Equal Protection clauses require the
appointment of non-psychiatric experts to
indigent defendants depending upon whether the
defendants made a particularized showing of the
need for the assistance of such experts. See,
e.g., Little v. Armontrout,
835 F.2d 1240, 1243-44 (8th Cir. 1987), cert.
denied
, 487 U.S. 1210 (1988); Moore v.
Kemp, 809 F.2d 702, 709-12 (11th Cir.), cert.
denied
, 481 U.S. 1054 (1987); Thornton
v. State, 339 S.E.2d 240, 241 (Ga. 1986); Harrison
v. State, 644 N.E.2d 1243, 1252-53 (Ind.
1995); Kennedy v. State, 578 N.E.2d
633, 639-40 (Ind. 1991), cert. denied, 503
U.S. 921 (1992); State v. Coker,
412 N.W.2d 589, 592-93 (Iowa 1987); Polk
v. State, 612 So.2d 381, 393-94 (Miss.
1992); State v. Moseley, 449 S.E.2d
412, 424-25 (N.C. 1994), cert. denied, ___
U.S. ___, 115 S.Ct. 1815 (1995); State v. Mills,
420 S.E.2d 114, 117-19 (N.C. 1992); Rogers
v. State, 890 P.2d 959, 966-67 (Okla.
Crim. App. 1995), cert. denied, ___ U.S.
___, 116 S.Ct. 312 (1995); State v. Edwards,
868 S.W.2d 682, 697-98 (Tenn. Crim. App. 1993); Rey
v. State, 897 S.W.2d 333, 337-38 (Tex.
Crim. App. 1995).

We are of opinion that Ake
and Caldwell, when read together, require
that the Commonwealth of Virginia, upon request,
provide indigent defendants with "the basic
tools of an adequate defense," Ake,
470 U.S. at 77, and, that in certain instances,
these basic tools may include the appointment of
non-psychiatric experts. This Due Process
requirement, however, does not confer a right
upon an indigent defendant to receive, at the
Commonwealth’s expense, all assistance that a
non-indigent defendant may purchase. Rather, the
Due Process clause merely requires that the
defendant may not be denied "an adequate
opportunity to present [his] claims fairly within
the adversary system." Ross v. Moffitt,
417 U.S. 600, 612 (1974).

Moreover, an indigent
defendant’s constitutional right to the
appointment of an expert, at the Commonwealth’s
expense, is not absolute. We hold that an
indigent defendant who seeks the appointment of
an expert witness, at the Commonwealth’s expense,
must demonstrate that the subject which
necessitates the assistance of the expert is
"likely to be a significant factor in his
defense," Ake, 470 U.S. at 82-83, and
that he will be prejudiced by the lack of expert
assistance. Id. at 83. An indigent
defendant may satisfy this burden by
demonstrating that the services of an expert
would materially assist him in the preparation of
his defense and that the denial of such services
would result in a fundamentally unfair trial. See
State v. Mills, 420 S.E.2d at 117.
The indigent defendant who seeks the appointment
of an expert must show a particularized need:

"’Mere hope or
suspicion that favorable evidence is
available is not enough to require that such
help be provided.’ . . . ‘This particularized
showing demanded . . . is a flexible one and
must be determined on a case-by-case basis.’
. . . The determination . . . whether a
defendant has made an adequate showing of
particularized necessity lies within the
discretion of the trial judge."

Id. Accord Caldwell,
472 U.S. at 323-34 n.1.

Contrary to the Commonwealth’s
arguments, we have not specifically held that Ake
is implicated only in those cases where the
defendant’s sanity at the time he committed an
offense is seriously in question. In Pope
v. Commonwealth, 234 Va. 114, 360 S.E.2d
352 (1987), cert. denied, 485 U.S. 1015
(1988), we rejected an indigent defendant’s
contention that he had a constitutional right to
the appointment, at the Commonwealth’s expense,
of a private investigator. There, we held that
the trial court properly denied the defendant’s
motion "to appoint an investigator to ‘comb
the neighborhood’ for potential witnesses." Id.
at 119, 360 S.E.2d at 356.

Although in Pope we
rejected the defendant’s argument that he was
entitled to relief in accord with Ake, we
relied upon Watkins v. Commonwealth,
229 Va. 469, 331 S.E.2d 422 (1985), cert.
denied
, 475 U.S. 1099 (1986), in reaching our
conclusion. In Watkins, we held that
consistent with the decisions of the United
States Supreme Court, the mere "fact that a
particular service might be of benefit to an
indigent defendant does not mean that the service
is constitutionally required." Id. at
478, 331 S.E.2d at 430 (quoting Ross v. Moffitt,
417 U.S. 600, 616 (1974)). Thus, in Pope
and Watkins, the indigent defendants
failed to make the requisite particularized
showing of the need for the requested expert
assistance.

Here, we are of opinion that
the trial court did not err by refusing to
appoint a DNA expert witness to assist Husske
with the preparation of his defense.
[1] As we previously stated, an indigent
defendant who seeks the appointment of an expert,
at the Commonwealth’s expense, must show a
particularized need for such services and that he
will be prejudiced by the lack of expert
assistance. The defendant failed to meet these
requirements. At best, the defendant asserted, inter
alia, that: DNA evidence is "of a
highly technical nature;" he thought it was
difficult for a lawyer to challenge DNA evidence
without expert assistance; and he had concerns
about the use of DNA evidence because "the
Division of Forensic Science [was] no longer
[conducting] paternity testing in [c]riminal
cases." The defendant’s generalized
statements in his motions simply fail to show a
particularized need.

Additionally, the defendant
failed to demonstrate that he would be prejudiced
by the lack of expert assistance. Indeed, he
could not make such a showing because, as the
evidence of record reveals, he confessed to the
crimes, and he described the details of his
offenses with great specificity.

We emphasize that the Due
Process and Equal Protection clauses do not
require the appointment, at the Commonwealth’s
expense, of an expert witness for every indigent
defendant. As the United States Court of Appeals
for the 11th Circuit has stated:

"Requiring trial
courts, both state and federal, to provide
for expert assistance–through direct
appointment or a grant of funds–would place
a substantial, if not onerous, burden on the
administration of criminal justice. For
example, the trial court would have to (1)
appoint a defense expert for every expert
available to the government; (2) provide for
expert assistance whether or not such
assistance turned out to be needed; and (3)
provide for any additional experts the
appointed experts might need to explore
theories that could aid the defense in
cross-examining prosecution witnesses or in
presenting the defense’s case. We question
the wisdom of such due process requirements
absent a substantial showing, such as the one
made in Ake, of a significant benefit
to the truth-seeking function of a
trial."

Moore, 809 F.2d at 712
n. 8.

IV.

The defendant argues that the
trial court erred by failing to suppress his
"incriminating statements made to mental
health workers during the course of court-ordered
therapy," and that the use of "evidence
derived therefrom, violated due process and his
Fifth and Fourteenth Amendment rights against
compulsory self-incrimination." As we
previously mentioned, the defendant voluntarily
enrolled in the Henrico County Mental Health and
Retardation Services treatment program before he
was convicted of the "peeping tom"
offenses. The general district court, which
convicted him of these offenses, suspended
imposition of the sentences conditioned upon his
continued participation in this program. The
defendant says that his "admissions to his
mental health worker were coerced by the
necessity of his complying with the terms of his
suspended sentences. The alternative to
incriminating himself was the imposition of a
twenty-four (24) month jail sentence." We
disagree with the defendant.

The Fifth Amendment of the
federal Constitution states, in relevant part,
that no person "shall be compelled in any
criminal case to be a witness against
himself." This prohibition "not only
protects the individual against being
involuntarily called as a witness against himself
in a criminal prosecution but also privileges him
not to answer official questions put to him in
any other proceeding, civil or criminal, formal
or informal, where the answers might incriminate
him in future criminal proceedings." Lefkowitz
v. Turley, 414 U.S. 70, 77 (1973).

The Fifth Amendment, however,
only prohibits the use of a witness’ statements
which are the product of compulsion:

"The [Fifth] Amendment
speaks of compulsion. It does not preclude a
witness from testifying voluntarily in
matters which may incriminate him. If,
therefore, he desires the protection of the
privilege, he must claim it or he will not be
considered to have been ‘compelled’ within
the meaning of the Amendment."

Minnesota v. Murphy,
465 U.S. 420, 427 (1984) (quoting United
States
v. Monia, 317 U.S. 424, 427
(1943)). The Supreme Court has stated that

"in the ordinary case,
if a witness under compulsion to testify
makes disclosures instead of claiming the
privilege, the government has not ‘compelled’
him to incriminate himself. . . . Witnesses
who failed to claim the privilege were once
said to have ‘waived’ it, but we have
recently abandoned this ‘vague term,’ . . .
and ‘made clear that an individual may lose
the benefit of the privilege without making a
knowing and intelligent waiver.’"

465 U.S. at 427-28.

In Murphy, the Supreme
Court considered whether the Fifth and Fourteenth
Amendments prohibit the introduction in evidence
of incriminating statements that a parolee made
during a meeting with his probation officer. In
1974, Marshall Murphy was questioned by police
concerning the rape and murder of a teenage girl.
In 1980, Murphy pleaded guilty to an unrelated
criminal charge. His punishment was fixed at 16
months’ imprisonment, which was suspended, and
three years’ probation. As conditions of
probation, Murphy was required to participate in
a treatment program for sexual offenders, to
report to his probation officer as directed, and
to be truthful with the probation officer
"in all matters." Murphy was informed
that if he failed to comply with these
conditions, his suspension could be revoked. Id.
at 422.

Murphy met with his probation
officer regularly until July 1981, when the
probation officer learned that Murphy had ceased
participation in the sexual offenders’ treatment
program. The probation officer informed Murphy by
letter that his failure to meet with her would
result in an immediate request for a warrant.
Subsequently, a counselor in the sexual offender
treatment program informed Murphy’s probation
officer that, during the course of treatment,
Murphy had admitted that he had committed a rape
and murder in 1974. The probation officer met
with her supervisor, and the probation officer
decided that she would convey this information to
the police. The probation officer sent a letter
to Murphy and asked him to contact her to discuss
a treatment plan for the rest of his probationary
period. Even though the probation officer did not
contact the police before she met with Murphy,
she had decided before the meeting that she would
report any incriminating statements he made to
her to the police. Id. at 423.

Subsequently, Murphy met with
the probation officer in her office. The
probation officer told Murphy that she had
learned that he had admitted to having committed
a rape and murder in 1974 and that this
information indicated to her that he needed
additional treatment. Murphy admitted to the
probation officer that he had committed the rape
and murder. The probation officer informed Murphy
that she intended to relay the information to the
police, and she encouraged him to turn himself
in, which he refused to do. Subsequently, Murphy
was arrested and convicted of first-degree
murder. Id. at 423-25.

Rejecting Murphy’s contention
that his confession was the product of compulsion
and, thus, inadmissible, the Supreme Court
stated:

"The threat of
punishment for reliance on the privilege
[against self-incrimination] distinguishes
cases of this sort from the ordinary case in
which a witness is merely required to appear
and give testimony. A State may require a
probationer to appear and discuss matters
that affect his probationary status; such a
requirement, without more, does not rise to a
self-executing privilege. The result may be
different if the questions put to the
probationer, however relevant to his
probationary status, call for answers that
would incriminate him in a pending or later
criminal prosecution. There is thus a
substantial basis in our cases for concluding
that if the State, either expressly or by
implication, asserts that invocation of the
privilege would lead to r evocation of
probation, it would have created the classic
penalty situation, the failure to assert the
privilege would be excused, and the
probationer’s answers would be deemed
compelled and inadmissible in a criminal
prosecution.

Even so we must inquire
whether Murphy’s probation conditions merely
required him to appear and give testimony
about matters relevant to his probationary
status or whether they went further and
required him to choose between making
incriminating statements and jeopardizing his
conditional liberty by remaining silent.
Because we conclude that Minnesota did not
attempt to take the extra, impermissible
step, we hold that Murphy’s Fifth Amendment
privilege was not self-executing."

Id. at 435-36 (footnote
omitted).

Applying the aforementioned
principles here, we hold that Husske’s statements
were not the product of compulsion and, thus, his
Fifth Amendment right against self-incrimination
was not violated. First, we note that the
defendant’s obligation to participate in the
mental health treatment program did not in itself
convert his "otherwise voluntary statements
into compelled ones." Id. at 427. We
also observe that the defendant, just as in Murphy,
was not in custody for purposes of receiving Miranda
protection when he made his incriminating
statements. Id. at 430.

Here, just as in Murphy,
no one required Husske "to choose between
making incriminating statements and jeopardizing
his conditional liberty by remaining
silent." Id. at 436. The record
before us is devoid of any evidence that the
employees of Henrico County Mental Health and
Retardation Services coerced the defendant in any
manner. There is no evidence of record that
anyone forced the defendant to talk or threatened
him in any way. To the contrary, the defendant,
at the urging of his wife, volunteered to Dr.
Elwood the statement that the defendant had
"completed a rape." After the defendant
made his confessions, he executed a release
authorizing Henrico County Mental Health and
Retardation Services to transmit this information
to the Community Diversion Incentive Program.

V.

For the foregoing reasons, we
will affirm the judgment of the Court of Appeals.

Affirmed.

SENIOR JUSTICE POFF, concurring
in part and dissenting in part.

The majority affirms the
judgment of the Court of Appeals sitting en
banc
, Husske v. Commonwealth, 21 Va.
App. 91, 462 S.E.2d 120 (1995). Under the mandate
of that judgment, the earlier judgment and
mandate of a panel of that Court, Husske v.
Commonwealth
, 19 Va. App. 30, 448 S.E.2d 331
(1994), were "withdrawn" and
"vacated", and the judgment of the
trial court was "affirmed", 21 Va. App.
at 92, 462 S.E.2d at 120.

On the Fifth Amendment
self-incrimination issue, I concur with the
decision of the majority to apply the rule in Minnesota
v. Murphy
, 465 U.S. 420 (1984). I dissent
from the majority’s decision upholding the denial
of Husske’s request for expert assistance
concerning the controversy over the reliability
of forensic DNA evidence that prevailed at the
time of this trial. I do not, however, advocate a
per se rule applicable in every
prosecution of an indigent defendant.
[2]

In Ake v. Oklahoma, 470
U.S. 68 (1985), the Supreme Court, invoking the
principles applied in Griffin v. Illinois,
351 U.S. 12 (1956) and in Britt v. North
Carolina
, 404 U.S. 226 (1971), held that the
due process and equal protection clauses of the
Fourteenth Amendment require a State to provide
"the basic tools of an adequate defense . .
. to those defendants who cannot afford to pay
for them." 470 U.S. at 77. The panel of the
Court of Appeals held that the rule in Ake
is not limited to capital murder prosecutions or
to cases involving an insanity defense. I agree.
The majority of this Court does not disagree.

The Ake rule applies,
however, only when the defendant makes a
"threshold showing" that the assistance
of an expert to confront the prosecution will be
"a significant factor at trial". 470
U.S. at 83. In satisfying that requirement, the
defendant’s burden is twofold. The accused must
demonstrate that the expert is required to
address a critical issue and that the expert’s
assistance will contribute to the formulation and
perfection of a viable defense. In response to
such a showing, "the State must, at a
minimum, assure the defendant access to [an
expert] who will . . . assist in evaluation,
preparation, and presentation of the
defense." Id.

The majority of this Court
holds that the Commonwealth had no such duty here
because, they conclude, Husske failed to
"show a particularized need and that he
[would] be prejudiced by the lack of expert
assistance." My reading of the record
compels the opposite conclusion.

Husske made five
"threshold" motions for expert
assistance. Their cumulative effect was
sufficient to show the trial judge that expert
knowledge was to become "a significant
factor at trial."

In the first motion, counsel
advised the court that "[t]he Commonwealth
intends to introduce . . . the evidence of DNA
analysis" which he characterized as
"crucial to the Commonwealth’s case."
In support of the second motion, he filed the
affidavit of an adjunct counsel, a practicing
attorney reputed to be the most knowledgeable
member of the local bar in the area of forensic
DNA application. The affiant opined that "it
is impossible for a lay person to successfully
challenge the DNA testing and results without the
aid of an expert." He explained that he was
"concerned about the problems in testing
degraded, low molecular weight forensic
samples" and by "over 100 possible
problem areas in the use of restrictive enzymes
that could lead to an erroneous inclusion."

In preparation for the third
request for assistance, counsel filed a motion
for discovery of the Commonwealth’s DNA evidence
which resulted in disclosure of "all the
protocols, copies of the autorads, as well as a
47-page Certificate of Analysis." In support
of the fourth and fifth motions for assistance,
counsel pursued the arguments he had advanced
earlier.

Renewing the motion at the
conclusion of the Commonwealth’s evidence, he
proffered some 400 pages of court opinions and
testimony "taken in various other
cases" that dramatized the nature and
dimensions of the DNA dispute prevalent at that
time in the scientific community
[3]. A sampling of the expert testimony
adduced in those cases reveals that, in the two
years preceding Husske’s trial, many learned
scientists had concluded that portions of the DNA
testing procedure were "badly flawed,"
"unreliable" and "demonstrably
wrong." And, at least one expert
characterized the scientific debates as
"significant and honestly-held
disagreement" over the validity of testing
techniques.

Clearly, the Commonwealth’s
forensic DNA evidence was a critical issue
because it was "a significant factor"
in the identification of Husske as the criminal
agent. Hence, the prevailing scientific
controversy created a "particularized
need" to challenge the laboratory
methodology employed in the DNA analysis, the
validity of the conclusions reached by the
analysts, and the testimony of the Commonwealth’s
expert witnesses. Knowledgeable as they were in
the law, Husske’s attorneys were laymen in the
science of forensic chemistry, and as an indigent
accused, Husske was prejudiced by his inability
to obtain the expert assistance necessary to
satisfy that need.

Consequently, under the facts
of this case, the denial of the defense motions
for expert assistance was a denial of Husske’s
rights under the Fourteenth Amendment to due
process and equal protection of the laws.


[1] We do not consider the defendant’s
contention that his Sixth Amendment rights of
confrontation and compulsory process were
abridged. The defendant did not make these
arguments in the trial court, and we will not
consider them here. Rule 5:25. Additionally, in
view of our holding, we need not consider
defendant’s assertion that the trial court
abridged his Sixth Amendment right to effective
assistance of counsel by refusing to appoint an
expert to assist him with the preparation of his
DNA defense.

[2] Compare the facts and circumstances
underlying the conclusions reached in the
precedents of this Court in Stewart v.
Commonwealth
, 245 Va. 222, 239, 427 S.E.2d
394, 405, cert. denied, 510 U.S.
848, 114 S. Ct. 143 (1993); George v.
Commonwealth
, 242 Va. 264, 271, 411 S.E.2d
12, 16 (1991), cert. denied, 503
U.S. 973 (1992); O’Dell v. Commonwealth,
234 Va. 672, 686, 364 S.E.2d 491, 499, cert.
denied, 488 U.S. 871 (1988); Townes v.
Commonwealth
, 234 Va. 307, 332, 362 S.E.2d
650, 664 (1987), cert. denied, 485
U.S. 971 (1988); Pope v. Commonwealth, 234
Va. 114, 119, 360 S.E.2d 352, 356 (1987), cert.
denied, 485 U.S. 1015 (1988). See also
Moore v. Kemp, 809 F.2d 702, 712 n. 8
(11th Cir.), cert. denied, 481 U.S.
1054 (1987).

[3] Although the items proffered were
excluded from evidence, they were admitted as
exhibits for the record.


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