Edward Wayne Beverly v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner
Argued at Richmond, Virginia
EDWARD WAYNE BEVERLY
MEMORANDUM OPINION * BY
v. Record No. 0852-98-2 JUDGE LARRY G. ELDER
JUNE 29, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Lloyd C. Sullenberger, Judge
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 § 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
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the trial court committed no reversible error, and we affirm
appellant’s convictions.
1. ADMISSIBILITY OF DNA EVIDENCE UNDER CODE § 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
§ 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
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
§ 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 § 19.2-270.5. See Caprio v. Commonwealth, 254
Va. 507, 512, 493 S.E.2d 371, 373-74 (1997).
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[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 § 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 § 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.
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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
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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
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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
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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
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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
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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
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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
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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.
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