Edward Wayne Beverly v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 29, 1999
• Docket: 0852982
• Status: Unpublished

Opinion

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).

- 2 - [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.

- 3 - 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

- 4 - 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

- 5 - 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

- 6 - 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

- 7 - 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

- 8 - 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

- 9 - 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

For these reasons, we hold that the trial court did not err

in admitting the contested DNA evidence, excluding the

- 10 - 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.

- 11 -