MATTHEW M. DOWDY v. COMMONWEALTH OF VIRGINIA
Record No. 082143
Supreme Court of Virginia
November 5, 2009
JUSTICE CYNTHIA D. KINSER
PRESENT: Koontz, Kinser, Lemons, Goodwyn, and Millette, JJ., and Carrico and Russell, S.JJ.
In Husske v. Commonwealth, 252 Va. 203, 476 S.E.2d 920 (1996), we held “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,’ and that he will be prejudiced by the lack of expert assistance.” Id. at 211-12, 476 S.E.2d at 925 (internal citations omitted) (quoting Ake v. Oklahoma, 470 U.S. 68, 82-83 (1985)). In this appeal, we decide, among other issues, whether the Husske prejudice requirement runs afoul of the decision in Ake and whether the trial court abused its discretion by refusing to provide all the investigative services requested by the defendant. We answer these questions in the negative and, finding no other error, we will affirm the judgment of the Court of Appeals of Virginia upholding the defendant‘s convictions.
Matthew M. Dowdy was indicted in the Circuit Court of Fairfax County for the rape and first-degree murder of Judy Jaimie Coate in violation of
Following argument by the parties, the circuit court denied Dowdy‘s motion seeking the appointment of an investigator. Citing this Court‘s decision in Husske, the circuit court explained that Dowdy needed to demonstrate not only that the subject for which expert assistance was sought,
More than nine months later, Dowdy moved for reconsideration of the circuit court‘s denial of his request for the appointment of an investigator. Dowdy claimed that he needed an investigator to inspect the crime scene, pursue information about alternate suspects, and locate individuals who could corroborate Dowdy‘s alibi and provide evidence about the relationship between Coate and Dowdy. Further, Dowdy argued that the discovery of personal effects purportedly belonging to an individual named Billy Gacheru near the crime scene now made appointment of an investigator crucial, as necessary to finding Gacheru. Dowdy also argued, as before, that an investigator was needed to avoid a possible conflict
Both orally before the circuit court and in a memorandum, Dowdy raised the claim that denial of investigative services, which are made available to persons represented by the public defender, deprived him of due process and equal protection of the law, as required by the
The circuit court rejected Dowdy‘s argument that he needed an investigator to offer impeachment evidence if witnesses testified contrary to their prior statements, noting that use of a signed statement from each potential witness would resolve the dilemma posed by Dowdy. Dowdy agreed with the court‘s observation. The circuit court, however, granted
At trial, the evidence showed that Coate‘s body was discovered on September 27, 2005 behind a large, metal telephone utility box located near Lee Highway in Fairfax County. Dowdy admitted that he had been in that location previously to drink, as recently as the Tuesday before Coate was killed. A trail of bloody footprints leaving the crime scene continued for approximately 275 feet towards the City of Falls Church, where Dowdy was then residing in a motel room, before becoming too faint to trace.4
Coate had been stabbed repeatedly and had sustained, among other injuries, an incise wound to her neck, fractured ribs, two fractures of her jaw, and multiple abrasions and bruises. The medical examiner who performed an autopsy on Coate‘s body opined that the cause of death was the “incise wound of [the] neck with contributing multiple stab wounds and blunt force injuries.” Based on the nature of the stabbing and cutting wounds, he also opined that a knife had been used to inflict them.5 The medical examiner, however, could not
A friend of Coate‘s, Stephanie Schelhorn, testified that she spoke by telephone with the victim around noon on September 23 regarding their plans to go out of town during the upcoming weekend. Schelhorn was unable to make further contact with the victim. Coate‘s supervisor at her place of employment, a temporary staffing agency located adjacent to Lee Highway, saw Coate sometime between 3 p.m. and 6 p.m. on September 23 when she came in from a job assignment to collect her pay. A blood-soaked paycheck from Coate‘s employer was found in her pants pocket at the crime scene, but the condition of the check made its date illegible.
Dowdy admitted seeing the victim twice on September 23. The first encounter occurred between 1:30 p.m. and 2:45 p.m. at the staffing agency‘s office, where Dowdy also worked. Dowdy left the office but returned at approximately 6:00 p.m., hoping to get a job assignment for the evening. Learning that no jobs were available, Dowdy went to an adjacent convenience store where he saw Coate. Coate agreed to accompany Dowdy to a nearby plaza. Dowdy and Coate subsequently proceeded on foot to a liquor store, by way of a townhouse where one of Dowdy‘s friends resided, arriving at the liquor store between 6:25 p.m. and 6:45 p.m. Dowdy purchased a bottle of liquor
Dowdy testified that he walked a short distance, in the opposite direction as Coate, to a bus stop where he waited approximately 15 minutes for a bus that transferred him to another bus stop. He eventually rode a bus to a soccer field, arriving at approximately 8:00 p.m. Dowdy claimed that he met several friends there but then left only a few minutes later. According to Dowdy, he spent the remainder of the night, from approximately 8:20 p.m. until 12:30 a.m., with friends walking around and drinking at various locations, returning to his motel room at 1:30 a.m.
The next morning, September 24, Dowdy returned to his employer‘s office around 6:25 a.m. to find work, but when he
Dowdy testified on direct examination that he and Coate parted company in front of the convenience store at approximately 11:15 a.m., but on cross-examination Dowdy stated that he left her at the front of their employer‘s office at approximately 6:55 a.m. Dowdy claimed that he spent the remainder of the day at a friend‘s house, his motel room, and his employer‘s office. Dowdy stated that he never saw Coate again and maintained he had no part in her rape and murder.
Several items of physical evidence were recovered at the crime scene and during the autopsy. The evidence included vaginal swabs taken from the victim that revealed spermatozoa. A forensic scientist generated a DNA profile from those swabs
Police investigators also lifted latent hand and finger prints from the doors of the electrical utility box, and obtained hand and finger prints from Coate during the autopsy, and hand and finger prints from Dowdy. William J. Reeves, who was employed by the Fairfax County Police Department and qualified at trial as an expert in the field of fingerprint analysis, concluded that a bloody palm print and fingerprints lifted from the utility box matched Dowdy‘s known prints.
During cross-examination, Reeves testified that he was “a hundred percent certain that Mr. Dowdy left the prints,” and on both cross-examination and redirect stated that any inconsistency in the number of points he identified at Dowdy‘s preliminary hearing was attributable to confusion as to the area of the print about which he was being questioned. Reeves admitted that during his approximately 28 years working in the field of fingerprint identification prior to his employment with the Fairfax County Police Department, he had worked with known prints, not latent prints.9 Reeves testified, however,
Reeves was also asked during cross-examination whether he was aware of and/or followed the Fairfax County Police Department guidelines for latent fingerprint examination, and whether he took steps to guard against expectation bias-when observations may be skewed toward what the observer expects to see. Reeves testified that he was not aware of and did not follow any Fairfax County guidelines, but nevertheless did comply with the generally accepted practices for latent fingerprint evaluation, did not deviate from those practices, or take any shortcuts. Acknowledging the danger of
With regard to his evaluation process and timeline, Reeves testified that he was unsure of the exact dates on which he performed the evaluation of the latent prints. Reeves was uncertain as to which known prints, Coate‘s or Dowdy‘s, he first compared with the latent prints recovered from the utility box door, and he used only Coate‘s known prints as “elimination prints.”10 Reeves also stated that he did not prepare a contemporaneous report of his conclusions or make contemporaneous notes, instead finishing his standard, one-page report about a month after completing his evaluation of the prints. While the report provided no basis for his conclusion that Dowdy‘s known prints matched the latent prints, it did, however, state that there were no latent prints of identification value that remained unidentified. Finally, Reeves testified that he turns over his work to other fingerprint examiners to have them “independently check [and] verify” the accuracy of his conclusions and that he does not “make an identification if there is a doubt about” whether two prints came from the same subject.
The jury returned a verdict of guilty on both charges. Dowdy was sentenced to life imprisonment on the first-degree murder conviction and 30 years imprisonment on the rape conviction, to run consecutively.
In a per curiam order, the Court of Appeals of Virginia refused Dowdy‘s appeal.12 Dowdy v. Commonwealth, Record No.
The Court of Appeals further applied
The Court of Appeals, however, did reach Dowdy‘s final contention that the circuit court erred by refusing to strike the fingerprint expert‘s testimony as scientifically unreliable. Finding that the circuit court did not abuse its discretion in failing to strike Reeves’ testimony, the Court of Appeals observed that fingerprint analysis, which was the scientific method offered, required no foundation of reliability because it is “‘so familiar and accepted.‘” Id., slip op. at 12-13 (quoting Spencer v. Commonwealth, 240 Va. 78, 97, 393 S.E.2d 609, 621 (1990) (emphasis omitted)). As to the reliability of Reeves’ analysis of the latent prints found at the crime scene, the Court of Appeals concluded that his testimony, in which Reeves indicated that he “followed the generally accepted practices of the latent fingerprint community” and obtained independent verification of his
Now on appeal to this Court, Dowdy raises multiple assignments of error that can, however, be grouped into three categories: (1) procedural issues concerning the Court of Appeals’ application of
II. DISCUSSION
A. Procedural Issues
Dowdy challenges the holding of the Court of Appeals that, under
B. Appointment of Investigator
In challenging the circuit court‘s refusal to appoint an investigator, Dowdy not only asserts that he made the
1. Husske Prejudice
In Ake v. Oklahoma, the Supreme Court of the United States decided “whether, and under what conditions, the participation of a psychiatrist is important enough to preparation of a defense to require the State to provide an indigent defendant with access to competent psychiatric assistance in preparing the defense.” 470 U.S. at 77. The Court identified three factors that were relevant to the determination:
the private interest that will be affected by the action of the State[;] the governmental interest that will be affected if the safeguard is to be provided[; and] the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.
Weighing the nature of the private interest at stake with the probable value that appointment of the expert would add against the burden on the State, the Court concluded that “when the State has made the defendant‘s mental condition
While Ake involved the appointment of a psychiatric expert, we observed in Husske that courts have held “that the Due Process and Equal Protection clauses require the appointment of non-psychiatric experts to indigent defendants” where “the defendants ma[k]e a particularized showing of the
need for the assistance of such experts.” 252 Va. at 211, 476 S.E.2d at 925. We viewed the Ake and Caldwell decisions as requiring the Commonwealth to provide indigent defendants with “these “‘basic tools of an adequate defense,‘” when properly requested, but not “all assistance that a non-indigent defendant may purchase.” Husske, 252 Va. at 211, 476 S.E.2d at 925 (quoting Ake, 470 U.S. at 77).
We thus held “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,’ and that he will be prejudiced by the lack of expert assistance.” Id. at 211-12, 476 S.E.2d at 925 (internal citations omitted) (quoting Ake, 470 U.S. at 82-83). We further stated that an indigent defendant satisfies this test by showing 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.” Id. at 212, 476 S.E.2d at 925. Dowdy contends that Husske‘s requirement of prejudice imposed a burden on him beyond that required by Ake and thus violated his due process rights. We do not agree.
Essential to our holding in Husske was the determination that an indigent defendant‘s private interest in an accurate
Other jurisdictions have adopted a similar construction of Ake. See, e.g., Ford v. Seabold, 841 F.2d 677, 690-91 (6th Cir. 1988) (holding that denial of expert assistance did not
We conclude that Husske‘s requirement of prejudice is faithful to Ake and is nothing more than another way of asking whether the denial of expert assistance would result in a fundamentally unfair trial, thereby bringing into question the accuracy of the criminal proceeding. See Moore, 809 F.2d at 712 (“[A] defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.“); accord Page v. Lee, 337 F.3d 411, 416 (4th Cir. 2003). Thus, the circuit court did not violate Dowdy‘s due process rights when it analyzed his request for appointment of an investigator using the criteria articulated in Husske: whether Dowdy‘s alleged alibi was likely to be a significant factor in his defense and whether he would be prejudiced by the denial of additional investigative services.
2. Denial of Investigator
Dowdy argues the circuit court erred when it refused to appoint an investigator to assist in locating and interviewing a “host of people” who allegedly saw Dowdy on the evening of September 23 and the next morning, and could have corroborated Dowdy‘s alibi.15 Dowdy claims he satisfied the Husske and Ake requirements by showing that the subject necessitating expert assistance, his alibi, would be a significant factor in his defense and that he would be prejudiced without investigative services. We do not agree.
As we have already stated, an indigent defendant requesting expert assistance has the burden to make “a particularized showing of the need” for such assistance. Husske, 252 Va. at 211, 476 S.E.2d at 925. Whether an indigent defendant makes that showing is determined on a case-by-case basis, and the determination is a matter resting within a trial court‘s discretion. Green v. Commonwealth, 266 Va. 81, 92, 580 S.E.2d 834, 841 (2003); Barnabei v. Commonwealth, 252 Va. 161, 171, 477 S.E.2d 270, 276 (1996). When deciding whether an indigent defendant has shown a particularized need, the trial court must consider all the
To demonstrate a particularized need, an indigent defendant must offer more than a ““[m]ere hope or suspicion that favorable evidence is available.‘” Husske, 252 Va. at 212, 476 S.E.2d at 925 (citation omitted); see also Commonwealth v. Sanchez, 268 Va. 161, 166, 597 S.E.2d 197, 200 (2004) (“[C]onclusory assertions” that expert testimony regarding scientific testing may show the presence of errors that “‘could have had a significant impact‘” were not “‘particularized’ because they indicate[d] nothing more than [the defendant‘s] ‘hope or suspicion.‘“). For example, in Husske, we held the defendant‘s explanation as to why he needed a DNA expert, i.e., because DNA evidence is technical, an attorney cannot challenge such evidence without expert assistance, and the Division of Forensic Science no longer
Likewise, Dowdy did not show a particularized need for additional investigative services as he did not demonstrate that the services “would materially assist him in the preparation of his defense and that the denial of such services would result in a fundamentally unfair trial.” Husske, 252 Va. at 212, 476 S.E.2d at 925. His stated reasons for needing an investigator fell short of the required showing when viewed in light of the facts and circumstances made known to the circuit court at the time of the request.
Dowdy‘s only defense was that of alibi: one that is “based on the physical impossibility of a defendant‘s guilt by placing the defendant in a location other than the scene of the crime at the relevant time.” Black‘s Law Dictionary 84 (9th ed. 2009); see also Cooper v. Commonwealth, 277 Va. 377, 384, 673 S.E.2d 185, 189 (2009) (same). Dowdy‘s own representations to the circuit court in his request for an investigator demonstrate that defense‘s lack of viability.
Dowdy admitted to the circuit court in his multiple requests that he was alone with Coate on Friday, September 23, 2005, the last day anyone other than Dowdy claimed to have seen Coate alive. Dowdy also admitted that he had consensual intercourse with Coate on the morning of September 24. Tellingly, Dowdy did not allege that there were witnesses who could confirm his activities with Coate, or that Coate was alive after Dowdy and she parted company on September 24. Instead, Dowdy described the witnesses to be found as persons “who saw Mr. Dowdy on September 23” and September 24 that could, “for as much time as possible,” corroborate his whereabouts and . . . his alibi,” “testify concerning his demeanor and appearance,” and bolster Dowdy‘s credibility. An investigator was also sought to find and interview individuals “whose names and addresses [he did] have,” investigate “information discovered there at the . . . crime scene,” and “determine . . . the nature and extent of [Dowdy and Coate‘s] friendship.” Thus, the evidence that the requested investigator would supposedly have uncovered would not have established that Dowdy lacked the opportunity to commit the rape and murder.
Dowdy‘s testimony at trial further demonstrates that he lacked a particularized need for additional investigative services. Dowdy mentioned various persons who saw him on September 23, but did not indicate that any of them could testify to his whereabouts from, at the latest, 6:45 p.m. on September 23, when Dowdy admitted he and Coate were together
Thus, we hold that the circuit court did not abuse its discretion in refusing to provide Dowdy with additional investigative services, as Dowdy‘s representations to the
3. Equal Protection Challenge
Dowdy alleges that, but for a conflict of interest, he would have been represented by the public defender‘s office and would have had available to him the services of that office‘s investigator. See
Without deciding whether Dowdy stated an equal protection claim or what test would govern the disposition of such a claim, we conclude that Dowdy‘s argument fails. Under his own construct, he made no showing that, if he had been represented by the public defender, that office would have “actually used” available investigative resources for the purposes Dowdy requested appointment of an investigator. Having failed to make that showing, there can be no violation of equal protection.
Thus, Dowdy is in the same position as other indigent defendants requesting expert assistance. Whether a request for appointment of expert assistance is based on the Due Process or Equal Protection clause, the test is whether an indigent defendant has made a particularized showing of need for the expert assistance. See Husske, 252 Va. at 211, 476 S.E.2d at 925 (courts have applied the same analysis to a defendant‘s equal protection and due process claims to appointment of an expert). As we have already stated, Dowdy did not establish a particularized need for additional investigative services.
Dowdy alleges that denial of an investigator contravened the provisions of
The provisions of
Both of these statutes merely authorize a trial court to exercise its discretion in awarding reasonable expenses incurred by counsel appointed to represent indigent defendants. Neither statute mandates the appointment of experts to assist indigent defendants, nor their counsel. Thus, there could be no abuse of discretion for failing to use these statutes to provide additional investigative services to Dowdy.
C. Admissibility of Fingerprint Testimony
Dowdy assigns error to the circuit court‘s refusal to strike Reeves’ testimony. Dowdy claims Reeves’ opinion, that the prints recovered from the crime scene matched prints taken from Dowdy, was not reliable because Reeves did not follow the generally accepted practices and procedures for examining and identifying latent prints. In particular, Dowdy points to the following as examples of Reeves’ flawed methodology: not
Dowdy also cites Reeves’ failure to calculate an error rate with regard to his fingerprint identification, and the lack of a scientific basis for the number of points he used to make the identification. Finally, Dowdy argues that the circuit court improperly placed the burden of proving the testimony‘s unreliability on Dowdy, rather than properly placing the burden to prove reliability on the Commonwealth, and also used an incorrect legal standard for the admission of expert testimony when the court admitted the testimony on the finding that Reeves’ opinion was not “inherently incredible.”
The “admission of expert testimony is in the sound discretion of the trial court.” Payne v. Commonwealth, 277 Va. 531, 542, 674 S.E.2d 835, 841 (2009) (citation omitted);
“When scientific evidence is offered, the court must make a threshold finding of fact with respect to the reliability of the scientific method offered, unless it is of a kind so familiar and accepted as to require no foundation to establish the fundamental reliability of the system, such as fingerprint analysis.” Spencer, 240 Va. at 97, 393 S.E.2d at 621 (citing Avent v. Commonwealth, 209 Va. 474, 478, 164 S.E.2d 655, 658 (1968) (“‘The accuracy of fingerprint identification is a matter of common knowledge and no case has been cited, and we have found none, where identification so established has been rejected.‘“)); accord Billips v. Commonwealth, 274 Va. 805, 808-09, 652 S.E.2d 99, 101 (2007). When the scientific method has been found reliable, either by its familiarity or a specific finding, a trial court must then find that the “expert testimony [is] based on an adequate foundation;
Because the reliability of fingerprint identification methodology need not be established, Spencer, 240 Va. at 97, 393 S.E.2d at 621, the Commonwealth had the burden to show only that Reeves’ opinion had an adequate foundation.18 Reeves examined all the relevant data, the palm and finger prints lifted from the utility box and those taken from Dowdy, leaving no part of the prints with identification value unidentified. This analysis occurred over a period of days. Reeves reviewed much of the basis for his conclusions during his testimony, identifying both points of agreement that he relied on to make a positive identification and those portions of the print he did not use for lack of the necessary clarity or continuity. Reeves also testified that he turned over his work to another fingerprint examiner so that the accuracy of his conclusions could be verified. Finally, he stated that he did not deviate from the generally accepted practices for latent fingerprint evaluation.
III. CONCLUSION
For the reasons stated, we will affirm the judgment of the Court of Appeals upholding Dowdy‘s conviction for the rape and first-degree murder of Judy Jaimie Coate.
Affirmed.