Husske v. Com.

• Decision Date: 20 September 1994
• Docket Number: No. 0829-92-2,0829-92-2
• Citation: 19 Va.App. 30,448 S.E.2d 331
• Parties: , 63 USLW 2259 Paul J. HUSSKE, S/K/A Paul Josef Husske v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 331

448 S.E.2d 331

19 Va.App. 30, 63 USLW 2259

Paul J. HUSSKE, S/K/A Paul Josef Husske v. COMMONWEALTH of Virginia.

Record No. 0829-92-2.

Court of Appeals of Virginia.

Sept. 20, 1994.

Rehearing En Banc Granted Sept. 19, 1995.

[19 Va.App. 31] Steven D. Benjamin, Richmond (Benjamin and Associates, on briefs), for appellant.

Virginia B. Theisen, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: BENTON, KOONTZ and WILLIS, JJ.

BENTON, Judge.

The trial judge, sitting without a jury, convicted Paul Josef Husske of forcible sodomy, rape, robbery, and breaking and entering with intent to rape. Husske contends that the trial judge erred in holding (1) that the Commonwealth was not required to provide to him, an indigent defendant, expert assistance to defend against the Commonwealth's expert testimony concerning deoxyribonucleic acid (DNA) analysis and (2) that his incriminating statements to a mental health counselor were admissible and not barred by the Fifth and Fourteenth Amendment privileges against self-incrimination. We hold that the trial judge erred in both instances. Thus, we reverse Husske's convictions and remand for a new trial.

I.

In June 1990, a man broke a window and entered a woman's apartment. After striking the victim in the head and face, the intruder pulled the victim's skirt over her face. The intruder committed acts of cunnilingus, rape, and robbery against the victim. The intruder also caused the victim to commit an act of fellatio. Although the victim heard the intruder's voice and saw enough of him to conclude that he was a Caucasian male, she did not see his face well enough to identify him. No one was immediately arrested for the offenses. After the attack, the police retrieved fluids suitable for genetic testing from a cervical swab of the victim and from a stain on the victim's skirt.

Ten months later, Husske was arrested and charged with forcible sodomy, robbery, rape, and breaking and entering with the intent to commit rape. Husske moved before and during the trial for the appointment of an expert in DNA analysis to assist him in his defense. The trial judge refused to appoint such an expert, but prior to trial he appointed as co-counsel to Husske's trial At trial, 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 for the Commonwealth as expert witnesses on DNA analysis. Both testified that Husske's DNA profile matched the profile of the person who assaulted the victim.

                counsel a second attorney who was represented to be "the most knowledgeable member of the local bar in the area of forensic DNA application."   The trial judge stated that he had no authority to appoint expert assistance for Husske
                

Vanti testified that the DNA analysis did not exclude Husske as a contributor of the genetic material found in the victim's body and on the victim's clothing. Over the objection of Husske's counsel, she testified concerning the Federal Bureau of Investigation's DNA data base. She testified that the population in the data base used by the FBI was in Hardy-Weinberg equilibrium and that the statistical probability of randomly selecting a person unrelated to Husske in the Caucasian population with the same DNA profile was 1 in 700,000.

Professor Weir testified that his "unbiased estimator" of the likelihood of a randomly selected Caucasian bearing the same DNA profile as Husske was 1 in 700,000. He also testified that his "lower confidence limit" estimate of the same likelihood was "not more than 1 in 400,000." Professor Weir stated that by the term "lower confidence limit" he meant that ninety-nine percent of the times he conducted the procedure for determining probability of a match his answer would be 1 in 400,000. Professor Weir based these estimates of the likelihood of another randomly selected Caucasian person having the same DNA pattern as Husske on a data base compiled by the FBI. Professor Weir testified on cross-examination that there was no controversy in the scientific community about the validity of the FBI data base.

At the close of the Commonwealth's evidence, Husske renewed his motion for expert assistance and in support of the motion proffered reports, testimony, articles, case law, and other documents that purported to show that challenges have been raised regarding the statistical data and assumptions used by the FBI to calculate the likelihood of a match between a randomly selected person and the person whose bodily material was subject to DNA analysis. The trial judge again denied the motion. At the close of the evidence, the trial judge convicted Husske of all charges.

II.

Citing Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), Husske contends that "the Fourteenth Amendment's due process guarantee of fundamental fairness" entitled him to a court-appointed expert on DNA to assist him in his defense.

In Ake, the Supreme Court reaffirmed a "long recognized [elementary principle] 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 its defense." 470 U.S. at 76, 105 S.Ct. at 1092. The Court emphasized that the due process concern for "[m]eaningful access to justice" is not satisfied when an indigent defendant is denied "access to the raw materials integral to the building of an effective defense." Id. at 77, 105 S.Ct. at 1093. The Court further stated that:

[W]hile the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, it has often reaffirmed that fundamental fairness entitles indigent defendants to "an adequate opportunity to present their claims fairly within the adversary system." To implement this principle, we have focused on identifying the "basic tools of an adequate defense or appeal," and we have required that such tools be provided to those who cannot afford to pay for them.

Id. (citations omitted).

Although a concurring opinion stated that "[n]othing in [Ake ] reaches noncapital cases," 470 U.S. at 87, 105 S.Ct. at 1098 (Burger, C.J., concurring), the majority's holding did not limit the ruling to capital cases, see id. at 83, 105 S.Ct. at 1096, and the decisional majority was not dependent upon Likewise, when due process considerations are raised to question issues of trial fairness and the lack of an adequate opportunity to present a defense, nothing in Ake suggests that the underlying contested issue must relate only to the defendant's sanity. Indeed, Ake expressly stated that sanity was not the only issue upon which a defendant was entitled to the assistance of an expert. The Court extended its ruling to the use of expert testimony when "the defendant's future dangerousness" was at issue. 470 U.S. at 83-84, 105 S.Ct. at 1096-97. Although dangerousness is an issue that sometimes may relate to sanity, dangerousness does not necessarily relate to issues of sanity. Cf. Foucha v. United States, 504 U.S. 71, ---- - ----, 112 S.Ct. 1780, 1782-83, 118 L.Ed.2d 437 (1992); Estelle v. Smith, 451 U.S. 454, 472, 101 S.Ct. 1866, 1878, 68 L.Ed.2d 359 (1981). In summary, nothing in the majority opinion in Ake can be read to preclude the application of the due process analysis to any case in which an expert is necessary to provide the defendant with "a fair opportunity to present his defense." 470 U.S. at 76, 105 S.Ct. at 1092.

the vote of the concurring Chief Justice. The holding in Ake was grounded in a due process analysis. Id. at 76, 105 S.Ct. at 1092-93; Moore v. Kemp, 809 F.2d 702, 709 n. 6 (11th Cir.), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987). Although Ake involved a prosecution for capital murder, nothing in the Court's discussion of "the Fourteenth Amendment's due process guarantee of fundamental fairness," the basic underpinning of the rule announced in Ake, suggests that the holding in Ake is limited to capital murder cases. See 470 U.S. at 76-85, 105 S.Ct. at 1092-97.

In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the Court found no cause to address whether a defendant was denied the court-appointed assistance of "various experts and investigators in violation of federal constitutional law." Id. at 323-24 n. 1, 105 S.Ct. at 2637 n. 1. However, the majority opinion noted that the "requests were accompanied by no showing as to their reasonableness" and "that petitioner offered little more than undeveloped assertions that the requested assistance would be beneficial." Id. The Court contrasted those bare assertions with the showing required by Ake. Nothing in Ake or Caldwell remotely suggests that the Supreme Court of the United States would not apply the same due process analysis that it used in an appropriate case of non-psychiatric expert assistance.

Likewise, and contrary to the Commonwealth's arguments, the Supreme Court of Virginia has not specifically ruled that the holding in Ake was limited to cases involving insanity or imposition of the death penalty. In Pope v. Commonwealth, 234 Va. 114, 360 S.E.2d 352 (1987), cert. denied, 485 U.S. 1015, 108 S.Ct. 1489, 99 L.Ed.2d 716 (1988), the trial judge denied a capital murder defendant's motion "to appoint an investigator to 'comb the neighborhood' for potential witnesses." Id. at 119, 360 S.E.2d at 356. Although the Court rejected Pope's argument that he was entitled to relief in accord with Ake, the Court grounded its reason in Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985), cert. denied, 475 U.S. 1099, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986). In Watkins, the court held consistent with the decisions of the Supreme Court of the United States that the mere " 'fact that a particular service might be of benefit to...