Husske v. Com.

• Decision Date: 13 September 1996
• Docket Number: No. 951880,951880
• Parties: Paul Josef HUSSKE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 920

476 S.E.2d 920

252 Va. 203

Paul Josef HUSSKE v. COMMONWEALTH of Virginia.

Record No. 951880.

Supreme Court of Virginia.

Sept. 13, 1996.

Steven D. Benjamin, Richmond (Betty Layne DesPortes; Steven D. Benjamin & Associates, on briefs), for appellant.

Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: CARRICO, C.J., COMPTON, STEPHENSON, LACY, HASSELL and KEENAN, JJ., and POFF, Senior Justice.

HASSELL, Justice.

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...