Dowdy v. Com.

PRESENT: Koontz, Kinser, Lemons, Goodwyn, and Millette, JJ.,
and Carrico and Russell, S.JJ.

MATTHEW M. DOWDY
OPINION BY
v. Record No. 082143 JUSTICE CYNTHIA D. KINSER
November 5, 2009
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

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.
 I. MATERIAL FACTS AND PROCEEDINGS

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 Code §§ 18.2-61 and –32,

respectively. In a pre-trial motion, Dowdy requested the

appointment of an investigator to aid in building Dowdy's

alibi defense and to rebut the Commonwealth's theory that the

murder occurred on September 23, 2005. At a hearing on the

motion, Dowdy explained that he was with the victim on

September 23 and again the next morning when, according to

Dowdy, they engaged in consensual sexual intercourse. Dowdy

also asserted that he had a list of witnesses, some of whom

allegedly saw him either on September 23 or 24 and could

corroborate Dowdy's statements to the police regarding his

activities on those two days. Thus, according to Dowdy, he

needed an investigator to interview these witnesses because if

his attorney did so, the attorney would not be able to impeach

such a witness at trial if the witness testified

inconsistently with his or her prior statement.

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,

2
i.e., Dowdy's alleged alibi, would be a significant factor in

his defense but also that he would be prejudiced without the

services of an investigator. As to the prejudice showing, the

court noted that the only justification offered for the

appointment of an investigator was the inability of Dowdy's

counsel, as opposed to that of an investigator, to offer

impeachment testimony if witnesses testified contrary to their

earlier statements. Thus, the court concluded that the

appointment of an investigator was not warranted under those

circumstances. 1

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

1
In his pre-trial motion, Dowdy also requested the
appointment of a forensic pathologist. The circuit court
granted that request.

3
for his counsel if witnesses' testimony differed from

statements given to his counsel.

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 Fifth and Fourteenth Amendments. 2

In his memorandum, Dowdy also argued that requiring an

"advance showing of prejudice" under Husske violated his due

process rights and contravened the decision of the United

States Supreme Court in Ake, and further that denial of an

investigator violated his Sixth Amendment right to the

effective assistance of counsel and was not in accord with

Code § 19.2-163. 3

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

2
Apparently, the public defender could not represent
Dowdy because of a conflict of interest.
3
Dowdy also raised these latter arguments in a memorandum
in support of his original motion for the appointment of an
investigator.

4
the motion for the appointment of an investigator for the

limited purpose of locating Billy Gacheru and directed that

the investigator perform solely that task.

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

4
A crime scene police investigator testified that the
footprints were left by an “athletic shoe.” Dowdy admitted
that he was wearing tennis shoes on September 23.
5
The murder weapon was not recovered.

5
pinpoint the time of death because of the body's decomposed

condition.

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

6
while Coate waited outside. 6 According to Dowdy, he and Coate

walked together a short distance from the liquor store and

then parted company, with Coate heading toward a beauty salon

along a route that would take her within one hundred and

thirty yards of the location where her body was later

discovered. 7

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

6
When the police initially interrogated Dowdy after
Coate's body was discovered, he did not tell them about
walking with the victim to the liquor store. He later
admitted doing so when confronted with pictures obtained from
a video surveillance camera at the liquor store. The pictures
showed Coate and Dowdy together at the liquor store.
7
Dowdy's motel room was a "couple miles" from the place
where Dowdy testified that he left the victim on the evening
of September 23.

7
discovered that no one was on duty, he walked behind the

adjacent convenience store and gas station, where he

encountered Coate. Dowdy stated that Coate was drinking,

visibly upset, and conversing with a man whose name Dowdy did

not know. According to Dowdy, the man left shortly after

Dowdy arrived, at which point Coate began to cry and threw her

arms around Dowdy. Dowdy testified that he and Coate then

engaged in consensual sexual intercourse in a grassy area only

partially visible from the adjacent street. 8

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

8
When questioned by the police, Dowdy initially denied
having sexual intercourse with the victim.

8
and when that profile was compared with the DNA profile

generated from buccal swabs taken from Dowdy, the results

could not eliminate Dowdy as a contributor of the DNA

developed from the vaginal swabs—the DNA profiles matched.

The forensic scientist testified that the "probability of

randomly selecting an unrelated individual with a DNA profile

matching the foreign DNA profile developed from the vaginal

sample . . . is one in greater than 6.5 billion[,] which is

approximately the world population in the Caucasian, Black,

and Hispanic populations." Forensic testing of a pair of

underwear found three to four feet from Coate's head at the

crime scene revealed the presence of Dowdy's DNA in "the

underwear sperm fraction." Dowdy, however, was eliminated as

a contributor to a DNA profile developed from the crotch of

the underwear. That profile was consistent with a mixture "of

two individuals' genetic material."

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.

9
Reeves testified that he reached this conclusion upon finding

30 points of agreement [corresponding features of ridge detail

created by the impression of a hand or finger] between the

prints taken from Dowdy and those lifted from the utility box.

Reeves opined that the prints on the utility box door could

not have been there before the blood was deposited on it.

Another crime scene investigator who also qualified as an

expert in the field of fingerprint identification agreed: "the

handprints that are on that door in blood are there from a

transfer of a wet hand onto a dry surface."

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,

9
Known prints, also called "ink prints," are taken from
an identified subject by "the recording of the tips of the
fingers from the first joint to the tip of the finger onto
generally a white card using . . . black printers ink."
Latent prints are "hidden or undeveloped, and must be

10
that since joining the Fairfax County Police Department over

five years ago, his work as a fingerprint examiner has

involved comparing known prints with latent prints "every day

of the week," specifically affirming that he engages in

"continuous comparison of fragmentary impressions,

observations of peculiarities and variations and thoughtful

consideration" of latent prints. Reeves admitted, however,

that he had not taken a proficiency test for several years,

although the Scientific Working Group on Friction Ridge

Analysis, Study and Technology ("SWGFAST") guidelines, which

he recognized as authoritative, directed that such a test be

completed annually.

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

developed or [made] visible through some means of either
powdering or some type of chemical development."

11
expectation bias, Reeves stated that he nevertheless examined

the latent prints lifted from the utility box door knowing

Dowdy was the main suspect.

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.

10
Elimination prints are those taken from persons who
were known to be at the place in question for legitimate
reasons.

12
 At the conclusion of Reeves' testimony, Dowdy moved to

strike the testimony on the grounds that Reeves' method of

identifying the latent prints as Dowdy's was not

scientifically reliable because Reeves deviated from the

SWGFAST guidelines, performed no validity testing, had no

method for calculating an error, had no scientific basis for

the number of points he used, did not do proficiency testing,

made no notes, and utilized only one set of elimination

prints. The circuit court overruled the motion, concluding

that the concerns raised went to the credibility of Reeves'

testimony, which was for the jury to decide. The court

concluded that Reeves' opinion was not "inherently incredible"

and that his training and experience rendered his testimony

admissible. 11

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.

11
The circuit court also denied Dowdy’s motion to strike
the evidence as to both charges.
12
A three-judge panel of the Court of Appeals
subsequently refused Dowdy's appeal and affirmed his
convictions for the reasons previously stated in its per

13
2204-07-4, slip op. at 7 (May 30, 2008). As to Dowdy's

challenge to the circuit court's refusal to appoint an

investigator to find persons who allegedly saw Dowdy the night

of September 23, the Court of Appeals concluded that these

potential witnesses, if found by an investigator, could not

buttress Dowdy's alibi because he had admitted being alone

with Coate not far from the crime scene the morning of

September 24. Id. The Court of Appeals also rejected Dowdy's

claim that he needed to find and interview individuals who

allegedly saw Dowdy later in the day on September 24. Id.

The Court of Appeals further applied Rule 5A:18 to bar

review of Dowdy's argument that requiring a showing of

prejudice under Husske contravened the decision in Ake,

Dowdy's assertion that his equal protection rights were

violated because he would have had the services of an

investigator if he had been represented by the public

defender, and his claim that the provisions of Code §§ 19.2-

163 and –332 required the appointment of an investigator.

Id., slip op. at 8-10. Although Dowdy raised these arguments

in memoranda before the circuit court, the Court of Appeals

concluded that the arguments were waived because Dowdy did not

make the particular arguments during the hearings in the

curiam order. Dowdy v. Commonwealth, Record No. 2204-07-4,
slip op. at 1 (Oct. 2, 2008).

14
circuit court and the court did not specifically rule on them.

Id. The Court of Appeals also held that Dowdy's claim

asserting that the circuit court's refusal to appoint an

investigator denied him the effective assistance of counsel

could not be raised on direct appeal. 13 Id., slip op. at 10.

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

13
The Court of Appeals in its per curiam order also held
that Dowdy, by agreeing with the circuit court's suggestion
that he obtain signed statements from all potential witnesses
interviewed to avoid the purported advocate-witness conflict
for his counsel, had waived any claim of error as to that
particular ruling. Dowdy, slip op. at 7-8.

15
findings by another fingerprint examiner, provided "a

sufficient foundation to warrant admission of the testimony."

Id., slip op. at 13.

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 Rule 5A:18 and Dowdy's ineffective

assistance of counsel claim; (2) failure to appoint an

investigator and related questions concerning the Husske

prejudice requirement, equal protection, and a statutory claim

to investigative services; and (3) admission of the testimony

of Reeves, the Commonwealth's fingerprint analyst. We will

address the issues in that order.

II. DISCUSSION

A. Procedural Issues

Dowdy challenges the holding of the Court of Appeals

that, under Rule 5A:18, he waived the following arguments:

the showing of prejudice articulated in Husske imposed a

burden on him that is not in accord with the decision in Ake

and therefore violated his right to due process; the circuit

court violated his right to equal protection because he would

have received the services of an investigator if he had been

represented by the public defender; and Code §§ 19.2-163 and –

332 required the appointment of an investigator. We conclude

16
that the Court of Appeals erred in its application of Rule

5A:18. As we recited in section one of this opinion, Dowdy

raised each of the foregoing arguments either at the hearing

when he requested the circuit court to reconsider its refusal

to appoint an investigator or in memoranda that were before

the circuit court at the time of its initial decision on his

request or later on reconsideration of its ruling. At both

hearings on this issue, the circuit court expressly indicated

that it had read Dowdy's pleadings, and refused the relief

requested. Thus, Dowdy did not waive these particular

arguments, and they are now properly before this Court. 14 See

Rule 5:25.

14
When Dowdy filed his petition for appeal, he presented
ten assignments of error, and this Court granted an appeal on
all the assignments of error. Dowdy v. Commonwealth, Record
No. 082143 (Apr. 8, 2009). In his opening brief filed
pursuant to Rules 5:27 and 5:17(c), he omitted four of the
assignments of error in the heading titled "Assignments of
Error." Three of the omitted assignments of error challenge
the circuit court's substantive rulings on whether the Husske
prejudice requirement contravenes the decision in Ake, whether
Dowdy's equal protection rights were violated, and whether he
has a statutory right to appointment of an investigator.
Those three omitted assignments of error are thus waived. See
Rules 5:27 and 5:17(c); White v. Commonwealth, 267 Va. 96,
102-03, 591 S.E.2d 662, 665-66 (2004) (holding that the Court
will not consider assignments of error as modified by
appellant’s opening brief, but only as granted by the Court).
We can, however, reach the underlying issues raised in those
omitted assignments of error because Dowdy’s first assignment
of error encompasses the same issues and because Dowdy briefed
those issues.
The fourth omitted assignment of error challenges the
circuit court's conclusion that refusing to appoint an

17
 The Court of Appeals, however, did not err in holding

that Dowdy's ineffective assistance of counsel claim based on

the denial of investigative services may not be heard on

direct appeal. Johnson v. Commonwealth, 259 Va. 654, 675, 529

S.E.2d 769, 781 (2000). Insofar as Dowdy now argues that the

circuit court's refusal to appoint an investigator violated

his right to counsel under the Sixth Amendment, we hold that

Dowdy defaulted that claim by arguing in the circuit court

only that it denied him effective assistance of counsel. See

Rule 5:25.

B. Appointment of Investigator

In challenging the circuit court's refusal to appoint an

investigator, Dowdy not only asserts that he made the

investigator did not amount to ineffective assistance of
counsel. This challenge to the circuit court’s decision is
likewise waived, but we nevertheless reach the remaining
assignment of error challenging the Court of Appeals’ holding
that Dowdy could not raise his ineffective assistance of
counsel claim on direct appeal.
We also note that, in Dowdy's opening brief, he reworded
his first assignment of error challenging the circuit court's
refusal to appoint an investigator. While it is improper for
an appellant to alter the wording of an assignment of error
from that stated in the petition for appeal, non-substantive
changes to an assignment of error, like those in Dowdy's first
assignment of error, do not default the issue raised.
Allstate Ins. Co. v. Gauthier, 273 Va. 416, 418 n.*, 641
S.E.2d 101, 103 n.* (2007). See Hudson v. Pillow, 261 Va.
296, 301-02, 541 S.E.2d 556, 560 (2001) (holding that the
Court could review a modified assignment of error because the
modification did not allow the appellant to argue “a different
question on appeal or an issue not presented to the [trial
court]”).

18
requisite showing of particularized need but also claims that

the Husske prejudice requirement is not in accord with Ake and

violated his due process rights, that his equal protection

rights were violated, and that Code §§ 19.2-163 and –332

required the appointment of an investigator. We will address

each claim separately, starting with the prejudice issue.

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.

Id.

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

19
relevant to his criminal culpability and to the punishment he

might suffer, the assistance of a psychiatrist may well be

crucial to the defendant's ability to marshal his defense."

Id. at 80. The Court thus held "that when [an indigent]

defendant demonstrates to the trial judge that his sanity at

the time of the offense is to be a significant factor at

trial, the State must, at a minimum, assure the defendant

access to a competent psychiatrist who will conduct an

appropriate examination and assist in evaluation, preparation,

and presentation of the defense." Id. at 83. According to

the Court, "[i]t is in such cases that a defense may be

devastated by the absence of a psychiatric examination and

testimony; with such assistance, the defendant might have a

reasonable chance of success." Id. In contrast, the Court in

Caldwell v. Mississippi, 472 U.S. 320 (1985), decided a few

months after Ake, concluded that a significant factor was not

shown when a defendant offered "little more than undeveloped

assertions that the requested assistance would be beneficial."

Id. at 323 n.1.

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

20
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

21
and fair criminal proceeding may outweigh the Commonwealth's

interest in economy when the "probable value of the additional

. . . safeguards that are sought," and "the risk of error in

the proceeding" if those safeguards are not provided are

significant. Ake, 470 U.S. at 77-79. As the Court recognized

in Ake, "[i]t is in such cases that a defense may be

devastated by the absence of" the expert assistance. 470 U.S.

at 83 (emphasis added). Or, as we stated in Husske, that the

defense will be prejudiced by the lack of the requested expert

assistance. 252 Va. at 212, 476 S.E.2d at 925. Thus, when an

indigent defendant has demonstrated that the subject that

requires expert assistance is "likely to be a significant

factor in his defense," id., Husske's prejudice requirement

merely directs a trial court to determine, based on the facts

of the particular case, the probable value of providing the

requested assistance and the risk of error in the criminal

proceeding if such is not provided. See State v. Campbell,

498 A.2d 330, 332-33 (N.H. 1985) ("The analyses of probable

value and risk must necessarily focus on the relationship

between the subject of the expert services and the issues in

the case.").

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

22
violate due process where "the risk of an erroneous

deprivation of . . . liberty [] is . . . slight"); Little v.

Armontrout, 835 F.2d 1240, 1243-44 (8th Cir. 1987) (holding

that the defendant must "show a reasonable probability that an

expert would aid in his defense, and that denial of expert

assistance would result in an unfair trial"); Moore v. Kemp,

809 F.2d 702, 709-10, 712 (11th Cir. 1987) (affirming denial

of a request for expert assistance because the defendant had

failed to show that, unless the expert was provided, he "would

likely be denied an adequate opportunity fairly to . . .

present his defense"); Chao v. State, 780 A.2d 1060, 1069-70

(Del. 2001) (affirming the trial court's refusal of expert

assistance when the expert's absence would not "significantly

prejudice the defense or increase the risk that the jury would

convict . . . erroneously"); Thorson v. State, 895 So. 2d 85,

122-23 (Miss. 2004) (holding that state-funded expert

assistance must be afforded only when the court finds that "a

defendant is prejudiced by the denial of expert assistance to

the extent that he or she is denied a fair trial"); Alverson

v. State, 983 P.2d 498, 511 n.34 (Okla. Crim. App. 1999)

(noting that the defendant "must make a showing of need and

show that he will be prejudiced by the lack of expert

assistance"); State v. Scott, 33 S.W.3d 746, 752-53 (Tenn.

2000) (holding that state-funded expert assistance is mandated

23
only where the defendant shows "'that a substantial need

exists requiring the assistance . . . and that his defense

cannot be fully developed without such professional

assistance' ") (citation omitted).

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.

24
 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

15
We find no merit in the Commonwealth's assertion that
Dowdy waived this issue when he did not object to the circuit
court's decision to provide him with investigative services
for the limited purpose of locating and interviewing Billy
Gacheru.

25
facts and circumstances known at the time of the request for

expert assistance. See Page, 337 F.3d at 415-16; Moore, 809

F.2d at 710, 713, 716. On appellate review, the inquiry is

whether the trial court, at the time it heard the defendant's

reasons for needing expert assistance, abused its discretion

in concluding that the defendant did not demonstrate the

requested expert would materially assist in his defense and

the lack of expert assistance would result in a fundamentally

unfair trial. See Husske, 252 Va. at 212, 476 S.E.2d at 925;

see also Page, 337 F.3d at 416.

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

26
conducts paternity testing in criminal cases, insufficient to

demonstrate a "particularized need." 252 Va. at 213, 476

S.E.2d at 926. We have also concluded that a defendant's

assertions that he had no available investigative resources

and defense counsel lacked the time or special training to

perform criminal investigative services did not show a

particularized need for the appointment of an investigator.

Green, 266 Va. at 91-92, 580 S.E.2d at 840-41; Bailey v.

Commonwealth, 259 Va. 723, 737, 738, 529 S.E.2d 570, 578

(2000).

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,

27
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.

28
 Dowdy's other arguments for why he needed an

investigator, to find witnesses to establish the nature of

Dowdy and Coate's relationship as well as his demeanor and

appearance on September 23 and 24, were not buttressed with

any representations regarding what further investigation on

either subject would reveal, despite having personal knowledge

of both. As for his assertion that he needed an investigator

to inspect the crime scene and pursue information about

alternate suspects, Dowdy received investigative assistance to

explore the specific lead he identified, Billy Gacheru. Dowdy

offered only generalized assertions to justify further

assistance in these areas, even though he had received

information from the Commonwealth, and had been provided a

fingerprint examiner, a forensic pathologist, and a DNA

expert. And, Dowdy's request for an investigator to interview

witnesses because his counsel did not have the expertise or

time does not show a particularized need. See Green, 266 Va.

at 91-92, 580 S.E.2d at 840-41.

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

29
and, at the earliest, 8:00 p.m., when Dowdy allegedly met

friends at a soccer field. Although Dowdy claimed that Coate

was with another person when he first saw her on the morning

of September 24, he did not allege there were any witnesses

who could confirm that Coate was alive on September 24 after

his allegedly consensual encounter with her, but only

mentioned persons that could corroborate his whereabouts for

the remainder of the day. In sum, Dowdy's testimony at trial

confirms that even if all these purported alibi witnesses for

both September 23 and 24 had been located and testified at

trial, they would not have corroborated Dowdy's alleged alibi.

See Cooper, 277 Va. at 385-86, 673 S.E.2d at 190 (alibi

instruction to be given only "when there is 'evidence that the

accused was elsewhere than at the scene of the crime at the

exact time or for the entire period during which it was or

could have been committed'") (citation omitted).

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

30
court as to why an investigator was necessary fell short of

showing a particularized need. 16

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 Code § 19.2-163.01(A)(10)

(granting the Virginia Indigent Defense Commission the power

to authorize "the public defender . . . to employ such . . .

investigative personnel, as may be necessary to carry out the

duties imposed upon the public defender office"). Thus,

according to Dowdy, the circuit court's denial of an

investigator violated his right to equal protection of the

laws. In support of this argument, Dowdy cites Mason v.

Arizona, 504 F.2d 1345 (9th Cir. 1974) and Green v. State, 620

So.2d 188 (Fla. 1993), and contends that if a defendant proves

that but for some arbitrary reason, such as the conflict in

this case, he would have been represented by a public defender

and that the public defender would have "actually used" the

16
Dowdy also argued before the circuit court that he
needed an investigator because his counsel could not offer
impeachment evidence at trial if a witness testified contrary
to a prior statement. However, Dowdy agreed with the circuit
court's suggestion that the use of signed statements would
resolve that potential dilemma, and failed to assign error to
the Court of Appeals' holding that he waived this argument.
See Rule 5:17(c). Thus, the argument is not before the Court.

31
available investigative resources, the denial of substantially

equivalent resources is a violation of equal protection.

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.

32
 4. Statutory Claim

Dowdy alleges that denial of an investigator contravened

the provisions of Code §§ 19.2-163 and -332 by requiring

appointed counsel to perform investigative services without

compensation. According to Dowdy, the "low" amount of

compensation allowed court-appointed counsel for representing

indigent defendants under Code § 19.2-163 and the provision

for payment of other reasonable expenses pursuant to Code

§ 19.2-332 means that the Commonwealth must pay for

investigative assistance instead of placing that burden on

court-appointed counsel. Dowdy, in essence, urges us to find

a right to a court-appointed investigator whenever leaving the

investigation to counsel could result in counsel not being

fully compensated for time expended. We find no merit in

Dowdy's argument.

The provisions of Code § 19.2-163 provide generally for

the compensation of court-appointed counsel according to a fee

schedule, and for a waiver of statutory limits in certain

circumstances. 17 The statute also states: "The circuit or

district court shall direct the payment of such reasonable

expenses incurred by such court-appointed counsel as it deems

17
The version of Code § 19.2-163 in force at the time of
Dowdy's trial lacked the fee cap waiver provisions set forth
in the current version of this statute. See 2007 Acts chs.
938, 946. The change does not affect our analysis.

33
appropriate under the circumstances of the case." Code

§ 19.2-163. The relevant portion of Code § 19.2-332 provides:

"Whenever in a criminal case an officer or other person

renders any service required by law for which no specific

compensation is provided, or whenever any other service has

been rendered pursuant to the request or prior approval of the

court, the court shall allow therefor such sum as it deems

reasonable."

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

34
knowing of, and not following, Fairfax County Police

Department standard operating procedures for fingerprint

examination; not comparing the latent prints with any

elimination prints (except the victim's); not documenting his

fingerprint evaluation process and failing to draft a

contemporaneous report; failing to state in his report the

"points or characteristics" used in his evaluation, thus

making it impossible to determine if he followed the standard

methodology of "Analysis, Comparison, Evaluation, Validation";

and not having taken a competency examination in several

years, though required annually by the SWGFAST guidelines.

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);

35
see John v. Im, 263 Va. 315, 319-20, 559 S.E.2d 694, 696-97

(2002) (evaluating the trial court's finding of an adequate

foundation to admit expert testimony under an abuse of

discretion standard). "Expert testimony is admissible when it

concerns matters not within the ordinary knowledge of the

jury" such that it may assist the jury's understanding of the

evidence presented. Payne, 277 Va. at 542, 674 S.E.2d at 841;

Compton v. Commonwealth, 219 Va. 716, 726, 250 S.E.2d 749,

755-56 (1979).

"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;

36
'expert testimony is inadmissible if it is founded on

assumptions that have an insufficient factual basis.'" Payne,

277 Va. at 542-43, 674 S.E.2d at 841 (citation omitted).

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.

18
When Dowdy moved to strike Reeves' testimony, he
acknowledged that he was not challenging the science of
fingerprint analysis.
Contrary to Dowdy's argument, the circuit court did not
place on him the burden of showing the unreliability of
Reeves' testimony.

37
 Therefore, we hold that the circuit court did not abuse

its discretion in admitting Reeves' testimony. 19 Dowdy's

contentions go to "factual issues involving the weight of the

evidence rather than its admissibility" and as such were for

the jury to resolve. O'Dell v. Commonwealth, 234 Va. 672,

696-97, 364 S.E.2d 491, 505 (1988) (affirming the admission of

expert testimony because challenges to the "experience and

competence of the examiner . . . and the manner in which [the

examiner] did the tests" went to the weight the testimony

should be afforded, not its admissibility).

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.

19
By characterizing Reeves' testimony as not "inherently
incredible," the circuit court was commenting on his
credibility. It was not adopting a legal standard for
admitting testimony.

38