Husske v. Commonwealth

Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., and Poff, Senior Justice

PAUL JOSEF HUSSKE
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 951880 September 13, 1996

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

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 the likelihood of a randomly selected

Caucasian bearing the same DNA profile as the defendant was 1 in

700,000.
The defendant, relying principally upon Ake v. Oklahoma, 470

U.S. 68 (1985), asserts that the Due Process and Equal Protection

clauses of the Fourteenth Amendment required that the trial court

appoint, at the Commonwealth's expense, an expert to help him

challenge the Commonwealth's forensic DNA evidence. The

Commonwealth asserts that the defendant has no constitutional

right under the Due Process or Equal Protection clauses for the

appointment, at the Commonwealth's expense, of a DNA expert.

In Ake, the Supreme Court considered whether an indigent
defendant has a constitutional right to a psychiatric examination

and psychiatric assistance necessary to prepare an effective

defense based on his mental condition, when his sanity at the

time he committed the criminal offense is seriously in question.

The Court stated:
"This Court has long recognized 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 his defense. This elementary principle,
grounded in significant part on the Fourteenth
 Amendment's due process guarantee of fundamental
fairness, derives from the belief that justice cannot
be equal where, simply as a result of his poverty, a
defendant is denied the opportunity to participate
meaningfully in a judicial proceeding in which his
liberty is at stake."

Id. at 76. The Supreme Court, holding that an indigent defendant

is entitled to the appointment of a psychiatrist to assist him in

his defense, explained its rationale:
"We recognized long ago that mere access to the
courthouse doors does not by itself assure a proper
functioning of the adversary process, and that a
criminal trial is fundamentally unfair if the State
proceeds against an indigent defendant without making
certain that he has access to the raw materials
integral to the building of an effective defense.
Thus, while the Court has not held that a State must
purchase for the indigent defendant all the assistance
that his wealthier counterpart might buy, see Ross v.
Moffitt, 417 U.S. 600 (1974), it has often reaffirmed
that fundamental fairness entitles indigent defendants
to 'an adequate opportunity to present their claims
fairly within the adversary system,' id., at 612. To
implement this principle, we have focused on
identifying the 'basic tools of an adequate defense
. . .' Britt v. North Carolina, 404 U.S. 226, 227
(1971), and we have required that such tools be
provided to those defendants who cannot afford to pay
for them."

Id. at 77. The Supreme Court concluded that the Due Process

clause's guarantee of fundamental fairness is implicated
"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, [and that in such
circumstances] 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.

In Caldwell v. Mississippi, 472 U.S. 320 (1985), the Supreme

Court noted that a trial court had properly denied an indigent
defendant's requests for the appointment of a criminal

investigator, a fingerprint expert, and a ballistics expert, and

also that the Supreme Court of Mississippi properly affirmed the

trial court's decision because the defendant's requests were

accompanied by no showing of reasonableness. The Supreme Court

stated:
"[T]he defendant's request for a ballistics expert
included little more than 'the general statement that
the requested expert "would be of great necessarius
witness."' . . . Given that petitioner offered little
more than undeveloped assertions that the requested
assistance would be beneficial, we find no deprivation
of due process in the trial judge's decision. . . . We
therefore have no need to determine as a matter of
federal constitutional law what if any showing would
have entitled a defendant to assistance of the type
here sought."

Id. at 323 n.1.

Our research reveals that most courts which have considered

the question whether an indigent defendant is entitled to the

appointment of a non-psychiatric expert have applied the

rationale articulated in Ake, and, those courts have held that

the Due Process and Equal Protection clauses require the

appointment of non-psychiatric experts to indigent defendants

depending upon whether the defendants made a particularized

showing of the need for the assistance of such experts. See,

e.g., Little v. Armontrout, 835 F.2d 1240, 1243-44 (8th Cir.

1987), cert. denied, 487 U.S. 1210 (1988); Moore v. Kemp, 809

F.2d 702, 709-12 (11th Cir.), cert. denied, 481 U.S. 1054 (1987);
Thornton v. State, 339 S.E.2d 240, 241 (Ga. 1986); Harrison v.

State, 644 N.E.2d 1243, 1252-53 (Ind. 1995); Kennedy v. State,

578 N.E.2d 633, 639-40 (Ind. 1991), cert. denied, 503 U.S. 921
(1992); State v. Coker, 412 N.W.2d 589, 592-93 (Iowa 1987); Polk

v. State, 612 So.2d 381, 393-94 (Miss. 1992); State v. Moseley,

449 S.E.2d 412, 424-25 (N.C. 1994), cert. denied, ___ U.S. ___,

115 S.Ct. 1815 (1995); State v. Mills, 420 S.E.2d 114, 117-19

(N.C. 1992); Rogers v. State, 890 P.2d 959, 966-67 (Okla. Crim.

App. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 312 (1995);

State v. Edwards, 868 S.W.2d 682, 697-98 (Tenn. Crim. App. 1993);

Rey v. State, 897 S.W.2d 333, 337-38 (Tex. Crim. App. 1995).
We are of opinion that Ake and Caldwell, when read together,

require that the Commonwealth of Virginia, upon request, provide

indigent defendants with "the basic tools of an adequate

defense," Ake, 470 U.S. at 77, and, that in certain instances,

these basic tools may include the appointment of non-psychiatric

experts. This Due Process requirement, however, does not confer

a right upon an indigent defendant to receive, at the

Commonwealth's expense, all assistance that a non-indigent

defendant may purchase. Rather, the Due Process clause merely

requires that the defendant may not be denied "an adequate

opportunity to present [his] claims fairly within the adversary

system." Ross v. Moffitt, 417 U.S. 600, 612 (1974).

Moreover, an indigent defendant's constitutional right to

the appointment of an expert, at the Commonwealth's expense, is

not absolute. We hold 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," Ake, 470 U.S. at 82-83, and that he will be
prejudiced by the lack of expert assistance. Id. at 83. An

indigent defendant may satisfy this burden by demonstrating 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. See State v.

Mills, 420 S.E.2d at 117. The indigent defendant who seeks the

appointment of an expert must show a particularized need:
"'Mere hope or suspicion that favorable evidence is
available is not enough to require that such help be
provided.' . . . 'This particularized showing demanded
. . . is a flexible one and must be determined on a
case-by-case basis.' . . . The determination . . .
whether a defendant has made an adequate showing of
particularized necessity lies within the discretion of
the trial judge."

Id. Accord Caldwell, 472 U.S. at 323-34 n.1.

Contrary to the Commonwealth's arguments, we have not

specifically held that Ake is implicated only in those cases

where the defendant's sanity at the time he committed an offense

is seriously in question. In Pope v. Commonwealth, 234 Va. 114,

360 S.E.2d 352 (1987), cert. denied, 485 U.S. 1015 (1988), we

rejected an indigent defendant's contention that he had a

constitutional right to the appointment, at the Commonwealth's

expense, of a private investigator. There, we held that the

trial court properly denied the defendant's motion "to appoint an

investigator to 'comb the neighborhood' for potential witnesses."

Id. at 119, 360 S.E.2d at 356.

Although in Pope we rejected the defendant's argument that
he was entitled to relief in accord with Ake, we relied upon

Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985),
cert. denied, 475 U.S. 1099 (1986), in reaching our conclusion.

In Watkins, we held that consistent with the decisions of the

United States Supreme Court, the mere "fact that a particular

service might be of benefit to an indigent defendant does not

mean that the service is constitutionally required." Id. at 478,

331 S.E.2d at 430 (quoting Ross v. Moffitt, 417 U.S. 600, 616

(1974)). Thus, in Pope and Watkins, the indigent defendants

failed to make the requisite particularized showing of the need

for the requested expert assistance.
Here, we are of opinion that the trial court did not err by

refusing to appoint a DNA expert witness to assist Husske with

the preparation of his defense. * As we previously stated, an

indigent defendant who seeks the appointment of an expert, at the

Commonwealth's expense, must show a particularized need for such

services and that he will be prejudiced by the lack of expert

assistance. The defendant failed to meet these requirements. At

best, the defendant asserted, inter alia, that: DNA evidence is

"of a highly technical nature;" he thought it was difficult for a

lawyer to challenge DNA evidence without expert assistance; and

he had concerns about the use of DNA evidence because "the

Division of Forensic Science [was] no longer [conducting]

*
We do not consider the defendant's contention that his
Sixth Amendment rights of confrontation and compulsory process
were abridged. The defendant did not make these arguments in the
trial court, and we will not consider them here. Rule 5:25.
Additionally, in view of our holding, we need not consider
defendant's assertion that the trial court abridged his Sixth
Amendment right to effective assistance of counsel by refusing to
appoint an expert to assist him with the preparation of his DNA
defense.
paternity testing in [c]riminal cases." The defendant's

generalized statements in his motions simply fail to show a

particularized need.

Additionally, the defendant failed to demonstrate that he

would be prejudiced by the lack of expert assistance. Indeed, he

could not make such a showing because, as the evidence of record

reveals, he confessed to the crimes, and he described the details

of his offenses with great specificity.
We emphasize that the Due Process and Equal Protection

clauses do not require the appointment, at the Commonwealth's

expense, of an expert witness for every indigent defendant. As

the United States Court of Appeals for the 11th Circuit has

stated:
"Requiring trial courts, both state and federal, to
provide for expert assistance--through direct
appointment or a grant of funds--would place a
substantial, if not onerous, burden on the
administration of criminal justice. For example, the
trial court would have to (1) appoint a defense expert
for every expert available to the government; (2)
provide for expert assistance whether or not such
assistance turned out to be needed; and (3) provide for
any additional experts the appointed experts might need
to explore theories that could aid the defense in
cross-examining prosecution witnesses or in presenting
the defense's case. We question the wisdom of such due
process requirements absent a substantial showing, such
as the one made in Ake, of a significant benefit to the
truth-seeking function of a trial."

Moore, 809 F.2d at 712 n. 8.

IV.

The defendant argues that the trial court erred by failing

to suppress his "incriminating statements made to mental health

workers during the course of court-ordered therapy," and that the
use of "evidence derived therefrom, violated due process and his

Fifth and Fourteenth Amendment rights against compulsory self-

incrimination." As we previously mentioned, the defendant

voluntarily enrolled in the Henrico County Mental Health and

Retardation Services treatment program before he was convicted of

the "peeping tom" offenses. The general district court, which

convicted him of these offenses, suspended imposition of the

sentences conditioned upon his continued participation in this

program. The defendant says that his "admissions to his mental

health worker were coerced by the necessity of his complying with

the terms of his suspended sentences. The alternative to

incriminating himself was the imposition of a twenty-four (24)

month jail sentence." We disagree with the defendant.
The Fifth Amendment of the federal Constitution states, in

relevant part, that no person "shall be compelled in any criminal

case to be a witness against himself." This prohibition "not

only protects the individual against being involuntarily called

as a witness against himself in a criminal prosecution but also

privileges him not to answer official questions put to him in any

other proceeding, civil or criminal, formal or informal, where

the answers might incriminate him in future criminal

proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).

The Fifth Amendment, however, only prohibits the use of a

witness' statements which are the product of compulsion:
"The [Fifth] Amendment speaks of compulsion. It does
not preclude a witness from testifying voluntarily in
matters which may incriminate him. If, therefore, he
desires the protection of the privilege, he must claim
it or he will not be considered to have been
'compelled' within the meaning of the Amendment."
Minnesota v. Murphy, 465 U.S. 420, 427 (1984) (quoting United

States v. Monia, 317 U.S. 424, 427 (1943)). The Supreme Court

has stated that
"in the ordinary case, if a witness under compulsion to
testify makes disclosures instead of claiming the
privilege, the government has not 'compelled' him to
incriminate himself. . . . Witnesses who failed to
claim the privilege were once said to have 'waived' it,
but we have recently abandoned this 'vague term,' . . .
and 'made clear that an individual may lose the benefit
of the privilege without making a knowing and
intelligent waiver.'"

465 U.S. at 427-28.

In Murphy, the Supreme Court considered whether the Fifth

and Fourteenth Amendments prohibit the introduction in evidence

of incriminating statements that a parolee made during a meeting

with his probation officer. In 1974, Marshall Murphy was

questioned by police concerning the rape and murder of a teenage

girl. In 1980, Murphy pleaded guilty to an unrelated criminal

charge. His punishment was fixed at 16 months' imprisonment,

which was suspended, and three years' probation. As conditions

of probation, Murphy was required to participate in a treatment

program for sexual offenders, to report to his probation officer

as directed, and to be truthful with the probation officer "in

all matters." Murphy was informed that if he failed to comply

with these conditions, his suspension could be revoked. Id. at

422.

Murphy met with his probation officer regularly until July

1981, when the probation officer learned that Murphy had ceased

participation in the sexual offenders' treatment program. The
probation officer informed Murphy by letter that his failure to

meet with her would result in an immediate request for a warrant.

Subsequently, a counselor in the sexual offender treatment

program informed Murphy's probation officer that, during the

course of treatment, Murphy had admitted that he had committed a

rape and murder in 1974. The probation officer met with her

supervisor, and the probation officer decided that she would

convey this information to the police. The probation officer

sent a letter to Murphy and asked him to contact her to discuss a

treatment plan for the rest of his probationary period. Even

though the probation officer did not contact the police before

she met with Murphy, she had decided before the meeting that she

would report any incriminating statements he made to her to the

police. Id. at 423.

Subsequently, Murphy met with the probation officer in her

office. The probation officer told Murphy that she had learned

that he had admitted to having committed a rape and murder in

1974 and that this information indicated to her that he needed

additional treatment. Murphy admitted to the probation officer

that he had committed the rape and murder. The probation officer

informed Murphy that she intended to relay the information to the

police, and she encouraged him to turn himself in, which he

refused to do. Subsequently, Murphy was arrested and convicted

of first-degree murder. Id. at 423-25.

Rejecting Murphy's contention that his confession was the

product of compulsion and, thus, inadmissible, the Supreme Court

stated:
 "The threat of punishment for reliance on the
privilege [against self-incrimination] distinguishes
cases of this sort from the ordinary case in which a
witness is merely required to appear and give
testimony. A State may require a probationer to appear
and discuss matters that affect his probationary
status; such a requirement, without more, does not rise
to a self-executing privilege. The result may be
different if the questions put to the probationer,
however relevant to his probationary status, call for
answers that would incriminate him in a pending or
later criminal prosecution. There is thus a
substantial basis in our cases for concluding that if
the State, either expressly or by implication, asserts
that invocation of the privilege would lead to
revocation of probation, it would have created the
classic penalty situation, the failure to assert the
privilege would be excused, and the probationer's
answers would be deemed compelled and inadmissible in a
criminal prosecution.
Even so we must inquire whether Murphy's probation
conditions merely required him to appear and give
testimony about matters relevant to his probationary
status or whether they went further and required him to
choose between making incriminating statements and
jeopardizing his conditional liberty by remaining
silent. Because we conclude that Minnesota did not
attempt to take the extra, impermissible step, we hold
that Murphy's Fifth Amendment privilege was not self-
executing."

Id. at 435-36 (footnote omitted).

Applying the aforementioned principles here, we hold that

Husske's statements were not the product of compulsion and, thus,

his Fifth Amendment right against self-incrimination was not

violated. First, we note that the defendant's obligation to

participate in the mental health treatment program did not in

itself convert his "otherwise voluntary statements into compelled

ones." Id. at 427. We also observe that the defendant, just as

in Murphy, was not in custody for purposes of receiving Miranda
protection when he made his incriminating statements. Id. at

430.
 Here, just as in Murphy, no one required Husske "to choose

between making incriminating statements and jeopardizing his

conditional liberty by remaining silent." Id. at 436. The

record before us is devoid of any evidence that the employees of

Henrico County Mental Health and Retardation Services coerced the

defendant in any manner. There is no evidence of record that

anyone forced the defendant to talk or threatened him in any way.

To the contrary, the defendant, at the urging of his wife,

volunteered to Dr. Elwood the statement that the defendant had

"completed a rape." After the defendant made his confessions, he

executed a release authorizing Henrico County Mental Health and

Retardation Services to transmit this information to the

Community Diversion Incentive Program.
V.

For the foregoing reasons, we will affirm the judgment of

the Court of Appeals.

Affirmed.

SENIOR JUSTICE POFF, concurring in part and dissenting in part.

The majority affirms the judgment of the Court of Appeals

sitting en banc, Husske v. Commonwealth, 21 Va. App. 91, 462
S.E.2d 120 (1995). Under the mandate of that judgment, the

earlier judgment and mandate of a panel of that Court, Husske v.

Commonwealth, 19 Va. App. 30, 448 S.E.2d 331 (1994), were

"withdrawn" and "vacated", and the judgment of the trial court

was "affirmed", 21 Va. App. at 92, 462 S.E.2d at 120.

On the Fifth Amendment self-incrimination issue, I concur

with the decision of the majority to apply the rule in Minnesota
v. Murphy, 465 U.S. 420 (1984). I dissent from the majority's

decision upholding the denial of Husske's request for expert

assistance concerning the controversy over the reliability of

forensic DNA evidence that prevailed at the time of this trial.

I do not, however, advocate a per se rule applicable in every

prosecution of an indigent defendant. 1

In Ake v. Oklahoma, 470 U.S. 68 (1985), the Supreme Court,

invoking the principles applied in Griffin v. Illinois, 351 U.S.

12 (1956) and in Britt v. North Carolina, 404 U.S. 226 (1971),
held that the due process and equal protection clauses of the

Fourteenth Amendment require a State to provide "the basic tools

of an adequate defense . . . to those defendants who cannot

afford to pay for them." 470 U.S. at 77. The panel of the Court

of Appeals held that the rule in Ake is not limited to capital

murder prosecutions or to cases involving an insanity defense. I

agree. The majority of this Court does not disagree.

The Ake rule applies, however, only when the defendant makes

a "threshold showing" that the assistance of an expert to

confront the prosecution will be "a significant factor at trial".

470 U.S. at 83. In satisfying that requirement, the defendant's
1
Compare the facts and circumstances underlying the
conclusions reached in the precedents of this Court in Stewart v.
Commonwealth, 245 Va. 222, 239, 427 S.E.2d 394, 405, cert.
denied, 510 U.S. 848, 114 S. Ct. 143 (1993); George v.
Commonwealth, 242 Va. 264, 271, 411 S.E.2d 12, 16 (1991), cert.
denied, 503 U.S. 973 (1992); O'Dell v. Commonwealth, 234 Va. 672,
686, 364 S.E.2d 491, 499, cert. denied, 488 U.S. 871 (1988);
Townes v. Commonwealth, 234 Va. 307, 332, 362 S.E.2d 650, 664
(1987), cert. denied, 485 U.S. 971 (1988); Pope v. Commonwealth,
234 Va. 114, 119, 360 S.E.2d 352, 356 (1987), cert. denied, 485
U.S. 1015 (1988). See also Moore v. Kemp, 809 F.2d 702, 712 n. 8
(11th Cir.), cert. denied, 481 U.S. 1054 (1987).
burden is twofold. The accused must demonstrate that the expert

is required to address a critical issue and that the expert's

assistance will contribute to the formulation and perfection of a

viable defense. In response to such a showing, "the State must,

at a minimum, assure the defendant access to [an expert] who will

. . . assist in evaluation, preparation, and presentation of the

defense." Id.

The majority of this Court holds that the Commonwealth had

no such duty here because, they conclude, Husske failed to "show

a particularized need and that he [would] be prejudiced by the

lack of expert assistance." My reading of the record compels the

opposite conclusion.
Husske made five "threshold" motions for expert assistance.

Their cumulative effect was sufficient to show the trial judge

that expert knowledge was to become "a significant factor at

trial."

In the first motion, counsel advised the court that "[t]he

Commonwealth intends to introduce . . . the evidence of DNA

analysis" which he characterized as "crucial to the

Commonwealth's case." In support of the second motion, he filed

the affidavit of an adjunct counsel, a practicing attorney

reputed to be the most knowledgeable member of the local bar in

the area of forensic DNA application. The affiant opined that

"it is impossible for a lay person to successfully challenge the

DNA testing and results without the aid of an expert." He

explained that he was "concerned about the problems in testing

degraded, low molecular weight forensic samples" and by "over 100
possible problem areas in the use of restrictive enzymes that

could lead to an erroneous inclusion."

In preparation for the third request for assistance, counsel

filed a motion for discovery of the Commonwealth's DNA evidence

which resulted in disclosure of "all the protocols, copies of the

autorads, as well as a 47-page Certificate of Analysis." In

support of the fourth and fifth motions for assistance, counsel

pursued the arguments he had advanced earlier.
Renewing the motion at the conclusion of the Commonwealth's

evidence, he proffered some 400 pages of court opinions and

testimony "taken in various other cases" that dramatized the

nature and dimensions of the DNA dispute prevalent at that time

in the scientific community 2 . A sampling of the expert testimony

adduced in those cases reveals that, in the two years preceding

Husske's trial, many learned scientists had concluded that

portions of the DNA testing procedure were "badly flawed,"

"unreliable" and "demonstrably wrong." And, at least one expert

characterized the scientific debates as "significant and

honestly-held disagreement" over the validity of testing

techniques.

Clearly, the Commonwealth's forensic DNA evidence was a

critical issue because it was "a significant factor" in the

identification of Husske as the criminal agent. Hence, the

prevailing scientific controversy created a "particularized need"

to challenge the laboratory methodology employed in the DNA
2
Although the items proffered were excluded from evidence,
they were admitted as exhibits for the record.
analysis, the validity of the conclusions reached by the

analysts, and the testimony of the Commonwealth's expert

witnesses. Knowledgeable as they were in the law, Husske's

attorneys were laymen in the science of forensic chemistry, and

as an indigent accused, Husske was prejudiced by his inability to

obtain the expert assistance necessary to satisfy that need.

Consequently, under the facts of this case, the denial of

the defense motions for expert assistance was a denial of

Husske's rights under the Fourteenth Amendment to due process and

equal protection of the laws.