Opinion
Record No. 1076-89-1.
July 9, 1991.
Appeal from the Circuit Court of the City of Portsmouth, Dennis F. McMurran, Judge.
W. McMillan Powers, John H. Underwood, III, Public Defender; William R. Brown, on brief, for appellant.
Robert Q. Harris, Assistant Attorney General, Mary Sue Terry, Attorney General, on brief, for appellee.
Robert J. Copeland, III appeals his convictions of capital murder pursuant to Code § 18.2-31(d) and robbery pursuant to Code § 18.2-58. He was tried by a jury on June 20 through 29, 1989 and sentenced to two life sentences in accordance with the jury's verdict. On appeal, Copeland argues the trial court erred by refusing to appoint an independent DNA expert to assist in his defense and by refusing to suppress the DNA results. He also argues the evidence is insufficient to support either of his convictions. We disagree and affirm his convictions.
We state only the facts necessary to explain our decision. On the evening of March 13, 1988, Ella Pettus was killed at her boyfriend's house at 30 Hobson Street in Portsmouth, where she had been living for the prior week. At approximately 7:00 p.m. that evening, Ms. Pettus' brother arrived at the house. Upon ringing the doorbell and knocking on the door, he heard a faint voice say, "I'm coming." When no one came to the door, he became concerned and listened closely at the door but only heard a rumble. He then went next door and attempted to telephone Ms. Pettus but did not receive an answer. He then called the police.
When the police arrived at the house, they discovered a rear window had been broken and a screen had been pushed out from the inside of the house. The front door of the house was locked by deadbolt locks that required keys to open, even from the inside. The back door also was secured by locks. When the police entered the house, they found Ms. Pettus dead, having suffered multiple cuts to her neck, breasts, arms, back, and fingers. She died from a loss of blood resulting from a seven inch gash in her neck that was caused by at least five strikes with a knife or knife-like weapon.
Bloodstains were found throughout the first floor of the house. Blood samples were taken from a window curtain and the back porch and were sent to an independent DNA testing laboratory which reported that the characteristics of the blood samples obtained were consistent with the characteristics of Copeland's blood. A fingerprint matching Copeland's was recovered from the kitchen sink. Also, four pubic hairs that matched Copeland's were recovered from the house.
During the afternoon of March 13, 1988, a neighbor of Ms. Pettus saw Copeland come out of his home at 26 Hobson Street and walk to the door of Ms. Pettus' house at 30 Hobson Street. Copeland returned to his home after no one answered the door at Ms. Pettus' house. When first questioned by police, Copeland claimed he went to church on the day of the killing and returned to his home at about 2:30 p.m., where he stayed for the remainder of the day.
The interviewing detectives noticed cuts on Copeland's hands, which Copeland claimed he received while working on an automotive exhaust system at the Norfolk Skills Center on March 15, 1988. However, four individuals from the Norfolk Skills Center testified Copeland did not injure his hands at the Skill Center because he did not report to work on March 14 or 15, and his hands were severely injured when he reported to work on March 16, 1988. In addition, Copeland told two of the individuals that he injured his hands in a bicycle accident.
While in custody, Copeland told two other inmates that he killed and robbed Ms. Pettus of some money he knew she had in the house to bail her boyfriend out of jail in Pennsylvania. Ms. Pettus in fact had been planning to take to her boyfriend some money that her boyfriend told her was hidden in their first floor bedroom. However, the police were unable to find any money or Ms. Pettus' purse in the house.
During a pre-trial hearing, Copeland moved to have the court appoint an independent DNA expert and to suppress the DNA results. After hearing arguments, the trial court denied Copeland's motions. On appeal, Copeland argues the trial court erred by refusing his motions. Though Copeland acknowledges the appointment of an independent DNA expert is within the discretion of the trial judge, he contends due process requires the appointment of a DNA expert if certain criteria listed in Ake v. Oklahoma, 470 U.S. 68 (1985) are met. Contrary to Copeland's assertion, we do not believe Ake required the court to appoint him a DNA expert. "[T]he fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required." Townes v. Commonwealth, 234 Va. 307, 332, 362 S.E.2d 650, 664 (1987) (quoting Ross v. Moffitt, 417 U.S. 600, 616 (1974)); accord O'Dell v. Commonwealth, 234 Va. 672, 686, 364 S.E.2d 491, 499 (1988).
Ake, interpreting the fourteenth amendment's due process guarantee of fundamental fairness, recognizes that when a state brings its power to bear on an indigent defendant, it must take steps to guarantee the defendant a fair opportunity to present his defense. "[J]ustice 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 "basic tools" of an adequate defense must be provided for those who cannot afford them. Id. at 77. In determining whether a DNA expert is important enough to the preparation of a defense to require the Commonwealth to provide Copeland with such an expert in this case, we are guided by the three factors identified in Ake as relevant: (1) the private interest that will be affected; (2) the governmental interest that will be affected if the safeguard is to be provided; and (3) the probable value of the additional assistance sought and the risk of erroneous deprivation of the affected interest of those safeguards are not provided. Id.
Here, Copeland's private interest is substantial. His liberty is at stake. The Commonwealth's interest is likewise substantial, for to require it to assume the financial obligation to provide scientific experts to the defense each time it uses expert testimony in its case-in-chief, would add significantly to the costs of the criminal justice system. In our view, however, what is dispositive of Copeland's claim in this case is that there has been no showing of the probable value of the requested expert assistance to the defense and no showing of a significant risk of an erroneous deprivation of liberty if the expert is not provided. DNA testing has not been shown to be subject to the various interpretations inherent in psychiatric evaluations. On the record before us and in the absence of some preliminary showing of need for the requested expert, we are unable to conclude that a due process violation occurred. Accordingly, the trial court did not deny Copeland due process by refusing to appoint the DNA expert.
Copeland also argues the trial court erred by allowing the DNA test results into evidence. During the pre-trial hearings, Copeland argued that the tests were not reliable because of their New York population data base and that the tests results were inadmissible because DNA testing was not an accepted procedure in Virginia. On appeal, Copeland concedes DNA testing and test results are accepted and admissible in Virginia since the Virginia Supreme Court decisions in the Spencer cases. See Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989), cert. denied, 110 S.Ct. 759 (1990);Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989), cert. denied, 110 S.Ct. 1171 (1990); Spencer v. Commonwealth, 238 Va. 563, 385 S.E.2d 850 (1989), cert. denied, 110 S.Ct. 1171 (1990). However, Copeland now argues that the tests were flawed because the blood samples were mixed at the laboratory. The record does not support Copeland's contention. Even were there merit to Copeland's claim, he cannot raise the issue on appeal since he failed to present this argument to the trial court. Rule 5A:18.
Finally, Copeland argues there is insufficient evidence to support his convictions. "When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it."Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted). Here, there is sufficient evidence to support Copeland's robbery and murder convictions. Based on the discovery at Ms. Pettus' house of one of Copeland's fingerprints and the discovery of hair and blood samples that matched Copeland's hair and blood, credible evidence supports the finding that Copeland was at Ms. Pettus' house during the crimes. Copeland's own statements to his fellow inmates describing the robbery and murder provide the remaining evidence needed to sustain the convictions. In addition, the testimony of Ms. Pettus' boyfriend established that money was hidden in the bedroom, which could not be found following the crime, thereby supporting the robbery conviction. This is sufficient evidence for the jury to have properly found beyond a reasonable doubt that Copeland robbed Ms. Pettus' and committed capital murder.
For the foregoing reasons, we affirm Copeland's robbery and capital murder convictions.
Affirmed.