Deanna Hilda Large v. Commonwealth of Virginia and County of Spotsylvania ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Haley and Beales
Argued at Richmond, Virginia
DEANNA HILDA LARGE
MEMORANDUM OPINION* BY
v. Record No. 1027-06-2 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 30, 2007
COMMONWEALTH OF VIRGINIA AND
COUNTY OF SPOTSYLVANIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Ann Hunter Simpson, Judge
Eugene H. Frost (Mell & Frost, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(Robert F. McDonnell, Attorney General, on brief), for appellees.
Deanna Hilda Large (appellant) was convicted in a jury trial of involuntary manslaughter,
in violation of Code § 18.2-36. 1 On appeal, she contends the trial court erred (1) in finding the
evidence sufficient, as a matter of law, to convict her of involuntary manslaughter and, (2) in
denying her motions for the appointment of defense experts in animal behavior and trace
evidence. Finding no error, we affirm the trial court’s judgment and appellant’s conviction.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant was also convicted of two misdemeanor counts of allowing a dog to run
at-large in violation of Spotsylvania County Ordinance § 4-21. She does not challenge these
convictions on appeal.
I. BACKGROUND
“Under familiar principles of appellate review, we view the evidence and all reasonable
inferences fairly deducible from that evidence in the light most favorable to the Commonwealth,
the party that prevailed below.” Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d
876, 877 (2003). So viewed, the evidence established that eighty-two-year-old Dorothy Sullivan
had resided at 205 Oak Crest Drive of the Oak Crest Subdivision in Partlow, Virginia for
twenty-two years. Mrs. Sullivan owned a shih tzu dog named Buttons that she walked with a
retractable leash wrapped around her left hand.
On March 8, 2005, authorities found Dorothy Sullivan’s body on the edge of her
property, having been mauled to death by three pit bull terriers. In the woods next to her
property, authorities found Buttons’s body, still attached to its fully-extended leash. Appellant
and Renie Costello, also residents of the Oak Crest Subdivision, owned the only pit bull dogs in
the area.
In August of the year preceding the March 8, 2005 attack, a “brindle colored” and two
other pit bulls entered the property of Donna Moore, another Oak Crest resident. The three dogs
tore the floor out of her mobile home, attacking her cats and killing one of her kittens. Moore
confirmed with appellant’s daughter that the dogs belonged to appellant, and then informed her
that appellant’s dogs had just attacked Moore’s cats. Moore also complained to Animal Control
and in response, Animal Control Officer Bill Clarke investigated at appellant’s home and
discovered that three of appellant’s pit bulls ran loose that morning. Appellant claimed that the
puppy had returned home, but the two other dogs remained at-large. After the warden left,
Moore sat at the end of her driveway, saw the dogs return to her yard, and then she followed
them. She saw appellant’s daughter walk down the road and call to the dogs. Eventually the
dogs left with appellant’s daughter.
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Later that day, Clarke returned to appellant’s house when he saw two female pit bulls
located in appellant’s driveway. Clarke captured the dogs, identified as Charity and Scarlet, and
informed appellant that they matched the description of two that had chased and possibly killed
one of Moore’s cats. Clarke also told appellant that she had violated the county-wide leash law
by allowing her dogs to run free. Appellant surrendered both dogs to the county and in
exchange, Clarke agreed to forgo the ordinance violations.
In October 2004, Janet Stegner, who lived about eight hundred feet from appellant’s
house in the same subdivision, saw two brindles and one black and white pit bull tree her cat.
The two brindles turned and came towards her growling, and the black and white dog retreated
towards appellant’s property. Janet Stegner and her daughter had called the dog warden on two
occasions concerning the pit bull dogs treeing her cat.
Two weeks before the March 8, 2005 attack, James Stegner, Janet Stegner’s husband,
saw two brindle pit bulls and a black and white pit bull “tree[] all four” of his cats. Stegner knew
the dogs belonged to appellant because he had been chasing them off of his property towards
appellant’s for over a year. A few times during the chases, he watched the dogs go “up into the
cul-de-sac and then off the cul-de-sac up into [appellant’s] driveway.”
Jamie Blair, appellant’s next-door neighbor, witnessed appellant’s pit bulls running
at-large on her property “five or six” times. Consequently, Blair called appellant’s home, usually
speaking with one of her children, and informed them that her dogs roamed loose on Blair’s
property. In response, appellant or appellant’s children would retrieve the dogs. On one
occasion about a week before the March 8 attack, two black and one brindle colored pit bulls
approached Blair’s open sliding glass door. The three dogs growled at Blair’s children who
stood at the window. Again, Blair phoned appellant’s home to inform her. Blair called Animal
Control only once regarding appellant’s loose dogs.
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On March 1, 2005, Mary Embrey, another resident of Oak Crest Subdivision, called
Animal Control when she saw three pit bulls attack and kill her German shepherd. She described
one of the pit bulls as “black with a little white diamond,” the second as a “brindle,” and the third
as “black.” Officer Clarke responded to Embrey’s call and together they went to appellant’s
home. When Clarke asked appellant to exhibit every dog she owned, appellant brought out three
black and white pit bulls, including a puppy. Embrey failed to identify the three exhibited dogs
as those that attacked her German shepherd and claimed the dogs involved were “hiding
somewhere else.” When Clarke told appellant that three pit bulls had killed the German
shepherd, appellant “shrug[ged] her shoulders” in response. When Embrey told appellant that
the pit bulls involved were “very dangerous” and that Embrey would like to see the dogs caught
“before they killed somebody else or somebody’s child,” appellant just looked at her and walked
away.
Subsequently, Embrey, Embrey’s husband, and Officer Clarke investigated Renie
Costello’s home, the only other pit bull owner in the neighborhood. There, they confirmed that
Costello restrains her two pit bulls in her home and by an enclosed yard. After seeing Costello’s
pit bull tied up in her backyard, Embrey and her husband informed Officer Clarke that Costello’s
pit bull was not involved in the German shepherd attack.
On March 8, 2005, seven days after the German shepherd attack, Mrs. Sullivan’s
daughter, Doris Phelps, drove out to see her mother. Upon arrival, she encountered three “very
aggressive” and “growling” dogs that came running towards her. Phelps entered Mrs. Sullivan’s
home and called to her mother and Buttons. After no response, Phelps stepped outside and saw
the same three dogs over by the edge of the woods. Phelps screamed for her mother and Buttons,
realizing that her mother was lying at the edge of the woods where the dogs hovered. She saw
the dogs circling and standing over her mother’s body. The dogs charged Phelps again,
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whereupon she re-entered her mother’s home, found a rolled up newspaper insert she could use
to frighten the dogs, exited the home, and moved down the steps towards her mother. When the
dogs approached Phelps for the third time, she used the newspaper to smack them on the nose
until she could step back into the house and call 911.
Responding to a call from dispatch, Officer Clarke arrived at Mrs. Sullivan’s home along
with the fire and rescue squad. A few minutes later, Deputy Sheriff Mark Shull joined Clarke
and both officers drew their weapons and stood on the edge of the woods to ensure the rescue
squad could safely remove Mrs. Sullivan’s body. Then the officers spotted two dogs coming
through the woods but the dogs retreated toward an area of the subdivision called Cypress Court
where appellant lived. Clarke got into his truck and drove to Cypress Court. He approached
appellant’s house and saw a black, white and brindle pit bull, later identified as Nikki, exit the
woods and run up to appellant’s porch. Appellant admitted to Clarke that she owned Nikki,
whereupon Clarke seized the dog and later showed it to Phelps who positively identified Nikki as
one involved in her mother’s attack. Subsequently, Nikki was euthanized.
While Officer Clarke investigated at appellant’s home, Officer Shull remained on Mrs.
Sullivan’s property. There, he saw a small black dog and a larger brindle dog emerge at the
wood line, both animals matching Phelps’s previous description to Shull. The two dogs charged
Shull whereupon he fired four rounds, killing the small black one at the scene and hitting the
larger brindle dog. Authorities later found the brindle dog dead in the woods. Animal Control
officers canvassed the whole area that day and found no other pit bulls.
Mrs. Sullivan’s autopsy report revealed that she died from “severe multiple penetrating
trauma to her body which trauma was consistent with a dog attack.” Consistent with ordinary
practice during an autopsy, no hairs were removed from her head. Mrs. Sullivan’s fractured left
wrist was “consistent” with a fall that could have occurred by her being pulled down to the
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ground suddenly by her dog’s leash wrapped around her left wrist when the larger dogs attacked
and suddenly dragged her dog away.
Two days after Mrs. Sullivan’s death, Animal Control Officer Jason Cook responded to
appellant’s call that two more of her pit bulls, identified as Lilith and Treasure, ran at-large.
Appellant explained that the dogs “must have gotten out when one of the children left the
house.” After searching appellant’s property, the two dogs reappeared and appellant surrendered
them to Officer Cook.
Joseph Cagnina, a detective with the Spotsylvania County Sheriff’s Department,
investigated the March 8, 2005 fatality at appellant’s home. There, appellant told Cagnina that
she owned Nikki, but did not claim the other two dogs involved. Appellant also disclosed that
she did not restrain her dogs or use any kind of safety device, leashes, fences, or chains. She told
Cagnina that she allowed her dogs to leave the residence for ten to fifteen minutes at a time to
relieve themselves. Initially, appellant owned thirteen pit bulls, gave some away over time, but
claimed ultimately to have kept only three. On March 8, 2005, she claimed to own three pit
bulls.
On March 10, when Cagnina returned to appellant’s home, he noticed one dog running
at-large. That same day, appellant signed over what she claimed to be her last two pit bulls to
Officer Cook. Appellant told Cagnina that she knew pit bulls had an aggressive nature.
Appellant’s kennel license had expired in 2004. Her front screen door did not lock, and the
lower part of the door was broken. Additionally, her dogs entered and exited the home freely.
Appellant had no gate attached to her fenced-in area on her property. When Detective Cagnina
searched appellant’s home, he found a dog’s choke chain attached to a brass “guard security”
lock, several other brass padlocks and keys, and additional dog chains and leashes. Upon
comparison, Cagnina discovered that appellant’s choke chain and brass “guard security” lock
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matched the model, shape, and size of the lock and chain found on the brindle dog shot at the
scene and later found dead in the woods next to Mrs. Sullivan’s property.
At appellant’s trial, the Commonwealth marked for identification photographs depicting
three different pit bull dogs. Exhibit 3 depicts a male reddish brindle pit bull, identified by
witnesses as Zamal, wearing a choke chain collar with a brass lock engraved with the words
“guard security.” Exhibit 4 illustrates another male black pit bull with some spots of white on its
neck and chest. Exhibit 5 depicts a black male pit bull with some brindle, identified by witnesses
as Nikki. The three pit bulls in the exhibit photographs were not licensed in Spotsylvania
County.
Doris Phelps testified that Zamal was the dog that approached and stood “right in front”
of her when she moved down the stairs with a rolled newspaper insert to fight off the dogs on
March 8, 2005. Phelps also identified the dog in Exhibit 4 as the dog that approached her on the
right side. She identified Nikki in Exhibit 5 as the pit bull that approached her on her left.
Officer Clarke identified Nikki as the same dog he captured at appellant’s home
immediately following Mrs. Sullivan’s attack.
Renie Costello, the only other pit bull owner in the development, knew that appellant
owned Zamal because Costello had been to appellant’s home to show appellant her own pit bull
named Dozer.
Janet Stegner identified Zamal as one of the dogs that had treed her cat. James Stegner
also identified Zamal as the dog “on [his] car with the cat up the tree” with the other two dogs
that chased his cats about two weeks before the March 8 fatality. James recognized Nikki as the
dog that traveled with Zamal.
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Jamie Blair testified that she recognized Zamal as a dog belonging to appellant. Blair
also knew appellant owned two black pit bulls, but could not positively identify them as the dogs
depicted in Exhibits 4 and 5.
Mary Embrey testified that Zamal was the “last one involved” that “finished [] off” the
attack and death of her German shepherd. The pit bull depicted in Exhibit 4 and Nikki also took
part in the attack.
Leroy George, an expert locksmith, testified that a key recovered from appellant’s home
would unlock the brass lock found there and also fit the lock tumbler of Zamal’s collar.
Dr. Karl Magura, a Virginia Department of Agriculture employee, testified as an expert
in the field of veterinary medicine. Appellant also adopted Dr. Magura as appellant’s animal
behavioralist. Dr. Magura stated that he performed necropsies on the three dogs depicted in
Exhibits 3, 4, and 5 and on Mrs. Sullivan’s shih tzu. Magura testified that the shih tzu bled to
death as a result of several neck bites that had severed the jugular vein.
During Magura’s examination of Nikki, he found hair, foreign body material, red carpet
plastic, and no dog food in the dog’s stomach contents. Nikki’s distal colon contained hair
longer than the dog’s hair indicating that the hair passed through the dog’s digestive tract.
Magura further testified that originally, people bred pit bull dogs to be aggressive towards
other dogs and specifically bred them to fight each other in dog pits. If properly trained and
supervised, however, pit bulls are “some of the nicest dogs” a dog owner could expect to have.
On cross-examination, Magura stated that pit bulls are “no more aggressive than a German
shepherd or a Doberman or anything of that nature.” Magura also explained that normally, dogs
recently involved in a mauling would not separate due to their pack mentality.
Despite appellant’s objection, Cary Oien, a forensic examiner with the FBI Laboratory in
Quantico, Virginia, testified as an expert in the field of forensic trace evidence. Oien stated that
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neither hair nor fiber examinations are “means of absolute personal identification.” Hairs
obtained from hairbrushes and combs are not considered a “known scientific sample” because
the hairs are not “plucked from someone’s head.”
Oien further explained that he would find two hair samples to be “consistent” with each
other and therefore, derived from the same source if he found no significant differences between
them. Oien testified that he analyzed hairs from Mrs. Sullivan’s hairbrushes and combs finding
none that looked remarkably different within that sample range. As a result, he concluded that
the hairbrush and comb samples would constitute a reasonable known sample of Mrs. Sullivan’s
hair.
Oien also performed a microscopic comparison of Mrs. Sullivan’s hairbrush and comb
hairs with the hairs found in Nikki’s stomach and concluded that the hairs “exhibited the same
microscopic characteristics” and that he could find “no significant differences” between the two
sample groups.
The jury subsequently convicted appellant of involuntary manslaughter. This appeal
followed.
II. SUFFICIENCY OF THE EVIDENCE
Appellant contends the evidence was insufficient, as a matter of law, to support her
conviction of involuntary manslaughter. She maintains the evidence failed to prove that she
owned two of the dogs involved in the March 8, 2005 attack. 2 We disagree.
In reviewing the sufficiency of the evidence to support a conviction, “we determine
whether the evidence, viewed in the light most favorable to the prevailing party, the
Commonwealth, and the reasonable inferences fairly deducible from that evidence support each
2
The trial court granted appellant’s motion to strike one of the running at-large
misdemeanors pertaining to the unnamed black dog depicted in photograph Exhibit 4.
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and every element of the charged offense.” Haskins v. Commonwealth, 31 Va. App. 145,
149-50, 521 S.E.2d 777, 779 (1999). “‘In so doing, we must discard the evidence of the accused
in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable
to the Commonwealth and all fair inferences that may be drawn therefrom.’” Cirios v.
Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988) (quoting Norman v.
Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d 44, 45 (1986)). We will affirm the conviction
“unless it is plainly wrong or without evidence to support it.” Shackleford v. Commonwealth,
262 Va. 196, 209, 547 S.E.2d 899, 906 (2001).
Here, the evidence proved that appellant owned at least Nikki and Zamal, the pit bull
terriers involved in the March 8, 2005 death of Mrs. Sullivan. Doris Phelps, who appeared at the
scene and saw three dogs circling her mother’s body, positively identified Nikki and Zamal as
two of the three dogs involved in the attack. Nikki and Zamal approached Phelps three times at
close range as she attempted to reach her mother. Immediately following the attack, Officer
Clarke saw Nikki exit the woods and run up to appellant’s porch. When confronted, appellant
admitted she owned Nikki.
Renie Costello, the only other pit bull owner in the development, identified Zamal from
the photographic evidence and testified that he belonged to appellant. Four other witnesses,
Janet Stegner, James Stegner, Jamie Blair, and Mary Embrey, positively identified Zamal as
appellant’s dog. Finally, Detective Cagnina compared Zamal’s choke chain collar and brass lock
with another chain and brass lock he recovered from appellant’s home and stated that the items
were “the same model and the same shape and size lock.” Each bore the same “guard security”
brand name. Leroy George, an expert locksmith, testified that a key recovered from appellant’s
home would unlock the brass lock found there and also fit the lock tumbler of Zamal’s collar.
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We hold, therefore, that this evidence sufficiently proved that appellant owned Nikki and
Zamal, two of the pit bull dogs involved in the March 8, 2005 attack.
Appellant also contends that the evidence failed to prove that she knew or should have
known that her dogs were dangerous. We disagree with appellant.
The Supreme Court has defined criminal negligence as those actions, while lawful, that
are performed in a manner “‘so gross, wanton, and culpable as to show a reckless disregard of
human life.’” Lawson v. Commonwealth, 35 Va. App. 610, 618, 547 S.E.2d 513, 516 (2001)
(quoting Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992)). The Court
further described “gross negligence” as follows:
The term “gross, wanton, and culpable” describes conduct. The
word “gross” means “aggravated or increased negligence” while
the word “culpable” means “deserving of blame or censure.”
“‘Gross negligence’ is culpable or criminal when accompanied by
acts of commission or omission of a wanton or willful nature,
showing a reckless or indifferent disregard of the rights of others,
under circumstances reasonably calculated to produce injury, or
which make it not improbable that injury will be occasioned, and
the offender knows, or is charged with the knowledge of, the
probable result of his acts.”
Id. at 618, 547 S.E.2d at 516-17 (quoting Cable, 243 Va. at 240, 415 S.E.2d at 220 (citations
omitted)). Whether an action constitutes gross negligence is ordinarily a matter of fact for a jury
to decide. Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691 (1987).
Furthermore, in determining gross negligence, the fact finder “consider[s] the cumulative effect
of a series of connected, or independent negligent acts, out of which arise the injuries, as
showing the attitude of the offender.” Bell v. Commonwealth, 170 Va. 597, 609, 195 S.E. 675,
680 (1938).
Applying these principles to the facts of this case, we find the evidence sufficient to
prove appellant knew or should have known that her dogs were dangerous. Beginning in August
2004, Officer Clarke made appellant aware of the pit bull attack on Donna Moore’s cats and told
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appellant that she violated the county-wide leash law by allowing her dogs to run free. As a
result, he seized two of appellant’s pit bull dogs that took part in the cat incident and that
matched Moore’s description.
Janet Stegner was accosted by two of appellant’s dogs that growled at her before
retreating to appellant’s property. Janet and her daughter had complained to Animal Control on
two occasions concerning appellant’s dogs.
Jamie Blair, appellant’s next-door neighbor, notified appellant and her children
repeatedly that her dogs roamed loose on Blair’s property. In response, appellant or appellant’s
children would retrieve the dogs. About a week before the March 8 fatality, when three pit bulls
approached Blair’s open sliding glass door and growled at her children, Blair again phoned
appellant’s home to tell her to retrieve the dogs. Blair also called Animal Control once regarding
appellant’s loose dogs.
On March 1, 2005, Officer Clarke approached appellant regarding the pit bull attack on
Mary Embrey’s German shepherd. Clarke told appellant that three pit bulls had killed the
German shepherd, and in response, appellant “shrug[ged] her shoulders.” When Embrey told
appellant that the pit bulls involved were dangerous and that Embrey “would like to see the[]
dogs caught before they killed somebody else or somebody’s child,” appellant just looked at her
and walked away.
Just two days following Mrs. Sullivan’s death and appellant’s surrender of Nikki to
Animal Control, Officer Cook seized appellant’s two remaining pit bull dogs that ran at-large in
the neighborhood. Appellant told Detective Cagnina that the dogs “must have gotten out when
one of the children left the house.” Appellant also admitted to Cagnina that she knew pit bulls
were aggressive. She told Cagnina that she did not restrain her dogs or use any kind of safety
device and that she allowed her dogs to run free outdoors “for ten to fifteen minutes to relieve
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themselves.” Furthermore, despite appellant’s apparent capability to restrain the dogs with
chains, locks, and a fenced-in backyard, she allowed the dogs to roam in and out of the house
freely with a broken and unlocked screen door, disregarding the risk posed by the animals.
We hold that, from this evidence, the jury could properly conclude that appellant knew or
should have known her dogs were dangerous. Moreover, acting as fact finder, the jury could
find that the cumulative effect of appellant’s acts, including lack of adequate training and
supervision of her dogs culminating in their repeated history of actual harm and threatening
behavior to animals and humans, followed by her indifferent attitude to their actions caused Mrs.
Sullivan’s death, and therefore, constituted conduct “so gross, wanton, and culpable as to show a
reckless disregard of human life.” Thus, we conclude, that the evidence was sufficient, as a
matter of law, to support appellant’s conviction for involuntary manslaughter.
III. EXPERT WITNESSES
Appellant further contends that the trial court abused its discretion in denying her
motions for the appointment of defense experts in animal behavior and trace evidence. We
disagree.
Upon request, the Commonwealth is required to “provide indigent defendants with the
‘basic tools of an adequate defense,’ and . . . in certain circumstances, these basic tools may
include the appointment of non-psychiatric experts.” Husske v. Commonwealth, 252 Va. 203,
211, 476 S.E.2d 920, 925 (1996) (quoting Ake v. Oklahoma, 470 U.S. 68, 77 (1985)). “[A]n
indigent defendant seeking the appointment of an expert has the burden of showing a
particularized need therefor.” Barnabei v. Commonwealth, 252 Va. 161, 171, 477 S.E.2d 270,
276 (1996).
In Commonwealth v. Sanchez, 268 Va. 161, 597 S.E.2d 197 (2004), the Supreme Court
set forth the “particularized need” test as follows:
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It is the defendant’s burden to demonstrate this “particularized
need” by establishing that an expert’s services would materially
assist him in preparing his defense and that the lack of such
assistance would result in a fundamentally unfair trial. We made
clear in Husske and subsequent cases that “mere hope or suspicion
that favorable evidence is available is not enough to require that
such help be provided.” Whether a defendant has made the
required showing of particularized need is a determination that lies
within the sound discretion of the trial court.
Id. at 165, 597 S.E.2d at 199 (citations omitted). In this context, “[t]herefore, we will not disturb
the decision of the trial court unless it is plainly wrong or without evidence to support it.”
Downing v. Commonwealth, 26 Va. App. 717, 723, 496 S.E.2d 164, 167 (1998).
Appellant maintains that had she been afforded an animal behavior expert, she could have
rebutted the Commonwealth’s contention that pit bulls are inherently dangerous. However,
during the pre-trial hearing on appellant’s motion, the Commonwealth noted that while pit bulls
are inherently dangerous to other animals, the Commonwealth offered to stipulate that “as a
breed pit bulls are not inherently dangerous to human beings.” Furthermore, at trial, Dr. Magura
testified not only as an expert in the field of veterinary medicine for the Commonwealth but also
as an “animal behavioralist” for appellant. In fact, Dr. Magura’s testimony actually aided
appellant when he stated that in his professional opinion, pit bulls are “no more aggressive than a
German shepherd or a Doberman or anything of that nature” and that if properly trained and
supervised, pit bulls are “some of the nicest dogs” a dog owner could expect to have.
Accordingly, appellant failed to show a particularized need for an animal behavior expert
because the Commonwealth never argued pit bulls are inherently dangerous to human beings.
Moreover, Dr. Magura provided the essential evidence appellant would have elicited from her
own animal behavior expert, that is, that pit bulls are no more aggressive than other watchdog
breeds and can be nice dogs if properly trained. Therefore, the trial court properly exercised its
discretion in denying appellant’s motion for an animal behavior expert.
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Appellant also claims the trial court erred in denying her motion for a trace evidence
expert. Appellant contends that had she presented her own trace evidence expert, she could have
rebutted Dr. Oien’s testimony because the hairbrush and comb sample was not a known suitable
sample within generally accepted scientific standards. Appellant’s claim has no merit. Again,
she fails to state a particularized need for a trace evidence expert by making only a general claim
for her own expert simply to rebut Dr. Oien’s testimony. At trial, Dr. Oien stated that “neither
hair examinations [n]or fiber examinations are means of absolute personal identification.”
Furthermore, appellant effectively cross-examined Dr. Oien, making clear that the hairbrush
sample is not a “known scientific sample.” Therefore, although appellant did not receive the
particular expert she requested, appellant, in fact, received the services she requested by
cross-examining Dr. Oien. Indeed, “while the Commonwealth is required to provide adequate
expert assistance to indigent defendants in certain circumstances, it is not required to provide
them with ‘all assistance that a non-indigent defendant may purchase.’” Juniper v.
Commonwealth, 271 Va. 362, 392, 626 S.E.2d 383, 403 (2006) (citing Husske, 252 Va. at 211,
476 S.E.2d at 925). Thus, we find the trial court did not abuse its discretion in denying
appellant’s motion for a trace evidence expert.
IV. CONCLUSION
For these reasons, we affirm the judgment of the trial court and appellant’s conviction.
Affirmed.
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