Hugo Alexander Sanchez, a/k/a, etc v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Annunziata and Clements
Argued at Alexandria, Virginia
HUGO ALEXANDER SANCHEZ, A/K/A
ALEXANDER HUGO ORTEGA
OPINION BY
v. 	Record No. 2970-01-4 	JUDGE ROSEMARIE ANNUNZIATA
AUGUST 26, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
Jeanne E. Klapps, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
John H. McLees, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Hugo Sanchez was charged with carjacking in violation of
Code § 18.2-58.1. 	A jury convicted him, and he received a
sentence of seventeen years.1 He now appeals on the grounds that
the trial court erred 1) in denying his request for additional
funds for an expert witness and 2) in denying his motion to
exclude evidence of a witness' identification. 	For the reasons
that follow, we affirm.
1 Sanchez was also tried and convicted on the charge of
using a firearm in the commission of a felony, in violation of
Code § 18.2-53.1. 	This conviction is not at issue in this
appeal.

Facts
On November 23, 1999, Helen Unangst was about to enter her
car, a green 2000 Honda Accord, which was parked in the parking
lot of her Vienna apartment complex. 	Two men drove up and asked
her for directions to building number 2562. 	The two men exited
their car and the driver approached Unangst, put his arm around
her, and placed a gun to her abdomen. 	The two men began to pull
Unangst towards their car and demanded her car keys. 	Unangst
complied. 	Sanchez took the keys and drove away in Unangst's
Accord. 	His companion followed in the car in which they
arrived.
A few days later, the Virginia State Police telephoned
Unangst and informed her that her car had been found and that
she could come and retrieve her property. 	Unangst retrieved her
personal property from the car, but the vehicle itself was
"totaled." 	The police found the stolen car in the late morning
of November 26, 1999, in a wooded area off the shoulder of the
Dulles Toll Road.
At Sanchez's preliminary hearing in March 2001, Unangst
described the carjacking driver as approximately her height with
an Hispanic accent. 	She also identified Sanchez as the driver,
although she had earlier identified another individual as the
driver while she was at the courthouse for the preliminary
hearing of Sanchez's codefendant in Spring 2000.
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At Sanchez's trial, Unangst denied that, before trial, the
prosecutor told her that Sanchez confessed to the carjacking.
She identified Sanchez as the driver and further testified that
both men who carjacked her car had Hispanic accents. 	She
described the driver as "[her] height or a little bit taller,"
with a goatee, and "fairly broad, Hispanic type features, [and]
a rough voice." 	She also stated he was in his mid to late
twenties. 	Police Officer Jody Donaldson testified that Unganst
described the driver on the date of the carjacking, as Hispanic,
between 5'4" and 5'6" in height, with a moustache. 	Unangst, who
is 5'3" in height, conceded at trial that she might have earlier
told a police officer that the driver was 5'6" tall and she did
not recall saying that he had a moustache.
The forensic technician who ran tests on the car testified
that he found a shoe impression on the inside of the driver's
side front window. 	The impression was consistent with a right
shoe belonging to Sanchez, in outsole design, approximate size,
and wear. 	The laboratory could not definitively identify
Sanchez's shoe as the one that left the impression, however.
DNA analysis of bloodstain samples taken from the wrecked
car revealed that blood found on the inside of the driver's door
belonged to Sanchez. 	Stains of another passenger's blood were
found on the guardrail and steering wheel airbag. 	A mixture of
the same passenger's blood and the blood of an unidentified
individual were found on the front left headrest and seat.
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On December 7, 1999, Sanchez spoke with Corporal David C.
Anderson, of the Montgomery County Police Department. 	He waived
his Miranda rights and spoke with Corporal Anderson about the
carjacking that occurred on November 23, 1999. 	Sanchez told
Anderson that he and another man went to Virginia on the morning
of November 23, 1999, to carjack a car. 	He stated they drove up
to a woman in an apartment complex as she was getting into her
Honda Accord and asked her about building numbers. 	Sanchez
stated that he and the other man exited their car and that
Sanchez approached the woman, showing her the black BB gun he
had in his waistband. 	He demanded and received the keys to her
car, after which he drove away in the Honda.
Several months prior to trial, Sanchez moved the court for
funds to employ a DNA expert witness and a DNA expert
investigator in order to evaluate the Commonwealth's DNA
evidence and the processes by which it was developed. 	The trial
court granted Sanchez $3,000 to engage DNA consultants as he saw
fit.
Before the trials began, Sanchez moved the court for
additional funds to pay for his expert witnesses to testify at
each trial, stating the expert witness' pretrial evaluations had
depleted the previously allotted funds, that the expert would
need no more than one-half day to present his testimony, and
that his court appearance fee would be $250 per hour or a
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maximum of $1,750 per day. 	The reasonableness of the expert
witness' expected fees was not contested.
Counsel represented to the court that the testimony would
be material to the defense. 	However, he initially declined to
reveal the substance of the expected testimony unless permitted
to do so in an ex parte proceeding, which the Commonwealth
opposed. 	The court denied the motion, stating, "I'm not
inclined to have the motion to be made ex parte. 	So unless
there's something further, the Court is going to deny your
motion for additional funds." 	Defense counsel responded to the
court's denial of Sanchez's motion by stating that the expert
would testify that there were errors in the way the DNA
procedures were followed and, therefore, that the DNA results
would be challenged. 	Sanchez offered the following proffer:
[W]e . . . [had the expert] go over the
[DNA] documents from the state laboratory.
There are approximately four or five inches
worth of documents that he has reviewed. 	In
that documentation, he has noticed that
there were errors in the way that the DNA
procedures were followed, that there were
errors in the way the examination was done,
which could have had a significant impact in
the results of the DNA.
So therefore the DNA results that the
Commonwealth is going to put forth as being
scientifically valid could be questioned,
will be questioned, to an extent by our
expert witness and therefore the
Commonwealth's only other evidence, other
than the DNA which we submit would not be
credible, would be testimony of one witness.
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So it is certainly material for the defense
as to whether Mr. Sanchez was in that car
for those reasons.2
The trial court denied Sanchez's motion, and he was subsequently
convicted of carjacking, in violation of Code § 18.2-58.1, and
sentenced to seventeen years. 	This appeal followed.
Analysis
I. 	Denial of Motion for Additional Funds For Expert Witness
On appeal, Sanchez contends the trial court erred in
refusing his request for additional funds for his expert witness
on the ground that he established a particularized need for the
funds. 	We agree.
The United States Supreme Court established an indigent
defendant's right to the assistance of an expert at the state's
expense in Ake v. Oklahoma, 470 U.S. 68 (1985). 	Citing the Due
Process Clause of the Fourteenth Amendment, the Court reasoned:
Meaningful access to justice has been the
consistent theme of these cases. 	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
2 To preserve the issue on appeal, Sanchez renewed his
motion at the beginning of the carjacking trial, which occurred
upon conclusion of the hit and run trial. 	The renewal of the
motion was solely "for the record" and is not material to our
decision that the initial proffer before both trials began
established a particularized need for additional funds to engage
the defense expert for trial.
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that a State must purchase for the indigent
defendant all the assistance that his
wealthier counterpart might buy, it has
often reaffirmed that fundamental fairness
entitles indigent defendants to "an adequate
opportunity to present their claims fairly
within the adversary system." 	To implement
this principle, we have focused on
identifying the "basic tools of an adequate
defense or appeal," and we have required
that such tools be provided to those
defendants who cannot afford to pay for
them.
Id. at 77 (internal citations omitted).
The Court in Ake applied a three-part test to determine
whether the defendant in that case should have been provided the
services of a state-funded psychiatrist to assist with the
insanity defense he raised: 	1) the defendant's private interest
in diminishing the risk of erroneous conviction; 2) the state's
economic considerations, and 3) the risk of error if the case
were to proceed in the absence of the requested assistance.
Id. at 78. 	"When the defendant is able to make . . . a
threshold showing to the trial court [that the issue for which
he seeks expert assistance] is likely to be a significant factor
in his defense" and that he will be prejudiced were the request
to be denied, due process requires the appointment of an expert
at state expense. 	Id. at 82-83.
The Virginia Supreme Court applied Ake in Husske v.
Commonwealth, 252 Va. 203, 476 S.E.2d 920 (1996), and defined
its parameters, stating that neither the decision in Ake nor due
process confers the right to receive "[a]ll assistance that a
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non-indigent defendant may purchase." 	Id. at 211, 476 S.E.2d at
925. 	All that is due, constitutionally, is that an indigent
defendant not be denied "an adequate opportunity to present
. . . claims fairly within the adversary system." 	Id. (quoting
Ross v. Moffitt, 417 U.S. 600, 612 (1974)).
To warrant the appointment of an expert, the Husske Court
also noted that "the indigent defendant . . . must show a
particularized need." 	Id. at 212, 476 S.E.2d at 925. 	The
showing required "'is a flexible one and must be determined on a
case-by-case basis.'" 	Id. at 212, 476 S.E.2d at 925-26 (quoting
State v. Mills, 420 S.E.2d 114, 117-19 (N.C. 1992)). 	"Whether a
defendant has made the requisite showing of a particularized
need lies within the discretion of the trial court." 	Lenz v.
Commonwealth, 261 Va. 451, 462, 544 S.E.2d 299, 305 (2001)
(citing Husske, 252 Va. at 212-13, 476 S.E.2d at 926); accord
Hoverter v. Commonwealth, 23 Va. App. 454, 466, 477 S.E.2d 771,
776 (1996).
Numerous Virginia appellate cases address the question of
whether a "particularized need" has been established by an
indigent defendant. 	None of the cases establishes a bright-line
test for what constitutes a "particularized need." 	It is in the
context of facts found insufficient to satisfy the Ake test that
the meaning of the phrase, "particularized need," emerges.
Citing Caldwell v. Mississippi, 472 U.S. 320 (1985), for
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example, the Court in Husske rejected what it described as
"'little more than undeveloped assertions that the requested
assistance would be beneficial,'" as insufficient to establish
the requisite need. 	Husske, 252 Va. at 210, 476 S.E.2d at 926
(quoting Caldwell, 472 U.S. at 323 n.1) (emphasis added). 	In
Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985), the
Court found the claim that "'a particular service might be of
benefit,'" was insufficient to establish that "'the [requested]
service is constitutionally required.'" 	Id. at 478, 331 S.E.2d
at 430 (quoting Ross, 417 U.S. at 616) (emphasis added). 	In
Barnabei v. Commonwealth, 252 Va. 161, 477 S.E.2d 270 (1996), a
case decided the same day as Husske, the Court found that the
defendant's request for the appointment of a forensic
pathologist to rebut the medical examiner's testimony about the
rape victim's injuries did not articulate a particularized need
because it amounted to, at best "a hope or suspicion that
favorable evidence [that the victim's injuries did not
necessarily result from force] may be procured." 	Id. at 171,
477 S.E.2d at 276 (emphasis added). 	In Hoverter, the defendant
predicated his request for an appointed expert on the need "to
determine if psychological or mental health mitigation evidence
exists," and if so, "to aid him in the development and
presentation of such evidence for the sentencing proceeding."
Hoverter, 23 Va. App. at 466, 477 S.E.2d at 776 (emphasis
added). 	The Court affirmed the trial court's finding that a
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particularized need was not established, noting that Hoverter
had made no showing that he suffered from mental illness. 	Id.
at 467, 477 S.E.2d at 777. 	In short, the indigent defendant's
need for an appointed expert at state expense has to be more
than hypothetical; the court must be able to conclude that
expert assistance relates to an issue which is likely to be
material to the defense.
Inherent in this Court's review of whether a defendant has
articulated a particularized need for the assistance of an
expert is the question of possible prejudice to the defense were
the request to be denied. 	In Hoverter, for example, the
defendant showed no prejudice resulted from the non-appointment
of an expert to give testimony on prison conditions. 	Other
evidence on the issue had already been admitted, and the Court
found that Hoverter failed to show why this other evidence did
not adequately address the question. 	Id. at 466, 477 S.E.2d at
776; see also Ake, 470 U.S. at 78 (finding that a high risk of
error exists if the case were to proceed in the absence of the
requested assistance); Lenz, 261 Va. at 462, 544 S.E.2d at 305
(finding that, because the expert testimony defendant proffered
was available from other witnesses, he suffered no prejudice and
the trial was not fundamentally unfair).
We find Sanchez's proffer demonstrated a particularized
need in the case and that the expert's proffered testimony was
material to Sanchez's defense. 	Sanchez stated that he needed
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the expert's testimony at trial to challenge the DNA analysis
performed on blood stains taken from the vehicle that had been
involved in the hit-and-run offense. 	He proffered that the
defense expert had found errors in the "way the DNA procedures"
were followed by the Commonwealth's expert and that he was
prepared to question the scientific validity of the results
obtained by the Commonwealth's witness.
The validity of the DNA evidence was material to Sanchez's
defense. 	The trial court's initial appointment of a DNA expert
at state expense to assist Sanchez in his evaluation of the
Commonwealth's DNA expert's test results reflects that
materiality, and the record confirms it. 	The Commonwealth's DNA
results implicated Sanchez as the driver of the car involved in
the hit and run offense, constituting significant physical
evidence that directly linked Sanchez to the driver's seat of
the car at that time. 	The Commonwealth introduced the DNA
evidence in order to establish Sanchez's identity as the
carjacker in the instant case. 	From the DNA evidence, the jury
could infer that the perpetrators of the hit-and-run offense and
the carjacking were one and the same.3
3 Indeed, the Commonwealth made clear throughout the
carjacking trial that the DNA evidence was a key element of its
theory of the case, namely that Sanchez, as the driver of the
car involved in the hit-and-run offense, was also the individual
who committed the carjacking. 	The prosecution continually
underscored the relevance of finding Sanchez's blood on the
inside of the driver's door to a determination of his identity
as the perpetrator of the carjacking two days prior to the
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Sanchez's ability to challenge the validity of the
Commonwealth's DNA results was truncated by the trial court's
denial of the additional funds that Sanchez sought. 	Sanchez
proffered that the results would be challenged based on his
expert's conclusions that there were errors in the manner in
which the Commonwealth's DNA testing procedures were followed.
At trial, on cross-examination, the Commonwealth's expert, Bryan
P. Edmonds, testified that he followed office protocol and
described the DNA analysis method he used in detail. 	Edmonds
stated the protocol he followed was standard procedure. 	He
further noted that the protocol is accepted within the
scientific community. 	Sanchez had no witness available to
challenge the validity of the Commonwealth's evidence. 	In
short, the Commonwealth's expert's testimony was unrebutted, a
prejudicial disadvantage foreseen by the Ake Court. 	Ake, 470
U.S. at 77 ("Without . . . the expert's assistance, the
defendant cannot offer a well-informed expert's opposing view,
and thereby loses a significant opportunity to raise in the
jurors' minds questions about the State's proof . . . . ").
accident. 	In its opening statement, the prosecution stated,
"That car turned up two days later, discovered by police wrecked
against a tree. 	Blood was taken from the vehicle . . . and the
DNA from that blood matches [Sanchez]." 	In closing statements,
the prosecution stated that Unangst's identification, challenged
by the defense, was corroborated "by science, because science
also places him in the car . . . [Sanchez's] blood, his DNA, his
unique DNA is in that car, indeed in the vicinity of the
driver's seat."
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Here, Sanchez was "unable because of poverty to parry by his own
witnesses the thrusts of those against him." 	Reilly v. Barry,
166 N.E. 165, 167 (N.Y. 1929). 	Specifically, he was unable to
counter the Commonwealth's evidence and theory that the evidence
proved he drove the vehicle involved in the hit-and-run accident
and, thus, was the individual who carjacked Unangst two days
earlier.
Accordingly, we find that the trial court erroneously
denied Sanchez's motion for additional funds to permit his
expert to testify at trial and that the denial of the requested
funds prejudiced Sanchez and his ability to mount a proper
defense to the hit-and-run charge. 	See Lenz, 261 Va. at 462,
544 S.E.2d at 305.
We now turn to whether the trial court's denial of
additional funds for an expert witness was harmless error.
Although the issue of harmless error in the Ake context has not
specifically been addressed in Virginia, the Fourth Circuit
determined that the denial of expert assistance in violation of
Ake is trial error subject to harmless error analysis. 	Tuggle
v. Netherland, 79 F.3d 1386, 1392 (4th Cir. 1996).
In Tuggle, the court noted that, "Errors amenable to
harmless-error review are trial errors." 	Id. 	"Trial error
'occur[s] during the presentation of the case to the jury, and
is amenable to harmless-error analysis because it may . . . be
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quantitatively assessed in the context of other evidence
presented in order to determine [the effect it had on the
trial]." 	Brecht v. Abramson, 507 U.S. 619, 629 (1993) (quoting
Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991)).4
The error identified in this case is a trial error and
subject to harmless error analysis. 	On direct appeal, the
harmless error standard for constitutional error is whether the
error "was harmless beyond a reasonable doubt." 	Chapman v.
California, 386 U.S. 18, 24 (1967). 	Under that standard, a
constitutional error may not be declared harmless if there is a
"reasonable possibility" that the "error contributed to the
verdict." 	Tuggle, 79 F.3d at 1392.
Applying this standard to the case at bar, we find the
trial court's error in denying Sanchez's request for additional
funds for a DNA expert was harmless. 	Sanchez sought expert
testimony to challenge the Commonwealth's DNA evidence that
implicated him as the driver of the Honda Accord at the time of
the hit-and-run accident and, thus, by inference, as the
perpetrator of the carjacking in this case. 	However, Sanchez
4 Trial errors may be compared with structural errors, such
as the deprivation of the right to counsel, trial by a biased
judge, the unlawful exclusion of members of the defendant's race
from a grand jury, and the denial of the right to a public
trial. 	Fulminante, 499 U.S. at 309-10. 	Unlike trial errors,
structural errors are not amenable to harmless error analysis
because they "'infect the entire trial process.'" 	Tuggle, 79
F.3d at 1391 (quoting Brecht, 507 U.S. at 630). 	Thus, assessing
the impact of structural errors on the trial is impossible. 	Id.
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confessed to the carjacking, describing his actions on the date
in question in detail, and corroborating Unangst's testimony
identifying him as the carjacker. 	Moreover, Sanchez's shoe
impression, found on the inside of the driver's window, also
implicated him as the perpetrator of the carjacking. 	In light
of the overwhelming evidence of Sanchez's guilt, see Jenkins v.
Commonwealth, 244 Va. 445, 454, 423 S.E.2d 360, 366 (1992), we
hold the error was harmless beyond a reasonable doubt and that
there was no "reasonable possibility" that the "error
contributed to the verdict." 	Tuggle, 79 F.3d at 1392.
Accordingly, we affirm the decision of the trial court.
II. 	In-Court Identification
Sanchez next challenges the identification testimony of
Unangst, on the ground it was tainted by the Commonwealth's
comments to Unangst that Sanchez had confessed to the
carjacking. 	He also contends the trial court erred in failing
to conduct a full hearing on the motion.5
5 The Commonwealth contends these issues are procedurally
barred because Sanchez failed to preserve them below. 	We agree
that Sanchez's contention that the trial court improperly failed
to grant him a full hearing on the issue is procedurally barred.
The record fails to establish that Sanchez timely objected to
the trial court's decision not to grant a full hearing or that
he requested a full hearing on the issue. 	Thus, the issue is
barred. 	Rule 5A:18. 	However, we find Sanchez properly
preserved his challenge to Unangst's identification testimony.
On August 31, 2001, Sanchez moved the trial court in limine to
exclude any testimony by Unangst in which she identified him as
the perpetrator of the carjacking. 	On September 4, 2001, the
first day of the trial, the trial court heard arguments on this
motion from both parties and ultimately denied it. 	Sanchez
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Under accepted principles, we apply a two-part test to
determine whether an in-court identification must be suppressed.
Doan v. Commonwealth, 15 Va. App. 87, 95, 422 S.E.2d 398, 402
(1992). 	First, the court must determine "whether the
identification was unduly suggestive." 	Id. at 95, 422 S.E.2d at
403. 	In determining whether this prong of the test has been
proved, we examine the totality of the circumstances. 	Neil v.
Biggers, 409 U.S. 188, 199 (1972). 	If the court resolves that
question in the affirmative, the court "'next must determine
whether the out-of-court identification was nevertheless so
reliable that no substantial likelihood of misidentification
existed.'" 	Doan, 15 Va. App. at 95, 422 S.E.2d at 403 (quoting
Curtis v. Commonwealth, 11 Va. App. 28, 31, 396 S.E.2d 386, 388
(1990)). 	In reviewing the "totality of the circumstances" to
determine the reliability of the identification, we examine
Unangst's opportunity to observe the criminal at the time of the
crime, her degree of attention, the accuracy of her prior
description of the criminal, the level of certainty she
demonstrated at the confrontation, and the length of time
between the crime and the confrontation. 	Biggers, 409 U.S. at
199-200; see also Doan, 15 Va. App. at 97, 422 S.E.2d at 404.
Upon review of the record, we find that Unangst's
identification of Sanchez at trial was not the product of
noted his exception to the ruling. 	We find Sanchez preserved
the issue for appeal.
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improper suggestive comments by the Commonwealth's attorney.
The evidence is uncontradicted that Unangst did not hear or
remember any such comments. 	Logic dictates that no suggestive
effect can flow from a statement that was not heard or
remembered. 	Cf. Doan, 15 Va. App. at 96-97, 422 S.E.2d at 403
(finding that, where witness stated Commonwealth's attorney did
not tell her where defendant would be sitting at trial,
prosecutor's comments could not be deemed "overly suggestive").
Even were we to find Unangst's testimony was tainted by a
suggestive comment made by the Commonwealth's attorney, upon
review of the evidentiary record relative to the totality of
circumstances, we find no error. 	We find that Unangst's
identification testimony was based on a reliable source of
information free from taint and independent from any suggestive
comments that allegedly were made by the Commonwealth. 	See
McCary v. Commonwealth, 228 Va. 219, 234, 321 S.E.2d 637, 645
(1984). 	Unangst had adequate opportunity to view her attacker's
face; she focused her attention on him as he spoke to her, as he
left his car to approach her, and when he grabbed her and began
forcing her toward his car as he demanded her car keys. 	Unangst
had twice before positively identified him as one of the
carjackers: 	at Sanchez's preliminary hearing and at the trial
of the hit-and-run offense with which he was charged. 	Her
testimony at the carjacking trial was not shown to have changed
as a result of any remarks the prosecution allegedly made.
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Although Unangst had previously identified another individual as
the driver, she retracted that identification and positively and
consistently identified Sanchez as the individual who carjacked
her car. 	While Unangst's initial and later descriptions of
Sanchez were not entirely consistent with respect to her
estimates of Sanchez's height, the presence of facial hair, and
any speech accent, her descriptions were essentially accurate.
Such factors are for the jury to consider in weighing the
accuracy of the in-court identification. 	McCary, 228 Va. at
234, 321 S.E.2d at 635; see also Fisher, 228 Va. at 299-300, 321
S.E.2d at 204; Hill v. Commonwealth, 2 Va. App. 683, 698, 347
S.E.2d 913, 921 (1986). 	Accordingly, we find no error in the
trial court's admission of Unangst's identification testimony.
III. 	Conclusion
In conclusion, we find the trial court improperly denied
Sanchez's motion for additional funds for an expert witness
because Sanchez established a particularized need for the expert
and the failure to allot him the funds adversely affected his
ability to rebut and challenge the Commonwealth's evidence.
However, viewed in the context of the overwhelming evidence of
Sanchez's guilt, we find the error was harmless beyond a
reasonable doubt. 	Additionally, we find the trial court's
decision to admit Unangst's identification testimony was without
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error because the record fails to show that it had been tainted
or that it was not reliable.
We affirm Sanchez's conviction.
Affirmed.
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