Bush v. Com. Virginia
| Decision Date | 22 May 2018 |
| Docket Number | Record No. 2057-17-2,Record No. 2056-17-2 |
| Citation | 813 S.E.2d 582,68 Va.App. 797 |
| Parties | Gary Linwood BUSH, Petitioner, v. COMMONWEALTH of Virginia, Respondent. Gary Linwood Bush, Petitioner, v. Commonwealth of Virginia, Respondent. |
| Court | Virginia Court of Appeals |
Jennifer L. Givens (The Innocence Project at the University of Virginia School of Law, on brief), for petitioner.
Matthew P. Dullaghan, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for respondent.
Before Chief Judge Huff, Judges Russell and Malveaux
Gary Linwood Bush ("Bush") petitions this Court to grant two writs of actual innocence based on non-biological evidence pursuant to Code §§ 19.2–327.10 to –327.14. Bush filed two petitions, one seeking to vacate his July 16, 2007 conviction for robbery from the Circuit Court of the City of Petersburg, and the other seeking to vacate his August 22, 2007 conviction for robbery from the Circuit Court of Prince George County. In support of his petitions, Bush proffers newly-discovered evidence—Christian Amos’ confession to both robberies and conviction for one of the robberies. The Commonwealth agrees that Bush has satisfied the statutory requirements and joins in asking this Court to grant his petitions. For the reasons that follow, we grant Bush’s petitions.
Bush’s Trials and Convictions
On June 27, 2007, in the Petersburg Circuit Court, Bush was convicted in a jury trial for robbery, in violation of Code § 18.2–58, and sentenced to five years’ incarceration. At trial, the Commonwealth presented the testimony of Brandy Hawthorn, a teller at the Bank of Southside Virginia on Crater Road. She testified that on October 6, 2006, a man at the bank passed her a note stating that he had a gun and wanted 100, 50, and 20–dollar bills. Hawthorn stated that the man was wearing a baseball cap and looking down during their interaction. Their entire interaction lasted less than ninety seconds, and because the robber was looking down, Hawthorn only got a few "glimpse[s]" of him for a total of about five seconds. Hawthorn identified Bush as the robber in a photo lineup, and also identified him as the robber in a preliminary hearing and at trial.
The Commonwealth also presented the testimony of Dena Patrick, the manager of the bank. She first saw the robber at the teller station, where he was six or seven feet away from her for about ten seconds. He then ran past her, and she saw him for a few seconds as he passed within three feet. His head was down the entire time she viewed him. She identified Bush as the robber in a photo lineup, and also made an in-court identification of him at trial.
Bush testified at trial. He denied any involvement in the robbery and stated that he was in another location at the time. Detective Robert Carmichael, the arresting officer, testified that Bush told him that he had a drug problem and spent $1,200 to $1,600 a week on drugs.
On August 2, 2007, in the Prince George County Circuit Court, Bush was convicted in a bench trial for robbery, in violation of Code § 18.2–58, and sentenced to seven years of active incarceration. At trial, the Commonwealth presented the testimony of Bethany Hays, a teller at the BB&T bank branch at the Crossings shopping center. She testified that on November 8, 2006, a robber passed her a note stating that he had a gun and wanted 100, 50, and 20–dollar bills. Because the man was wearing a camouflage baseball cap, Hays was only able to see the lower part of his face. She identified Bush as the robber in a photo lineup and at trial. Bush held an account at BB&T and had banked at the Crossings branch before; however, Hays did not remember seeing him, even though she testified that she was "usually ... very familiar with the clients that do come in every day."
Thomas Ard, a construction worker, also testified at trial. He stated that he was in the bank at the time of the robbery and that the robber hit him in the shoulder as he left. Ard had previously seen Bush "around town" and at "drug houses." He identified Bush as the robber of the Crossings BB&T in a photo lineup and at trial. At trial, Ard did not remember the robber wearing a baseball cap.
Detective Carmichael also testified at this trial, stating that Bush told him that he had a serious drug problem and had spent up to $1,600 a week on drugs.
Bush testified in his own defense. He denied any involvement in the robbery and stated that he was in another location at the time. Bush provided law enforcement with a palm print sample, which did not match the palm print on the note given to the teller. He also provided a sample of his handwriting, which could neither be identified nor eliminated as the same handwriting on the note.
Bush did not appeal either conviction, and did not seek habeas corpus relief.
On May 17, 2016, Christian Amos called Prince George County police dispatch and asked to speak with someone about bank robberies. Amos went to police headquarters and was interviewed by Detective Reed. Reed explained to Amos that even though he was in a police station, he was free to leave, and Amos stated that he "knew how it worked." Amos told the detective that he had robbed the Bank of Southside Virginia on Crater Road in Petersburg twice, and had also robbed the BB&T in the Crossings shopping center in Prince George. Amos provided several details about the BB&T robbery. After reviewing those details, Reed confirmed that they matched the following facts of the robbery: the time of day, the clothing worn during the robbery, the contents of the note passed to the teller, the amount of money taken, the robber’s direction of travel after leaving the bank, and the fact that it had been raining that day. Amos stated that he had committed the robberies because he was on pain medication and owed his supplier. He was unaware that someone else had been convicted and was incarcerated for the offenses.
During this interview, Amos provided a handwriting sample which contained the same language used in the robbery note.
The Prince George Circuit Court later remarked that Amos’ handwriting was "strikingly similar" to the handwriting used in the note.
On November 10, 2016, Amos pled guilty to the BB&T robbery. The Prince George Circuit Court accepted his plea. At his sentencing hearing, Amos stated that he confessed after his grandson had broken some windows. His grandson at first denied breaking the windows, but then confessed and apologized to the owner. Amos felt proud of his grandson, but also felt "like a hypocrite," and that he "had to own up to it." In a June 9, 2017 sentencing order, the court sentenced Amos to fifty years’ incarceration, with all but five years suspended.
On June 30, 2017, Amos, in a document entitled "Declaration of Christian Lynn Amos," admitted that he committed the October 6, 2006 robbery of the Bank of Southside Virginia on Crater Road in Petersburg. The declaration provided details of that robbery.
On December 15, 2017, Bush filed petitions for actual innocence for the Petersburg and Prince George robberies. Bush stated that his claims of innocence were based upon the "confession, guilty plea, conviction and declaration of Christian Amos" regarding the robberies.
On February 13, 2018, this Court consolidated both petitions.
Code § 19.2–327.10 confers original jurisdiction upon this Court to consider a petition for a writ of actual innocence based on non-biological evidence. Under Code § 19.2–327.13, the decision to grant or dismiss a petition for a writ of actual innocence requires this Court to consider "the petition, the response by the Commonwealth, previous records of the case, the record of any hearing held under this chapter and, if applicable, any findings certified from the circuit court."1 In addition, "[t]he burden of proof in a proceeding brought pursuant to this chapter shall be upon the convicted or delinquent person seeking relief." Code § 19.2–327.13.
This Court may grant a writ for actual innocence "only upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of [Code] § 19.2–327.11, and upon a finding that no rational trier of fact would have found proof of guilt or delinquency beyond a reasonable doubt." Code § 19.2–327.13. Thus, under this statute, a petitioner must prove by clear and convincing evidence that the newly-discovered evidence:
Carpitcher v. Commonwealth, 273 Va. 335, 343–44, 641 S.E.2d 486, 491 (2007).2 We discuss each evidentiary requirement in turn.
First, we look to see if the evidence was previously unknown or unavailable to the petitioner or his attorney at the time the conviction became final in the circuit court. Code § 19.2–327.11(A)(iv). In these cases, it is obvious that the evidence was unknown to Bush or his attorney at the time of his convictions. Amos did not confess to the crimes until May 2016. The final orders of conviction were entered by the Petersburg and Prince George circuit courts in 2007. It is clear that Bush did not have access to this evidence within 21 days following entry of the final orders of...
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