Commonwealth v. Davis

Decision Date23 November 2021
Docket NumberRecord No. 0368-21-2
Citation865 S.E.2d 429,73 Va.App. 711
Parties COMMONWEALTH of Virginia v. Tyekh Chamon DAVIS
CourtVirginia Court of Appeals

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellant.

Kevin D. Purnell (Kevin D. Purnell, PLLC, on brief), Richmond, for appellee.

Present: Chief Judge Decker, Judges Beales and Fulton

OPINION BY JUDGE JUNIUS P. FULTON, III

Pursuant to Code §§ 19.2-124(B) and 19.2-398(B), the Commonwealth appeals the decision of the Circuit Court for the City of Richmond granting Tyekh Chamon Davis bail. The Commonwealth contends that the circuit court abused its discretion in granting Davis a $10,000 bond by giving inappropriate consideration to twenty months of pre-trial delays attributable to Davis. For the reasons stated, we reverse the order of the circuit court.

I. BACKGROUND

In September 2019, Davis was charged with possession of a firearm after having been convicted of a violent felony. Davis’ preliminary hearing was held on October 18, 2019, and he was indicted by a grand jury on December 2, 2019. Between January 2020, shortly after Davis’ case reached the circuit court, and February 2021, the circuit court continued Davis’ case numerous times on Davis’ own motion.1 On April 30, 2020, the circuit court denied Davis’ motion for bail pending trial. After Davis’ present counsel was appointed, he moved the court to reconsider its bail decision. The Commonwealth objected to the trial court reconsidering Davis’ bail because there had been no allegation of a change of circumstances since the court denied bail in April 2020. The court overruled the Commonwealth's objection, sub silentio , and considered Davis’ motion on April 7, 2021.

The bail hearing commenced with the circuit court inquiring about the date of offense and confirming that Davis had been in custody since 2019. Defense counsel then provided a brief proffer of the facts underlying the charges against Davis, and proffered that Davis would live with his mother, Ursula Davis, if released. At that point, the court expressed concern that Davis did not have any family members present in court on his behalf or anybody who "could offer support and offer some testimony in terms of ... [the] presumption" against bail. The court and the defense attorney discussed continuing the bail hearing to allow Davis to present witnesses on his behalf when Davis remarked that his grandmother had recently passed. Davis requested that, if the court was not willing to grant him a bond, that it grant him "a furlough to allow him to attend the funeral" the following Friday.

Eventually, Davis’ mother was called to testify telephonically. Ms. Davis testified that she and other family members would "make sure [Davis] is searched when he needs to be searched to make sure he doesn't have a gun." Ms. Davis understood that Davis could neither possess a firearm nor associate with "friends" who "normalize crime, drugs and alcohol." She believed that Davis would "keep the peace and be of good behavior."

The Commonwealth proffered that Davis was a "documented street gang member." In September 2016, while a juvenile, Davis was convicted as an adult of malicious wounding and brandishing a firearm after he "shot a young man in the back five times, resulting in serious, significant and life-threatening injuries." A few months after finishing a two-year active sentence for those convictions, on June 9, 2019, Davis "ran from the police, and appeared to discard a firearm." Later that same day, Davis "posted a video on social media showing himself with a handgun on his bed, and a caption that read, ‘You-all will never catch me with shit.’ " In the seven months preceding his arrest in this case, Davis posted "numerous" images on social media of himself with firearms, some with extended magazines, and offering firearms for sale. The Commonwealth further proffered the facts underlying the instant charge against Davis: on August 31, 2019, Davis was a backseat passenger in a car that was stopped by police for reckless driving. Upon request, the driver granted police permission to search the car. Davis refused to exit the car, so police removed him and patted him down for weapons. Police ultimately recovered a firearm from Davis’ pants. Davis admitted to buying what he assumed was a stolen gun.

After argument by counsel, the court stated that it was "not prepared now, at this time, to give [Davis] a bond," but inquired of the sheriff's deputy whether it could "furlough [Davis] to go to" his grandmother's funeral that Friday. The circuit court further expressed concern over Davis’ "gun mentality." The court then asked how long Davis had been incarcerated. When Davis responded that he had been incarcerated for twenty months, the court immediately stated that it would grant Davis "a bond with strict conditions," finding that he already had been incarcerated for "a long time." After "balancing" Davis’ length of incarceration against the Commonwealth's arguments, the court concluded, "he's almost been locked up, this particular time, longer than he has before. So that's a long period of time, and so I'm going to allow him to have a bond."

II. ANALYSIS
A. Standard of Review

"This Court reviews a trial court's decision whether to grant bail for abuse of discretion."

Commonwealth v. Duse, 295 Va. 1, 7, 809 S.E.2d 513 (2018) (citing Fisher v. Commonwealth, 236 Va. 403, 411, 374 S.E.2d 46 (1988) ). This standard requires the Court to "show enough deference to a primary decisionmaker's judgment that the [reviewing] court does not reverse merely because it would have come to a different result in the first instance." Commonwealth v. Thomas, 73 Va. App. 121, 127, 855 S.E.2d 879 (2021) (quoting Lawlor v. Commonwealth, 285 Va. 187, 212, 738 S.E.2d 847 (2013) ). A trial court abuses its discretion by (1) failing "to consider a relevant fact that should have been given significant weight," (2) giving "significant weight to an irrelevant or improper factor," or (3) committing "a clear error in judgment" when weighing "all proper factors." Duse, 295 Va. at 7, 809 S.E.2d 513 (quoting Lawlor, 285 Va. at 212, 738 S.E.2d 847 ).

B. Whether the Circuit Court Erred in Failing to Articulate a Basis for its Bail Decision or State Whether the Presumption Against Bail had been Overcome

It is well-established that "questions essential to all bail decisions" are "whether the defendant will appear for hearing ... and whether the defendant's liberty will constitute an unreasonable danger to himself and the public." Dowell v. Commonwealth, 6 Va. App. 225, 229, 367 S.E.2d 742 (1988) (citing Chambers v. Mississippi, 405 U.S. 1205, 1206, 92 S.Ct. 754, 755, 30 L.Ed.2d 773 (1972) ); see also Code § 19.2-120.2 Therefore, evidence is relevant to a bail determination only to the extent that it is probative of "whether the defendant will appear at further proceedings when required to do so and whether [he] represents an unreasonable danger to himself and the public." Id.

A criminal defendant "shall be admitted to bail" while awaiting trial unless the court finds probable cause that "[h]e will not appear for trial ... as directed" or "[h]is liberty will constitute an unreasonable danger to himself or the public." Code § 19.2-120(A). However, there shall be a rebuttable presumption against bail under certain circumstances, including, as here, where the defendant is charged with a violation of Code § 18.2-308.2, "which relates to a firearm and provides for a mandatory minimum sentence." Code § 19.2-120(B)(4). When a defendant is charged with an offense giving rise to a rebuttable presumption against bail, the court must:

consider the following factors and such others as it deems appropriate in determining, for the purpose of rebuttal of the presumption against bail ..., whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of the public:
1. The nature and circumstances of the offense charged;
2. The history and characteristics of the person, including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, membership in a criminal street gang ..., and record concerning appearance at court proceedings; and
3. The nature and seriousness of the danger to any person or the community that would be posed by the person's release.

Code § 19.2-120(E).

A court making a bail determination "has a duty to articulate the basis of its ruling sufficiently to enable a reviewing court to make an objective determination that the court below has not abused its discretion." Shannon v. Commonwealth, 289 Va. 203, 206, 768 S.E.2d 433 (2015). This rule allows for "prompt and meaningful review of bail decisions." Id. Moreover, "when the presumption against bail applies, ... it is not sufficient that an appellate court presume the presumption was rebutted simply by virtue of the fact that a circuit court admitted a defendant to pre-trial bail." Thomas, 73 Va. App. at 129, 855 S.E.2d 879.

When granting Davis bond, the circuit court stated: "Well, I'm balancing him being incarcerated for 20 months, and balancing the other things that you are saying, and balancing that." Upon review of the record, the circuit court failed to articulate any conclusion regarding whether Davis had rebutted the presumption against bail, let alone a basis for such a conclusion, if reached. This Court cannot divine the basis for the circuit court's decision to grant a bond from its mere claim that it is "balancing" various reasons and cannot, therefore, "determine from the circuit court's ruling what, if any, consideration or weight ... [was] given to the statutory presumption against bail." Shannon, 289 Va. at 207, 768 S.E.2d 433. As such, we hold that the circuit court has erred both in...

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    ...trial ... as directed’ or "[h]is liberty will constitute an unreasonable danger to himself or the public.’ " Commonwealth v. Davis , 73 Va. App. 711, 717-18, 865 S.E.2d 429 (2021) (emphasis added) (quoting Code § 19.2-120(A) ). Code § 19.2-124(A) provides that a "bail decision made by a jud......
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    ...... bail' while awaiting trial unless the court. finds probable cause that '[h]e will not appear for. trial . . . as directed' or "[h]is liberty will. constitute an unreasonable danger to himself or the. public.'" Commonwealth v. Davis, 73 Va.App. 711, 717-18 (2021) (emphasis added) (quoting Code §. 19.2-120(A)). Code § 19.2-124(A) provides that a. "bail decision made by a judge of a court may be. appealed successively by the person to the next higher court,. up to and including the Supreme Court ......
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    • 8 Febrero 2022
    ...... bail' while awaiting trial unless the court. finds probable cause that '[h]e will not appear for. trial . . . as directed' or "[h]is liberty will. constitute an unreasonable danger to himself or the. public.'" Commonwealth v. Davis, 73 Va.App. 711, 717-18 (2021) (emphasis added) (quoting Code §. 19.2-120(A)). Code § 19.2-124(A) provides that a. "bail decision made by a judge of a court may be. appealed successively by the person to the next higher court,. up to and including the Supreme Court ......
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