Haynesworth v. Commonwealth
| Decision Date | 06 December 2011 |
| Docket Number | Record Nos. 0223–11–2,0224–11–2. |
| Citation | 717 S.E.2d 817,59 Va.App. 197 |
| Parties | Thomas HAYNESWORTH, Petitioner, v. COMMONWEALTH of Virginia, Respondent.Thomas Haynesworth, Petitioner, v. Commonwealth of Virginia, Respondent. |
| Court | Virginia Court of Appeals |
OPINION TEXT STARTS HERE
Shawn Armbrust (Ellen S. Kennedy; Thomas J. Widor; Peter Neufeld; Olga Akselrod; Mid Atlantic Innocence Project; Hogan Lovells U.S. LLP; The Innocence Project, Inc., on briefs), for petitioner.
Kenneth T. Cuccinelli, II, Attorney General (Alice T. Armstrong, Assistant Attorney General II, on briefs), for respondent.
Before Chief Judge FELTON, Judges ELDER, FRANK, HUMPHREYS, KELSEY, HALEY, PETTY, BEALES, ALSTON, and HUFF.
Upon a Hearing En Banc.
The Court has considered the petitions, the response by the Commonwealth, the records of these cases, and the record of the oral argument before the en banc Court on September 27, 2011, and finds that these petitions should be granted under Code § 19.2–327.13. Accordingly, this Court hereby grants the petitions, issues writs of actual innocence, and vacates the defendant's convictions.
I have no doubt that the majority is attempting to right what it perceives as a wrong in these cases. However, in order to do so, the majority must either authorize the Attorney General, in his discretion, to consent to the issuance of a writ of actual innocence in cases in which such writs would not otherwise issue or ignore the plain meaning of Code § 19.2–327. Neither is a prudent path to walk, for the personal views of the members of this Court should have no bearing on how this Court applies the law as written by the legislature. “Our province is not to make law, but to administer it, and we must, therefore, decide this case according to the settled law as it is written, and not permit a hard case to make bad law.” Yancey v. Field, 85 Va. 756, 758, 8 S.E. 721, 721 (1889). Therefore, I respectfully dissent.
The issue is a relatively simple one. The statute provides that in order for a writ of actual innocence to issue, material in the record must “prove that no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Code § 19.2–327.11(A)(vii). Here we have two victims of vicious sexual crimes, each of whom has positively identified Haynesworth as her attacker. One of the victims spent more than two hours with Haynesworth, went through a rigorous cross-examination at trial, and was believed by the jury. The only real “new” evidence in the record is that two similar crimes which occurred within a month of these offenses were proved to have been committed by another individual who resembled Haynesworth. On the record before us, neither of the victims in these cases has recanted her positive identification of Haynesworth or expressed any doubt about the identity of her attacker. How can this Court conclude under Code § 19.2–327.13 that no “rational trier of fact” could believe these victims' identifications of Haynesworth simply because DNA evidence establishes two other victims of similar crimes were mistaken and it is possible, as a result, that Haynesworth is innocent?
Despite acknowledging that, even with the new evidence, these cases would be affirmed on direct appeal, the Attorney General has taken the position that the evidence supports the issuance of the writs. Indeed, the Attorney General has conceded that the same person committed all of the relevant crimes. Since it is unquestioned that Haynesworth did not commit the crimes for which he was exonerated based on the DNA evidence, the logical consequence of this concession, if accepted, would be to compel the conclusion that he did not commit the crimes before this Court. However, the Attorney General also observed at oral argument that, but for his concession reflecting his belief that Haynesworth did not commit these offenses, a fact-finder could very well credit the identification testimony of the victims in these cases over the evidence relied upon by Haynesworth. Given this important distinction, the actual innocence statutes simply do not permit issuance of the requested writs. The fact that Haynesworth did not commit other crimes does not prove he did not attack these two victims. The facts in these cases could not be more compelling. The victims have not recanted, no one has confessed, and there is no direct evidence that Haynesworth did not commit these crimes. The majority, which apparently accepts the Attorney General's concession without any development of the facts under Code § 19.2–327.12, renders the Attorney General's concession dispositive to the issuance of the writs.
The only time this Court has considered and accepted an Attorney General's confession of error in the context of the writ of actual innocence statutes was in Copeland v. Commonwealth, 52 Va.App. 529, 532, 664 S.E.2d 528, 530 (2008), but the facts in that case are in no way analogous to those in these cases. In Copeland, scientific evidence, akin to DNA, established that the item in question was not a “firearm” as required by the statute. 52 Va.App. at 531, 664 S.E.2d at 529. The certificate of analysis and an examination of the weapon in question affirmatively established Copeland's innocence of the crime charged. In other words, the Attorney General merely conceded the irrefutable.
To the contrary in these cases, there is no direct evidence that exonerates Haynesworth. The Attorney General has merely expressed his opinion that Haynesworth is innocent. Overturning a conviction simply because the Attorney General believes the defendant is innocent judicially empowers him to pardon a convicted criminal, a power he does not have. See Taylor v. Commonwealth, 58 Va.App. 435, 443, 710 S.E.2d 518, 522 (2011) . Similarly, granting a writ of actual innocence simply because the Court believes in petitioner's innocence amounts to a judicial pardon. This Court has previously acknowledged such action is beyond the scope of our power, yet today ignores our responsibility to exercise only judicial powers and instead encroaches on the pardoning power of the Governor of the Commonwealth. See id. at 439, 710 S.E.2d at 521 (); see also Copeland, 52 Va.App. at 532, 664 S.E.2d at 530 (cautioning against “imping[ing] upon the Governor's exclusive power over executive clemency”). Simply put, we do not have the power to do anything other than that mandated by the actual innocence statutes.
Perhaps the legislature should draft the statutes more broadly to allow us the freedom to correct perceived mistakes of the criminal justice system and grant petitions for writ of actual innocence in cases such as these. However, it is our judicial duty to apply statutes as written, not re-write the statutes to achieve an end that we consider more appropriate. I respectfully suggest that the action this Court takes today is inconsistent with our usual exercise of judicial restraint.1
In 1984, Haynesworth was indicted for completed or attempted sexual assaults committed against five different women. Haynesworth's petitions for writ of actual innocence involve his August 10, 1984 convictions for rape, sodomy, abduction with intent to defile, and two counts of use of a firearm in the commission of those felonies against M.A. and his October 11, 1984 convictions for attempted robbery, abduction with intent to defile, and two counts of use of a firearm in the commission of those felonies against T.H.
On January 3, 1984, J.S. was raped at her place of employment by a man brandishing a serrated knife. J.S. identified Haynesworth as her attacker from a photo array and positively identified Haynesworth at trial in 1984, stating there was no question in her mind that he was the person who raped her. Haynesworth was subsequently convicted of rape. However, on April 2, 2009, an analysis of buccal swabs taken from J.S. and Haynesworth during the initial investigation eliminated Haynesworth as a contributor of the foreign biological material found within J.S. The certificate of analysis further established that another individual, Leon W. Davis, could not be eliminated as a contributor.3 Based on this biological evidence, the Supreme Court granted Haynesworth's writ of actual innocence and vacated his conviction for the rape of J.S. See In re Haynesworth, No. 090942 (Va. Sept. 18, 2009).
On January 21, 1984, D.K. was robbed and orally sodomized at knifepoint. Haynesworth was charged with these offenses, but a jury acquitted him. Even though Haynesworth was acquitted of these offenses, the Commonwealth joined Haynesworth's 2009 request for post-conviction DNA testing to determine whether Leon Davis may have also committed the other crimes with which Haynesworth was charged. Once again, the analysis eliminated Haynesworth as a contributor of the DNA evidence in the offenses involving D.K. but did not eliminate Davis.
Haynesworth was also indicted for the attempted robbery of L.D. The trial court entered a nolle prosequi, and Haynesworth was not convicted of that crime.
At about 8:30 p.m. on January 30, 1984, M.A. was rounding the corner of an apartment building when she encountered a man who repeatedly asked her for the time. M.A. first ignored his requests, and then tried to separate herself from him. However, the man then “suggested” that she stop and turn around slowly because he had a gun pointed at her. Seeing the gun, M.A. complied with the assailant's demand to walk toward him. The assailant then ordered her...
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