Johnson v. Commonwealth

• Decision Date: 02 March 2007
• Docket Number: Record No. 060363.
• Citation: Johnson v. Commonwealth, 641 S.E.2d 480, 273 Va. 315 (2007)
• Parties: Dwayne Lamont JOHNSON v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

641 S.E.2d 480

Dwayne Lamont JOHNSON v. COMMONWEALTH of Virginia.

Record No. 060363.

Supreme Court of Virginia.

March 2, 2007.

Gail Starling Marshall, for appellant.

(Robert F. McDonnell, Attorney General; Leah A. Darron, Senior Assistant Attorney General, on brief), for appellee.

Present: HASSELL, C.J., and LACY, KEENAN, LEMONS, KOONTZ, and AGEE, JJ., and STEPHENSON, S.J.

OPINION BY Justice BARBARA MILANO KEENAN.

This appeal arises from the Court of Appeals' dismissal of a petition for a writ of actual innocence based on non-biological evidence, in which a petitioner sought relief based on recantation evidence provided by a co-defendant who had given contrary testimony at the petitioner's trial. We consider various issues related to the Court of Appeals' consideration of the petition under the provisions of Code §§ 19.2-327.10 through—327.14.

In September 2001, Dwayne Lamont Johnson (Johnson) was tried by a jury in the Circuit Court of New Kent County for capital murder for hire of Hope Sabrina Johnson (Hope), Johnson's wife, in violation of Code § 18.2-31, and for conspiracy to commit capital murder for hire, in violation of Code § 18.2-22. Johnson was convicted of both charges and, in accordance with the jury verdict, was sentenced to serve a term of life imprisonment for capital murder, and a term of 20 years' imprisonment for conspiracy to commit capital murder.

At Johnson's trial, the Commonwealth presented the testimony of Brandon L. Smith, who admitted that he was present when Hope was murdered. Because of his involvement in Hope's murder, Smith earlier had entered into a plea agreement in which the Commonwealth agreed to seek a lesser sentence in return for Smith's testimony implicating Johnson in the murder.

Smith testified at Johnson's trial that Johnson asked Smith to kill Hope or to find someone to kill her. According to Smith, Johnson stated that he would "give his next paycheck" to any person willing to kill Hope. Smith maintained that he refused the offer but told Johnson that Henry K. Barnes might agree to kill Hope.

On the night of Hope's murder, another acquaintance, Lloyd M. Allen, drove Smith and Barnes to Hope's house. Smith admitted that he entered Hope's house with Barnes after they cut the telephone line to the house. Allen testified that Barnes returned to the car without Smith, and that Allen and Barnes heard gunfire while waiting for Smith to return to the vehicle.

Hope was shot three times, including once in the back of her head. Allen later assisted the police in finding the murder weapon.

In November 2001, several weeks after Johnson's trial, Smith wrote a statement recanting the testimony he gave at Johnson's trial. In his recantation, Smith asserted that he had not discussed with Johnson any plan to kill Hope, and claimed that he had testified falsely at Johnson's trial in order to receive a less severe sentence for his own involvement in the homicide.

Johnson appealed from his conviction to the Court of Appeals, which denied his petition. Johnson v. Commonwealth, Record No. 2739-01-2 (May 15, 2002.) This Court also refused Johnson's petition for appeal.¹ Johnson v. Commonwealth, Record No. 022521 (March 17, 2003).

In February 2005, Johnson filed a petition in the Court of Appeals for a writ of actual innocence based on non-biological evidence under the provisions of Code §§ 19.2-327.10 through—327.14. Johnson relied on Smith's recantation in support of his claim of innocence. The Court of Appeals determined that it required additional facts before it could reach a decision on Johnson's petition, and accordingly certified the following issues to the circuit court:

1. Is Brandon Smith credible in his assertion that he testified falsely during the trial of petitioner?

2. If the answer to # 1 is "Yes," did Brandon Smith testify falsely as to any material fact with respect to the offense(s) with which petitioner was charged?

3. If the answer to # 1 is "Yes," were either petitioner or his trial counsel aware that Brandon Smith claimed that his trial testimony was false prior to the expiration of the 21 days following the entry of petitioner's final order of conviction?

4. If the answer to # 2 above is "Yes," and the answer to # 3 above is "No," with the exercise of reasonable diligence, could Smith's assertion that his trial testimony was false have been discovered by petitioner or his trial counsel before the expiration of 21 days following the entry of petitioner's final order of conviction?

The circuit court conducted an evidentiary hearing. At the hearing, Smith testified that he had lied to the police in stating that Johnson had been involved in Hope's murder, and had lied in giving similar testimony at Johnson's trial.² When asked to explain his inconsistent testimony regarding his own participation in Hope's murder, Smith stated that his attorneys had told him that he would receive a reduced sentence at his own trial if he testified against Johnson, and that Smith implicated Johnson because the police officers who arrested Smith had threatened to seek the death penalty in his case. Smith was unable to explain why he allegedly had testified falsely with respect to several details surrounding Hope's murder.

In its certified findings of fact, the circuit court stated that Smith's testimony was "neither logical nor believable, and at times he was evasive." The circuit court concluded that Smith was "not credible in his assertion that he testified falsely during the trial of Dwayne Johnson."

The Court of Appeals relied on the circuit court's factual findings, along with the evidence presented at Johnson's trial, and concluded that Smith's recantation testimony was not credible. Accordingly, the Court of Appeals dismissed Johnson's petition, holding that the evidence was insufficient to support the granting of a writ of actual innocence based on non-biological evidence. Johnson appeals from the Court of Appeals' dismissal of his petition.

We apply the standard of review set forth in Carpitcher v. Commonwealth, 273 Va. ___, 641 S.E.2d 486 (2007) (this day decided), in which we considered an appeal from the Court of Appeals' dismissal of a petition for a writ of actual innocence based on non-biological evidence. We held that in an appeal from the Court of Appeals' dismissal of such a petition, we will review de novo the Court of Appeals' conclusions of law and its conclusions based on mixed questions of law and fact. Id. at ___, 483 S.E.2d at 490-91. However, when the Court of Appeals has referred issues in the case to a circuit court for factual findings under the provisions of Code § 19.2-327.12 and the Court of Appeals has approved those findings, we will be bound by the factual findings unless they are plainly wrong or without evidence to support them. 273 Va. at ___, 641 S.E.2d at 490.

Johnson first argues that the Court of Appeals erroneously added a credibility requirement to the statutes governing writs of actual innocence based on non-biological evidence. He contends that the Court of Appeals, in the absence of any statutory authority, required that he establish the credibility of Smith's recantation in addition to proving that the recantation evidence was "material" within the meaning of Code § 19.2-327.11(A)(vii). According to Johnson, Code § 19.2-327.12 does not permit the Court of Appeals to require that the circuit court make such a credibility determination. We disagree with Johnson's arguments.

To obtain a writ of actual innocence based on non-biological evidence under Code §§ 19.2-327.10— through—327.14, a petitioner must allege and prove, among other things, that the newly-discovered evidence:

(1) "was previously unknown or unavailable to the petitioner or his trial attorney of record at the time the conviction became final in the circuit court;" Code § 19.2-327.11(A)(iv);

(2) "is such as could not, by the exercise of diligence, have been discovered or obtained before the expiration of 21 days following entry of the final order of conviction by the court;" Code § 19.2-327.11(A)(vi);

(3) "is material and when considered with all of the other evidence in the current record, will prove that no rational trier of fact could have found proof of guilt beyond a reasonable doubt;" Code § 19.2-327.11(A)(vii); and

(4) "is not merely cumulative, corroborative or collateral." Code § 19.2-327.11(A)(viii).

The petitioner bears the burden of proving these four elements by clear and convincing evidence. Code § 19.2-327.13.

The provisions of Code § 19.2-327.12 detail the Court of Appeals' authority to refer factual issues to a circuit court:

"If the Court of Appeals determines . . . that a resolution of the case requires further development of the facts, the court may order the circuit court in which the order of conviction was originally entered to conduct a hearing . . . to certify findings of fact with respect to such issues as the Court of Appeals shall direct."

As we explained in Carpitcher, evidence alleged in support of a petition for a writ of actual innocence based on non-biological evidence must be true to be found "material" under Code § 19.2-327.11(A)(vii). 273 Va. at ___, 641 S.E.2d at 492. Because the Court of Appeals cannot hold its own evidentiary hearing to assess a witness' credibility, but must ultimately determine whether a recantation is true, Code § 19.2-327.12 provides a mechanism to assist the Court of Appeals in this task.

The language of Code § 19.2-327.12, which authorizes the Court of Appeals to enter such orders of referral to the circuit court, is plain and unambiguous. Therefore, we apply the statutory language as written. See 1924 Leonard Road, L.L.C. v. Van Roekel, 272 Va. 543, 553, 636 S.E.2d 378, 384 (2006); Alcoy v. Valley Nursing Homes, Inc., 272 Va. 37, 41, 630 S.E.2d 301, 303 (2006); Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470 (2003); Woods v. Mendez, 265 Va. 68, 74-75, 574 S.E.2d 263,...