Shahan v. Commonwealth

• Decision Date: 13 December 2022
• Docket Number: Record No. 1098-21-1
• Citation: 76 Va.App. 246,880 S.E.2d 858
• Parties: William Gary SHAHAN v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

76 Va.App. 246

880 S.E.2d 858

William Gary SHAHAN

v.COMMONWEALTH of Virginia

Record No. 1098-21-1

Court of Appeals of Virginia, Virginia Beach.

December 13, 2022

Kristin Paulding (7 Cities Law, on brief), for appellant.

Leanna C. Minix, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Athey and Callins

OPINION BY JUDGE ROBERT J. HUMPHREYS

William Gary Shahan challenges his convictions for first-degree murder, in violation of Code § 18.2-32 ; robbery, in violation of Code § 18.2-58 ; and two counts of use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1. Specifically, he asserts that (1) the circuit court erred in excluding evidence of a civil suit Shahan filed against the City of Norfolk and members of the Norfolk Police Department and (2) the evidence was insufficient to prove that he was the person who robbed and killed the victim.

BACKGROUND

We recite the facts "in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court." Commonwealth v. Cady , 300 Va. 325, 329, 863 S.E.2d 858 (2021) (quoting Commonwealth v. Hudson , 265 Va. 505, 514, 578 S.E.2d 781 (2003) ). Doing so requires that we "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Id. (quoting Commonwealth v. Perkins , 295 Va. 323, 324, 812 S.E.2d 212 (2018) ).

A grand jury indicted Shahan in March 2019 on charges of murder and robbery of Clifford Duty and two counts of use of a firearm in the commission of a felony. Prior to trial, the Commonwealth filed a motion in limine to prohibit Shahan from introducing evidence of a civil lawsuit he filed on December 20, 2018, against the City of Norfolk and Norfolk Police Detectives William Cogswell and Matthew Nordan. In the civil complaint, Shahan asserted claims for defamation, false imprisonment, and intentional infliction of emotional distress, alleging that Cogswell and Nordan had unlawfully arrested, detained, and interrogated him in June 2018 as part of their investigation of the crimes against Duty. The Commonwealth argued that evidence of the suit was irrelevant, would be unduly prejudicial, and would confuse or mislead the jury. Shahan responded that evidence of the suit was relevant and tends to show that he did not commit these crimes for two reasons. First, he argued that it demonstrated police bias, in part because the indictments, which listed Nordan as a grand jury witness, issued only six days prior to the first scheduled hearing in the civil suit, set for March 12, 2019. Second, he argued that the suit was evidence of Shahan's innocence because, if Shahan were guilty, he likely would not have been "willing to be the face of a lawsuit" against the police.

In conversing with counsel, the circuit court commented that the mere fact of Shahan filing the lawsuit did not seem "relevant to the elements of proof" of the offenses with which Shahan was charged. The circuit court considered that one "can file a civil suit fraudulently, in bad faith, knowing full well that he's guilty of the offense." The circuit court stated that the evidence of the lawsuit would likely "confuse the issues that the jury [would] be required to find." In sum, the circuit court stated the essence of the issue is whether to allow evidence in that may cause unfair prejudice. The circuit court's written order granted the Commonwealth's motion and excluded the evidence of the lawsuit "for reasons stated to the record."

The case proceeded to a jury trial, where the parties presented the following evidence. Clifford Duty dated Jennifer Outten intermittently for approximately five years. On Sunday, January 28, 2018, Outten called Duty and left a voice message. Outten called Duty on Monday, January 29 around the middle of the day and again in the evening but still received no answer. She testified that, beginning either on Monday evening or the morning of Tuesday, January 30, her calls to Duty "went straight to voicemail" and her text messages to him were recorded as sent but not delivered.

Concerned that "something wasn't right," Outten drove to Duty's apartment on Wednesday, January 31. Outten knocked on the locked door and yelled for Duty but only Duty's dog came to the door. Outten left to retrieve a key to Duty's apartment and returned to the apartment with a friend. Upon entering, they found that the entire apartment was disheveled and that cabinet doors and containers of protein powder and vitamins were open. Outten's friend found Duty lying on the dining room floor surrounded by a pool of blood and called 911.

Police officers and paramedics found Duty dead with two gunshot wounds to his head. Lividity and rigor mortis had already set in. Paramedic John Lara testified that the lividity "would take a while" to occur, but he could not provide an exact time frame. Cogswell testified that, in his experience investigating homicides, Duty had been dead for two to four days. Medical Examiner Elizabeth Kinnison performed the autopsy and determined that Duty died from two gunshot wounds, one which entered his right cheek and one which entered behind his left ear and penetrated his brain. She could not determine Duty's time of death and explained that a variety of biological and environmental factors would affect the rate of the body's decomposition.

Duty had made money by selling marijuana since 1999. Outten knew that Duty hid marijuana and cash throughout his house and had been robbed at least twice before. Joseph Turpin testified that he bought marijuana from Duty in public for about a year and then purchased marijuana from Duty in Duty's apartment for about sixteen years. Duty kept marijuana and cash in various containers which he sometimes showed Turpin. In 2014 or 2015, Duty showed Turpin an Altoids tin in which he claimed to be able to fit $9,000. During the investigation of this case, police found an empty Altoids tin in the sink in Duty's bathroom.²

Daniel Grabenschroer was Duty's upstairs neighbor for about a year before the murder. He testified that he saw Duty "[a]t least once or twice a day" while they were neighbors and last saw him on January 28, 2018, around 9:00 a.m. Grabenschroer passed by Duty's back door later that evening and noticed that the window was covered up, the blinds were closed, and the lights inside the apartment were turned off. Grabenschroer testified that he had never known Duty to cover the window or close the blinds. Grabenschroer went to work early Monday morning and returned home around 5:00 p.m. to find that the lights in Duty's apartment were still off and his blinds were still closed. Grabenschroer heard Duty's dog crying "for multiple days" after that.

Norfolk Police Detective Michael Mezo reviewed January 2018 call logs for Duty's phone, which showed contacts between Duty and Shahan on January 27 and 28. In the week following discovery of Duty's body, police obtained historical cell site data for Duty's and Shahan's cell phones. Shahan and Duty first made phone contact that month on January 27. They had four phone contacts on January 27 and twenty contacts on January 28.³ Duty first called Shahan on January 28 at 8:23 a.m.; at that time Shahan was near his own home. Shahan's wife called him at 10:50 a.m.; at which time Shahan was near Duty's home. Shahan's wife called him again at 12:15 p.m.; Shahan was still near Duty's home.

Mezo testified that Duty's phone was recorded traveling south on Hampton Boulevard at 12:31 p.m. and 12:35 p.m. Video footage captured Shahan's wife's van ("van") traveling south on Hampton Boulevard at the same time. Duty's phone was recorded heading south toward the Midtown Tunnel at 12:35 p.m. At 12:37 p.m., the van's license plate number was photographed entering the Midtown Tunnel. Duty's phone was located in the Port Norfolk area of Portsmouth from 12:41 p.m. until 12:58 p.m. before proceeding through the Downtown Tunnel from 1:09 p.m. until 1:12 p.m. The license plate reader at the Downtown Tunnel captured the van entering the Downtown Tunnel at 1:09 p.m. Duty's phone ceased all activity at 1:12 p.m., after which there were twenty-six attempted calls and three text messages made to the cell phone. None of these attempted contacts came from Shahan. The police were unable to recover Duty's phone.

Norfolk Police Detective Christopher Beason testified that Shahan's cell phone had no saved text messages from June 4, 2016, until February 1, 2018, and no saved calls from June 4, 2016, until March 13, 2018. According to Beason, this suggested that Shahan had selectively deleted the data for those time frames.

Shahan's father, Gary Shahan ("Gary") reported his Taurus .38 caliber handgun stolen on February 20, 2018. Gary reported that he had last seen his handgun on February 2, 2018, in one of his desk drawers at the business he ran and at which Shahan worked. He admitted that he left the firearm in his office or truck sometimes and that Shahan would have access to it there. Firearms Examiner Allison Milam testified that the bullets recovered from Duty's body were either caliber .38 Special or .357 Magnum lead bullets and fired from either a Ruger, Smith & Wesson, or Taurus revolver.

The Commonwealth also introduced evidence about Shahan's financial circumstances. Equifax records indicated that at the time of the murder, Shahan was $19,700 in debt and had a minimum payment due of $791 on his credit card. Shahan received a weekly check from his father's business for amounts between $600 and $800. On January 25, 2018, Shahan had $0 in his checking account and $5 in his savings account; he deposited $1,000 in cash on January 29, 2018. By February 8, Shahan made a credit card payment of $718. Shahan was the sole provider for his wife and children.

On June 12, 2018, Shahan was detained as a suspect and Cogswell...