Gary Linwood Bush v. Commonwealth of Virginia

VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 22nd day of May, 2018.
Gary Linwood Bush, Petitioner,
PUBLISHED
against Record No. 2056-17-2
Prince George conviction
Commonwealth of Virginia, Respondent.
Gary Linwood Bush, Petitioner,
against Record No. 2057-17-2
Petersburg conviction
Commonwealth of Virginia, Respondent.
Upon Petitions for Writ of Actual Innocence
Before Chief Judge Huff, Judges Russell and Malveaux
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.
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.
BACKGROUND
Bush’s Trials and Convictions
Petersburg Trial and Conviction
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.
Prince George Trial and Conviction
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
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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.
Amos’ Confession
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
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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.
Bush’s Petitions for Actual Innocence
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.
ANALYSIS
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
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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:
(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 [would] 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).
Carpitcher v. Commonwealth, 273 Va. 335, 343-44, 641 S.E.2d 486, 491 (2007).2 We discuss each
evidentiary requirement in turn.
1
We acknowledge that the Commonwealth has conceded that Bush has met his burden of establishing
innocence under this Court’s actual innocence statutes, Code §§ 19.2-327.10 through -327.14. However,
“[o]ur fidelity to the uniform application of law precludes us from accepting concessions of law made on
appeal.” Logan v. Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) (en banc). We find
this principle especially important when evaluating petitions for actual innocence, “given the need to ensure
that the writ of actual innocence does not evolve into an omnibus substitute for the carefully crafted
procedures of the habeas corpus writ, Code § 8.01-654, et seq., or impinge upon the Governor’s exclusive
power over executive clemency, Code § 53.1-229, et seq.” Copeland v. Commonwealth, 52 Va. App. 529,
532, 664 S.E.2d 528, 530 (2008). Thus, while we commend the Attorney General’s candor, we review the
record independent of this concession of law.
2
While Code § 19.2-327.13 specifically states that this Court may only grant the writ if a petitioner
has proven “all of the allegations contained in clauses (iv) through (viii) of subsection A of [Code]
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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 conviction.
Second, we must determine if the evidence could not have been discovered prior to the finality of the
orders entered by the circuit courts. Code § 19.2-327.11(A)(vi). The newly-discovered evidence in these
cases meets this requirement, as Amos’ unprompted confession did not occur until nearly ten years after the
finality of the orders in the robbery cases. No amount of diligence by Bush or his trial attorneys could have
discovered Amos, who was not a suspect identified by law enforcement and was only discovered due to his
own actions in coming forward to confess to the robberies.
Third, we consider whether (1) the evidence is material, and (2) when considered with all of the other
evidence in the current record, will prove that no rational trier of fact would have found proof of guilt beyond
a reasonable doubt. Code § 19.2-327.11(A)(vii).
Under this two-part analysis, we first examine whether the evidence is material. In Carpitcher, our
Supreme Court held that “to be ‘material’ within the meaning of Code § 19.2-327.11(A)(vii), evidence
supporting a petition for a writ of actual innocence based on non-biological evidence must be true.” 273 Va.
at 345, 641 S.E.2d at 492. “Additionally, ‘[e]vidence that relates to a matter that is properly at issue in the
case is said to be material.’” Turner v. Commonwealth, 282 Va. 227, 250-51, 717 S.E.2d 111, 123 (2011)
§ 19.2-327.11,” the Supreme Court in Carpitcher only addressed four of these subsections, declining to
address clause (v), which states that a petitioner must allege “the date the previously unknown or unavailable
evidence became known or available to the petitioner, and the circumstances under which it was discovered.”
Using Carpitcher as our guide, we discuss clauses (iv) through (viii) and omit any discussion of clause (v),
which in any case is substantially similar to clause (vi). See Code § 19.2-327.11(vi) (a petitioner must prove
“that the previously unknown or unavailable evidence 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”).
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(quoting Charles E. Friend, The Law of Evidence in Virginia § 11-1 at 431 (6th ed. 2003)). Cases from our
Supreme Court and this Court discussing materiality mainly involve recantation evidence, with our appellate
courts often concluding that the petitioner cannot establish by clear and convincing evidence that the
recantation evidence is “true.” See, e.g., Carpitcher, 273 Va. at 345, 641 S.E.2d at 492 (concluding that this
Court did not err in holding that petitioner was required, and failed, to prove that the victim’s recantation was
true). However, the instant case involves not recantation evidence, but the unique situation of an unprompted
confession by another person. We find that the nature of this evidence itself—another person’s confession to
the crimes—supports the finding that this evidence is “true,” and thus material. Further, there is no evidence
suggesting that Amos’ confession was coerced or pressured by another individual or law enforcement, or is
otherwise unreliable in any way, making it more likely to be “true.” See Montgomery v. Commonwealth, 62
Va. App. 656, 676, 751 S.E.2d 692, 701 (2013) (concluding that a victim’s recantation was true, in part
because “there [were] no facts suggesting that her unprompted recantation was in any way pressured, coerced,
or is otherwise unreliable”). In addition, Amos pled guilty to the Prince George robbery. See Hobson v.
Youell, 177 Va. 906, 912, 15 S.E.2d 76, 78 (1941) (noting that a guilty plea “admits all the criminating facts
alleged and the statutory elements of the offense charged”). Amos also provided detailed information about
the robberies that indicated he was the true perpetrator, and in addition, the Prince George Circuit Court noted
that his handwriting sample was “strikingly similar” to the handwriting of the BB&T robbery note. Based
upon these circumstances, we conclude that Amos’ confession was “true” and therefore material under the
statute.
Next, under the second part of clause (vii), we must determine whether the material evidence, when
considered with all of the other evidence in the current record, proves that “no rational trier of fact would
have found proof of guilt beyond a reasonable doubt.” Code § 19.2-327.11(A)(vii).
As an initial matter, we note that in 2013, the General Assembly amended Code §§ 19.2-327.13 and
19.2-327.11(A)(vii) to read, “no rational trier of fact would have found proof of guilt beyond a reasonable
doubt” instead of “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”
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(Emphasis added). Our Supreme Court recently discussed the statutory change from “could” to “would” in
In re Watford, ___ Va. ___, 809 S.E.2d 651 (2018). In Watford, the Court examined the petitioner’s petition
for actual innocence based upon biological evidence. Id. at ___, 809 S.E.2d at 652. Prior to examining the
petitioner’s claim, the Supreme Court stated it had to “address the changes that have been made to the actual
innocence statutes, Code § 19.2-327.2 et seq.”3 Id. at ___, 809 S.E.2d at 655. The Court in Watford found
that “[b]y changing ‘could’ to ‘would,’ the General Assembly has fundamentally changed the nature of our
inquiry in actual innocence cases.” Id. at ___, 809 S.E.2d at 656.
The General Assembly’s amendment of the actual innocence statutes has
shifted the focus from the jury’s raw ability to convict (the “could” standard) to
the jury’s volition to convict (the “would” standard), thereby significantly
broadening the scope of our review in considering whether or not to grant a writ
of actual innocence. Through the use of the word “would,” the General
Assembly has directed us to examine the “probative force of the newly
presented evidence in connection with the evidence of guilt adduced at trial.”
[Schlup v. Delo, 513 U.S. 298, 332 (1995)]. Thus, we are required to look
beyond whether the evidence is sufficient to sustain the conviction; we must
also examine the likelihood of a reasonable juror finding the petitioner guilty
beyond a reasonable doubt once all of the evidence has been fairly considered.
Id.
This probabilistic approach still places a considerable burden upon the
petitioner. It is not enough for a petitioner to merely establish the existence of
some conflicting evidence that introduces the possibility of reasonable doubt.
Rather, the petitioner must prove, by clear and convincing evidence, that “no
rational trier of fact would have found proof of guilt beyond a reasonable
doubt.” Code § 19.2-327.5 (emphasis added). In other words, a petitioner’s
evidence must do more than establish the theoretical possibility that a rational
fact finder would choose to acquit; it must establish such a high probability of
acquittal, that this Court is reasonably certain that no rational fact finder would
have found him guilty.
Id. at ___, 809 S.E.2d at 656-57.
3
Although this section of Watford references the actual innocence statute involving biological
evidence, the Supreme Court made clear that it was examining the change from “could” to “would” under the
non-biological statute as well, since it explicitly noted this statute in its analysis. See Watford, ___ Va. at
___, 809 S.E.2d at 655 (“Effective July 1, 2013, the General Assembly amended the statutory burden of proof
that must be met before a petitioner can receive a writ of actual innocence. 2013 Acts chs. 170 & 180
(codified as amended at Code §§ 19.2-327.3(A)(vii), 19.2-327.5, 19.2-327.11(A)(vii), and 19.2-327.13).”).
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Applying this “probabilistic approach,” the Court found that “[w]hen all of this evidence is
considered, we find that it is highly unlikely that any rational factfinder would have found [petitioner] guilty
beyond a reasonable doubt.” Id. at ___, 809 S.E.2d at 659. The Court thus held the petitioner had proved, by
clear and convincing evidence, that no rational trier of fact would have found proof of his guilt beyond a
reasonable doubt. Id. at ___, 809 S.E.2d at 660.4
Thus, Watford is instructive in providing a probabilistic, “would have found proof of guilt” standard
under the actual innocence statutes—a petitioner’s evidence “must establish such a high probability of
acquittal, that this Court is reasonably certain that no rational fact finder would have found him guilty.” Id. at
___, 809 S.E.2d at 657. Here, the newly-discovered evidence was Amos’ unprompted confession to both
robberies. This confession established a high probability of Bush’s acquittal, and considered together with
his guilty plea and conviction for the Prince George robbery, allows this Court to conclude with reasonable
certainty that no rational fact finder would have found Bush guilty. Thus, we find that Bush has proven by
clear and convincing evidence that the newly-discovered evidence “when considered with all of the other
4
This Court itself had prior occasion to analyze the statutory change from “could” to “would” in
Altizer v. Commonwealth, 63 Va. App. 317, 757 S.E.2d 565 (2014). In Altizer, we found “that the single
word amendment by the General Assembly was nuanced in nature and did not produce a sea-change in the
manner in which these petitions are to be evaluated by this Court.” Id. at 327, 757 S.E.2d at 570.
Considering the change in words “nuanced,” we held that
in the wake of the amendment, a finding by this Court that “no rational trier of
fact would have found proof of guilt beyond a reasonable doubt” unequivocally
continues to require a finding by this Court that a petitioner has affirmatively
established that he is factually innocent of the crime for which he was convicted
and that the statute as amended mandates that our standard of review for
granting these petitions and issuing a writ of actual innocence is that, if
provided with all of the evidence, both old and new, any reasonable jury
applying the relevant law is obliged to conclude as much.
Id. at 328, 757 S.E.2d at 570. We recognize that this holding has been implicitly overruled by the Supreme
Court’s decision in Watford. “A decision of one panel protected by the interpanel accord doctrine ‘cannot be
overruled except by the Court of Appeals sitting en banc or by the Virginia Supreme Court.’” White v.
Commonwealth, 67 Va. App. 599, 612 n.7, 798 S.E.2d 818, 824 n.7 (2017) (quoting Congdon v. Congdon, 40
Va. App. 255, 265, 578 S.E.2d 833, 838 (2003)).
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evidence in the current record, will prove that no rational trier of fact would have found proof of guilt beyond
a reasonable doubt.” Code § 19.2-327.11(A)(vii).
Fourth, and finally, we must consider whether the newly-discovered evidence is “merely cumulative,
corroborative or collateral.” Code § 19.2-327.11(A)(viii). “Cumulative testimony is repetitive testimony that
restates what has been said already and adds nothing to it. It is testimony of the same kind and character as
that already given.” Massey v. Commonwealth, 230 Va. 436, 442, 337 S.E.2d 754, 758 (1985). Here, the
newly-discovered evidence is clearly not cumulative, as there was no evidence at trial in relation to Amos’
confession. Corroborative evidence “is evidence that does not emanate from the defendant’s mouth, does not
rest wholly upon the defendant’s credibility, but . . . adds to, strengthens, and confirms [the] defendant’s
testimony.” Id. at 443, 337 S.E.2d at 758. Bush’s testimony at trial was that he was not involved in the
robberies and was elsewhere when they were committed. Amos’ confession did not strengthen or confirm
this testimony, and thus is not corroborative evidence. Further, collateral evidence is evidence “from which
no fair inferences can be drawn tending to throw light upon the particular fact under investigation.” Helmick
v. Commonwealth, 38 Va. App. 558, 564, 567 S.E.2d 551, 554-55 (2002) (quoting Seilheimer v. Melville,
224 Va. 323, 327, 295 S.E.2d 896, 898 (1982)). Amos’ confession tends to directly prove or disprove Bush’s
guilt of the crimes for which he was convicted, and therefore the evidence is not collateral as to Bush’s
factual innocence.
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After reviewing the relevant clauses under Code § 19.2-327.11(A),5 we find that Bush has proven by
clear and convincing evidence the allegations contained therein.6
CONCLUSION
We hold that Bush has met his burden, under Code §§ 19.2-327.10 through -327.14, of establishing
that he is actually innocent of the crimes for which he was convicted. Accordingly, pursuant to Code
§ 19.2-327.13, this Court grants Bush’s petitions and issues writs of actual innocence based on non-biological
evidence, thereby vacating his two convictions for robbery. If there is no appeal from this judgment to the
Supreme Court, the clerk shall forward a copy of this writ to each circuit court, where an order of
expungement shall be immediately entered regarding the offense at issue.
This order shall be published.
A Copy,
Teste:
original order signed by the Clerk of the
Court of Appeals of Virginia at the direction
of the Court
Cynthia L. McCoy, Clerk
5
As stated above in this order, the General Assembly amended Code § 19.2-327.13 in the same
manner at the same time. Code § 19.2-327.13 provides that this Court may grant the writ “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 § 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.” (Emphases added). As we
make the “no rational trier of fact would have found proof of guilt” determination under clause (vii) of Code
§ 19.2-327.11(A), we find it unnecessary to examine this requirement as a separate finding under Code
§ 19.2-327.13. See Montgomery, 62 Va. App. at 672-73, 751 S.E.2d at 700 (2013) (granting a petition for
actual innocence after examining the four requisite clauses under Code § 19.2-327.11(A)(vii)).
6
We emphasize that we make this determination based upon the unique circumstances of these cases.
In doing so, we do not hold that another individual’s confession to a crime, along with other accompanying
circumstances, necessarily provides clear and convincing evidence to satisfy the non-biological actual
innocence statutes, Code §§ 19.2-327.10 to -327.14. If the newly-discovered evidence proffered by a
petitioner is another individual’s confession to the crime to which petitioner was convicted, this confession
does not mandate that the petition be granted; rather, the confession must be evaluated, as with all
newly-discovered evidence, to determine if it provides clear and convincing evidence to satisfy the clauses
under Code § 19.2-327.11(A).
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