Commonwealth v. Martin

RE: Commonwealth v. Raymond Martin

Criminal Docket Nos.: CR18-918/1438

FOURTH JUDICIAL CIRCUIT OF VIRGINIA CIRCUIT COURT OF THE CITY OF NORFOLK

June 26, 2020

MICHELLE J. ATKINS JUDGE

Katherine D. Currin, Esq.

MORRIS, CRAWFORD & CURRIN, P.C.

101 Northfield Street, Suite B

Chesapeake, Virginia 23320

Cynthia D. Collard, Esq.

Norfolk Office of the

Commonwealth's Attorney

800 East City Hall Avenue

Suite 600

Norfolk, Virginia 23510-2719

Dear Counsel:

This matter was last before the Court on January 10, 2020, for sentencing. On July 9, 2019, Mr. Martin plead guilty to the underlying charges. In a separate set of cases, Mr. Martin was also convicted of two counts of possession with intent to distribute and three counts of probation violation (for two separate files). The possession with intent to distribute cases and the probation violation matters were transferred by agreement of counsel and the other Judge that accepted the plea for those cases.

The Court heard the Motion to Withdraw Guilty Plea and denied it on October 11, 2019. Defense counsel filed a Motion to Reconsider Withdrawal of Guilty Plea. At the January 10^th hearing, Defense counsel advised the court that she filed her motion earlier in the week and noticed it had not been scanned into her client's file. Consequently, the Court was not aware of the Motion to Reconsider. Nevertheless, defense counsel provided the Court with a copy of the Motion, argued her Motion and the Commonwealth responded. Thereafter, both parties agreed to provide the Court with the transcript and the discovery materials sent to the defense prior to the guilty plea. The Court took the Motion under advisement.

The Court originally took this matter under advisement with the intent to issue an oral ruling from the bench at the next court date. However, after further contemplation, the Court has decided to issue a written ruling on the Motion to Reconsider Withdrawal of Guilty Plea.

Background

On May 2, 2018, direct indictments were filed against Raymond A. Martin (hereafter referred to as "Martin") for second degree murder, use of firearm in commission of felony, malicious wounding, use of firearm in commission of felony, possession of a firearm by a non-violent convicted felon within the past ten years, and maliciously discharge firearm in an occupied building. On July 5, 2018 direct indictments were filed against Mr. Martin for first degree murder and use of firearm in commission of a felony. The case was set and continued numerous times for various reasons. Mr. Martin's jury trial was then scheduled for July 9, 2019. (Id. ¶ 2.) On July 8, 2019, at the pretrial conference, the Court inquired, "any issues with any witnesses on either side?" (Id. ¶ 3.) The Commonwealth responded, "not that I'm aware of, Your Honor." (Id.) The defense replied "No, Your Honor". On July 9, 2019, Martin entered a guilty plea, pursuant to a plea agreement, to a reduced charge of second-degree murder, one count of use of a firearm in the commission of murder, and one count of malicious wounding with a cap at twenty-five (25) years. (Id. ¶ 5.) The Commonwealth moved to nolle prosequi use of a firearm in commission of malicious wounding and malicious shooting into occupied dwelling. On July 10, 2019, Mr. Martin was summoned to testify on behalf of his codefendant (brother). However, after conferring with his attorney, he decided not to testify. The Commonwealth also made a motion to nolle prosequi the possession of a firearm by a non-violent convicted felon within the past ten years charge against Mr. Martin on that date.

Thereafter, Mr. Martin's counsel indicated that she learned one of the victims, Phillip Timmons ("Timmons"), was unavailable and had ceased cooperation with the Commonwealth for a period of months, including the date of Martin's jury trial. (Id. ¶ 6.)

On August 22, 2019, Martin filed a Motion to Withdraw Guilty Plea and on October 11, 2019, the Court heard argument on the Motion to Withdraw Guilty Plea and denied the motion. The Court held that Martin pleaded guilty because "there was overwhelming evidence . . . not because Mr. Timmons was subpoenaed and Martin thought he was going to be here." (Tr., Oct. 11, 2019, 36.) Accordingly, the Court concluded that "[Martin] entered his guilty plea knowingly, freely, voluntarily, and intelligently." (Id.) The case was then scheduled for sentencing on January 10, 2020. The week of the new sentencing hearing, Martin filed a Motion to Reconsider Defendant's Motion to Withdraw his Guilty Plea, specifically seeking a determination as to whether Martin was surprised by Timmons unavailability, whether the guilty plea was entered into inadvisably, and whether Martin had a viable defense at the time of the guilty plea. (Tr., Jan. 10, 2020, 16-17.)

Party Positions

Martin's Position

Martin contends that the guilty plea was made in good faith upon the Commonwealth's representation that there were no witness issues. (Id. ¶ 5.) He asserts that Timmons unavailability and the fact that he had ceased cooperation with the Commonwealth was not disclosed to him. (Id. ¶ 7.) Accordingly, Martin argues that he possessed a fundamental misunderstanding of the evidence against him that lead him to enter a guilty plea where heotherwise would have gone to trial. (Tr., Oct. 11, 2019, 13.) On the same day that Martin plead guilty, his codefendant (brother) chose to proceed with his jury trial and was ultimately acquitted by the jury.

Martin argues that there was a reasonable defense to be presented at trial. (Mot. Withdraw Guilty Plea ¶ 8.) Martin also submitted an affidavit affirming his testimony that on the date of the underlying offense he was confronted by Christopher Allen and Phillip Timmons in a hostile manner. "Both men were armed with firearms and verbalizing that they were going to shoot [him]. [Martin] disarmed Mr. Timmons and returned fire in defense." (Aff.) At the October 11, 2019 hearing on the initial Motion to Withdraw the Guilty Plea, Martin asserted that his self-defense argument would be supported by all of the listed witnesses except Timmons. (Tr., Oct. 11, 2019, 16.) Martin also asserts that the facts and circumstances surrounding the availability of the witness and the Commonwealth's representation at the pretrial conference provide adequate grounds to withdraw the guilty plea. (Id. at 10-11.) Even though there were other witnesses prepared to testify, Martin argues that their testimony would not have refuted his self-defense claim (Id. at 25.)

Martin seeks reconsideration of the Court's initial denial, and he asks that the record be clear regarding the Court's consideration of whether "he was caught by surprise or whether or not the advice given to him by [counsel] that [Timmons] was anticipated to be there fit into the standard of a plea being entered into inadvisably" or "the specific standard of whether or not [Martin] had a viable defense." (Tr., Jan. 10, 2020, 16-17.)

Commonwealth's Position

The Commonwealth contends that they informed Martin that "all subpoenaed witness were available for trial and advised both the Court and counsel that there were no issues with regard to those subpoenaed witnesses." (Com. Resp. Def. Mot. Withdraw Guilty Plea. ¶ 2)(emphasis added). Furthermore, the Commonwealth asserts that Martin was made aware that there were additional witnesses and DNA evidence placing him at the scene. (Id. ¶ 3.) The upstairs neighbor would testify that she saw Martin and his brother in the parking lot from her window, heard the argument, saw the glint of a weapon, heard gunshots, and identified the defendant from a photo lineup. (Id. ¶ 3 a.) Another eyewitness identified Martin at the scene, saw the discussion escalate, and heard the gunfire. (Id. ¶ 3b.) A cooperating inmate would testify that he and Martin discussed the event and Martin confessed that the argument was over a drug sale. (Id. ¶ 3c.) Another cooperating inmate would testify that Martin sold him the AK-47, the murder weapon. (Id. ¶ 3d.) The Commonwealth also asserts that there was a phone call in which Martin stated he was the sole participant, indicated the weapon had a "couple of bodies on it", and that his codefendant was not present during the altercation. (Tr., Oct. 11, 2019, 25.)

The Commonwealth contends that it was well established that they were prepared to proceed to trial and prove the elements of the crime without Timmons. (Com. Resp. Def. Mot. Withdraw Guilty Plea. ¶ 6.) The Commonwealth investigated Timmons's last known address and discovered that it had been abandoned after a hurricane. The Commonwealth asserts that Martin never inquired into nor investigated Timmons availability, despite being granted funding for a private investigator. (Id. ¶¶ 7, 8.) Moreover, the funds granted for the private investigatorwere specifically granted to investigate "material witnesses that needed to be interviewed and that some of them may prove hostile to the defense." (Tr. Jan. 10, 2020, 24.) Martin never attempted to contact or subpoena Timmons prior to trial. Instead, Martin assumed that he was a necessary and available witness that the Commonwealth subpoenaed for trial. (Com. Resp. Def. Mot. Withdraw Guilty Plea ¶ 7.)

The Commonwealth asserts that they did not make a false statement or misrepresentation of fact. (Id. ¶¶ 11, 12.) The Commonwealth argues that the Court should not permit Martin to withdraw his plea as it was made knowingly, intelligently, and with a full understanding of its implications. (Id.)

In response to the Motion for Reconsideration, the Commonwealth maintains that there was overwhelming evidence against Martin, apart from Timmons testimony. (Tr., Jan. 10, 2020, 25.) The Commonwealth also argues that Timmons was not the turning point in this case. (Id.) Arguably, Martin's argument would be more valid if Timmons was the sole witness, but there were numerous witnesses that would have testified against Martin. (Id.) In light of the overwhelming evidence against Martin,...