Grimm v. Commonwealth

902 S.E.2d 72

81 Va.App. 74

Marvin Leon GRIMM, Jr., Petitioner,

v.COMMONWEALTH of Virginia, Respondent.

Record No. 0741-23-2

Court of Appeals of Virginia.

June 18, 2024

Upon a Petition for a Writ of Actual Innocence

Before Judges Huff, AtLee, and Calling

₈₁ On May 1, 2023, Marvin Leon Grimm, Jr., filed a petition seeking a writ of actual innocence based on biological and non-biological evidence. See Code §§ 19.2-327.10 through -327.14. In 1976, Grimm pleaded guilty to one count each of murder, forcible sodomy, and abduction with intent to defile in the homicide of C.H.¹ On March 15, 1976, the Circuit Court of the City of Richmond (the "circuit court") heard the Commonwealth’s evidence against Grimm and accepted the guilty pleas. On May 25, 1976, the circuit court sentenced Grimm to two terms of life imprisonment plus 10 years. Since that time, Grimm has recanted his guilty pleas, asserted his innocence, and sought writs of habeas corpus and actual innocence.

[1] Grimm’s claim of innocence for these offenses rests on modern forensic testing of material evidence recovered from the victim and the assertion that his confession was coerced. In this petition, he presents the following newly discovered evidence for this Court’s review: (1) DNA testing of the hairs recovered during the investigation; (2) DNA testing of swabs recovered during the victim’s autopsy; (3) new analysis of the toxicology report performed during the autopsy; and (4) research into false confessions. The Commonwealth joins Grimm’s petition for actual innocence and asks this Court to issue the writ.² See Code § 19.2-327.10:1.

Having considered Grimm’s petition and exhibits, the Commonwealth’s response joining the petition, and the record in this case, this Court concludes that Grimm has satisfied all the requirements of Code § 19.2-327.11(A) by a preponderance of ₈₂the evidence. Accordingly, this Court grants the writ pursuant to Code § 19.2-327.13 and vacates the convictions.

BACKGROUND³

Murder of C.H. and Subsequent Investigation

On Saturday, November 22, 1975, around 1:30 p.m. three-year-old C.H. was seen entering the woods behind his family’s apartment in Richmond, Virginia. Approximately an hour later his mother reported to the police that he was missing and within hours a massive search party, consisting of approximately 250 volunteers, began searching the surrounding area for the child.⁴ This search ultimately concluded on November 26, 1975, when C.H.’s body was discovered on the southern banks of the James River. He was discovered face-up in shallow water, fully clothed, with his arms folded across his chest.

An autopsy determined C.H. died of asphyxia with no indication that he drowned or suffered physical injury. Oral, pharynx, and esophageal smears revealed spermatozoa and there was a "[m]oderate amount of tenacious mucoid secretions in [his] oropharynx." A toxicology report indicated "0.12% ethanol wt/vol.; [and] 0.6 mg% chloroxazazone" in C.H.’s blood, "0.13% ethanol wt/vol.; 1.5 mg% chloroxazazone" in C.H.’s liver fluid, and "5.5 mg acetaminophen; 130 mg chloroxazazone; and 0.41 ml of 100% ethanol" in C.H.’s stomach.⁵

In the weeks following C.H.’s disappearance, the Richmond Police Department ("RPD") investigated several leads with no ₈₃success.⁶ At this same time, C.H.’s disappearance and murder were the subject of considerable media coverage and public outrage. Due to his proximity to C.H.’s disappearance, Grimm was, in one way or another, involved in this investigation from the beginning. At the time of these events, Grimm was a 20-year-old Navy veteran and lived with his wife in the apartment across from C.H. Grimm first became involved with this case on the day C.H. went missing when the officers responding to C.H.’s mother’s call knocked on Grimm’s door and asked where the missing child lived. When officers interviewed C.H.’s father on November 24, 1975, he reported two arguments between himself and Grimm. First in response to Grimm running his lawnmower over children’s toys left in the front yard of the apartment and second in response to C.H. playing outside in his underwear. On November 25, 1975, C.H.’s mother told police that "she felt Grimm was odd in his actions" before providing the same details as to the arguments between Grimm and C.H.’s father. In a December 5, 1975 letter to the F.B.I., Grimm is identified as a possible suspect "due to previous arguments and encounters with [C.H.’s] family prior to killing" with the notation that Grimm "resided directly across the hall" from C.H.’s family’s apartment.

On December 16, 1975, Grimm was completing a nine-hour shift at work when he was picked up by police just before 5:00 p.m. and brought in for questioning. He was questioned until approximately 9:00 p.m. when he made a statement about blacking out and having seen C.H. around 3:00 p.m. the day he disappeared. At that point, Grimm was considered a suspect, read his Miranda rights, and police began questioning his background and family life.⁷ At approximately 11:00 p.m., Grimm purportedly told police "what happened" and guided officers as they retraced the steps of C.H.’s abduction, murder, and disposal. Grimm and the officers returned to the interview room at approximately 2:20 a.m. and—after approximately₈₄ 9 hours of questioning and 18 hours since Grimm began his workday—the officers recorded Grimm’s statement for the first time.⁸

During this recorded statement, Grimm stated that on the morning of C.H.’s disappearance he was awoken by what appeared to be C.H. and another child throwing things at cars. As he was awake, he decided to go to his mother’s home and get some food for the weekend. As he returned, C.H. and the other child asked Grimm if any of the food in the bag was for them, and where other local children were staying for the weekend.⁹ Grimm went inside, noted it was about 12:45 p.m., and turned on a football game before blacking out. He then stated that he "left the house, went down and picked up [C.H.] down at … way down at a little laundry mat." Once he got him in the car, Grimm recalled that C.H. asked to be taken to 7-Eleven, but instead Grimm took him behind a nearby motel and "forced sexual assault on him." The officer recording Grimm’s statement asked for clarification, resulting in the following exchange:

[Officer]: What d … what … what do you mean you forced sexual assault on him?

Grimm: I made, uh, …

[Officer]: Did you make him place your privates in his mouth, is this how it happened?

Grimm: Yes.

The officers then asked Grimm what he used "in reference to make [C.H.] do this?" to which Grimm replied "I, uh, the carpet cushioning knife, I use at work" before explaining that he did not actually pull the knife out, but rather just "tapped [C.H.] and said, ‘If you don’t, you may have a taste of that’ " in reference to the knife. Grimm then explained that he "grabbed ₈₅[C.H.’s] head forced it and [he] ejaculated" at which time C.H. "started choking and coughins [sic]." An officer asked "[y]ou ejaculated in his mouth?" and Grimm clarified "Yeah. Started choking and coughing and then looked like he passed out right there in the seat. And, I thought he was … you know, I at first didn’t know what was going on." Unsure of C.H.’s condition, Grimm reported that he

didn’t think nothing was wrong with [C.H.] at this time, so [he] proceeded … to the Seven-Eleven on Buford Road as [he] was passing by State Police Headquarter’s turn road, tried to wake [C.H.] up, really panicked worse, slowed down, got ready to pull in, saw a bunch of cars and [he] decided [he] better keep going, proceeded to go down Buford Road and Jugenot, Hugenot Road down to Riverside Drive, where [he] dump the body in the river, took off, came … took the other way out to come up on Forest Hill Avenue and … Proceeded home.

After returning to his apartment Grimm resumed watching TV. When a neighbor informed him C.H. was missing he joined the search for C.H. Finally, the officers confirmed several of the details of the route Grimm led them on earlier in the interview—prior to this recorded portion—before asking him to confirm details of how he disposed of the body. Grimm informed the officers that he

stopped the car in a little inlet [by the river], got out, covered [C.H.] up with a pea coat to make it look like a maimed animal or something, [he] was getting rid of, [he] can’t exactly tell [] if [he] went down to the river, or threw [C.H.] from the top of a cliff there. … [W]hen [he] did that, … [he] whipped the pea coat back and [he] ran and jumped back in the car, took off.

The officers proceeded to ask Grimm if he slipped on the embankment, which he confirmed he did, and then he explained that he also tore his shoe and his socks got wet as a result.¹⁰ Worth noting, this recorded confession makes no ₈₆reference to the alcohol or drugs found in C.H.’s system, nor did it provide any new geographic information to the police. Indeed, the local media had already extensively discussed where the body was located.

On March 10, 1976, in light of this confession, and in exchange for the Commonwealth agreeing not to seek the death penalty in this case, Grimm pleaded guilty to murder, sodomy by force, and abduction with the intent to defile.¹¹ Importantly, Virginia law did not permit the death penalty for this type of offense at that time.¹² The circuit court accepted the guilty pleas subject to a factual basis shown by the evidence.

Evidence Presented to the Circuit Court

On March 15, 1976, the circuit court heard the Commonwealth’s evidence against Grimm. At this hearing, in addition to testimony from the law enforcement personnel who obtained Grimm’s confession and the confession itself, the Commonwealth presented forensic evidence that was submitted to the State Laboratory and analyzed by Forensic Scientist Mary Jane Burton. This evidence included Burton’s lab report with ₈₇results from testing several hairs found in Grimm’s car on the floorboards and...