In re Brown

295 Va. 202

810 S.E.2d 444

IN RE: Sherman BROWN

Record No. 161422

Supreme Court of Virginia.

MARCH 22, 2018

Susan Friedman (Peter Neufeld; Matthew W. S. Estes ; Parisa Dehghani-Tafti ; Steven D. Rosenfield ), for petitioner.

Alice T. Armstrong, Senior Assistant Attorney General (Mark R. Herring, Attorney General), for respondent.

PRESENT: All the Justices

UPON A PETITION FOR A WRIT OF ACTUAL INNOCENCE

OPINION BY JUSTICE D. ARTHUR KELSEY

In 1970, a jury found Sherman Brown guilty of first-degree murder of a four-year-old child. The child’s mother ("M.B.") testified that, after she rejected Brown’s demand for sex, he knocked her unconscious, and upon awaking, she discovered that she had been repeatedly stabbed. While she was unconscious, her four-year-old son had been stabbed to death. Brown did not testify at his trial or proffer any evidence suggesting that someone else committed the attack.

In 2016, Brown filed a petition seeking a writ of actual innocence pursuant to Code §§ 19.2-327.1 to -327.6, which govern writs of actual innocence based on biological evidence. Brown asserts under oath that he is "actually innocent" of the crime, Code § 19.2-327.3(A)(ii), and that recent DNA testing by a private laboratory, Bode Cellmark Forensics ("Bode"), conclusively exonerates him with "clear and convincing evidence" such that "no rational trier of fact would have found proof of guilt ... beyond a reasonable doubt," Code § 19.2-327.5. Reviewing this case under our original jurisdiction, we dismiss Brown’s petition for two reasons.

First, the governing statutes limit our review of allegedly exculpatory biological evidence to the findings of the Commonwealth’s Department of Forensic Science ("DFS"). DFS analyzed a vaginal smear slide presented by Brown and was unable to identify sufficient amounts of DNA in order to render any conclusion as to whether Brown could be included or excluded as a contributor to the DNA on the slide. The findings of DFS, therefore, do not support Brown’s claim of actual innocence.

Second, even if we were authorized to consider the private laboratory’s results obtained by Brown, he would still have the burden of proving that the evidence submitted to us in this writ proceeding—DNA test results from the Bode laboratory, the factual proffers in Brown’s petition, the post-trial evidence presented in the Commonwealth’s response, and the evidence presented at the original trial—provide, in the aggregate, clear-and-convincing proof that "no rational trier of fact would have found proof of guilt ... beyond a reasonable doubt." Id. We find this evidence falls far short of satisfying this clear-and-convincing statutory standard of proof.

I.

Our analysis begins with a restatement of first principles. We have no common-law authority to grant what amounts to a judicial pardon—that is, to set free a convict lawfully found guilty by a jury—based upon his later protestation that he was in fact innocent. Under English common law, as relevant today as it was at the Founding,¹ "the power to exercise executive clemency lay within the prerogative of the crown," Gallagher v. Commonwealth, 284 Va. 444, 450, 732 S.E.2d 22, 25 (2012), and "[t]here simply was no such thing as a judicial pardon," Taylor v. Commonwealth, 58 Va. App. 435, 445, 710 S.E.2d 518, 523 (2011). The "traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency." Herrera v. Collins , 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).

The common law, however, always remains subject to the sovereign power of citizens to amend our Constitution and the power of their representatives to enact statutes in derogation of the common law. In 2002, Virginians did just that when they amended the Constitution of Virginia to vest this Court with "original jurisdiction ... to consider claims of actual innocence presented by convicted felons." Va. Const. art. VI, § 1. That newly granted judicial power, however, is limited. It can only be exercised "in such cases and in such manner as may be provided by the General Assembly." Id. (emphases added).

If a convict seeks exoneration outside of these statutory boundaries, he may obtain it only from the Governor of Virginia, who is vested with the power of executive clemency. See generally Blount v. Clarke , 291 Va. 198, 204-05, 782 S.E.2d 152, 155 (2016). The opportunity to seek executive clemency serves the dual goals of defining the limited scope of the judicial role while providing a fail safe for claims of innocence that fall outside of the statutory writ procedure. See Herrera , 506 U.S. at 415, 113 S.Ct. 853 ("Executive clemency has provided the ‘fail safe’ in our criminal justice system."). Compare, e.g. , Governor Timothy M. Kaine, List of Pardons, Commutations, Reprieves and Other Forms of Clemency, S. Doc. No. 2, at 22 (2010) (granting absolute pardon to Arthur Lee Whitfield), with, e.g. , In Re: Whitfield , Record Nos. 042086 and 042087, slip op. at 4 (Va. Oct. 21, 2005) (unpublished) (dismissing Whitfield’s petitions for writs of actual innocence because the Court did "not have the statutory authority to consider petitioner’s claims").

For these reasons, we limit our analysis to the actual-innocence statutes applicable to petitions asserting newly discovered or previously untested biological evidence. Implementing the authority established by Article VI, Section 1 of the Constitution of Virginia, Code § 19.2-327.2 vests the Court with "the authority to issue writs of actual innocence" based upon biological evidence. In exercising this authority, we must base our determination upon "the petition, the response by the Commonwealth, previous records of the case, the record of any hearing held under [Chapter 19.2] and the record of hearings held pursuant to [Code] § 19.2-327.1 [the testing statute], and if applicable, any findings certified from the circuit court" pursuant to a remand order from this Court. Code § 19.2-327.5.

Under settled principles, we may also take into account factual matters properly within the scope of judicial notice. See Va. R. Evid. 2:201(a). These facts include those "not subject to reasonable dispute in that [they are] either (1) common knowledge or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Id. See generally Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia § 3-2 at 174-88 (7th ed. 2012 & Supp. 2017); Kent Sinclair et al., A Guide to the Rules of Evidence in Virginia 13-14 (2017-2018 ed.).

We incorporate all of these sources into our review of the relevant facts and our application of the statutory criteria to this case.²

A. THE EVIDENCE AT THE 1970 TRIAL

The record before us begins with the evidence presented by the Commonwealth at Brown’s 1970 jury trial.³ Witnesses established that M.B. was at home on October 1, 1969, with her two young children, a two-year-old and a four-year-old. After lunch, M.B. put the two-year-old in his crib for a nap. M.B. then put on a nightgown, read to her four-year-old in bed, and then turned off the light to join him for an afternoon nap.

Before either of them fell asleep, M.B.’s father arrived for a visit.

During her father’s visit, M.B. received a phone call from Brown.⁴ He repeatedly asked her if he could come over to her home to talk. She said no each time and was unnerved by his persistent requests. After her father left, M.B. and the four-year-old returned to the bedroom intending to take the planned nap. Just as M.B. started to untie her robe, she heard the front gate of the fence in front of her residence swing open. She looked out the window, saw no one, and walked to the front door with the four-year-old. When she cracked the front door slightly open, she saw Brown through an exterior screen door. He asked to come inside. She said no. He insisted, but she continued to refuse his request.

While still standing outside, Brown asked M.B. if she would get him a cup of water. She walked to her kitchen to fetch a paper cup of water, and when she returned, Brown had opened the screen door and stepped into the home. She was upset to see him inside the home, but she handed him the cup of water anyway. Brown continued to insist that he wanted to talk to her and even asked her to give him a tour of her home, but she continued to refuse each of his requests. At one point, she "thought that [she] smelled alcohol on his breath," and she "asked him if he had been drinking," which he denied. Trial Tr. at 167. Eventually, Brown abruptly asked her, "Will you have sex with me?" Id. at 162. Now "terrified," M.B. replied, "Of course not." Id. After Brown asked her why she would not have sex with him, M.B. answered that she was married, that Brown was not her husband, and that Brown should leave. M.B.’s four-year-old was also in the room with them at the time, and M.B. indicated that "little ears were listening" when she requested that Brown leave. Brown finally declared, "I’m so sexed up I don’t know what to do." Id. "I’m sorry," M.B. responded, "you will have to go somewhere else. I’m not available." Id.

M.B.’s next memory was "pitching forward" after "receiving very painful blows" to her side, which rendered her unconscious. Id. at 163. When she awoke, she was unable to move. Her sister-in-law arrived later that afternoon and found M.B. on the floor in a pool of blood. After she discovered that M.B.’s phone was hanging from its wires with its receiver broken in half, the sister-in-law drove to a neighbor’s home to ask them to call both the rescue squad and her husband, who could pick up M.B.’s husband from his job. M.B.’s sister-in-law returned to M.B.’s home and found the two-year-old unharmed in his crib, but she discovered the four-year-old lying face down on a bloody bed. When the rescue squad arrived, they discovered that M.B. had been stabbed multiple times and still had a knife...