Madison v. Commonwealth

71 Va.App. 678

839 S.E.2d 129

James Lamont MADISON, Petitioner,

v.COMMONWEALTH of Virginia, Respondent.

Record No. 0942-18-1

Court of Appeals of Virginia.

March 24, 2020

Jennifer L. Givens (Innocence Project at the University of Virginia School of Law, on briefs), for petitioner.

Alphonso Simon, Jr., Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for respondent.

Before Judges Russell, Malveaux, and Senior Judge Clements

James Lamont Madison petitions this Court for a Writ of Actual Innocence pursuant to Chapter 19.3 of Title 19.2 of the Code of Virginia. Madison claims he is innocent of abduction, robbery, and the use of a firearm in the commission of a felony, for which he was convicted following a bench trial on October 1, 1997 in the Circuit Court of the City of Virginia Beach. This Court remanded the matter to the circuit court to certify findings regarding factual issues in dispute. The circuit court conducted an evidentiary hearing and supplied this Court with its certified findings of fact. After reviewing the record, we hold that Madison is not entitled to the writ. Therefore, we dismiss Madison’s petition.

BACKGROUND

Evidence Presented at Trial

Madison’s bench trial was held on October 1, 1997. Kevin Harris testified that on January 12, 1997, he was alone at his apartment in Virginia Beach. His doorbell rang several times, and Harris eventually opened his door and saw a neighbor and another man he did not know (the "first assailant"). Harris was not "good friends" with his neighbor and did not know his neighbor’s name. His neighbor lived on the second floor of the two-story building.

Harris testified that his neighbor and the first assailant asked him if he knew a woman named Trina, and that he told them he did but that she did not live there. After that, Harris’ neighbor asked to use the phone, and Harris let him enter the apartment. The first assailant entered with the neighbor. After Harris’ neighbor made a phone call, the first assailant asked to use the bathroom. After the man came out of the bathroom he moved toward the door, and then a second man unknown to Harris (the "second assailant") entered the apartment, pulled out a gun, and put it to Harris’ temple. The second assailant asked Harris where his cocaine was, and Harris told him that he did not have any and that he had the wrong house. The man hit Harris in the eye with his gun, "put" him on the couch, and stood by him. The second assailant then "put" Harris on the floor, held the gun to his head, and asked Harris if the gold chain on his neck was "real." Harris told him that it was, and the man took it. Harris’ neighbor and the first assailant were near the door at this time. The two assailants started asking Harris’ neighbor about a safe, and then the first assailant hit the neighbor with a gun. The neighbor stated that he had a safe. At that point, Harris was tied up with a jacket and dragged into his bathroom. While in the bathroom, Harris heard footsteps and running throughout the apartment. He also heard someone say that four men were coming. He then heard his doorbell ring and his brother calling his name. Harris’ brother and a couple of friends came to untie him. Harris then went to another neighbor’s house and called 911. After the assailants left, Harris saw that his townhome was "ransacked." He discovered that he was missing two leather coats, that his roommate was missing one leather coat, and that some of his brother’s money was missing.

At trial, Harris identified Madison as the second assailant who had committed the robbery. He testified that he recognized Madison due to several distinctive features: Madison’s slim face, his skin tone, and his four gold teeth on the top of his mouth.¹ Harris testified that Madison’s face was not covered during the incident. He also noted that Madison had been wearing a black and tan or gray parka jacket during the robbery.

Detective John Gandy of the Virginia Beach Police Department investigated the robbery. On February 6, 1997, he showed Harris a photo lineup and Harris identified Madison as a person who had been involved in the robbery. Harris also testified that Detective Gandy had not indicated to him, either verbally or non-verbally, which suspect to choose from the lineup.

By the time of trial, Harris had learned the name of his neighbor, Joseph Barton, who had been present during the robbery. However, he had not seen Barton since the night of the robbery.

Detective Gandy testified that prior to showing Harris the photo lineup, he told Harris to take his time looking at the photos. Gandy testified that Harris had taken less than a minute to identify Madison as the person who had robbed him.

Detective Gandy arrested Madison at the jail in Norfolk where Madison was awaiting trial on charges stemming from offenses pending in Norfolk. After being served with the arrest warrants, Madison told the detective, "I don’t know why you just got me. There is other people in this. Why just me?" Detective Gandy asked what Madison meant, and Madison replied that he was just talking to himself. Counsel for Madison asked Gandy if Madison’s statement was solely in reference to a Norfolk case. Gandy responded, "No. I made it clear to him this is charges in Virginia Beach." However, Gandy later acknowledged that he was unsure whether Madison had been referring to people involved in the Norfolk charges when he made his statement.

Detective Gandy testified that no fingerprints from Madison were recovered from the apartment.

At trial, counsel for Madison asked Detective Gandy several questions regarding the involvement of Barton, Harris’ neighbor, in his investigation. Detective Gandy testified that Barton "didn’t want to cooperate with th[e] investigation." He also testified that he had shown Barton the same photo lineup viewed by Harris, but that Barton had been unable to identify anyone from the lineup.

Madison was found guilty of abduction, robbery, and use of a firearm in the commission of a felony. He was sentenced to five years’ imprisonment on the abduction charge, twenty years’ imprisonment on the robbery charge, and three years’ imprisonment on the charge of use of a firearm in the commission of a felony, with thirteen years in total suspended. A sentencing order reflecting the conviction and sentence was entered on November 19, 1997.

The Police Investigation

After Madison filed his petition for writ of actual innocence, the Commonwealth provided an affidavit from Detective Gandy and copies of his investigative report from the time of the offense.

In his November 14, 2018 affidavit, Gandy stated that he did not specifically recall how Madison had been developed as a suspect in the robbery. However, Gandy recalled that he might have been given Madison’s information by Norfolk investigators who had indications that Madison was a suspect in a similar home invasion/robbery, based upon his description—"short in stature and having 4 gold teeth in the front of his mouth." When Gandy located Madison at the jail, he had noted that Madison had multiple gold front teeth and was 5’6" in height or slightly taller.

Further, Gandy stated that he would have used the same procedure for showing Harris the photo lineup that he used in all of his cases. Gandy stated that he "would have" advised Harris that he would show him several photos and that the person involved in the robbery might or might not be in the photo lineup. Gandy noted that after Harris had been presented with the photo lineup, he had "almost immediately" selected Madison as the person who had struck him with a gun during the robbery. Detective Gandy stated that he did not "attempt to influence, coach or lead Mr. Harris into making the identification."

The investigative report also indicates that while Barton was "not cooperative" during the investigation, Gandy was able to interview him once after the robbery.² Barton told him that on the night of the robbery, he had fallen asleep on a couch at his friend Adam Fatjo’s apartment.³ Barton stated that he had heard someone knocking on the door, and that when he answered it, he had noticed two black men walking down the steps into the parking lot toward a large gray vehicle with four other individuals inside. Barton said that the two men had gotten into the car but kept watching him. He tried to leave the apartment, but as he did so one of the individuals got out of the car and met him at the foot of the stairs (the "first assailant"). The first assailant asked Barton if he knew a woman named Trina. Barton said he did not and that she might live in another apartment. Barton began to walk back to his residence, which was on the same street, but the first assailant followed him and kept asking him about Trina. Because Barton was scared, he walked over to Harris’ apartment. The first assailant followed him, and when Barton knocked on Harris’ door, Harris let both Barton and the first assailant inside.

Once inside, the first assailant asked Harris if he knew a woman named Trina, and Harris said that he did not. Barton then stated that he used a pager to contact Adam Fatjo, but Fatjo never called him back. The first assailant asked to use the bathroom, at which time Barton tried to leave. However, when Barton opened the door, the second black man whom he initially saw walking down the steps with the first assailant (the "second assailant") was standing on the porch, so Barton went back into Harris’ apartment. The first assailant left the bathroom and walked toward the door, but then turned around and pulled a gun from his waistband. Barton stated that the gun had appeared to be a dark-colored 9 millimeter with a silencer. The first assailant demanded that Harris tell him "where the money’s at." The second assailant then threw Barton against a wall at gunpoint and took his diamond-studded earring and gold necklace. Barton stated that the first assailant had then called four other men into...