Parson v. Commonwealth

74 Va.App. 428

869 S.E.2d 916

Steven Emanuel PARSON, Petitioner,

v.COMMONWEALTH of Virginia, Respondent.

Record No. 0762-21-2

Court of Appeals of Virginia.

March 22, 2022

In a petition filed on July 22, 2021, Steven Emanuel Parson seeks a writ of actual innocence under Code §§ 19.2-327.10 through 19.2-327.14. In 2016, Parson pleaded guilty to the first-degree murder of Dejon Wagstaff and use of a firearm in the commission of murder. By final order entered April 21, 2017, the Circuit Court of Henrico County sentenced him to forty years’ active incarceration.

In support of his claim of innocence, Parson relies on an affidavit executed by his codefendant Timothy Garrison. Garrison averred in the affidavit that he, not Parson, fatally shot Wagstaff. The affidavit further states that although Parson was present at the scene of the murder, he "had nothing to do" with the killing. Parson states that the affidavit became available to him on November 4, 2020, when Garrison executed it. Having reviewed the petition and the accompanying exhibits, the Commonwealth's response, and the entire record, we conclude that Parson is not entitled to relief.

BACKGROUND

Parson signed a written plea agreement in which he agreed to plead guilty to first-degree murder and use of a firearm in the commission of murder. In exchange for Parson's guilty pleas, the Commonwealth agreed to recommend a sentence of between twenty and forty years’ active incarceration and to nolle prosequi four additional, related charges. During his plea colloquy with the trial court, Parson stated that he wished to plead guilty to the two charges specified in the plea agreement. He assured the trial court, among other things, that he had discussed the charges with his attorney and understood them. Parson also confirmed that he had decided for himself to plead guilty because he was in fact guilty.

The trial court then reviewed the terms of the plea agreement with Parson, including the fact that Parson "would waive the right of the presentation of evidence and agree[d] that the attorney for the Commonwealth could summarize the evidence." Parson confirmed that the court had accurately summarized the terms of the agreement and that he did not have any questions. The court therefore found that Parson's pleas were "made knowingly, intelligently and voluntarily after advice from competent [c]ounsel."

The assistant Commonwealth's attorney gave a detailed proffer of the Commonwealth's expected evidence. On December 22, 2015, Wagstaff sexually assaulted Kiarra Trimiew, Parson's girlfriend at the time. Wagstaff had responded to Trimiew's internet posting advertising "her services as an escort." Following the assault, Trimiew's friend Tashema Peace took her to the hospital because she "was bleeding heavily." Trimiew called Parson from the hospital and informed him of the assault. Although Trimiew underwent a sexual assault examination and a physical evidence recovery kit was collected, Parson told her "not to tell the police what happened or make a report." Parson called Garrison and "told him what happened." Parson was "mad" at Wagstaff and threatened to kill him.

On the morning of January 13, 2016, Peace called Parson and told him that Wagstaff had responded to Peace's internet ad for escort services and requested a "date." When Peace asked Parson whether she should arrange a date with Wagstaff, Parson told her to "do what you do." Peace arranged to meet Wagstaff at a local restaurant and told Parson of the arrangement. Parson and Trimiew picked up Garrison and they parked across the street from the restaurant; they watched as Wagstaff arrived and picked up Peace. By prior agreement with Parson, Peace told Wagstaff to drive her to Glenwood Farms apartments.

When Wagstaff and Peace arrived at Glenwood Farms, Wagstaff parked "in the front row of the apartment buildings" and Peace made "an excuse to get out of the car." Parson entered the parking lot from the other end and parked his white Ford Explorer. Parson told Trimiew that he was "going to smoke" Wagstaff.

Wearing masks and carrying firearms, Parson and Garrison exited the Explorer and hid behind a bush between apartment buildings across from Wagstaff's vehicle. Peace saw Garrison "raise his gun and fire first." She then saw Parson "aiming and shooting," and saw "flashes from both guns." Peace saw Garrison fire twice, and "it appeared to her that he was trying to shoot at [Wagstaff's] tires to stop the vehicle from driving off." According to Peace, Parson "would not stop shooting."

Parson and Garrison then ran to the Explorer and sped off with Trimiew, leaving Peace behind. As Parson drove away from the apartment complex, he passed his friend Anthony on the street. Parson pulled over and told Anthony to "take" Trimiew. Anthony and Trimiew later picked up Peace and went to the residence of Garrison's girlfriend. When they arrived, Garrison was there. Garrison told them that the police had stopped Parson's car; he escaped but the police caught Parson.

The Commonwealth also would have presented the testimony of three disinterested eyewitnesses: Robert Hagemeyer, a maintenance man at Glenwood Farms; Malik Talley, who lived in the apartment across from where Wagstaff's vehicle was parked; and Todd Thomas, who lived in the apartment across from where Parson's Explorer was parked. Hagemeyer and Talley both heard "two bursts of shots, the first burst being two to three shots, which ... sound[ed] something like a firecracker." Both then "looked out to see where the shots were coming from" and saw Wagstaff's vehicle backing into a parking space while "taking on gunfire." Hagemeyer saw "a black male with a white mask holding a gun and shooting" at Wagstaff's vehicle. He saw "a second man standing by a white Ford in the parking lot" and "heard eight to ten more shots fired in rapid succession" that were "much louder than the first" shots.

Talley also stated that both males wore masks. Talley heard ten to twelve more shots after he looked out the window, which he described "as being much louder than the first." After Wagstaff's vehicle drove "up over the curb" and "crash[ed] into a tree," the two masked men ran to the white Ford Explorer and sped away. Thomas was in his residence and heard "approximately ten gunshots." When he looked out his back window, he saw a white Ford Explorer backed into a parking space about thirty yards from his back door.

After the shooting, Hagemeyer and Talley ran to Wagstaff's vehicle and attempted to render aid until the police arrived. Hagemeyer called 911 at 1:19 p.m., and Henrico County Police Officer Nagle arrived within two minutes. Nagle saw a single gunshot wound to Wagstaff's head and a handgun between Wagstaff's lap and the center console. Wagstaff was later pronounced dead at the hospital; the autopsy report confirmed that he died of a single gunshot wound to the head.

Based on the witness statements, officers were given a description of the Explorer. Officer Lanum passed Parson's Explorer driving in the opposite direction as it left the scene. By the time Lanum caught up with the Explorer, Parson had stopped the car and both he and Garrison had exited. Parson and Garrison ignored Lanum's commands to stop; Lanum apprehended Parson after a brief foot chase but Garrison escaped.

Forensics Detective John Carter located twelve ten-millimeter cartridge casings in the grass between two apartment buildings at Glenwood Farms, where the witnesses described the shooters had been standing. A search of the Explorer yielded a fully loaded ten-millimeter Glock under the driver seat and a twenty-two caliber Beretta pistol with an empty magazine in the seat pocket of the front passenger seat. According to a certificate of analysis prepared by the Department of Forensic Science ("DFS"), the twelve ten-millimeter casings found at the scene were fired from the Glock recovered from Parson's Explorer. DFS could not identify which weapon fired the bullet that killed Wagstaff but concluded that the bullet had "characteristics" consistent with those produced by the Glock.

Following Parson's arrest on January 13, Detective Ensor interviewed him after advising him of his Miranda rights. Parson told Detective Ensor "that before he was stopped by the police he was coming from Wawa and before that he was coming from Seven Gables apartments." He also stated, "that the person that was with him in the vehicle was James from the circle." Detective Ensor used a gunshot residue kit to test Parson's hands, and the subsequent DFS analysis "indicated that particles characteristic of primer residue were found" on Parson's hands.

Garrison was arrested on January 19, 2016. The Commonwealth proffered that Garrison would have testified that he had heard Parson and Trimiew "arguing about letting someone sexually assault her" sometime before the shooting. On January 13, 2016, Garrison was walking down the street when Parson drove up with Trimiew and Peace and agreed to give him a ride. Parson dropped Peace off at the restaurant to meet Wagstaff and drove to Glenwood Farms. Parson then told Garrison that he had something he "needed to handle." Parson "drove into the parking lot and parked, gave Garrison a gun, and told him to get out of the car." Parson and Garrison then "went behind some buildings, came through a cut," and saw Wagstaff's car. Garrison did not know who was in the car, but Parson "pointed to it and said that's him."

Parson "told Garrison to shoot first," so he shot twice. Garrison's gun made "what sounded like a soft bang or soft sound," and he "aim[ed] for the woods because he didn't want to hit the car." Parson said "no, like this," stepped into the road, and began to fire rapidly at Wagstaff. Parson's gun made "a very loud noise," and Garrison believed "that Parson fired until he emptied the clip." Parson and Garrison then returned to the Explorer and left the scene, with Parson driving and Garrison in the passenger seat....