Richardson v. Commonwealth

75 Va.App. 120

873 S.E.2d 692

Terence Jerome RICHARDSON, s/k/a Terrence Jerome Richardson, Petitioner,

v.COMMONWEALTH of Virginia, Respondent.

Record No. 0361-21-2

Court of Appeals of Virginia.

June 21, 2022

Upon a Petition for a Writ of Actual Innocence

Terence Jerome Richardson filed with this Court a Petition for a Writ of Actual Innocence Based on Nonbiological Evidence pursuant to the provisions of Chapter 19.3 of Title 19.2 of the Code of Virginia. He contends that he is actually innocent of involuntary manslaughter, of which he was convicted upon a guilty plea in the Circuit Court of Sussex County on March 8, 2000.

BACKGROUND

On April 25, 1998, Waverly Police Officer Allen Gibson, Jr. was shot in the abdomen with his service weapon. Virginia State Police Trooper T. Jarrid Williams testified at a preliminary hearing in the Sussex County General District Court that he received an alert on the morning of April 25 informing him that a police officer had been shot near the Waverly Village Apartments. When Trooper Williams arrived, he found a large crowd of people gathering outside the apartment complex, including Waverly Chief of Police Warren Sturrup. Chief Sturrup told Trooper Williams that Officer Gibson had been shot and that Officer Gibson was "behind the apartments in the woods."

Trooper Williams "ran back to the woods behind the apartments," where he found Officer Gibson lying on the ground with Corporal Rick Aldridge of the Sussex County Sheriff's Office kneeling near his head. Officer Gibson was conscious and speaking to Corporal Aldridge. Trooper Williams began trying to talk to Officer Gibson and asked Officer Gibson who had shot him.¹ Williams testified at the preliminary hearing:

I asked him, I said Allen, who did this to you? He stated that there were two black males. One sort of medium build with short, balding hair. Real short, narrow. He described one as tall and skinny. He described one of them with hair that would resemble dreadlocks pulled back into a pony tail. He said they were both wearing dark jeans. One of them had on a white T-shirt. One of them had on an old blue baseball cap. He said that he had got in a scuffle with them and one of them got his gun. He referred to the one that had the gun as the skinny one. He said that he was fighting with him and he was – he was trying to move his hands and show me. He said I tried to move the gun away from me and he said they shot me with my own gun.

Officer Gibson's condition deteriorated quickly, which prompted Trooper Williams to call for a helicopter evacuation. In the meantime, a rescue squad ambulance arrived and the paramedics began treating Officer Gibson. Trooper Williams rode in the ambulance with Officer Gibson to the Waverly Police Department, where Officer Gibson would be transferred to the helicopter. According to Trooper Williams, Officer Gibson repeated the description of the perpetrators several times in the ambulance. Just as the helicopter landed, Officer Gibson went into cardiac arrest. The paramedics were able to resuscitate him, but he then remained unconscious. Officer Gibson was transferred to a hospital in Petersburg, where he died from his injuries. He was twenty-five years old.

Shawn Wooden also testified at the preliminary hearing. Wooden testified that petitioner Terence Richardson was at Wooden's residence on the day of the shooting. Wooden testified that he and Richardson met Ferrone Claiborne in Waverly earlier that day, intending to go to Petersburg to buy drugs.² Wooden testified that Richardson was wearing blue jeans, a white t-shirt with a marijuana leaf on it, and a plaid shirt that was open over the t-shirt. Claiborne told Wooden that they did not need to go to Petersburg because Claiborne knew somewhere else to buy drugs. The three then went to the Waverly Village Apartments.

When they arrived at the Waverly Village Apartments, Wooden testified that Richardson and Claiborne went around the back of the apartments, leaving Wooden as a lookout. Wooden was told "to make a holler or something if I see somebody come." He testified that he lost sight of Richardson and Claiborne when they turned the corner behind the apartments. Within minutes, a Waverly police car pulled up and stopped. Wooden saw an officer exit the vehicle and walk toward the woods. Wooden made an audible signal to warn Richardson and Claiborne. At that point, Wooden said that he fled. As he was fleeing the apartment complex, Wooden heard a single gunshot.

Wooden testified that he first went to his grandmother's home but returned to his home after he found no one at his grandmother's residence. Richardson arrived back at Wooden's home shortly thereafter. According to Wooden, when Richardson "came into the house he looked nervous." Wooden "asked him then did they get the stuff," and Richardson replied, "No."

While they were at Wooden's home, Wooden received a phone call from a woman who was looking for one of Wooden's friends. The caller said that a police officer had been shot, and Wooden's friend asked the caller which police officer had been shot. Richardson could not hear the telephone conversation, but when Wooden's friend asked the caller which police officer had been shot, Richardson "said it was a new cop." Wooden testified that he did not know how Richardson would have known whether the injured officer was a new cop or not because "nobody, you know, know who was shot, so how would he [Richardson] know." Wooden was asked what happened after Richardson made this comment, and he testified, "We went out on the front deck in the front of my trailer and we stood there and talked. And then he just said it was a accident.... That he accidentally shot the cop, and if I tell anybody, something will be done to me and my family."

On cross-examination, Wooden admitted that he initially told investigators that he did not know anything about the shooting, that Richardson had stayed at his house the night before the shooting, and that neither of them awoke until noon the next day (after the shooting had occurred). Wooden testified under oath that this initial statement was a lie. He acknowledged that he had also told police to investigate Leonard Newby as a suspect in the shooting. He said that he mentioned Newby to the police because "that's the only person I could think about other than Terence [Richardson] that had dreads. Or plaits in their head."

Following the preliminary hearing, a grand jury indicted Richardson for capital murder. However, Richardson and the Commonwealth subsequently reached a plea agreement. As part of the plea agreement, the Commonwealth amended the indictment and reduced the charge against Richardson from capital murder to involuntary manslaughter. Richardson then pled guilty to the reduced charge of involuntary manslaughter. The circuit court held a hearing on Richardson's guilty plea on December 8, 1999. During that hearing, the circuit court conducted a thorough plea colloquy with Richardson, during which Richardson responded affirmatively to each of the circuit court's questions. For example, the circuit court judge asked whether Richardson had discussed with his attorney the decision to plead guilty to involuntary manslaughter, and Richardson confirmed that he had. The judge asked, "After that discussion, was it your decision that you plead guilty?" Richardson answered, "Yes." The judge then asked, "Are you entering that plea freely and voluntarily?" After Richardson answered, "Yes," the judge then added, "Because you are in fact guilty?" Richardson answered, "Yes."

The attorney for the Commonwealth then presented the evidence that the Commonwealth would have introduced at trial. The Commonwealth first proffered testimony from Wooden consistent with his testimony at the preliminary hearing. The prosecutor stated that the Commonwealth would have also called Wooden's girlfriend to corroborate his testimony. Trooper Williams also would have testified at trial, and the Commonwealth would have called Corporal Aldridge to the stand to testify and to corroborate the testimony of Trooper Williams. Finally, the Commonwealth introduced the full transcript of the preliminary hearing, including the full testimony of Wooden and Trooper Williams. Richardson did not object to any of the proffers made by the Commonwealth. He did not object to any of the exhibits that the Commonwealth introduced. The trial court accepted Richardson's guilty plea and convicted him of involuntary manslaughter. Following a sentencing hearing, the trial court sentenced Richardson on March 8, 2000, to a term of ten years of incarceration with five years suspended.

In December 2000, a federal grand jury indicted Richardson for (1) conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 846 ; (2) using a firearm to commit murder in the course of drug trafficking, in violation of 18 U.S.C. § 924(c) and (j) ; and (3) murder of a law enforcement officer in the course of drug trafficking, in violation of 21 U.S.C. § 848(e)(1)(B). Following a trial in the United States District Court for the Eastern District of Virginia, a jury convicted Richardson of the drug trafficking conspiracy but acquitted him of the other two charges.

At the federal sentencing hearing, the United States argued that Richardson's guilty plea to involuntary manslaughter in state court amounted to an admission that he was involved in Officer Gibson's death. Consequently, the United States Attorney urged the federal court to apply the sentencing enhancement provided by the United States Sentencing Guidelines for an intentional killing perpetrated in furtherance of a felony drug trafficking offense. The court agreed, finding that Richardson's guilty plea constituted an admission of participation in Officer Gibson's killing and that the record established "by clear and convincing evidence that this killing of another was with malice aforethought." Therefore, the court found that...