Jon M. Talotta, McLean, (Erica Knievel Songer; Marques P. Richeson; Adam D. Aft, McLean; Shawn Armbrust; Parisa Dehghani-Tafti; Hogan Lovells U.S. LLP; Mid-Atlantic Innocence Project, on briefs), for petitioner.
Kenneth T. Cuccinelli, II, Attorney General (Alice T. Armstrong, Assistant Attorney General II, on briefs), for respondent.
Before HUMPHREYS, ALSTON, and CHAFIN, JJ.
Upon a Petition for a Writ of Actual Innocence
[62 Va.App. 660] Johnathan Christopher Montgomery (" Montgomery" ) petitions this Court to grant a writ of actual innocence based on non-biological evidence pursuant to Code §§ 19.2-327.10 through 19.2-327.14. Montgomery seeks to vacate his 2009 convictions for forcible sodomy, aggravated sexual battery, and animate object sexual penetration. In support of his petition, Montgomery proffers newly-discovered evidence— the recantation and subsequent perjury conviction of the complaining witness Elizabeth P. Coast (" Coast" ). The Commonwealth agrees that Montgomery has satisfied the statutory requirements and joins Montgomery in asking this Court to grant his petition.
A. Montgomery's Conviction
In October of 2007, Coast, then seventeen, reported that when she was ten years old a neighborhood boy named " Jon" sexually assaulted her while the two were alone in her grandmother's backyard. The City of Hampton
Police Department quickly identified " Jon" as Montgomery. In 2000, fourteen-year-old Montgomery was living in Hampton, Virginia, in the house Coast identified as her assailant's. Montgomery attended Hampton High School from September 5, 2000 to December 15, 2000, but by January 2001, he had moved to Iowa. Coast identified Montgomery in a photo lineup using his Hampton High School yearbook photo. On October 15, 2007, [62 Va.App. 661] the police arrested Montgomery for assaulting Coast on or around January 12, 2001. After the police discovered that Montgomery was not in Virginia at that time, it issued a new warrant alleging the incident happened between September 5, 2000 and December 15, 2000.
On June 23, 2008, the Circuit Court of the City of Hampton (the " trial court" ) tried and convicted Montgomery in a one-day bench trial for the assault of Coast. Coast testified under oath that Montgomery had sexually assaulted her in 2000. She described the alleged assault in graphic detail. She sad that she did not tell anyone what happened at the time of the assault because she thought her parents " would get mad" and she was " really embarrassed." She explained that she decided to come forward seven years later because she thought she saw Montgomery at Wal-Mart.
Coast's cousin and " best friend," Emily, who played in the neighborhood with Coast and Montgomery, also testified. Emily said that she was " very uncomfortable" when Montgomery " tickled [Coast] and grabbed her stomach." However, Coast never told Emily that Montgomery ever hurt her.
Montgomery testified on his own behalf. He admitted that he tickled Coast, but never touched her inappropriately. Several character witnesses testified that in the many years they have known Montgomery, he is known for peacefulness and is " as honest as anybody can be now a days."
Besides Coast, no other witnesses to the incident testified at Montgomery's trial. Neither was any corroborating physical evidence that an assault occurred ever presented. The trial judge categorized this case as a " word against word situation." In reaching his verdict, the trial judge concluded that Coast was more credible then Montgomery because she had " no motive whatsoever" to lie. The trial court then found Montgomery guilty of forcible sodomy, aggravated sexual battery, and object sexual penetration. On April 10, 2009, the trial judge sentenced Montgomery to 45 years in prison, with 37 years and 6 months suspended.
[62 Va.App. 662] B. Coast's Recantation
Almost four years later, on October 30, 2012, Coast called her friend and colleague, Hampton Police Officer Jim Auer (" Auer" ). She and Auer became friends when Coast began working for the City of Hampton Police Department three years earlier. Coast told Auer that " she had ruined a man's life." On November 1, 2012, Coast voluntarily made a videotaped statement at the Hampton Police Department. After consulting with counsel and receiving Miranda warnings, Coast recounted how she had falsely testified that Montgomery had assaulted her.
Coast explained that immediately before she accused Montgomery, her mother caught her looking at " sex stories" on the Internet. Out of fear of her mother, Coast said that she was looking at inappropriate material because she had been molested when she was ten years old. After she reluctantly named Montgomery as her attacker, the lie snowballed. Coast felt like she could not admit that the assault never happened. After recounting the story she testified to at Montgomery's trial, Coast told the police " [n]othing happened" between her and Montgomery. She admitted that she never had any sexual encounters with Montgomery.
Coast confessed to lying under oath at Montgomery's trial knowing that she faced criminal charges. She also knew that she would lose her job with the Hampton Police Department. On November 9, 2012, Coast was arrested for perjury and immediately fired from her job.
C. Montgomery's Conditional Pardon and Petition for Writ of Actual Innocence
On November 19, 2012, Montgomery, through counsel, requested that Governor Robert McDonnell grant " a conditional pardon, releasing him during the period in which he files a Writ of Actual Innocence for Nonbiological
Evidence with the Virginia Court of Appeals, and obtains an order granting his Writ." The Governor granted the conditional pardon with the [62 Va.App. 663] terms requested by Montgomery on November 20, 2012, ...