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Commonwealth v. Duse

Supreme Court of Virginia

February 12, 2018

Commonwealth of Virginia, Appellant,
Bernard Clark Duse, Jr., Appellee.

         From the Court of Appeals of Virginia, Circuit Court Nos. CR17-522, CR17-523

         Upon the petition of the Commonwealth of Virginia ("Commonwealth"), an appeal is awarded the Commonwealth from an order of the Court of Appeals of Virginia entered on January 25, 2018.

         Upon further consideration whereof, the Court is of the opinion that the Court of Appeals erred in ruling that the Circuit Court of Fauquier County did not abuse its discretion in granting Bernard Clark Duse, Jr. ("Duse") pre-trial bail.[1] Accordingly, for the following reasons, we reverse the January 25, 2018 order of the Court of Appeals and vacate the January 3, 2018 circuit court order granting Duse bail.

         Duse is charged with first-degree murder of his work supervisor and use of a firearm in the commission of that murder. His trial is set for March 19, 2018. On December 28, 2017, the circuit court heard Duse's motion for pre-trial bail. Code § 19.2-120 governs pre-trial bail. Under Code § 19.2-120, a person held in custody pending trial for a criminal offense "shall be admitted to bail by a judicial officer, unless there is probable cause to believe that . . . [h]e will not appear for trial [or] [h]is liberty will constitute an unreasonable danger to himself or the public." Code §§ 19.2-120(A)(1) and (2). However, because Duse is charged with first-degree murder, for which the maximum sentence is life imprisonment, see Code §§ 18.2-10(b) and -32, the circuit court was required to presume, subject to rebuttal, that no condition or set of conditions will reasonably assure Duse's appearance or the safety of the public. See Code § 19.2-120(B)(2) ("The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is currently charged with [a]n offense for which the maximum sentence is life imprisonment or death.").

         In determining whether Duse rebutted this presumption, the circuit court was required to consider the following factors and "such others as it deem[ed] appropriate:" (1) the nature and circumstances of the charges, (2) Duse's history and characteristics, "including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history [of] drug or alcohol abuse, criminal history, " any criminal street gang membership, and his record of appearances at court proceedings, and (3) "[t]he nature and seriousness of the danger" Duse's release would pose to "any person or [to] the community." Code §§ 19.2-120(E)(1) - (3).

         As to the nature and circumstances of the offenses, the Commonwealth alleged that on July 26, 2017, Duse was seen lying in wait behind his workplace at a pharmacy in Warrenton, Virginia. Duse had recently learned that the central claim in his age discrimination suit against the pharmacy had been dismissed and his attorney had moved to withdraw. Duse's lawsuit had been going on for one and a half years and several supervisors and corporate officers, including Rex Olsen, had testified against Duse in depositions. Duse hid behind a dumpster at the rear of the pharmacy and shot Olsen as Olsen was throwing away the store's trash. After being shot in the back of the head, Olsen crumpled to the ground, turning face upward. Duse was seen leaning over Olsen, shooting him in the face at close range. Duse then took Olsen's cell phone, wallet, and store keys and walked away calmly, heading back to a vehicle and ultimately to his home in Fairfax County. He was arrested six days later.

         The Commonwealth's memorandum opposing bail and its exhibits (which the circuit court received as evidence) showed that Duse's employment history from the 1970's through his arrest in 2017 was rife with instances of protracted employment disputes, litigation and his repeated accusations of persecution and conspiracies against him by co-workers and supervisors at a major computer electronics technology firm, a national book retailer, and the pharmacy. These exhibits contained allegations that Duse was mentally unstable and a threat to managers and co-workers, including his current supervisors at the pharmacy, who feared him "a great deal." At one point, his former electronics technology employer found Duse's complaints so bizarre and disturbing that it hired security specifically to protect its employees from him, and that it had conducted surveillance of Duse.

         The Commonwealth's exhibits also showed Duse's history of mental health issues. In 1984, a psychiatrist found Duse was an "Obsessive Compulsive person." In 1991, a psychiatrist, who evaluated Duse at the former electronics technology employer's request, concluded Duse suffered from a paranoid personality disorder. Another psychiatrist, Dr. Howard Zonana, who was associated with Yale University and who also evaluated Duse at that employer's request, conducted multiple interviews of Duse and other individuals between 1986 and 1992, performed psychological testing of Duse, and reviewed voluminous documents. In an extensive 1992 report, Dr. Zonana diagnosed Duse with "a Personality Disorder Not Otherwise Specified as there [were] mixed elements of primarily an Obsessive-Compulsive personality coupled with features of a Paranoid Personality Disorder." Dr. Zonana noted Duse's paranoia may have reached "delusional proportions" at times. In 2006, in connection with Duse's claims against the national book retailer company, a psychiatrist diagnosed Duse with obsessive compulsive personality disorder with narcissistic traits. That psychiatrist noted Duse's own therapist had diagnosed him in 1999 with major depression and had noted Duse had suicidal thoughts from 1984 to 1992 and displayed several areas of "distorted thinking."

         Two letters dated August 21, 2017, addressed to the circuit court judge, documented some of Duse's past conduct. In the first letter, a woman who had supervised Duse at the book retailer beginning in 2007, wrote that Duse created a negative work environment, did not accept feedback, used rude and unprofessional language, and was "combative and forceful in conversations." She believed Duse's pattern of forceful behavior would continue and was concerned about him being released from jail. In the second letter, a customer of the pharmacy who encountered Duse ten days before Olsen's murder wrote that Duse had been verbally abusive and aggressive towards her. She complained to the pharmacy and talked to Olsen about the complaint hours before Olsen's death. She believed Duse was a danger to her, his former colleagues, and the public.

         Duse presented evidence through defense counsel's proffers and witness testimony.[2]Counsel proffered that Duse was 76 years old with no prior criminal record and he had appeared at all court proceedings. Duse has resided in Virginia for 22 years, including 16 years at his current address. He has been married for over 15 years and his wife was in the courtroom. He had served in the Army and was honorably discharged. He has an industrial engineering degree and a Master's degree in business from Harvard. He had been employed consistently throughout his life. He had limited financial resources, but had been able to retain counsel through family support. He is a United States citizen and had tendered his passport to the general district court at the initial bond hearing (although the passport could not be located at the time of the circuit court hearing). Counsel further proffered there was no evidence of mental health issues in Duse's past or present, he had never abused alcohol or drugs, had never been a member of a criminal street gang, and there was no indication his release would pose a danger to anyone. Counsel acknowledged that Duse and his wife own a home in the Philippines. During his pre-trial services interview, Duse failed to disclose that he and his wife had planned to relocate to that home.

         Lori Dance, Duse's niece and a Nevada college professor, testified that Duse had been a "father figure" and "constant advisor" to her. Dance described Duse as the "patriarch of the family" and the person "we all go to for advice and counsel."

         Mark Warren, a Massachusetts college professor, testified he had known Duse for 25 years as a friend and mentor. Warren had last seen Duse for a few hours in the spring of 2015. Warren described Duse as a "superrational, " knowledgeable, kind, calm, and generous person, whom Warren had never seen become angry.

         An employee of a bail bond company testified that a GPS device could be used to monitor Duse's location if he were to be released on bond. If Duse left the designated area or tampered with the device, the employee testified that the bond company would be notified immediately, and that he had authority to arrest Duse and bring him back to jail. The bond employee acknowledged that GPS monitoring would not stop Duse from going out and murdering someone.

         Testifying for Duse as an expert in "the field of psychiatric evaluations as it deals with paranoia, " Dr. William Lawson, a psychiatrist of 25 years, stated he met with Duse for approximately two hours at the jail and spent two hours reviewing the Commonwealth's memorandum and exhibits. Dr. Lawson did not administer any psychological tests to Duse. He gave Duse a "mental status exam" and asked him several questions designed to "look at the extent to which people believe whether or not events were overvalued ideas versus frank paranoia." Based on this meeting and document review, Dr. Lawson opined that Duse did not have a personality disorder related to the litigation with his former computer electronics employer. Dr. Lawson further opined ...

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