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In re Brown

Supreme Court of Virginia

March 22, 2018





         In 1970, a jury found Sherman Brown guilty of first-degree murder of a four-year-old child. The child's mother ("M.B.") testified that, after she rejected Brown's demand for sex, he knocked her unconscious, and upon awaking, she discovered that she had been repeatedly stabbed. While she was unconscious, her four-year-old son had been stabbed to death. Brown did not testify at his trial or proffer any evidence suggesting that someone else committed the attack.

         In 2017, Brown filed a petition seeking a writ of actual innocence pursuant to Code §§ 19.2-327.1 to -327.6, which govern writs of actual innocence based on biological evidence. Brown asserts under oath that he is "actually innocent" of the crime, Code § 19.2-327.3(A)(ii), and that recent DNA testing by a private laboratory, Bode Cellmark Forensics ("Bode"), conclusively exonerates him with "clear and convincing evidence" such that "no rational trier of fact would have found proof of guilt . . . beyond a reasonable doubt, " Code § 19.2-327.5. Reviewing this case under our original jurisdiction, we dismiss Brown's petition for two reasons.

         First, the governing statutes limit our review of allegedly exculpatory biological evidence to the findings of the Commonwealth's Department of Forensic Science ("DFS"). DFS analyzed a vaginal smear slide presented by Brown and was unable to identify sufficient amounts of DNA in order to render any conclusion as to whether Brown could be included or excluded as a contributor to the DNA on the slide. The findings of DFS, therefore, do not support Brown's claim of actual innocence.

         Second, even if we were authorized to consider the private laboratory's results obtained by Brown, he would still have the burden of proving that the evidence submitted to us in this writ proceeding - DNA test results from the Bode laboratory, the factual proffers in Brown's petition, the post-trial evidence presented in the Commonwealth's response, and the evidence presented at the original trial - provide, in the aggregate, clear-and-convincing proof that "no rational trier of fact would have found proof of guilt . . . beyond a reasonable doubt." Id. We find this evidence falls far short of satisfying this clear-and-convincing statutory standard of proof.


         Our analysis begins with a restatement of first principles. We have no common-law authority to grant what amounts to a judicial pardon - that is, to set free a convict lawfully found guilty by a jury - based upon his later protestation that he was in fact innocent. Under English common law, as relevant today as it was at the Founding, [1] "the power to exercise executive clemency lay within the prerogative of the crown, " Gallagher v. Commonwealth, 284 Va. 444, 450, 732 S.E.2d 22, 25 (2012), and "[t]here simply was no such thing as a judicial pardon, " Taylor v. Commonwealth, 58 Va.App. 435, 445, 710 S.E.2d 518, 523 (2011). The "traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency." Herrera v. Collins, 506 U.S. 390, 417 (1993).

         The common law, however, always remains subject to the sovereign power of citizens to amend our Constitution and the power of their representatives to enact statutes in derogation of the common law. In 2002, Virginians did just that when they amended the Constitution of Virginia to vest this Court with "original jurisdiction . . . to consider claims of actual innocence presented by convicted felons." Va. Const. art. VI, § 1. That newly granted judicial power, however, is limited. It can only be exercised "in such cases and in such manner as may be provided by the General Assembly." Id. (emphases added).

         If a convict seeks exoneration outside of these statutory boundaries, he may obtain it only from the Governor of Virginia, who is vested with the power of executive clemency. See generally Blount v. Clarke, 291 Va. 198, 204-05, 782 S.E.2d 152, 155 (2016). The opportunity to seek executive clemency serves the dual goals of defining the limited scope of the judicial role while providing a fail safe for claims of innocence that fall outside of the statutory writ procedure. See Herrera, 506 U.S. at 415 ("Executive clemency has provided the 'fail safe' in our criminal justice system."). Compare, e.g., Governor Timothy M. Kaine, List of Pardons, Commutations, Reprieves and Other Forms of Clemency, S. Doc. No. 2, at 22 (2010) (granting absolute pardon to Arthur Lee Whitfield), with, e.g., In Re: Whitfield, Record Nos. 042086 and 042087, slip op. at 4 (Va. Oct. 21, 2005) (unpublished) (dismissing Whitfield's petitions for writs of actual innocence because the Court did "not have the statutory authority to consider petitioner's claims").

         For these reasons, we limit our analysis to the actual-innocence statutes applicable to petitions asserting newly discovered or previously untested biological evidence. Implementing the authority established by Article VI, Section 1 of the Constitution of Virginia, Code § 19.2-327.2 vests the Court with "the authority to issue writs of actual innocence" based upon biological evidence. In exercising this authority, we must base our determination upon "the petition, the response by the Commonwealth, previous records of the case, the record of any hearing held under [Chapter 19.2] and the record of hearings held pursuant to [Code] § 19.2-327.1 [the testing statute], and if applicable, any findings certified from the circuit court" pursuant to a remand order from this Court. Code § 19.2-327.5.

         Under settled principles, we may also take into account factual matters properly within the scope of judicial notice. See Va. R. Evid. 2:201(a). These facts include those "not subject to reasonable dispute in that [they are] either (1) common knowledge or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Id. See generally Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia § 3-2 at 174-88 (7th ed. 2012 & Supp. 2017); Kent Sinclair et al., A Guide to the Rules of Evidence in Virginia 13-14 (2017-2018 ed.).

         We incorporate all of these sources into our review of the relevant facts and our application of the statutory criteria to this case.[2]

         A. The Evidence at the 1970 Trial

         The record before us begins with the evidence presented by the Commonwealth at Brown's 1970 jury trial.[3] Witnesses established that M.B. was at home on October 1, 1969, with her two young children, a two-year-old and a four-year-old. After lunch, M.B. put the two-year- old in his crib for a nap. M.B. then put on a nightgown, read to her four-year-old in bed, and then turned off the light to join him for an afternoon nap. Before either of them fell asleep, M.B.'s father arrived for a visit.

         During her father's visit, M.B. received a phone call from Brown.[4] He repeatedly asked her if he could come over to her home to talk. She said no each time and was unnerved by his persistent requests. After her father left, M.B. and the four-year-old returned to the bedroom intending to take the planned nap. Just as M.B. started to untie her robe, she heard the front gate of the fence in front of her residence swing open. She looked out the window, saw no one, and walked to the front door with the four-year-old. When she cracked the front door slightly open, she saw Brown through an exterior screen door. He asked to come inside. She said no. He insisted, but she continued to refuse his request.

         While still standing outside, Brown asked M.B. if she would get him a cup of water. She walked to her kitchen to fetch a paper cup of water, and when she returned, Brown had opened the screen door and stepped into the home. She was upset to see him inside the home, but she handed him the cup of water anyway. Brown continued to insist that he wanted to talk to her and even asked her to give him a tour of her home, but she continued to refuse each of his requests. At one point, she "thought that [she] smelled alcohol on his breath, " and she "asked him if he had been drinking, " which he denied. Trial Tr. at 167. Eventually, Brown abruptly asked her, "Will you have sex with me?" Id. at 162. Now "terrified, " M.B. replied, "Of course not." Id. After Brown asked her why she would not have sex with him, M.B. answered that she was married, that Brown was not her husband, and that Brown should leave. M.B.'s four-year-old was also in the room with them at the time, and M.B. indicated that "little ears were listening" when she requested that Brown leave. Brown finally declared, "I'm so sexed up I don't know what to do." Id. "I'm sorry, " M.B. responded, "you will have to go somewhere else. I'm not available." Id.

         M.B.'s next memory was "pitching forward" after "receiving very painful blows" to her side, which rendered her unconscious. Id. at 163. When she awoke, she was unable to move. Her sister-in-law arrived later that afternoon and found M.B. on the floor in a pool of blood. After she discovered that M.B.'s phone was hanging from its wires with its receiver broken in half, the sister-in-law drove to a neighbor's home to ask them to call both the rescue squad and her husband, who could pick up M.B.'s husband from his job. M.B.'s sister-in-law returned to M.B.'s home and found the two-year-old unharmed in his crib, but she discovered the four-year-old lying face down on a bloody bed. When the rescue squad arrived, they discovered that M.B. had been stabbed multiple times and still had a knife blade without its handle lodged in her chest. Her underwear had been taken off and were on the floor nearby. The medical examiner later declared the four-year-old dead from repeated stab wounds.

         M.B. was taken to the hospital for emergency surgery. She had suffered knife wounds to her chest, lower back, and abdomen and had open scalp lacerations from what the surgeon assumed were "blow[s]" to her head. Id. at 119. One of the stab wounds went 12 to 14 inches through her abdominal wall and into her liver and spleen. The child victim was transported to the morgue. He had suffered two stab wounds piercing his heart, four lacerations to his scalp exposing his skull, stab wounds to his left lung and right wrist, and multiple contusions to his forehead, face, arms, legs, and ears.

         The Commonwealth charged Brown with a single crime, the murder of M.B.'s four-year-old son. Witnesses at Brown's trial established that on the day of the murder, Brown spent the morning with his brother-in-law, Larry Waller, and Larry's cousin, William Waller. They drank a fifth of whiskey together while working on Brown's car and then drove to Ivy, a town just outside of Charlottesville, for lunch. At Brown's request, William dropped off Brown and Larry at Brown's father's house, which was directly across the road from M.B.'s house. At Brown's father's house, Larry overheard Brown make a telephone call. Shortly after that call, Brown and Larry walked across the road so that Brown could jog in the field on M.B.'s property in front of her home. After watching Brown jog a few laps, Larry caught a ride on the school bus after 3:00 p.m. and left to visit a friend, who was about to get out of school for the day.

         After spending about twenty minutes at his friend's house, Larry returned to his home, in which Brown also lived, at approximately 4:30 p.m. Larry discovered Brown in his own bedroom washing up. Brown turned to Larry and simply said, "I messed up." Id. at 232, 251. Larry did not know what Brown had meant by that statement, and Brown did not provide an explanation. Brown went to work that evening where he was arrested around 6:15 p.m. and then questioned by police about the murder of M.B.'s four-year-old son. After reading Miranda warnings to Brown, see id. at 208, 214, officers drove Brown to M.B.'s home where an investigator asked him if he had been on M.B.'s property that day, which Brown denied.

         The Commonwealth's opening statement at Brown's trial focused entirely on the only charge against him, the murder of M.B.'s son. The Commonwealth never once suggested in its opening statement that Brown raped M.B, and M.B. did not make that accusation during her testimony. Furthermore, none of the evidence offered at trial demonstrated vaginal pain, injury, or trauma, which often accompany rape. Instead, the Commonwealth's theory of the case was that Brown may have "attempted to have intercourse with her" before stabbing and beating her. Id. at 432 (emphasis added). Given the ambiguous circumstantial evidence, the Commonwealth conceded that whether "he tried to rape [her] or did rape her[, ] we will never know." Id. at 402.[5]

         In his closing statement to the jury, Brown's counsel pointed out that the Commonwealth did not introduce any evidence of sperm found on Brown or M.B. "You can be certain if they found [semen]" on the victim, witnesses "would have been here to testify to it." Id. at 418. That evidentiary omission, counsel argued to the jury, discounts any "motive" suggesting that Brown murdered M.B.'s four-year-old son and attempted to murder M.B. in order to cover up an actual "rape, " id. at 417-18, a theory of guilt the Commonwealth never advanced at trial.[6]

         The jury found Brown guilty of first-degree murder of M.B.'s son and sentenced him to death. On appeal, we affirmed the death sentence and rejected Brown's challenge to the finding of guilt. In response to his sufficiency challenge, we stated that "[a] detailed review of the evidence of the circumstances surrounding this murder and the evidence pointing to the defendant's guilt as the murderer leaves no doubt in our mind that this evidence, viewed in the light most favorable to the Commonwealth, amply supports the jury's verdict." Brown v. Commonwealth, 212 Va. 515, 516, 184 S.E.2d 786, 787 (1971), vacated in part on other grounds, 408 U.S. 940 (1972).

         In the early 1970s, the United States Supreme Court interpreted the Eighth Amendment to declare capital punishment categorically unconstitutional. The de facto moratorium began with Furman v. Georgia, 408 U.S. 238 (1972), a 5-4 per curium order accompanied by nine separate opinions from each of the Justices, and ended with Gregg v. Georgia, 428 U.S. 153 (1976), which reinstated, with qualifications, the constitutionality of the death penalty. During the moratorium, Brown appealed to the United States Supreme Court and obtained a summary order reversing our affirmance on direct appeal "insofar as it leaves undisturbed the death penalty imposed." Brown, 408 U.S. at 940. In response, we remanded Brown's case to the trial court for resentencing. After receiving a jury verdict fixing the sentence at life imprisonment, the trial court entered a final order approving the sentence without suspension.[7]

         B. Brown Accepts "Full Responsibility"

         During a parole interview in 1991, Brown stated, "I accept full responsibility for my crime and I feel sorry for the victim, but I can't undo what's been done." Commonwealth's Mot. to Dismiss Ex. 7, at 12 [hereinafter MTD]; see also id. Ex. 5, at 1 (expressing "fervent regret and remorse" in a 1985 interview for the Parole Board's consideration). During an earlier parole interview in 1984, Brown offered a detailed statement to the Parole Board explaining how the crimes occurred. After a bout of "drinking" alcohol and "taking some LSD, " he approached M.B. at her home knowing that "she did not want to see him." Id. Ex. 6, at 1. After M.B. gave water to Brown, "she turned into a snake." Id. In a later parole interview, he recalled standing over M.B. with the "knife handle in his hand." Id. Ex. 7, at 4 (capitalization omitted).

         Brown recalled feeling like "he was 'tripping' at the time of the offense." Id. Ex. 6, at 1. Brown could not specifically recall the acts of stabbing M.B. and murdering her four-year-old son, but he remembered "that he had blood all over him and he knew something was wrong." Id. Brown told the Parole Board in 1991 that he thought "he committed the crimes, stabbed [M.B.] and killed her 5 y/o son."[8] Id. Ex. 7, at 4 (capitalization omitted). Brown discussed the circumstances of the crimes because "he now kn[ew] what drugs and alcohol can do to a person" and because he did not "want another 4 year old's life taken in vain." Id. Ex. 6, at 1.

         C. Brown Claims Actual Innocence

         In 2016, Brown filed the present petition seeking a writ of actual innocence. Brown asserts that he is "actually innocent" of the crime as opposed to not guilty due to insufficient evidence, [9] Code § 19.2-327.3, and that recent DNA testing by a private laboratory conclusively exonerates him with "clear and convincing evidence" such that "no rational trier of fact would have found proof of guilt . . . beyond a reasonable doubt." Code § 19.2-327.5.

         Pursuant to an order by the trial court for post-conviction DNA testing under Code § 19.2-327.1, DFS performed DNA testing on various pieces of evidence from Brown's trial beginning in 2008. After five supplemental orders, the testing concluded in 2015 when Bode conducted DNA testing on a vaginal smear slide. The final DNA test formed the basis of Brown's petition for a writ of actual innocence.

         1. DFS Testing

         After the doctors at the hospital treated M.B., they "called the GYN Service to make an examination before she left the operating room." Trial Tr. at 118. The Department of Pathology at the University of Virginia issued a report signed by Dr. A.E. Sproul who examined a vaginal smear slide taken from M.B., which was referred for examination by "Dr. Flanagan, GYN."[10]Pet. Ex. C, at 1. The report listed "10/2/69" as the date, listed "349442" as the number for the slide, [11] and stated that "[t]he specimen [was] received on a glass slide" and was "submitted for H&E staining."[12] Id. Dr. Sproul's only diagnosis stated: "Sperm present." Id. Neither the slide nor the pathology report were entered into evidence at Brown's trial, and neither Dr. Flanagan nor Dr. Sproul testified about the vaginal smear slide.

         In 2015, the slide was located at a storage facility for UVA's Department of Pathology. Upon Brown's motion for post-conviction DNA testing, the trial court ordered DFS to perform a DNA analysis of the slide and M.B.'s nightgown and to compare them "with other DNA developed in this matter." Id. Ex. D, at 1-2. DFS created a DNA profile for M.B. from DNA recovered from the nightgown but could not create a DNA profile from the vaginal smear slide. See id. Ex. E, at 3.

         Notes from a DFS forensic scientist stated that the vaginal smear slide was fixed with an "intact" coverslip, but a microscopic examination of the slide revealed that it would be "too difficult to discern cell morphology" because of a "dry" or "cracked" coverslip. MTD Ex. 8, at 1. The "fixative on [the] edges" of the slide was "scraped away from coverslip, " and the "coverslip was removed intact." Id. Then the forensic scientist scraped both the slide and the coverslip into a weigh boat and swabbed the scraped debris. See id. The scientist also swabbed the slide and coverslip with a second swab. See id. These swabs were combined and DNA extracted from them, separating the sperm fraction and non-sperm fraction. See id.

         A portion of the sperm fraction was used to create a new slide to attempt to identify sperm cells, but none were found. See id. at 2; Pet. Ex. E, at 3. The sperm fraction yielded "[n]o DNA typing results, " and the non-sperm fraction yielded "[a] DNA type of no value." Pet. Ex. E, at 3. In a conversation with one of the attorneys working on Brown's case, the forensic scientist conveyed that the "DNA type of no value from the non-sperm fraction" resulted in "one type at locus D5, but that it was not compared to the victim." MTD Ex. 9, at 1. When asked by the attorney "if there was any sample remaining on the slide, " the forensic scientist answered "that it was possible" because "there could be residue left on the glass." Id. Because "D5 is a small locus, " the attorney inquired about the use of MiniFiler testing.[13] Id. The forensic scientist stated that DFS did not have "Mini[F]iler online, "[14] but the "suitability of the testing could be discussed with the [Commonwealth] and [the] Technical Leader" of DFS. Id. DFS performed no further testing on the vaginal smear slide.

         2. Bode Testing

         A couple of months after DFS completed its DNA testing of the vaginal smear slide, Brown made a motion in the circuit court for further post-conviction DNA testing of the slide by Bode, and the Commonwealth made no objection to this request. "[I]n the interests of justice and for good cause shown, " the trial court ordered that "the vaginal smear slide and any extracts, scrapings, or other remnants therefrom" be packaged and sent to Bode for further DNA analysis. Pet. Ex. F, at 1. Bode examined the original vaginal smear slide and determined that it was "inconclusive for the presence of spermatozoa" because of "heavy pink staining/debris which prevented an accurate confirmation of spermatozoa." MTD Ex. 12, at 2; see also Pet. Ex. G, at 1-2. The extracts that DFS obtained from the vaginal smear slide and coverslip were processed with a MiniFiler kit, but "[n]o DNA profiles were obtained." Pet. Ex. G, at 1.

         Bode then swabbed both the original vaginal smear slide and the new slide, which was created by DFS from a portion of the sperm fraction, and both of those swabs were combined and sent for differential extraction, which again separated any DNA from the sample into a sperm fraction and a non-sperm fraction. See id. at 2; MTD Ex. 12, at 2. Brown's attorney elected to forego further staining of the sample to identify spermatozoa "during the extraction" because "the hospital saw the sperm already" in 1969. MTD Ex. 12, at 4-5. Before Brown's attorney elected to forego this test, the Bode forensic scientist explained that the test "could potentially reduce the available DNA within the ...

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