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Bush v. Commonwealth

Court of Appeals of Virginia

May 22, 2018

Gary Linwood Bush, Petitioner,
v.
Commonwealth of Virginia, Respondent. Gary Linwood Bush, Petitioner,
v.
Commonwealth of Virginia, Respondent.

         Prince George conviction Petersburg conviction

          Upon Petitions for Writ of Actual Innocence

          Jennifer L. Givens (The Innocence Project at the University of Virginia School of Law, on brief), for petitioner.

          Matthew P. Dullaghan, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for respondent.

          Before Chief Judge Huff, Judges Russell and Malveaux

         Gary Linwood Bush ("Bush") petitions this Court to grant two writs of actual innocence based on non-biological evidence pursuant to Code §§ 19.2-327.10 to -327.14. Bush filed two petitions, one seeking to vacate his July 16, 2007 conviction for robbery from the Circuit Court of the City of Petersburg, and the other seeking to vacate his August 22, 2007 conviction for robbery from the Circuit Court of Prince George County. In support of his petitions, Bush proffers newly-discovered evidence-Christian Amos' confession to both robberies and conviction for one of the robberies. The Commonwealth agrees that Bush has satisfied the statutory requirements and joins in asking this Court to grant his petitions. For the reasons that follow, we grant Bush's petitions.

         BACKGROUND

         Bush's Trials and Convictions

         Petersburg Trial and Conviction

         On June 27, 2007, in the Petersburg Circuit Court, Bush was convicted in a jury trial for robbery, in violation of Code § 18.2-58, and sentenced to five years' incarceration. At trial, the Commonwealth presented the testimony of Brandy Hawthorn, a teller at the Bank of Southside Virginia on Crater Road. She testified that on October 6, 2006, a man at the bank passed her a note stating that he had a gun and wanted 100, 50, and 20-dollar bills. Hawthorn stated that the man was wearing a baseball cap and looking down during their interaction. Their entire interaction lasted less than ninety seconds, and because the robber was looking down, Hawthorn only got a few "glimpse[s]" of him for a total of about five seconds. Hawthorn identified Bush as the robber in a photo lineup, and also identified him as the robber in a preliminary hearing and at trial.

         The Commonwealth also presented the testimony of Dena Patrick, the manager of the bank. She first saw the robber at the teller station, where he was six or seven feet away from her for about ten seconds. He then ran past her, and she saw him for a few seconds as he passed within three feet. His head was down the entire time she viewed him. She identified Bush as the robber in a photo lineup, and also made an in-court identification of him at trial.

         Bush testified at trial. He denied any involvement in the robbery and stated that he was in another location at the time. Detective Robert Carmichael, the arresting officer, testified that Bush told him that he had a drug problem and spent $1, 200 to $1, 600 a week on drugs.

         Prince George Trial and Conviction

         On August 2, 2007, in the Prince George County Circuit Court, Bush was convicted in a bench trial for robbery, in violation of Code § 18.2-58, and sentenced to seven years of active incarceration. At trial, the Commonwealth presented the testimony of Bethany Hays, a teller at the BB&T bank branch at the Crossings shopping center. She testified that on November 8, 2006, a robber passed her a note stating that he had a gun and wanted 100, 50, and 20-dollar bills. Because the man was wearing a camouflage baseball cap, Hays was only able to see the lower part of his face. She identified Bush as the robber in a photo lineup and at trial. Bush held an account at BB&T and had banked at the Crossings branch before; however, Hays did not remember seeing him, even though she testified that she was "usually . . . very familiar with the clients that do come in every day."

         Thomas Ard, a construction worker, also testified at trial. He stated that he was in the bank at the time of the robbery and that the robber hit him in the shoulder as he left. Ard had previously seen Bush "around town" and at "drug houses." He identified Bush as the robber of the Crossings BB&T in a photo lineup and at trial. At trial, Ard did not remember the robber wearing a baseball cap.

         Detective Carmichael also testified at this trial, stating that Bush told him that he had a serious drug problem and had spent up to $1, 600 a week on drugs.

         Bush testified in his own defense. He denied any involvement in the robbery and stated that he was in another location at the time. Bush provided law enforcement with a palm print sample, which did not match the palm print on the note given to the teller. He also provided a sample of his handwriting, ...


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