George conviction Petersburg conviction
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.
Chief Judge Huff, Judges Russell and Malveaux
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
Trials and Convictions
Trial and Conviction
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.
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.
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.
George Trial and Conviction
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."
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
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.
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, ...