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Phillips v. Commonwealth

Court of Appeals of Virginia

December 4, 2018

Darnell Phillips, Petitioner,
v.
Commonwealth of Virginia, Respondent.

         Upon a Petition for a Writ of Actual Innocence

          Jennifer L. Givens (Innocence Project Clinic, University of Virginia School of Law, on briefs), for petitioner.

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

          Before Judges Beales, O'Brien, and Malveaux

         Darnell Phillips ("petitioner") filed with this Court a Petition for a Writ of Actual Innocence Based on Nonbiological Evidence pursuant to the provisions of Chapter 19.3 of Title 19.2 of the Code of Virginia. Petitioner contends he is innocent of abduction with intent to defile, forcible sodomy, rape, and malicious wounding - the offenses for which he was convicted by a jury in the Circuit Court of the City of Virginia Beach on June 12, 1991. In support of this contention, petitioner argues that previously unknown or unavailable DNA evidence and a "recantation from the victim" demonstrate he was wrongfully convicted.

         I. BACKGROUND AND PROCEDURAL HISTORY

         On the afternoon of August 8, 1990, the victim, a ten-year-old girl, was riding her bicycle around a park in a neighborhood in Virginia Beach. She was approached by a man who pushed her off of her bicycle and down a hill. After threatening to kill her if she screamed, he violently removed her shorts and underwear, then proceeded to rape and sexually assault her. After the sexual assault, the man punched her in the face approximately five times with his fist. As the victim began to lose consciousness, he picked her up, shoved her into a nearby creek, and then fled. The victim woke up in the water, picked up her clothes, got out of the water, retrieved her bicycle, and ran until she encountered some women who helped her and also contacted the authorities.

         At the hospital later that evening, the victim said to the investigating police officer that her attacker was an African-American male, approximately 6 feet tall, "heavy build, and out of shape." She told the officer that her attacker had a gold tooth on the left side of his mouth, and "a black rain type hat with a wide brim and that it had an emblem on the front" which she believed was red. Shortly thereafter, police came across petitioner - approximately half a mile from the scene of the attack - holding a Chicago Bulls hat. Later in their investigation, the police again found petitioner wearing a Chicago Bulls hat that the victim subsequently identified as the one worn by her attacker. Noticing a similarity between petitioner and a composite sketch drawn at the direction of the victim, police obtained and executed search warrants for petitioner's person and residence and took him into custody. While in police custody, petitioner signed an Advisement of Rights form that waived his Miranda rights. Detective Sean Hoffman of the Virginia Beach Police Department testified at trial that petitioner subsequently confessed to Hoffman that he committed the attack.

         On June 12, 1991, a jury found petitioner guilty of malicious wounding, abduction with intent to defile, forcible sodomy, and rape. He subsequently filed an appeal with the Court of Appeals, which this Court granted and, after oral argument, affirmed the conviction on November 2, 1993.

         On May 22, 2000, the Virginia Beach Circuit Court ordered DNA testing of the hairs recovered as evidence and admitted during trial as Commonwealth's Trial Exhibit 21.[1] In a letter dated August 24, 2001, the Armed Forces Institute of Pathology concluded that the DNA sequence of the hair it tested from Exhibit 21 was not consistent with the DNA sequence of a sample obtained from petitioner. Based on that finding, petitioner submitted a petition for a writ of actual innocence to the Supreme Court on December 16, 2004, which was dismissed on procedural grounds on January 13, 2005.

         On February 23, 2005, petitioner filed a motion with the Virginia Beach Circuit Court requesting testing of any newly discovered or previously untested physical evidence. On October 19, 2005, the circuit court ordered that all biological evidence seized by the Virginia Beach Police Department in the case be tested for DNA. In a letter dated November 22, 2005, the Office of the Commonwealth's Attorney of Virginia Beach informed the circuit court that it had no evidence from the case remaining in custody as it had been previously destroyed. The circuit court consequently then vacated its October 19, 2005 order for testing of biological evidence.

         In October 2015, subsequent to the filing of a Freedom of Information Act request, some physical evidence from the case was discovered not to have been destroyed. On March 7, 2016, pursuant to a motion from petitioner, the Virginia Beach Circuit Court ordered testing of the physical evidence by the Virginia Department of Forensic Science (DFS). In a letter dated June 7, 2016, DFS reported that it identified no spermatozoa in its testing of smear samples taken from the victim's person and no DNA profile foreign to the victim in its testing of swabs from the victim's person. Upon a further order from the circuit court, the physical evidence was subsequently tested by Forensic Analytical Sciences (FAS), which reported on January 4, 2017 that "no sperm or other evidence of semen and no male DNA was detected from any of the samples tested at FAS." Upon another order from the circuit court, the physical evidence was tested by Serological Research Institute (SERI). On August 31, 2017, SERI reported discovering the following - (1) from the stain cuttings from the sheet on which the victim was placed, [2] the stain cuttings from the victim's shorts, and stain cuttings from the victim's shirt, no semen was found and from one of the cuttings from the victim's underwear, "only one sperm cell was microscopically identified," about which no further identifying information was provided; (2) from the exterior surface of the victim's black shorts' waistband, buttocks, and crotch area, a "weak and incomplete mixture of at least two males," excluding petitioner as a contributor; (3) from the interior crotch of the victim's underwear, male DNA in which "Darnell Phillips (and any paternal relative) is included as a possible contributor"[3] (emphasis in original quote); (4) from the exterior surface of the victim's underwear, a mixture of at least four people, including at least one male and one female contributor, excluding petitioner as a contributor; and (5) from the exterior surface of the victim's underwear, a mixture of at least four males, excluding petitioner as a contributor.[4]

         On September 12, 2017, after discussing the case and DNA results with an attorney from the Innocence Project at the University of Virginia School of Law, the victim signed a declaration reaffirming that she was "brutally raped and beaten by a man" when she was ten years old, but that she "could have identified the wrong man as [her] attacker."

         On May 15, 2018, petitioner filed the petition for a writ of actual innocence that is the subject of this order, contending that the "recantation of the victim" and DNA test results constitute previously unknown or unavailable evidence which is material and which, when considered with all the other evidence in the record, prove that no rational trier of fact would have found proof of guilt beyond a reasonable doubt. On June 1, 2018, this Court directed the Attorney General to respond to the petition, which response was received on July 31, 2018. Petitioner then filed a reply to the Attorney General's Motion to Dismiss with the Court on August 17, 2018, and oral argument on the petition occurred on October 30, 2018.

         II. ANALYSIS

         "Code § 19.2-327.10 confers original jurisdiction upon this Court to consider a petition for a writ of actual innocence based on non-biological evidence." Bush v. Commonwealth, 68 Va.App. 797, 803, 813 S.E.2d 582, 585 (2018). "Human biological evidence may not be used as the sole basis for seeking relief under this writ but may be used in conjunction with other evidence." Code § 19.2-327.11(A). "The burden of proof in a proceeding brought pursuant to this chapter shall be upon the convicted or delinquent person seeking relief." Code § 19.2-327.13.

         This Court may grant a writ of actual innocence "only upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of [Code] § 19.2-327.11, and upon a finding that no rational trier of fact would have found proof of guilt or delinquency beyond a reasonable doubt[.]" Code § 19.2-327.13(ii). The evidence upon which the petitioner relies must be "material, and . . . when considered with all of the other evidence in the current record, will prove that no ...


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