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Knight v. Commonwealth

Court of Appeals of Virginia

January 7, 2020

Kevin Lamont Knight, a/k/a Suge Knight, Petitioner,
v.
Commonwealth of Virginia, Respondent.

         Upon a Petition for a Writ of Actual Innocence

          Before Judges O'Brien, Russell, and Senior Judge Clements

         Kevin Lamont Knight, also known as Suge Knight, petitions this Court for a Writ of Actual Innocence pursuant to Chapter 19.3 of Title 19.2 of the Code of Virginia. A jury convicted Knight of first-degree murder, robbery, and two counts of using a firearm in the commission of a felony in the Circuit Court of the City of Norfolk. By final order of January 28, 2004, the trial court sentenced Knight to life imprisonment plus fifteen years, consistent with the jury's verdict.

         Knight contends that he is innocent of the offenses and is entitled to relief based upon the purported recantations of his accomplices and two informants. Knight also argues that former Norfolk Police Detective Robert Glenn Ford used "unscrupulous tactics" to secure his convictions. He notes that Ford was convicted in federal court of bribery. Knight contends that he is entitled to an evidentiary hearing on the proffered recantations following the Supreme Court of Virginia's decision in Dennis v. Commonwealth, 297 Va. 104 (2019). The Attorney General has moved to dismiss Knight's petition.

         Background

         At 11:12 p.m. on August 16, 2002, Norfolk Police Officer Whiteside and his partner responded to a call of "shots fired" at 1539 Palmetto Street in Norfolk; the officers arrived at 11:18 p.m. Officer Whiteside saw the victim, later identified as Troy Jordan, lying on the driveway of 1533 Palmetto Street with a window blind wrapped around his feet. Jordan had an obvious gunshot wound to his head. Officer Whiteside secured the entire perimeter. He noticed that the window of the rear door of the duplex near Jordan's body was "completely broken out," with curtains lying there and glass on the porch.

         The rescue squad arrived almost immediately behind the officers. Jordan was lying in the driveway in the fetal position. There was a large pool of blood beneath Jordan's head; however, he had respirations and a pulse. Paramedics transported Jordan to the hospital, but he died from his injuries. The medical examiner testified that Jordan died from a gunshot wound to the back of the head and that there "was no evidence of close range fire on the gunshot wound." The direction of fire was "from back to front." Jordan also had sustained multiple blunt force injuries of his head, torso, and legs. The medical examiner recovered a lead bullet core fragment and a bullet jacket from Jordan's head.

         Mark Hayes pleaded guilty to Jordan's murder and use of a firearm in the commission of murder.[1] Hayes testified against Knight, both at Knight's preliminary hearing and at trial.[2] According to Hayes, on August 16, 2002, he wanted to buy marijuana. Hayes saw Knight in Norfolk's First View neighborhood. Hayes, who had dated Knight's sister, knew Knight as "Ses." Knight got into Hayes's car and directed him to drive to a house where Knight talked with a woman named "Sheena." Hayes overheard Knight and Sheena talking about a place where there was a lot of marijuana. Knight then directed Hayes to drive to George "Geo" McAllister's[3] house, where McAllister entered Hayes's car. As Hayes drove, Knight and McAllister talked about robbing the place. Hayes saw that they had firearms, which Hayes described as "a .9 and a .40." At McAllister's direction, Hayes drove to a location beside some railroad tracks. Knight and Hayes exited the car and walked along the railroad tracks to the side of some apartments.[4] Knight gave Hayes "a .9 mm and he took the .40." Knight told Hayes to knock on the door of 1539B Palmetto Street; Hayes did not know the occupants of the apartment. When Jordan opened the door, Hayes asked him where "the weed" was, and Jordan closed the door on him. Knight instructed Hayes to knock again.

         As soon as Jordan opened the door, Knight "bum rushed" Hayes into the residence and ordered Jordan to the floor. Knight "stomped" Jordan's head and kicked his leg, demanding to know where the marijuana was. Jordan told Knight the marijuana was in a bag, which Hayes saw on the floor. As Hayes looked in the bag, which had marijuana, Jordan broke free. Jordan ran to the back of the apartment and jumped through the window of the back door. Knight chased Jordan and shot at him through the window. Hayes grabbed the bag and bolted out the front door, turned left, and ran along the side of the building. Although Hayes saw some people as he fled, he "just ran" back to his car. As he ran along the railroad tracks, Hayes heard more gunshots. Hayes saw Knight a few minutes later at the car with a shoebox full of marijuana. Knight told Hayes that he had shot Jordan in the back of the head.

         McAllister drove them away from the scene. Knight told Hayes not to worry because "his people would cover for him as an alibi." They drove to Pleasant Park, and Knight gave Hayes and McAllister some marijuana. McAllister remained in Pleasant Park, and Knight drove back to First View, where Hayes left him. Hayes went home but decided that he needed a drink; he went to a club called "Night Moves." When Hayes arrived at the club, Knight and Sheena were there.

         John Doxey's cousins were visiting with him on August 16, 2002, at his residence at 1543B Palmetto Street, which was directly across from 1539B Palmetto Street. Palmetto Street, Doxey explained, is a dead-end and railroad tracks run behind the duplex apartment buildings. Doxey and his cousins had been watching a football game but when they heard what they thought was an argument outside, his cousins decided to leave. As they walked to the car, Doxey heard three gunshots from the area of 1539 Palmetto Street. When they turned around to retreat to Doxey's house, he heard the loud "tisssh" of breaking glass. Doxey held his head down to protect it but looked back under his arm and saw a man about six feet tall "leaving out" of 1539B Palmetto. The man had a large-caliber chrome weapon, possibly a .9mm, in his right hand and a bag under his left shoulder. The man jumped down the steps, ran between the two buildings, and disappeared into the darkness; he did not fire any shots.

         Doxey and his cousins reentered his home and as they walked toward his bathroom for safety, Doxey heard more gunshots. Doxey called 911; he reported shots fired and gave the address. Doxey felt that they waited a long time for the police to arrive. When Doxey and his cousins went back outside, Doxey saw a body in the street with a pool of blood around the head. Doxey and his cousins returned to his house, and he called 911 again. Doxey's cousins ultimately left before the police arrived. Doxey remained and spoke with Norfolk police officers that night. At Knight's trial, Doxey said that 1539B Palmetto had a reputation in the neighborhood for dope sales. The "primary" person who lived at 1539B was a female.

         That same night, Augusta Coleman was visiting his girlfriend and their daughter at 1539A Palmetto Street. Coleman was familiar with Sheena and Cary "Little J" Darden, who lived at 1539B Palmetto. Coleman's girlfriend had been outside but she came into the apartment and said that she thought the apartment next door, 1539B Palmetto, "was getting jacked." Coleman heard a crash and several gunshots. The others in the apartment fled. Coleman remained, however, because his daughter was asleep. He went to the back bedroom and picked up the child but stayed inside because he could still hear shots. As he stood trying to decide whether to stay or go, the door "came open" and a man in the doorway pointed a gun at him. Coleman identified Knight as the person in the doorway with the gun.[5] Coleman announced, "I'm just here with the baby." Knight stood there for a second, then turned and walked away. Coleman eventually fled with the child.

         Forensic Investigators Pederson and Henderson responded to the scene. Pederson recovered a bullet fragment from a drainpipe, which was located at the corner of 1533 Palmetto Street, a location consistent with having been fired from the rear of 1539B Palmetto. Pederson also found two bags of marijuana in the kitchen on a high chair. A bullet was lodged in the wall of the living room in 1539A Palmetto. Henderson later responded to a second location and collected one bullet and two bullet fragments from Coleman's car, which had two bullet holes in the windshield. Henderson also collected a gun-shot residue test on Coleman, which was negative. Investigator Martin responded to 1539B Palmetto on August 17, 2002, and collected three .40 caliber cartridge casings. An expert from the Department of Forensic Science testified that the bullet fragments recovered from Coleman's car and the bullet jacket recovered from Jordan's head had been fired from the same gun barrel.[6] The expert testified that the three .40 caliber casings Martin had found had been fired from the same gun. The police never found the firearm used to kill Jordan.

         Clarence Coles, a convicted felon, met Knight in the Hampton Roads Regional Jail in March 2003. Coles was also from Norfolk, and he and Knight knew people in common. Knight told Coles that "he shot the dude" in the back of the head from a distance and gestured to show how he had shot the victim. Knight told Coles that his cousins were going to provide an alibi by saying he was at a club on the night of the murder. Coles contacted the police because of "the manner in which" Knight recounted the killing. Knight also made incriminating statements to another inmate from the Hampton Roads Regional Jail, Anthony Summerville, who was also a convicted felon. While Summerville was helping him find books in the jail library, Knight told Summerville that he was charged with murder. Summerville testified that Knight stated he pulled a gun on the victim during a "sting" and the victim "bucked," which Summerville understood to mean that during a robbery the victim attempted to run and Knight shot him. Knight stated something about a .40 caliber gun and gestured to the back of his head to indicate where the victim had been shot. After the murder, Knight and his "homeboy" went to "Night Moves."

         As forecast by Coles, Knight presented an alibi at trial. Knight's friend Selena Harris testified that she picked up Knight from Golden Corral, where he worked, at around 9:00 p.m. on August 16, 2002, because a group of friends had planned to go to "Night Moves" club to celebrate Robert Jones's birthday.[7] Harris took Knight to his apartment, where he changed and then he, Harris, and "some other people" went to "Night Moves," arriving around 10:30 p.m.

         Jones rode to the club with Knight's girlfriend, Lori Ann "Candy" Carter, Felicia Hall, and Knight's sister, Julie Ann Gibbs. They arrived at the club between 10:00 and 10:15 p.m. Gibbs, however, forgot her ID, so could not get into the club. Carter took Gibbs home, and Gibbs saw Knight at the house getting ready to go to the club when she arrived.[8] Gibbs explained to Knight that she was unable to get into the club and offered to stay home with the children. Knight and Harris arrived at the club about ten to fifteen minutes after Jones, Carter, and Hall. The party-goers remained at the club until it closed sometime between 2:00 and 3:00 a.m. According to Jones and Carter, Knight stayed at the club "the whole time."

         Harris recalled that Knight's hand was injured at the time and he had a sling; Harris was not sure which hand. Hall could not recall if Knight was wearing the sling on August 16, 2002, because "he could take if off to let his arm rest." Hall explained that Knight had injured his hand when he fell off a bike and that he had to have stitches in his hand; she did not recall the dates of the injuries. Carter stated that Knight had a sling on his arm for about two weeks because he fell off his bike; he sustained another injury to his right hand shortly after August 16, 2002. Carter did not remember how Knight sustained the injury that required stitches.

         The employment records from Golden Corral showed that although Knight was scheduled to work on August 16, 2002, he never clocked in. Knight's supervisor recalled a time when Knight arrived for work but was sent home because he was wearing a sling. The supervisor could not recall the date that Knight was sent home; however, the general manager testified that if he had followed procedure and arrived for work, he should have "swiped in." Knight's medical records showed that he sprained his right hand on August 2, 2002. He was given a sling and instructed to use it for four to five days. Knight appeared in the emergency room again on August 18, 2002, with a laceration to the back of his right hand along the knuckles. Knight received stitches and a splint for his hand.

         Knight also presented testimony from two inmates who claimed they had spoken with Hayes in the Norfolk jail. Hayes told William Scott that the police "had him and his stick man," Knight-whom Hayes named-for murder. Scott testified that Hayes told him that he "ain't had nothing to do with it, but the homicide detective-he said, I ain't trying to go to prison. So the homicide detective told [Hayes] to work with them." According to Scott, Hayes declared that neither he nor Knight had anything to do with the murder. Scott did not know that Hayes had pleaded guilty to first-degree murder and use of a firearm in the commission of murder. Asani Gumbs testified that he knew Knight and Hayes; he said that he had discussed the crime on Palmetto Street with Hayes while in the Norfolk jail. When Gumbs asked Hayes "how he got mixed up in whatever," Hayes said "he didn't know why it happened." Hayes told Gumbs that, although he had acted alone in the murder, he would do "whatever it takes" because he could not "do all the time by himself." Gumbs also did not know that Hayes had pleaded guilty, or the circumstances of his surrender to the police and subsequent confession.

         Petition for Writ of Actual Innocence

         Knight's claim of innocence rests on the purported recantations of Hayes and Coles; a "declaration" from McAllister; and his proffer that Summerville also has "recanted" his trial testimony but declined to provide a statement. Knight also relies on Detective Ford's federal convictions in pressing his claim of innocence. The fulcrum of Knight's argument is that without the testimony of Hayes, Coles, and Summerville, and knowing of Ford's "unscrupulous tactics," no reasonable juror would convict him considering the lack of physical evidence connecting him to the offense.

         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." Phillips v. Commonwealth, 69 Va.App. 555, 562 (2018) (quoting Bush v. Commonwealth, 68 Va.App. 797, 803 (2018)). To be entitled to a non-biological writ of actual innocence, the petitioner must present evidence that was previously unknown or unavailable to him, and that could not have been discovered in the exercise of diligence before his conviction became final under Rule1:1(a). Code § 19.2-327.11(A)(iv) and (vi); Bush, 68 Va.App. at 804; In re Neal, 44 Va.App. 89, 90 (2004). In addition, 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 rational trier of fact would have found proof of guilt or delinquency beyond a reasonable doubt." Code § 19.2-327.11(A)(vii); Bush, 68 Va.App. at 805-06. Newly-discovered evidence that is "merely cumulative, corroborative or collateral" is insufficient. Code § 19.2-327.11(A)(viii); Bush, 68 Va.App. at 809.

         A petitioner can only obtain a writ of actual innocence if we find by "clear and convincing evidence" that he has proven all of the allegations required under Code § 19.2-327.11(A)(iv) through (viii). Code § 19.2-327.13; In re Brown, 295 Va. 202, 221 (2018) (evaluating claim for a biological writ of actual innocence). "'[C]lear and convincing evidence' must be convincing enough to render the assertion to be proved 'highly probable or reasonably certain.'" Id. at 228 (quoting Black's Law Dictionary 674 (10th ed. 2014)). The clear and convincing standard "cannot be met with evidence that leaves 'competing inferences "equally probable."'" Id. at 227 (quoting Edmonds v. Edmonds, 290 Va. 10, 22 (2015)). In evaluating a claim of actual innocence, this Court considers all of the factual information in its totality and tests it under the clear-and-convincing standard. Phillips, 69 Va.App. at 563-64; In re Brown, 295 Va. at 229. Thus, this Court must "make a probabilistic determination about what reasonable, properly instructed ...


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