Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and
Agee, JJ., and Russell, S.J.
K. C. REILLY OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 060966 April 20, 2007
JOSHUA B. SHEPHERD
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
This appeal challenges the sufficiency of the evidence to
support a verdict awarding damages for malicious prosecution.
FACTS AND PROCEEDINGS
The essential facts are undisputed. Shortly before 4:00
a.m. on August 2, 2003, Joseph B. Brannon, the driver of a
taxicab in Virginia Beach, was struck on the back of the head
with a hard object and robbed of cash by a passenger who said
he had a gun. The robber then left the taxi and fled the
scene on foot.
Several days later, the case was assigned for
investigation to K. C. Reilly, a detective in the robbery
squad of the Virginia Beach Police Department. Reilly
examined the report of the police officer who had interviewed
the victim at the scene, the report of another detective who
had made an initial investigation of the crime, the report of
a crime scene technician who had examined the taxi within an
hour after the event, and the analysis of latent fingerprints
the technician found on the taxi. Reilly also personally
interviewed Brannon, the victim.
Brannon told Reilly that the robber was a white male in
his mid to late twenties, five feet eight to five feet ten
inches tall, weighing 150 to 160 pounds, with “dirty blond
hair in dreadlocks that were long.” The report of the
detective who had responded to the scene on the night of the
crime recorded Brannon’s description of the robber as “W/M
5’7”-5’8” tall, 160-170 lbs. with dirty blond hair worn in
DREADS . . . approximate age was mid to late twenties.”1
The technician reported that four latent fingerprints had
been taken from the taxi shortly after the crime but that only
one of them had been found to match fingerprints on file.2 The
technician told Reilly that he considered that fingerprint to
be very recent because the taxi was wet with dew when he
examined it less than an hour after the robbery and “the
fingerprint would not have lasted with [those] conditions.”
1
The uniformed police officer who had responded to the
scene on the night of the crime filed a report on a printed
form in which had been entered the letter “B” in the space
identifying the suspect’s race. Reilly testified that he
regarded this as a typographical error since all other
information from the victim described the perpetrator as
Caucasian.
2
All four fingerprints were found on the right rear door,
door frame, and window. The print matching the print in the
police files was found on the outside of the right rear
window.
2
Armed with that information, Reilly interviewed the
victim again to ask whether he had any recollection that the
robber had touched any part of the taxi. Reilly testified
that Brannon replied that “he remembered the suspect touching
the outside of the window, which was exactly where the
fingerprint was recovered from.” Reilly recovered from the
local police database the information that the identified
fingerprint belonged to Joshua Blaine Shepherd. Shepherd was
described in the database as a white male, born July 1, 1977,
(26 years old at the time of the offense), five feet nine
inches tall, 150 pounds, with brown hair. Reilly testified
that he considered this to be a nearly exact match, “probably
the best I’ve ever seen in my career,” to the description of
the robber given by the victim.
The database also reported Shepherd’s home address to be
on “Gates Road,” which Reilly ascertained to be Gates Landing
Road, Virginia Beach, less than two miles from the point where
the crime had been committed. Reilly considered this to be
significant because the robber had fled the scene on foot, and
“it’s been my experience that people don’t typically commit a
robbery at their front door for fear of being identified.”
Reilly testified that he had all the foregoing
information by mid-September 2003, but that he waited until
December to seek a warrant for Shepherd’s arrest because he
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wanted an opportunity to interview him. Reilly made three or
four visits to the address on Gates Landing Road and spoke
with a neighbor, but was unsuccessful in locating Shepherd.
He contacted the Division of Motor Vehicles, but found that
there was no record of a Virginia driver’s license or
identification in Shepherd’s name, and therefore no photograph
of him appeared in the DMV records.3 The fingerprint
identification had been taken from an arrest record made eight
years earlier in the City of Chesapeake. Reilly sought a
photograph from the Chesapeake police, but was informed that
no such photograph was on file.
On December 21, 2003, Reilly went before a magistrate in
Virginia Beach and testified under oath to the facts
substantially as stated above. The magistrate made a finding
of probable cause and issued warrants for Shepherd’s arrest on
the charges of robbery and use of a firearm in the commission
of robbery. Later, Reilly testified that, having exhausted
all leads to finding Shepherd, “I felt that my best resource
at that time to contact or to get Mr. Shepherd into custody
was to enlist the aid of all law enforcement by placing the
warrants on file.”
3
The DMV records listed Shepherd as the owner of a
vehicle bearing Virginia license plates. The Gates Landing
Road address was given as the “vehicle address” but an address
4
On July 16, 2004, Shepherd, who was then living and
working near Blacksburg, Virginia, drove through Petersburg,
intending to return to Virginia Beach for a visit. He had no
knowledge of the outstanding warrants. A Petersburg police
officer stopped him for speeding, ascertained that there were
warrants outstanding, and arrested him. He spent six days in
jail before he was released on bail. When the warrants came
before the general district court for preliminary hearing,
Brannon, the victim, was unable to identify Shepherd as the
person who had robbed him on August 2, 2003. The Commonwealth
Attorney then entered a nolle prosequi as to both warrants.
Shepherd filed this action for malicious prosecution
against Reilly “personally and in his capacity as a police
officer for the City Of Virginia Beach.” The City filed a
demurrer, which the circuit court sustained on the ground of
sovereign immunity, and the case went to a jury trial against
Reilly solely in his individual capacity. At the close of
Shepherd’s evidence, Reilly moved to strike on the ground that
Shepherd had failed to prove two elements essential to the
tort: malice and a want of probable cause. The circuit court
denied the motion. Reilly renewed the motion at the close of
all the evidence, but the court again denied it. The jury
in the area of Tampa, Florida, was given as “customer
address.”
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returned a verdict awarding Shepherd $123,000 in compensatory
damages upon which the court entered judgment. We awarded
Reilly an appeal.
ANALYSIS
In an action for malicious prosecution, the plaintiff has
the burden of proving four essential elements: that the
prosecution was (1) malicious, (2) instituted by or with the
cooperation of the defendant, (3) without probable cause, and
(4) terminated in a manner not unfavorable to the plaintiff.
Baker v. Elmendorf 271 Va. 474, 476, 628 S.E.2d 358, 359
(2006). The second and fourth of these are not at issue in
this appeal and Shepherd concedes that there is no contention
that Reilly had any personal ill-will against him, or that
Reilly had ever known or heard of him before the case was
assigned to him for investigation. Nor does Shepherd contend
that Reilly failed to make a full, accurate and honest
disclosure to the magistrate of all material facts supporting
his conclusion that probable cause existed. Rather, Shepherd
contends that Reilly lacked probable cause to initiate the
prosecution and that the jury could properly infer malice from
the lack of probable cause.
Actions for malicious prosecution arising from criminal
proceedings are not favored in Virginia. Ayyildiz v. Kidd,
220 Va. 1080, 1082, 266 S.E.2d 108, 110 (1980). The
6
requirements for maintaining such actions are more stringent
than those applied to other tort cases, and are imposed to
encourage criminal prosecutions in appropriate cases without
fear of reprisal by civil actions, criminal prosecutions being
essential to the maintenance of an orderly society. Id. at
1082-83, 266 S.E.2d at 110-11.
Malice may be inferred from a lack of probable cause, but
a lack of probable cause may not be inferred from malice.
Bill Edwards Oldsmobile, Inc. v. Carey, 219 Va. 90, 100, 244
S.E.2d 767, 773 (1978). Accordingly, it is appropriate to
begin by considering whether the evidence was sufficient to
support a finding of probable cause. In this context, we have
defined probable cause as “knowledge of such a state of facts
and circumstances as excite the belief in a reasonable mind,
acting on such facts and circumstances, that the plaintiff is
guilty of the crime of which he is suspected.” Commissary
Concepts Mgmt. Corp. v. Mziguir, 267 Va. 586, 589-90, 594
S.E.2d 915, 917 (2004). Whether probable cause existed is
determined as of the time when the action complained of was
taken. Id. at 590, 594 S.E.2d at 917.
When Reilly obtained the warrants, he acted on the facts
and circumstances then known to him: Shepherd matched, with
remarkable accuracy, the detailed description of the robber
given by the victim on the night of the crime; Shepherd’s
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fingerprint was identified in the exact location where the
victim had seen the robber touch the taxi; the technician had
concluded, within an hour of the robbery, that the fingerprint
had been placed on the taxi very recently; and Shepherd’s home
was not far from the scene of the crime, from which the robber
had fled on foot. There were no circumstances known to Reilly
pointing to any person other than Shepherd as the perpetrator.
Because the facts relating to probable cause are not in
dispute, on appeal the issue of their sufficiency to support
the jury's determination is a question of law for
determination by this Court. Lee v. Southland Corp., 219 Va.
23, 27, 244 S.E.2d 756, 759 (1978). Here, we find that the
circumstances known to Reilly and presented by him to the
magistrate were sufficient to “excite the belief in a
reasonable mind” that Shepherd had committed the robbery.
Accordingly, Shepherd’s evidence was insufficient, as a matter
of law, to warrant submission of the issue of the lack of
probable cause to the jury. Because Shepherd failed to prove
the lack of probable cause, an essential element of the tort
of malicious prosecution, it is unnecessary to address the
issue of malice.
CONCLUSION
For the reasons stated above, the circuit court erred in
denying the defendant’s motion to strike the plaintiff’s
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evidence. Accordingly, we will reverse the judgment of the
circuit court and enter final judgment here in favor of the
defendant.
Reversed and final judgment.
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