PRESENT: Hassell, C.J., Lacy, Keenan, Lemons, Koontz, and Agee,
JJ., and Stephenson, S.J.
DWAYNE LAMONT JOHNSON
v. Record No. 060363 OPINION BY JUSTICE BARBARA MILANO KEENAN
March 2, 2007
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal arises from the Court of Appeals’ dismissal of
a petition for a writ of actual innocence based on non-
biological evidence, in which a petitioner sought relief based
on recantation evidence provided by a co-defendant who had given
contrary testimony at the petitioner’s trial. We consider
various issues related to the Court of Appeals’ consideration of
the petition under the provisions of Code §§ 19.2-327.10 through
–327.14.
In September 2001, Dwayne Lamont Johnson (Johnson) was
tried by a jury in the Circuit Court of New Kent County for
capital murder for hire of Hope Sabrina Johnson (Hope),
Johnson’s wife, in violation of Code § 18.2-31, and for
conspiracy to commit capital murder for hire, in violation of
Code § 18.2-22. Johnson was convicted of both charges and, in
accordance with the jury verdict, was sentenced to serve a term
of life imprisonment for capital murder, and a term of 20 years’
imprisonment for conspiracy to commit capital murder.
1
At Johnson’s trial, the Commonwealth presented the
testimony of Brandon L. Smith, who admitted that he was present
when Hope was murdered. Because of his involvement in Hope’s
murder, Smith earlier had entered into a plea agreement in which
the Commonwealth agreed to seek a lesser sentence in return for
Smith’s testimony implicating Johnson in the murder.
Smith testified at Johnson’s trial that Johnson asked Smith
to kill Hope or to find someone to kill her. According to
Smith, Johnson stated that he would “give his next paycheck” to
any person willing to kill Hope. Smith maintained that he
refused the offer but told Johnson that Henry K. Barnes might
agree to kill Hope.
On the night of Hope’s murder, another acquaintance, Lloyd
M. Allen, drove Smith and Barnes to Hope’s house. Smith
admitted that he entered Hope’s house with Barnes after they cut
the telephone line to the house. Allen testified that Barnes
returned to the car without Smith, and that Allen and Barnes
heard gunfire while waiting for Smith to return to the vehicle.
Hope was shot three times, including once in the back of
her head. Allen later assisted the police in finding the murder
weapon.
In November 2001, several weeks after Johnson’s trial,
Smith wrote a statement recanting the testimony he gave at
Johnson’s trial. In his recantation, Smith asserted that he had
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not discussed with Johnson any plan to kill Hope, and claimed
that he had testified falsely at Johnson’s trial in order to
receive a less severe sentence for his own involvement in the
homicide.
Johnson appealed from his conviction to the Court of
Appeals, which denied his petition. Johnson v. Commonwealth,
Record No. 2739-01-2 (May 15, 2002.) This Court also refused
Johnson’s petition for appeal.1 Johnson v. Commonwealth, Record
No. 022521 (March 17, 2003).
In February 2005, Johnson filed a petition in the Court of
Appeals for a writ of actual innocence based on non-biological
evidence under the provisions of Code §§ 19.2-327.10 through –
327.14. Johnson relied on Smith’s recantation in support of his
claim of innocence. The Court of Appeals determined that it
required additional facts before it could reach a decision on
Johnson’s petition, and accordingly certified the following
issues to the circuit court:
1. Is Brandon Smith credible in his assertion that he
testified falsely during the trial of petitioner?
1
Johnson did not address Smith’s recantation testimony in
either direct appeal. Johnson also sought a writ of habeas
corpus from this Court on May 7, 2003. This Court denied
Johnson’s petition, holding that Johnson was not prejudiced by
counsel’s failure to seek a new trial because Smith’s affidavit
would have been insufficient to secure Johnson a new trial.
Johnson v. Dir. Of Dep’t of Corrections, Record No. 031292
(December 22, 2003).
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2. If the answer to #1 is “Yes,” did Brandon Smith testify
falsely as to any material fact with respect to the
offense(s) with which petitioner was charged?
3. If the answer to #1 is “Yes,” were either petitioner or
his trial counsel aware that Brandon Smith claimed that
his trial testimony was false prior to the expiration of
the 21 days following the entry of petitioner’s final
order of conviction?
4. If the answer to #2 above is “Yes,” and the answer to #3
above is “No,” with the exercise of reasonable
diligence, could Smith’s assertion that his trial
testimony was false have been discovered by petitioner
or his trial counsel before the expiration of 21 days
following the entry of petitioner’s final order of
conviction?
The circuit court conducted an evidentiary hearing. At the
hearing, Smith testified that he had lied to the police in
stating that Johnson had been involved in Hope’s murder, and had
lied in giving similar testimony at Johnson’s trial.2 When asked
to explain his inconsistent testimony regarding his own
participation in Hope’s murder, Smith stated that his attorneys
had told him that he would receive a reduced sentence at his own
trial if he testified against Johnson, and that Smith implicated
Johnson because the police officers who arrested Smith had
threatened to seek the death penalty in his case. Smith was
unable to explain why he allegedly had testified falsely with
respect to several details surrounding Hope’s murder.
2
Additionally, Smith recanted his trial testimony in a
letter filed in the circuit court on November 21, 2001 and an
affidavit sworn on February 25, 2003.
4
In its certified findings of fact, the circuit court stated
that Smith’s testimony was “neither logical nor believable, and
at times he was evasive.” The circuit court concluded that
Smith was “not credible in his assertion that he testified
falsely during the trial of Dwayne Johnson.”
The Court of Appeals relied on the circuit court’s factual
findings, along with the evidence presented at Johnson’s trial,
and concluded that Smith’s recantation testimony was not
credible. Accordingly, the Court of Appeals dismissed Johnson’s
petition, holding that the evidence was insufficient to support
the granting of a writ of actual innocence based on non-
biological evidence. Johnson appeals from the Court of Appeals’
dismissal of his petition.
We apply the standard of review set forth in Carpitcher v.
Commonwealth, 273 Va. ___, ___ S.E.2d ___ (2007) (this day
decided), in which we considered an appeal from the Court of
Appeals’ dismissal of a petition for a writ of actual innocence
based on non-biological evidence. We held that in an appeal
from the Court of Appeals’ dismissal of such a petition, we will
review de novo the Court of Appeals’ conclusions of law and its
conclusions based on mixed questions of law and fact. Id. at
___, ___S.E.2d at ___. However, when the Court of Appeals has
referred issues in the case to a circuit court for factual
findings under the provisions of Code § 19.2-327.12 and the
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Court of Appeals has approved those findings, we will be bound
by the factual findings unless they are plainly wrong or without
evidence to support them. 273 Va. at ___, ___ S.E.2d at ___.
Johnson first argues that the Court of Appeals erroneously
added a credibility requirement to the statutes governing writs
of actual innocence based on non-biological evidence. He
contends that the Court of Appeals, in the absence of any
statutory authority, required that he establish the credibility
of Smith’s recantation in addition to proving that the
recantation evidence was “material” within the meaning of Code
§ 19.2-327.11(A)(vii). According to Johnson, Code § 19.2-327.12
does not permit the Court of Appeals to require that the circuit
court make such a credibility determination. We disagree with
Johnson’s arguments.
To obtain a writ of actual innocence based on non-
biological evidence under Code §§ 19.2-327.10- through –327.14,
a petitioner must allege and prove, among other things, that the
newly-discovered evidence:
(1) “was previously unknown or unavailable to the
petitioner or his trial attorney of record at
the time the conviction became final in the circuit
court;” Code § 19.2-327.11(A)(iv);
(2) “is such as could not, by the exercise of diligence,
have been discovered or obtained before the
expiration of 21 days following entry of the final
order of conviction by the court;” Code § 19.2-
327.11(A)(vi);
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(3) “is material and when considered with all
of the other evidence in the current record,
will prove that no rational trier of fact could
have found proof of guilt beyond a reasonable
doubt;” Code § 19.2-327.11(A)(vii); and
(4) “is not merely cumulative, corroborative or
collateral.” Code § 19.2-327.11(A)(viii).
The petitioner bears the burden of proving these four elements
by clear and convincing evidence. Code § 19.2-327.13.
The provisions of Code § 19.2-327.12 detail the Court of
Appeals’ authority to refer factual issues to a circuit court:
“If the Court of Appeals determines . . . that a resolution
of the case requires further development of the facts, the
court may order the circuit court in which the order of
conviction was originally entered to conduct a hearing
. . . to certify findings of fact with respect to such
issues as the Court of Appeals shall direct.”
As we explained in Carpitcher, evidence alleged in support
of a petition for a writ of actual innocence based on non-
biological evidence must be true to be found “material” under
Code § 19.2-327.11(A)(vii). 273 Va. at ___, ___ S.E.2d at ___.
Because the Court of Appeals cannot hold its own evidentiary
hearing to assess a witness’ credibility, but must ultimately
determine whether a recantation is true, Code § 19.2-327.12
provides a mechanism to assist the Court of Appeals in this
task.
The language of Code § 19.2-327.12, which authorizes the
Court of Appeals to enter such orders of referral to the circuit
court, is plain and unambiguous. Therefore, we apply the
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statutory language as written. See 1924 Leonard Road, L.L.C. v.
Van Roekel, 272 Va. 543, 553, 636 S.E.2d 378, 384 (2006); Alcoy
v. Valley Nursing Homes, Inc., 272 Va. 37, 41, 630 S.E.2d 301,
303 (2006); Williams v. Commonwealth, 265 Va. 268, 271, 576
S.E.2d 468, 470 (2003); Woods v. Mendez, 265 Va. 68, 74-75, 574
S.E.2d 263, 266 (2003).
Code § 19.2-327.12 gives the Court of Appeals broad
discretion to certify to the circuit court issues of fact that
must be resolved before deciding the merits of a petition. The
statute does not place any restrictions on the subject matter of
such referral orders.
In the present case, Johnson’s petition was based on the
recantation of his co-defendant, Smith. In order to resolve the
merits of the petition, the Court of Appeals was required to
determine whether Smith’s recantation was true for purposes of
meeting the materiality requirement of Code § 19.2-
327.11(A)(vii). See Carpitcher, 273 at ___, ___ S.E.2d at ___.
This determination depended, in large part, on whether Smith was
credible in his assertion that he had lied at Johnson’s trial
and was now telling the truth that Johnson had no role in the
murder.
This kind of inquiry plainly falls within the scope of
authority given the Court of Appeals under Code § 19.2-327.12.
We hold that the Court of Appeals did not add a credibility
8
requirement to the statute but properly exercised its discretion
in directing the circuit court to conduct an evidentiary hearing
and to render factual findings on the issue of Smith’s
credibility.
Johnson further argues, however, that the Court of Appeals
erred in concluding that Smith’s recantation testimony was
incredible without first weighing the credibility of that
recantation testimony against his trial testimony or “weighing
motivation and bias in deciding which of two inconsistent
stories should be entitled to more weight.” Johnson asserts
that unless the circuit court conducts such a weighing process,
recantation testimony will be “automatically removed” from
consideration as newly-discovered evidence supporting the award
of a writ of actual innocence based on non-biological evidence.
He also contends that the Court of Appeals should have based its
credibility determination solely on Smith’s recantation
testimony regarding Johnson’s involvement in the murder, and
should not have considered Smith’s additional testimony denying
his own participation in the murder. We disagree with Johnson’s
arguments.
There is no mandatory formula for a circuit court’s
consideration of the credibility of a particular witness. As
the trier of fact, the circuit court is charged with the
responsibility of considering various factors, including the
9
witness’ demeanor, his opportunity for knowing the things about
which he has testified, his bias, and any prior inconsistent
statements relating to the subject of his present testimony.
See Grubb v. Grubb, 272 Va. 45, 54-55, 630 S.E.2d 746, 752
(2006); Cherrix v. Commonwealth, 257 Va. 292, 301, 513 S.E.2d
642, 648 (1999); Langman v. Alumni Ass’n of Univ. of Va., 247
Va. 491, 504, 442 S.E.2d 669, 677 (1994); Burket v.
Commonwealth, 248 Va. 596, 614-15, 450 S.E.2d 124, 134 (1994).
In addition, the circumstances of a particular case may raise
other factors that the circuit court deems relevant in assessing
a witness’ credibility.
Here, the circuit court’s certified findings of fact show
that the circuit court made a thorough assessment of Smith’s
credibility. The circuit court considered the substance of
Smith’s recantation testimony, his explanation of other matters
including his own participation in the crime, his demeanor and
apparent attitude as a witness, his prior inconsistent
statements concerning the events surrounding the murder, and his
explanation regarding why he allegedly had lied in testifying
about these events on at least seven prior occasions but was now
telling the truth.
Contrary to Johnson’s contention, the circuit court was not
required to limit its consideration to Smith’s recantation
testimony and his prior trial testimony about Johnson’s
10
participation in the murder. In assessing Smith’s opportunity
for knowing the things about which he testified, Smith’s own
participation in the murder was a highly relevant consideration.
Moreover, under the broad scope of the Court of Appeals’ order,
the circuit court had the discretion to consider any matters
relevant to the issue whether Smith’s recantation was credible.
Therefore, we hold that the circuit court did not abuse its
discretion in the manner in which the court weighed the evidence
and evaluated the credibility of Smith’s recantation testimony.
Finally, Johnson argues that the Court of Appeals acted
arbitrarily and capriciously in the present case in referring
different subjects to the circuit court than those referred in
Carpitcher. Johnson maintains that while the Court of Appeals
required him to establish in the circuit court that his
recantation evidence was “credible,” the Court of Appeals
assigned a less difficult burden to the petitioner in
Carpitcher, namely, that of establishing that the victim
recanted her trial testimony in a material respect and that her
recantation was not the product of duress.
We find no merit in this argument because it reflects a
misperception of the statutory scheme. In referring certain
factual issues to a circuit court under Code § 19.2-327.12, the
Court of Appeals directs the circuit court to make factual
findings with regard to those issues. The petitioner is not
11
assigned any burden of proof with regard to the proceedings in
the circuit court but may produce evidence for the circuit
court’s consideration relevant to the issues certified by the
Court of Appeals.
Every petitioner filing a petition for a writ of actual
innocence based on non-biological evidence bears the same burden
of proof before the Court of Appeals. Each such petitioner must
establish by clear and convincing evidence “all of the
allegations contained in clauses (iv) through (viii) of
subsection A of [Code] § 19.2-327.11.” Code § 19.2-327.13.
The provisions of Code § 19.2-327.12 do not require that
the Court of Appeals certify the same factual issues to the
circuit court in every case. As stated above, the statute
grants the Court of Appeals broad discretion in determining
which issues, if any, require further development of the facts
in a hearing before a circuit court.
We hold that the Court of Appeals did not abuse its
discretion in issuing a referral order in the present case that
did not mirror the referral order entered in Carpitcher.
Although both cases involved recantation evidence, the present
case concerned the recantation of a co-defendant, while
Carpitcher involved a recantation by the victim of the crimes.
The issues certified by the Court of Appeals in each case were
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relevant to the matters at issue in the respective petitions
before that Court.3
For these reasons, we hold that the Court of Appeals did
not err in concluding that Johnson failed to meet his statutory
burden of proof and in dismissing Johnson’s petition for a writ
of actual innocence based on non-biological evidence.
Accordingly, we will affirm the Court of Appeals’ judgment.
Affirmed.
3
In view of our holding, we do not address the
Commonwealth’s remaining arguments.
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