813 S.E.2d 582
Va. Ct. App.2018Background
- Gary Linwood Bush was convicted of two bank robberies in 2007 (Petersburg and Prince George) based primarily on teller and witness identifications; he did not appeal those convictions.
- Tellers had limited views (caps, looking down); one witness had prior acquaintanceship with Bush; handwriting/palm-print tests were inconclusive or non-matching at trial.
- In May 2016, Christian Amos voluntarily confessed to both robberies, provided corroborating factual details, and gave a handwriting sample similar to the robbery note.
- Amos pled guilty to the Prince George (BB&T) robbery in November 2016 and later executed a declaration confessing to the Petersburg robbery; he was sentenced for the BB&T robbery.
- Bush filed petitions for writs of actual innocence under Va. Code §§ 19.2-327.10–.14 based on Amos’s confession, guilty plea, and declaration; the Commonwealth conceded Bush met the statutory requirements.
- The Court independently reviewed the record, applied the amended “would” standard (probabilistic inquiry), and granted writs vacating both convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the newly discovered evidence was previously unknown/unavailable at time convictions became final | Bush: Amos did not confess until 2016, nearly 10 years after convictions—therefore unavailable | Commonwealth: conceded but court conducts independent review | Held: Evidence was unknown/unavailable; requirement satisfied |
| Whether the evidence could not have been discovered with due diligence before 21-day window after conviction | Bush: Amos came forward unprompted in 2016; no diligence could have revealed him earlier | Commonwealth: conceded | Held: Requirement met—Amos wasn’t a known suspect and only self-identified later |
| Whether the evidence is material and, when combined with the record, proves that no rational trier of fact would have found guilt beyond a reasonable doubt under the amended "would" standard | Bush: Amos’s unprompted confession, detailed corroborating facts, guilty plea, and similar handwriting create a high probability of acquittal | Commonwealth: conceded; court still evaluates reliability and probabilistic effect | Held: Confession deemed true and material; under probabilistic “would” standard the court was reasonably certain no rational factfinder would have found Bush guilty |
| Whether the new evidence is merely cumulative, corroborative, or collateral | Bush: Amos’s confession is direct evidence implicating another person, not merely cumulative or corroborative of Bush’s testimony | Commonwealth: conceded | Held: Evidence is not cumulative, corroborative, or collateral; it directly undermines Bush’s guilt |
Key Cases Cited
- Carpitcher v. Commonwealth, 273 Va. 335 (2007) (defines materiality and standards for non-biological actual innocence petitions)
- In re Watford, Va. (809 S.E.2d 651) (2018) (explains statutory change from "could" to "would" and adopts probabilistic approach)
- Montgomery v. Commonwealth, 62 Va. App. 656 (2013) (discusses reliability of unprompted recantation/confession evidence)
- Altizer v. Commonwealth, 63 Va. App. 317 (2014) (addressed effect of the word-change in the statute prior to Watford)
- Copeland v. Commonwealth, 52 Va. App. 529 (2008) (cautions against conflating actual-innocence writ with habeas/executive clemency procedures)
- Hobson v. Youell, 177 Va. 906 (1941) (guilty plea admits crimining facts and statutory elements)
- Massey v. Commonwealth, 230 Va. 436 (1985) (defines cumulative and corroborative evidence)
- Helmick v. Commonwealth, 38 Va. App. 558 (2002) (defines collateral evidence and its relevance)