                                                                    Tuesday                24th

               January, 2006.


In Re: Dwayne Lamont Johnson,                                                                     Petitioner.

                    Record No. 0454-05-2


                              Upon a Petition for a Writ of Actual Innocence

                      Before Chief Judge Fitzpatrick, Judges Elder and Humphreys


       Dwayne Lamont Johnson (Johnson) petitioned this Court for a Writ of Actual Innocence Based

Upon Nonbiological Evidence pursuant to Chapter 19.3 of Title 19.2 of the Code of Virginia. Johnson

claims he is innocent of capital murder and conspiracy to commit capital murder, of which he was

convicted in the Circuit Court of New Kent County in September of 2001. This Court ordered the

Attorney General to respond to the petition, appointed counsel to represent Johnson, and permitted

Johnson’s counsel to reply to the Attorney General’s response. Upon consideration of the petition, the

Attorney General’s motion to dismiss, the reply by court-appointed counsel, and the record, this Court

denied the motion to dismiss and remanded the matter to the trial court to certify findings of fact

regarding factual issues in dispute. The trial court conducted a hearing and supplied this Court with

certified findings of fact. Upon consideration thereof, we dismiss the petition for failing to establish

previously unknown or unavailable evidence sufficient to justify the issuance of the writ. See Code

§ 19.2-327.13(i).

                                                     I.

       At about 11:00 p.m. on September 20, 2000, Hope Johnson (Hope), Johnson’s estranged wife,

was shot and killed in her home in New Kent County. Hope suffered shotgun wounds to the head,

abdomen, and back. Johnson was at work at the time of the killing.
       Earlier in the day on September 20, 2000, Johnson had been convicted in general district court of

assaulting Hope. Johnson was sentenced to thirty days in jail, but he immediately noted an appeal of the

conviction to circuit court and was released from custody. Before Hope’s death, Johnson had threatened

to kill or harm her. A protective order had been issued against Johnson, ordering him to refrain from

further acts of family abuse and prohibiting contact with Hope.

       At trial, Brandon Smith, Johnson’s cousin, testified that Johnson visited Smith’s home at around

noon on September 20, 2000. Johnson was angry that he had been sentenced to jail time for the assault

conviction. Referring to Hope, Johnson said, “I hate that bitch. I hope she dies.” Johnson asked Smith

if he would kill Hope. Johnson discussed various methods of killing Hope, but concluded that Smith

should shoot her. Smith refused. Appellant then asked if Smith knew someone who would kill Hope.

Smith said he thought Henry Barnes would do it. Johnson offered to give his next paycheck to anyone

who would kill Hope.

       Smith testified that he and Johnson had several telephone conversations after their meeting on

September 20, 2000. Smith then told Barnes that Johnson would pay Barnes Johnson’s next paycheck to

kill Hope. Johnson left his car at Smith’s home so that Smith could transport Barnes to Hope’s house.

       Using Johnson’s car, Lloyd Allen drove Smith and Barnes to Hope’s house and dropped them off

at about 11:00 p.m. Barnes and Smith cut Hope’s telephone line. Hope answered the door when Smith

knocked on her window. Smith entered the house, and Hope gave Smith a drink. Smith and Hope

observed Allen drive by the house in Johnson’s car. Hope picked up the telephone, but discovered it did

not work. Hope obtained a cellular telephone. From the doorway, Barnes fired the shotgun he had

brought with him. Barnes then fired twice more. Smith and Barnes ran to the car and got inside. After

Allen drove from the scene, Smith threw the gun out the window.

       A recording of a call Hope made to 911 at the time of her death was introduced into evidence. In

the recording, Hope can be heard exclaiming Smith’s name.


                                                    -2-
       After the police responded to Hope’s home and found her dead, they observed Johnson’s car in

the area. The police determined that Allen was the driver of the vehicle. Allen showed the police the

location of a shotgun in the grass beside a New Kent County road. Smith identified the shotgun the

police found as the weapon Barnes used to shoot Hope.

       At trial, Smith acknowledged that he had pled guilty to first-degree murder and other charges,

thus avoiding a charge of capital murder. Pursuant to the plea agreement, Smith agreed to testify

truthfully at Johnson’s trial, but he received no promise of what sentence he would receive. Smith

testified that he had told the jury the truth about how Hope was killed.

       Allen testified that on September 20, 2000, he received a call from Smith asking for Allen to

drive Smith to his girlfriend’s house. Allen claimed he had no advance notice of the plan to kill Hope.

Smith arrived at Allen’s house in Johnson’s car with Barnes. Allen took the driver’s seat of the vehicle,

and Smith directed Allen where to drive. At Smith’s instruction, Allen dropped off Smith and Barnes.

Allen drove around, then returned to meet Smith and Barnes as Smith had told Allen to do. Allen heard

gunshots after Barnes had returned to the vehicle and while he was waiting for Smith. Smith

subsequently appeared, running from the location where Allen earlier had left him. Allen acknowledged

that he had been convicted as an accessory after the fact to Hope’s murder and related crimes.

       In his defense, Johnson presented evidence that he rode to work with a co-worker on the night of

September 20, 2000 because his car had mechanical difficulties. The jury rejected Johnson’s defense

and found him guilty. A sentencing order for the charged offenses was entered on September 28, 2001.1




       1
         Both this Court and the Supreme Court of Virginia denied Johnson’s petitions for appeal
following his convictions. One of the claims raised on appeal was that the evidence was insufficient to
support Johnson’s convictions. The Virginia Supreme Court and the Circuit Court of New Kent County
subsequently denied Johnson habeas corpus relief.
                                                      -3-
                                                       II.

        In support of his petition for a writ of actual innocence, Johnson provided a letter dated

November 18, 2001 from Smith to the trial court.2 In the letter, Smith indicated he had testified at

Johnson’s trial because Smith’s attorneys said he would receive a lesser sentence in return for his

cooperation. Smith also stated: “I never engaged in any conversation with Dwayne Johnson concerning

killing or wanting to kill Hope Johnson. The statement that I made concerning this matter was not the

truth.” Johnson also has provided this Court with an affidavit from Smith dated February 25, 2003. The

affidavit is consistent with the contents of Smith’s letter to the trial court.

        This Court remanded the case to the trial court to determine whether Smith was credible in his

assertion that he testified falsely during Johnson’s trial. At an evidentiary hearing in the trial court,

Smith claimed he told the truth in his November 2001 letter to the trial court. Smith said he entered into

a plea agreement to testify against Johnson to avoid a capital murder charge and possible death sentence.

Smith denied that Johnson asked him to kill Hope, but claimed instead Johnson had asked him to talk to

Hope about dropping the assault charge. According to Smith, Barnes accompanied him on the mission

to speak with Hope. They rode in Johnson’s car. Barnes brought a shotgun with him, which Smith did

not find unusual. They parked across the street from Johnson’s home. Barnes cut Hope’s telephone

line, but Smith did not know why. Barnes subsequently shot Hope using the shotgun. Smith said he did

not know why Barnes shot Hope, and was aware of no ill feelings between them. Smith said he never

promised Barnes any money on Johnson’s behalf to induce Barnes to shoot Hope.

        Smith admitted that he had provided, under oath, two or three different versions of the events

preceding Hope’s death. Smith said he had lied the seven or eight times he testified in court regarding

the incident.




        2
        The record reflects that the trial court sent Smith’s letter to Johnson’s attorneys on November
29, 2001, more than twenty-one days after entry of the sentencing order on September 28, 2001.
                                                       -4-
        The trial court noted that Smith, at the evidentiary hearing, was asked to explain the following

questions:

               1. Why did Henry Barnes accompany Smith to the victim’s home?

               2. Why did Henry Barnes carry a sawed-off shotgun in the car, if the
               purpose was just to talk to Hope Johnson?

               3. Why did Brandon Smith arrive at 11 p.m. at the victim’s home, instead
               of a more reasonable time earlier in the evening?

               4. Why did Smith direct that the car be parked across the highway from
               the victim’s house, rather than park in the driveway in front of the house?

               5. Why did Henry Barnes (while carrying the shotgun) get out of the car
               and walk with Smith to the victim’s home?

               6. Why did Henry Barnes (with Smith nearby) cut the telephone lines to
               the house before Smith woke up Hope Johnson to speak with her?

The trial court concluded:

                       I observed Brandon Smith’s person, demeanor and attitude as he
               answered these questions and many others. I found that his testimony was
               neither logical nor believable, and at times he was evasive.

                       In summary, the Court finds that Brandon Smith is not credible in
               his assertion that he testified falsely during the trial of Dwayne Johnson.

                                                    III.

        The Court of Appeals derives its power to issue a writ of actual innocence based upon

non-biological evidence from Chapter 19.3 of Title 19.2 of the Code of Virginia, Code §§ 19.2-327.10

through § 19.2-327.14. In pertinent part, Code § 19.2-327.11(A) requires a petitioner to allege, under

oath,

               (iii) an exact description of the previously unknown or unavailable
               evidence supporting the allegation of innocence; (iv) that such evidence
               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; . . . (vi) that the previously unknown or unavailable evidence 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; (vii) the previously unknown or unavailable
               evidence is material and when considered with all the other evidence in
               the current record, will prove that no rational trier of fact could have found
                                                      -5-
                 proof of guilt beyond a reasonable doubt; and (viii) the previously
                 unknown or unavailable evidence is not merely cumulative, corroborative
                 or collateral.

To qualify for the issuance of a writ of actual innocence, a petitioner must prove, by clear and

convincing evidence, “all of the allegations contained in clauses (iv) through (viii) of subsection A of

§ 19.2-327.11,” and this Court must conclude “that no rational trier of fact could have found proof of

guilt beyond a reasonable doubt . . . .” Code § 19.2-327.13(ii). If the petitioner fails “to establish

previously unknown or unavailable evidence sufficient to justify issuance of the writ,” the petition must

be dismissed. Code § 19.2-327.13(i). See In re Bowling, 46 Va. App. 50, 56, 615 S.E.2d 489, 492

(2005).

          This Court and the Virginia Supreme Court have considered cases in which the defendant sought

a new trial based upon after-discovered evidence that a prosecution witness had recanted his trial

testimony. See, e.g., Lewis v. Commonwealth, 193 Va. 612, 70 S.E.2d 293 (1952); Whittington v.

Commonwealth, 5 Va. App. 212, 361 S.E.2d 449 (1987); see also In re Carpitcher, ___ Va. App. ___,

___ S.E.2d ___ (2006) (order dismissing petition for writ of actual innocence based on recantation). In

this context, it is well settled that

                 [w]hile discovery after trial, brought to the attention of the court in due
                 time, that false testimony with respect to material facts has been given by
                 a witness for the prosecution may constitute ground for a new trial,
                 recantation by a State’s witness does not necessarily entitle the accused to
                 a new trial. The opportunity and temptation for fraud are so obvious that
                 courts look with suspicion upon such an asserted repudiation of the
                 testimony of a witness for the prosecution, and this is so even though the
                 repudiation be sworn to. . . .

                          . . . There must be clear and convincing proof that the witness
                 testified falsely at the trial, and not merely proof that by reason of
                 conflicting statements his testimony is unworthy of belief. Application for
                 a new trial is addressed to the sound discretion of the trial court which has
                 the opportunity of seeing and hearing the witness whose testimony is
                 brought under attack, and the prime duty of determining whether he swore
                 falsely at trial.

Lewis, 193 Va. at 625, 70 S.E.2d at 301.


                                                        -6-
        With regard to credibility issues, this Court routinely defers to determinations of the trial court.

“Unless we conclude a witness’ testimony must be rejected as a matter of law based on its inherent

incredibility, we must defer to the credibility determinations of ‘the fact finder[,] who has the

opportunity of seeing and hearing the witnesses.’” Sawyer v. Commonwealth, 43 Va. App. 42, 53, 596

S.E.2d 81, 86 (2004) (quoting Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37

(1985)). We keep these well-settled principles in mind in assessing whether Johnson has proven he is

entitled to a writ of actual innocence.

        Following an evidentiary hearing at which the trial court saw and heard Smith testify, the trial

court made a specific determination that Smith is not credible in his present assertion that he testified

falsely at Johnson’s trial. This finding was based in part upon Smith’s inability to provide logical

explanations for why he and Barnes acted in the manner Smith now maintains. Smith provided no

logical reason why Barnes would have brought a shotgun to Hope’s house and shot her if he had not

been solicited by Smith with a promise of payment by Johnson. If the purpose of the visit was merely to

persuade Hope to drop the charges against Johnson, Barnes would have had no reason to bring a gun to

Hope’s home and take it to her door, as Smith now claims.

        Moreover, other evidence at trial corroborated specific details of Smith’s trial testimony that

Johnson orchestrated Hope’s murder. Smith testified at trial that Johnson provided his vehicle for Smith

to use in Hope’s killing. Allen’s testimony, as well as that of the police officers who investigated the

shooting, placed Smith, Barnes, and Allen in Johnson’s car in the vicinity of Hope’s home at the time of

the murder. Hope was heard to exclaim Smith’s name in the 911 recording. Allen led the police to the

place where the murder weapon was discarded. In addition, Johnson had a motive to have Hope killed

and had a history of violence against her. Johnson had just been convicted and sentenced to jail for a

crime he committed against Hope and had appealed the general district court’s decision. Assuredly,

Hope’s death would compromise the Commonwealth’s ability to prove its case against Johnson in

circuit court.
                                                       -7-
       As determined by this Court and the Virginia Supreme Court on direct appeal, the evidence

presented at trial was sufficient to support Johnson’s convictions. We find the record supports the trial

court’s credibility assessment of Smith’s claim that his trial testimony was untruthful. Thus, appellant

has failed to prove by clear and convincing evidence that “no rational trier of fact could have found

proof of guilt beyond a reasonable doubt.” See Code § 19.2-327.13(ii). Therefore, we dismiss

Johnson’s petition for failing to establish previously unknown or unavailable evidence sufficient to

justify the issuance of the writ of actual innocence. See Code § 19.2-327.13(i).

       Because the issues addressed herein are of first impression and potential litigants and members

of the bar may benefit from the directives herein, we direct the Clerk to publish this order.

       The Court’s records reflect that Gail Starling Marshall, Esquire, is counsel of record for

petitioner in this matter. The Circuit Court of New Kent County shall allow the said court-appointed

counsel the fee set forth below and counsel’s necessary direct out-of-pocket expenses. The

Commonwealth shall recover of petitioner the costs in this Court. The Attorney General shall recover of

the petitioner his costs expended herein.

Costs due the Commonwealth by petitioner
  in Court of Appeals of Virginia:

       Attorney’s fee          $725.00 plus costs and expenses

   Attorney General’s costs:

       Attorney’s fee          $50.00


                                            A Copy,

                                                  Teste:

                                                                     Clerk




                                                      -8-
