Opinion
Record No. 0361-21-2
02-27-2024
Terence Jerome RICHARDSON, s/k/a Terrence Jerome Richardson, Petitioner, v. COMMONWEALTH of Virginia, Respondent.
Upon a Petition for a Writ of Actual Innocence
Upon remand from the Supreme Court of Virginia, and in accordance with the mandate of that Court entered on February 21, 2024 and the order of that Court entered on February 1, 2024, the order previously entered by this Court on June 21, 2022 is withdrawn and vacated as to this Court’s decision to dismiss this matter without an evidentiary hearing, but not as to this Court’s ruling to allow the Commonwealth to file a brief that contradicted its initial brief, and this matter is reinstated on the docket of this Court for further proceedings.
Terence Jerome Richardson, s/k/a Terrence Jerome Richardson, previously filed with this Court a Petition for a Writ of Actual Innocence Based on Nonbiological Evidence under Code §§ 19.2-327.10 through 19.2-327.14. Richardson claims that he is actually innocent of involuntary manslaughter, for which he was convicted upon a guilty plea and sentenced in the Circuit Court of Sussex County by final order entered on March 8, 2000. The Commonwealth, represented by the Office of the Attorney General, has filed a response to the petition, along with a supplemental brief and supplemental exhibits. Richardson’s counsel has filed a reply to the Commonwealth’s supplemental response, along with supplemental exhibits.
The Supreme Court of Virginia has directed that this case requires further development of the facts. Therefore, pursuant to Code § 19.2-327.12, we remand this matter to the Circuit Court of Sussex County for the purpose of taking testimony under oath and subject to both cross-examination and the Rules of Evidence. The Circuit Court shall provide this Court with a transcript of the testimony of the proceedings and certify findings of fact on the following questions:
QUESTIONS RELATED TO EYEWITNESS SHANNEQUIA GAY
1. Whether Shannequia Gay affirmatively states, under oath, that she saw the perpetrator flee the area where Officer Allen Gibson was shot on April 25, 1998.
2. Whether Shannequia Gay affirmatively states, under oath, that she made a statement to the police that she saw a "man with dreads" wearing a white t-shirt running away from the area where Officer Allen Gibson was shot on April 25, 1998. If so, did she identify that individual as the perpetrator to the police?
3. Whether Shannequia Gay affirmatively states, under oath, that she was initially shown a single photograph by Detective Gregory Russell on April 25, 1998. If so, did she identify the individual in that photograph to the police as the perpetrator who killed Officer Allen Gibson?
4. Whether Shannequia Gay affirmatively states, under oath, that she was then shown an array of photographs by Investigator Tommy J. Cheek on April 25, 1998. If so, did she identify an individual from that photograph array to the police as the perpetrator who killed Officer Allen Gibson?
5. Whether Shannequia Gay affirmatively states, under oath, that she identified the "man with dreads" wearing a white t-shirt to the police as the perpetrator when she was shown photographs by the police on April 25, 1998. If so, who did she identify as the "man with dreads" wearing a white t-shirt?
6. What actions, if any, did the Commonwealth’s Attorney, J. David Chappell, take with regard to Shannequia Gay after the subpoena was issued for her to testify before the Circuit Court?
7. Whether J. David Chappell affirmatively states, under oath, that he provided Richardson’s trial counsel, David E. Boone, with information about Shannequia Gay before Richardson’s conviction.
8. What actions, if any, did David E. Boone take to locate and speak with Shannequia Gay after the subpoena was issued for her to testify before the Circuit Court?
9. What actions, if any, did Jack Davis, the private investigator hired by David E. Boone, take to locate and speak with Shannequia Gay after the subpoena was issued for her to testify before the Circuit Court?
10. What actions, if any, did the Virginia State Police take regarding the eyewitness Shannequia Gay after the subpoena was issued for her to testify before the Circuit Court?
11. The identities of any other witnesses and the information the Circuit Court receives from them that is relevant to address the above Questions 1 through 10.
12. Any other enumerated findings of fact specifically related to the above Questions 1 through 11.
13. Whether reasonable diligence was exercised by Richardson to discover or obtain the testimony and evidence elicited from the above Questions 1 through 12. QUESTIONS RELATED TO THE PHOTOGRAPHS AND THE IDENTIFICATION OF THE PERPETRATOR
14. Whether Detective Gregory Russell affirmatively states, under oath, that he initially showed a single photograph to Shannequia Gay on April 25, 1998. If so, who was the individual in the photograph, and did he provide that information to Shannequia Gay? Did the individual in the photograph have dreads? What did Detective Gregory Russell do with the photograph after speaking with Shannequia Gay?
15. Whether Investigator Tommy J. Cheek affirmatively states, under oath, that he showed an array of photographs to Shannequia Gay on April 25, 1998. If so, who were the individuals in the array of photographs, and who did Shannequia Gay identify, if anyone? What did Investigator Tommy J. Cheek do with the array of photographs after speaking with Shannequia Gay?
16. Whether Deputy Valerie Patterson Ricks affirmatively states, under oath, that she showed any photographs to Shannequia Gay on April 25, 1998. If so, who were the individuals in the photographs, and who did Shannequia Gay identify, if anyone? What did Deputy Valerie Patterson Ricks do with the photographs after speaking with Shannequia Gay?
17. Whether the Virginia State Police confirmed the identity of any person that Shannequia Gay may have identified in a photograph presented to her on April 25, 1998. If so, who did the police state that individual was?
18. Whether, at the time of this crime, all information known to the Commonwealth Attorney’s Office would have been offered to defense counsel as part of an "open file" policy or whether some information would have been withheld according to that policy.
19. Whether Shawn Wooden affirmatively states, under oath, that, on April 25, 1998, at Wooden’s residence, Richardson stated to him that it was a "new cop" who had just been shot that day. Did Shawn Wooden observe Richardson with dreads at that time? Did Wooden provide this information to the police or testify about this information at any time? Did Wooden ever change his story concerning this information?
20. Whither Shawn Wooden affirmatively states, under oath, that, on April 25, 1998, at his, residence, Richardson admitted to shooting Officer Allen Gibson earlier that day and then threatened to harm Shawn Wooden or his family if they ever told anyone that Richardson admitted to shooting Officer Gibsort. Did Wooden proride this information to the police or testify about this information at any prior time? Did Wooden ever change his story concerning this information?
21. Whether Shawn Wooden affirmatively states, under oath, that he told the police that Richardson shot Officer Gibson. Did Wooden identify any other individuals besides Richardson to the police as haring shot Officer Gibson? Did Wooden tell the police that Richardson or any of those other individuals had dreads? Did Wooden ever change his story concerning this information?
22. The identities of any other witnesses and the information the Circuit Court receives from them that is relevant to address the above Questions 14 through 21.
23. Any other enumerated findings of fact specifically related to the above Questions 14 through 22.
24. Whether reasonable diligence was exercised by Richardson to discover or obtain the testimony and evidence elicited from the above Questions 14 through 28.
QUESTIONS RELATED TO THE 911 CALL
25. Whether the Virginia State Police have a recording of the 911 call from April 30, 1998, as described in the document from the Sussex County Sheriff’s Office included as an exhibit to the petition. What, if anything, did the police do with the recording?
26. Whether the Virginia State Police have information concerning the origin of the 911 call from April 30, 1998, as described in the document from the Sussex County Sheriff’s Office included as an exhibit to the petition.
27. Whether the Virginia State Police have information concerning the identity of the caller from the 911 call from April 30, 1998, as described in the document from the Sussex County Sheriff’s Office included as an exhibit to the petition.
28. Whether the Virginia State Police have, information concerning the foundation of the caller’s knowledge from the 911 call from April 30, 1998, as described in the document from the Sussex County Sheriff’s Office included as an exhibit to the petition.
29. Whether the Virginia State Police have information concerning the identity of the individual who received and transcribed the 911 call from April 30, 1998, as described in the document from the Sussex County Sheriff’s Office included as an exhibit to the petition.
30. Whether Leonard Newby was ever investigated as a potential suspect and what steps, if any, did the investigating officers take to exclude him.
31. Whether David E. Boone requested information from the police related to the 911 call from April 30, 1998. If so, did the police provide that information?
32. Whether J. David Chappell requested information from the police related to the 911 call from April 30, 1998. If so, did the police provide that information?
33. The identities of any other witnesses and the information the Circuit Court receives from them that is relevant to address the above Questions 25 through 32.
34. Any other enumerated findings of fact specifically related to the above Questions 25 through 33.
35. Whether reasonable diligence was exercised by Richardson to discover or obtain the testimony and evidence elicited from the above Questions 25 through 34. In addition, for each witness who appears before it, the Circuit Court shall provide such factual findings regarding the apparent sincerity, conscientiousness, intelligence, and demeanor of the witness that it finds relevant to assessing the truthfulness of his or her testimony. See Dennis v. Commonwealth, 297 Va. 104, 126, 823 S.E.2d 490 (2019) (noting that trial judges are "better equipped to evaluate the truth of facts" because they are able "to observe witnesses’ demeanor and hear their testimony"). Finally, the Circuit Court, as noted supra, is directed to determine whether, in the exercise of diligence, the testimony and evidence could have been discovered or obtained before the time the conviction became final in the Circuit Court. Code, § 19.2-327.11(A)(vi).
Pursuant to Code § 19.2-327.12, such hearing shall be held within ninety (90) days of the date of this order, and the record and certified findings of fact from the Circuit Court of Sussex County shall be filed in the Court of Appeals within thirty (30) days of the hearing’s conclusion. We direct the Clerk of this Court to deliver on this date this order to the Circuit Court of Sussex County and send copies of this order to the Attorney General, the Commonwealth’s Attorney for Sussex County, and Richardson’s counsel.
This order shall be published.