TWENTY-EIGHTH JUDICIAL CIRCUIT OF VIRGINIA e iis E naa See Reon Lowe, voce wean SAot 8 Jonson, jupo8 corvor bust 47 Somenso Seer Denes L sors once ‘srou vncnaa 2401 a 10.6351 a Sern Counre COMMONWEALTH OF VIRGINIA mao soar Ronen 9 tose Honorable Donald S, Caldwell Specially Designated Commonwealth Attomey Mr. John M. MeNeil, Jr., Esq. Assistant Commonwealth Attorney 315 Church Ave. SW, 2" Floor Roanoke, VA 24016 Ms. Heather Howard FILED: oi Jessee, Read & Howard, PC IME: at ERK OFFICE 200 Valley St. NW eRe Abingdon, VA 24210 Mr, David R. Tiller Tiller & Tiller, P.C. 28N. Mill St. Lebanon, VA 24266 Re: Commonwealth v. Johnathan Richard Brown Bristol Circuit Court — Case No. CR21-5994 through 5996 Dear Counsel: ‘The Court has now heard the testimony to be offered by the Commonwealth as it relates to Brown's prior use of deadly force at a hearing conducted on March 18, 2022, The Court considers the evidence to be introduced highly relevant to the issues of motive, intent, malice, and self-defense, However, the Court also finds said evidence to be prejudicial, because of the fact that it involves a shooting by Brown while on duty and in uniform on July 23, 2018 resulting in death, For the reasons cited herein, the Court will only allow such testimony by the Commonwealth upon rebuttal of any evidence offered by the defense as it relates to Kohler's character trait for violence and aggression, ‘The Court had previously ruled by Opinion letter dated January 25, 2022 that the Commonwealth could present evidence of prior acts or conduct of Brown that was relevant to support an element of the offense. See Opinion letter, p. 3, City of Bristol Circuit Court, January 25, 2022. That ruling was subject to a pending objection and request by both parties to conduct an evidentiary hearing with regard to a specific prior act by Brown that occurred on July 23,Commonwealth v. Brown April , 2022 Page 2 of 3 2018, which was an officer involved shooting by Brown resulting in death. The Court conducted such evidentiary hearing on March 18, 2022, in which the parties presented testimony and made argument at the conclusion of the hearing. During argument, counsel for defense made two primary objections. First, counsel asserted that the prior conduct of Brown should not be admitted because it was not criminal. In support of that argument, defense counsel points to exhibit #1 offered jointly by the Commonwealth and Defense of the investigation into the July 23, 2018 shooting by the Virginia State Police and determination made by Special Prosecutor Roy F. Evans, Jt, that Brown would not be charged. Based on said determination not to charge by the Special Prosecutor, defense counsel argues that such act or conduct was lawful, legally justified and therefore should not be allowed as evidence in this trial. See Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). However, under Rule 2:404 (b) of Virginia Rules of Evidence, the plain language of the Rule allows “evidence of other crimes, wrongs, or acts...... if the legitimate probative value of such proof outweighs its incidental prejudice”. See Rule 2:404 (b), Virginia Rules of Evidence, Rules of Supreme Court of Virginia. The evidence allowed by the Rule is not limited to crimes, illegal conduct or wrongs but also includes “acts”, if the trial court finds these acts have a probative value that outweighs its prejudicial effect. The Court thus finds that the act, or conduct does not have to be criminal or illegal, resulting in a conviction, to be admissible under Rule 2:404 (b). ‘Thereafter, defense counsel argued that the prejudicial effect outweighs the probative value. The Court then turns to the specific act or conduct to determine its probative value and the incidental prejudice, There are two ways in which the prior act or conduct by Brown may be used by the Commonwealth. One, the Commonwealth could introduce such prior act as evidence in its case in chief to help establish an clement of the offense, namely malice. Brown's conduct on July 23, 2018, is prejudicial in this case, because it also involved Officer Brown shooting and killing an individual while on duty and in uniform. The Virginia Supreme Court has cautioned against using prior criminality or acts to connect defendant’s intent with the instant charge by a prior conviction, “Such other acts of criminality... are not legally relevant and should not be {used} to prejudice the defendant or to create a probability of guilt”. Barber v. Commonwealth, 182 Va, 858, 866, 30 S.E. 2d 565, 568 (1944) quoting from Guill v. Commonwealth, 255 Va. 134, 140, 495 S.E. 2d 489, 492 (1998). This principle has been extended by the Virginia Supreme Court to include prior crimes or conduct is not admissible to establish intent of defendant in a pending trial. Donahue v. Commonwealth, 225 Va. 145, 149, 300 S.E. 24 768, 770 (1983). The Court finds that the probative value of admitting the prior conduct of Brown on July 23, 2018, would not outweigh the prejudicial effect. Two, the Commonwealth could use prior conduct by Brown to rebut potential evidence by the defense as it relates to the issues of self-defense, reasonable use of force or which party was the aggressor. While the prior conduct evidence would remain prejudicial, its probative value becomes more significant and relevant in light of the evidence produced by the defense. ‘The Court has already ruled allowing the defense to present a significant amount of evidence as it relates to the traits of violence, turbulence and aggression of Kohler. Should the defense proceed with said evidence seeking to establish Kohler as the aggressor and the personCommonwealth v. Brown April 5, 2022 Page 3 of 3 prone to violence, the evidence of Brown's prior conduct becomes highly relevant and probative to the issues of aggression and self-defense. At such point, the Commonwealth is no longer only seeking to use prejudicial, albeit probative, evidence in its case in chief to establish malice, an element of the crime. See Guill v. Commonwealth, 255 Va. 134, 138, 495 S.E. 2d 489, 491 (1998). Rather, the Commonwealth, on rebuttal, would be using said evidence to rebut the testimony and evidence of the defense related to self-defense and which person was the aggressor. At that point, such evidence of Brown's prior conduct is highly relevant and probative for not only an clement of the crime, but also to rebut testimony and evidence offered by the defense. For the reasons cited herein and in this Court’s opinion letter dated January 25, 2022, the Court will partially grant and partially deny the Motion in Limine filed by the Commonwealth. ‘The Court will deny the motion as it relates to evidence of prior use of deadly force by Brown on July 23, 2018 being used in the Commonwealth’s case in chief. However, the Court will grant the Commonwealth's motion to admit evidence of Brown’s prior use of deadly force on July 23, 2018, as rebuttal evidence, in the event Brown produces testimony or evidence of Kobler's character traits for violence, turbulence or aggression. ‘The Court will direct the Clerk to prepare an Order consistent with this opinion, and counsel may proceed accordingly. Sincerely, o¢ Johnse® Fudge SBI/vgj