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Evidence of suit vs. police correctly excluded at trial

The trial court correctly granted the prosecution’s motion in limine at appellant’s murder trial to exclude any mention of his civil suit against the police on the grounds that “evidence of the suit was irrelevant, would be unduly prejudicial, and would confuse or mislead the jury.”

Further, there was sufficient evidence to convict appellant of first-degree murder and two firearm offenses.

Civil suit

“In the civil complaint, Shahan asserted claims for defamation, false imprisonment, and intentional infliction of emotional distress, alleging that Cogswell and Nordan had unlawfully arrested, detained, and interrogated him in June 2018 as part of their investigation of the crimes against Duty [the murder victim].

“The Commonwealth argued that evidence of the suit was irrelevant, would be unduly prejudicial, and would confuse or mislead the jury.

“Shahan responded that evidence of the suit was relevant and tends to show that he did not commit these crimes for two reasons.

“First, he argued that it demonstrated police bias, in part because the indictments, which listed Nordan as a grand jury witness, issued only six days prior to the first scheduled hearing in the civil suit, set for March 12, 2019. Second, he argued that the suit was evidence of Shahan’s innocence because, if Shahan were guilty, he likely would not have been ‘willing to be the face of a lawsuit’ against the police.

“In conversing with counsel, the circuit court commented that the mere fact of Shahan filing the lawsuit did not seem ‘relevant to the elements of proof’ of the offenses with which Shahan was charged. …

“The circuit court stated that the evidence of the lawsuit would likely ‘confuse the issues that the jury [would] be required to find.’

“In sum, the circuit court stated the essence of the issue is whether to allow evidence in that may cause unfair prejudice. The circuit court’s written order granted the Commonwealth’s motion and excluded the evidence of the lawsuit ‘for reasons stated to the record.’ …

“The fact that Shahan filed a civil suit against the police investigators proves only that; it does not tend to prove or disprove who committed the crimes Shahan was charged with. Shahan argues he would have offered this evidence in order to argue inferences from the fact of the civil lawsuit. …

“The inferences Shahan would have proposed to the jury based on the filed lawsuit were that the police were biased against him in their investigation and that he would not have filed the lawsuit if he was guilty, and ultimately that Shahan did not kill Duty.

“These inferences are so attenuated from the basic fact that Shahan filed a civil lawsuit against the police that they are purely speculative and thus irrational. As the circuit court noted, Shahan could have filed the civil suit ‘fraudulently, in bad faith, knowing full well that he’s guilty of the offense.’ Therefore, the mere filing of the civil lawsuit is irrelevant and not admissible. For these reasons the circuit court did not abuse its discretion in granting the Commonwealth’s motion in limine.”

Sufficient evidence

“Shahan next contends that the evidence was insufficient to support the jury’s finding that he was the person who robbed and killed Duty. …

“Assessing the evidence in the light most favorable to the Commonwealth, Shahan left Duty’s apartment shortly after noon on Sunday with Duty’s cell phone, a fact which Shahan was unable to explain during his testimony.

“Video and photographic evidence, including license plate readers, showed that Shahan’s wife’s van traveled the route that Duty’s cell phone traveled at the same time until Duty’s cell phone went permanently offline at 1:12 p.m. There is no evidence that anybody was able to contact Duty after that point, nor is there any evidence that anybody saw Duty alive after that point.

“Duty’s apartment neighbor, Grabenschroer, saw him alive the morning of January 28, but did not see Duty the rest of the day despite being home all day. Later that evening, the lights in Duty’s apartment were off, the window was covered, and the blinds were closed, which Grabenschroer testified he had never seen happen during his time as Duty’s neighbor.

“The handgun reported missing by Shahan’s father was accessible to Shahan, and the bullets recovered from Duty’s body are characteristically consistent with those fired from that brand of handgun.

“Finally, investigators indicated that Duty had been dead for some time, around two to four days, before his body was discovered Wednesday evening, January 31. From this evidence, a reasonable fact finder could conclude that Duty died on Sunday, January 28.

“Shahan argues that the DNA mixture from the pockets of Duty’s jacket did not match Shahan’s DNA, and thus demonstrates that somebody else killed Duty. Although such evidence supports Shahan’s claim of innocence, it is by no means dispositive. …

“The lack of DNA evidence implicating Shahan must be weighed against the evidence pointing to Shahan’s guilt such as the evidence regarding the stolen firearm and Shahan’s unexplained possession of Duty’s phone around the time of his death.

“The jury had a full opportunity to consider Shahan’s argument about the DNA on Duty’s jacket pocket and ultimately found him guilty notwithstanding that argument. We see no basis to overturn the jury’s determination.”


Shahan v. Commonwealth, Record No. 1098-21-1, Dec. 13, 2022. CAV (Humphreys). From the Circuit Court of the City of Norfolk (Atkins; Jones on motion in limine). Kristin Paulding for appellant. Leanna C. Minix, Jason S. Miyares for appellee. VLW 022-7-562, 12 pp.

VLW 022-7-562

Virginia Lawyers Weekly