Commonwealth v. Duse

809 S.E.2d 513, 295 Va. 1

Opinion

The Commonwealth also argues the circuit court abused its discretion by speculating that Duse was "unlikely" to abscond because of his age. We agree.

Even assuming the court appropriately deemed Duse's age to be a cognizable factor in determining whether he rebutted the presumption that no conditions would reasonably assure his appearance, the court never explained why Duse's age made absconding unlikely. Instead, the court conjectured, without evidence, that Duse was too old to be a flight risk. This was clearly an error in judgment. Given his age, his apparent ownership of a home in the Philippines, and the specter of a murder conviction, Duse has every incentive, along with the means, to flee prosecution.

Lastly, the Commonwealth argues that the circuit court abused its discretion by wholly discounting and according no weight to Duse's well-documented prior history of mental health disorders. We agree.

In weighing the statutory factor concerning the history of Duse's mental condition, the circuit court committed a clear error in judgment. It was Duse's burden to rebut the presumption that no conditions would reasonably assure the safety of the public. Other than the testimony of his niece and a friend of 25 years, the only evidence Duse presented as to his mental condition was Dr. Lawson's *519testimony, which the circuit court itself found was "superficial" and lacking detail.

Considering the evidence presented and the applicable presumption, we hold that the circuit court abused its discretion in concluding that Duse rebutted the presumption that no conditions would reasonably assure the safety of the public and his appearance at trial. Further, the Court of Appeals erred in concluding that the circuit court "did not abuse its discretion in granting bond," and by denying the Commonwealth's motion to revoke bond.

Accordingly, the Court of Appeals' January 25, 2018 order is reversed and the circuit court's January 3, 2018 order granting Duse pre-trial bail is vacated. The rule to show cause issued on February 7, 2018 is discharged.

This order shall be certified to the Court of Appeals of Virginia and the Circuit Court of Fauquier County and shall be published in the Virginia Reports.