Commonwealth v. Yaser Mohammed Jawad

• Court: Court of Appeals of Virginia
• Decided: November 25, 2002
• Docket: 1828021
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Clements Argued by teleconference

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 1828-02-1 JUDGE JEAN HARRISON CLEMENTS NOVEMBER 25, 2002 YASER MOHAMMED JAWAD

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Frederick H. Creekmore, Judge

Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General; Susan M. Harris, Assistant Attorney General, on brief), for appellant.

Erin J. Goodman (George Holton Yates; George Holton Yates & Assoc., on brief), for appellee.

The Commonwealth of Virginia appeals from an order of the

circuit court admitting Yaser Mohammed Jawad to pre-conviction

bail. On appeal, the Commonwealth contends the trial court abused

its discretion in finding the evidence sufficient to rebut the

presumption that Jawad was a danger to the public and presented a

flight risk. We disagree and affirm the judgment of the trial

court.

As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. value, this opinion recites only those facts and incidents of the

proceedings as necessary to the parties' understanding of the

disposition of this appeal.

On appeal, we review a trial court's decision whether to

grant bail pre-conviction for abuse of discretion. See Fisher v.

Commonwealth, 236 Va. 403, 411, 374 S.E.2d 46, 51 (1989). In

deciding whether to grant or deny bail, the trial court must

exercise "not an arbitrary discretion, but a sound judicial

discretion." Judd No. 2 v. Commonwealth, 146 Va. 276, 277, 135

S.E. 713, 714 (1926). "In reviewing an exercise of discretion, we

do not substitute our judgment for that of the trial court.

Rather, we consider only whether the record fairly supports the

trial court's action." Beck v. Commonwealth, 253 Va. 373, 385,

484 S.E.2d 898, 906 (1997). We will not disturb the trial court's

discretionary decision unless "it is clear that such discretion

has been abused." Kennedy v. Commonwealth, 18 Va. App. 543, 549,

445 S.E.2d 699, 703 (1994). We are further mindful that the

"credibility of a witness, the weight accorded the testimony, and

the inferences to be drawn from proven facts are matters solely

for the fact finder's determination." Crawley v. Commonwealth, 29

Va. App. 372, 375, 512 S.E.2d 169, 170 (1999).

Code § 19.2-120 governs pre-conviction bail. Code

§ 19.2-120(A) provides that a person charged with a criminal

offense shall be admitted to bail unless the judicial officer

determines there is probable cause to believe the accused will not

- 2 - appear as required or constitutes an unreasonable danger to

himself or the public. Code § 19.2-120(B) provides, however, that

"the judicial officer shall presume, subject to rebuttal, that no

. . . conditions will reasonably assure the [accused's] appearance

. . . or the safety of the public" if the accused is charged with,

inter alia, first degree murder. Code § 19.2-120(C) provides

that, in determining whether, "for the purpose of the rebuttal of

the presumption against bail described in subsection B, whether

there are conditions of release that will reasonably assure the

appearance of the [accused] as required and the safety of the

public," the trial court must consider the "following factors and

such others as it deems appropriate":

1. The nature and circumstances of the offense charged;

2. The history and characteristics of the [accused], including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and

3. The nature and seriousness of the danger to any person or the community that would be posed by the [accused's] release.

Here, Jawad was charged with first degree murder and the use

of a firearm in the commission of first degree murder. Thus, in

considering Jawad's motion for pre-conviction bail, the trial

court had to presume, subject to rebuttal, that no conditions of

- 3 - bail would reasonably assure Jawad's appearance at trial or the

safety of the public. Implicitly finding, however, that Jawad had

successfully rebutted that presumption, the trial court granted

Jawad's motion for pre-conviction bail. The court set bond at

fifty thousand dollars, with surety, on each charge. The

conditions of bond included that Jawad not have any firearms in

his possession or surroundings and that he not work in a

convenience store.

On appeal, the Commonwealth contends the trial court erred in

finding, based on the factors set forth in Code § 19.2-120(C),

that the presumption described in Code § 19.2-120(B) was rebutted.

"[T]he court's action," the Commonwealth argues, "cannot be

reconciled with the facts from the record or any of their probable

deductions." In support of that argument, the Commonwealth

asserts the evidence presented at the bail hearing showed that

Jawad (1) was a citizen of Pakistan with extensive connections

abroad and limited connections here; (2) was no longer employed;

(3) lied in the district court about his continuing family ties

and financial resources in the community and in Pakistan; (4)

fired the weapon twice, with one shot hitting the victim "right

between the eyes"; and (5) previously exhibited violence when he

chased a suspected shoplifter from his store with a gun. On these

facts, the Commonwealth maintains, Jawad's tendering of his

expired passport to the trial court was "meaningless" and the

evidence was insufficient to rebut the presumption that Jawad is a

- 4 - danger to the public and a flight risk. Accordingly, the

Commonwealth concludes, the trial court's admission of Jawad to

bail was a clear abuse of discretion.

At the bail hearing, Antwoin Boyd, an eyewitness to the

shooting, testified for the Commonwealth. Boyd worked at a barber

shop which was part of the shopping center owned by Jawad and

which was two doors down from Jawad's convenience store. He

stated that, upon leaving the barber shop, he saw two men

"tussling" and "wrestling" in front of the door to Jawad's store.

They banged into the door of Jawad's store twice and were causing

a "big commotion." Nobody was entering or leaving the store

because of the fighting.

From approximately fifty feet away, Boyd saw Jawad come out

of the store and attempt to pull the two men apart. Jawad was

yelling and cursing at the men. One of the men involved in the

fighting, the victim in this case, told Jawad they were cousins

and were not fighting. Jawad continued to try to separate the

men. The victim then stopped fighting with his "cousin" and

started "fussing with . . . Jawad face to face." Jawad spat in

the victim's face. "[V]ery upset" and "angry," the victim spat in

Jawad's face and attempted to attack him, but his "cousin" held

him back. Jawad went back into his store but came back out and

"continued to fuss with" the victim. Another man who had been

riding with the victim, came up to the victim and attempted to

lead him away. The victim started to walk to the car.

- 5 - At that point, according to Boyd, Jawad went back inside his

store and got a gun. When Jawad came back outside, he shot the

gun once in the air. Jawad and the victim continued to "fuss"

with each other while standing twenty feet apart. Jawad then ran

up and pinned the victim between the car and the door. After

being dared by the victim three times to shoot him, Jawad stepped

back and shot the victim in the face.

Boyd also testified that, eight or nine months before the

shooting, he had seen Jawad chase after a suspected shoplifter

with a gun.

The Commonwealth conceded the victim had a lengthy felony

record, including two weapons convictions. Jawad presented no

evidence about the circumstances of the crimes charged; however,

two security guards who knew the victim testified he was a violent

person. Jawad's attorney told the trial court there would be a

factual question at trial about "whether or not the defendant was

the aggressor or whether the alleged victim engaged in conduct

that brought about his own demise."

Jawad testified on his own behalf at the bail hearing.

According to his testimony, he has never "failed to appear for

anything in court" and intends "to appear for all court

appearances" in this case. He is married to an American citizen

and lives with his wife, fourteen-month-old son, father, mother,

and brother in a home in Chesapeake owned by his parents and

brother. He has lived in the United States consistently since

- 6 - 1994 and in Chesapeake since 1999. He has no immediate family

still living in Pakistan. Nearly thirty-two years of age, he is

in good physical health, has never been treated for any mental

conditions, and has never abused drugs or alcohol. He has no

prior criminal record.

Jawad and other members of his family own the shopping center

where the shooting occurred. An electrical engineer by education,

Jawad managed the convenience store in the shopping center, but

discontinued working there after the shooting. He intends to look

for "a separate line of work" upon his release on bail. Outside

of his interest in the shopping center, his financial resources

are minimal. He has no money or property in Pakistan.

A citizen of Pakistan, Jawad surrendered his Pakistani

passport to the trial court.

When asked about inconsistent testimony regarding his

financial holdings that he gave in a prior hearing in the general

district court, Jawad explained he had misunderstood the earlier

questions as being general inquiries about his family's resources

rather than his alone. Thus, he explained, he had mistakenly

answered those questions "as a family."

Robert Lindemann, the family's business attorney who had been

practicing law for twenty-three years, testified to Jawad's

reputation for honesty and fair dealing. He testified that, in

all his dealings with him, Jawad "always kept his word on anything

he said he was going to do." Jawad, Lindemann said, was a hard

- 7 - worker who, together with his family, transformed the shopping

center from a facility in disrepair to a financially successful

operation. Lindemann also testified to Jawad's reputation in the

community for peacefulness. He opined that Jawad would not flee

and would comply with all terms of bond.

Several members of Jawad's family, his wife's family, his

employees, customers of his store, and others in the community who

knew him, including his accountant, were present at the hearing

and identified to the court as appearing on his behalf. They did

not testify.

Upon our review of the record, we cannot say the trial court

abused its discretion in finding the evidence sufficient to rebut

the presumption in Code § 19.2-120(B) that Jawad was a danger to

the public and a flight risk. Although the Commonwealth's

evidence demonstrated the violent nature of the crimes charged,

Jawad's evidence, which the trial court clearly accepted,

demonstrated that Jawad had no history of failing to appear at

court proceedings, had strong family and financial ties to the

community of the forum, had no criminal record, and had a

reputation for honesty and peacefulness in the community. The

trial court plainly believed, in considering the factors in Code

§ 19.2-120(C), that Jawad's history and characteristics, and the

lack of danger he would pose to the community if released,

outweighed the circumstances and nature of the offenses charged.

Because the record fairly supports the trial court's action, we

- 8 - hold the trial court's decision to grant pre-conviction bail was

not an arbitrary discretion, but a sound judicial discretion.

Accordingly, we affirm the judgment of the trial court.

Affirmed.

- 9 -