CHESAPEAKE, Va. – Brian Faulcon, a former junior varsity basketball coach, has spent nearly a decade trying to prove he is not the gunman who robbed a pizza delivery woman in 2012. Family and friends have organized a petition for Governor Ralph Northam to issue a pardon before his term ends next month.
“Here I am, incarcerated for a crime that I didn't commit, with my family, my son, all the kids that I coached, everybody else has to deal with it as well,” said Faulcon.
A News 3 investigation into court records reveals DNA evidence does not connect Faulcon to the crime, and there are discrepancies between the traumatized victim’s account the night of the robbery and her testimony in court, when she stressed, “I am 100 percent sure this is the man that robbed me that night.”
“I pray for her every night,” said Faulcon of the robbery victim during an interview with News 3 from prison. “I’m sorry she had to endure what she endured, but it was not me.”
“It's like the worst feeling, like being buried alive,” said Branden Smith, who was arrested alongside Faulcon for the pizza delivery woman’s robbery. Charges against Smith were dropped before his case ever made it to trial, largely because of the victim’s testimony that "I couldn't identify that person 100 percent".
According to court records reviewed by the News 3, two unmasked men robbed a pizza delivery woman in Chesapeake at the Merchant’s Square apartments off Eden Parkway around 8:20pm on January 23, 2012.
Transcripts of the victim’s conversation with a 911 dispatcher moments after the robbery reveal she said one of the men stood back while the other had a silver gun. She went on to say the gunman forced her to the ground face up, rummaged through her pockets, stole $14 in cash, and ran away with the other robber. The 911 call transcript also reveals the victim said the gunman was African American, and wore a dark blue hoodie. She said she wasn’t sure about the second robber’s race, but she said he also wore a hoodie.
Court records indicate police never found the $14 stolen from the victim, but a forensic analysis did find a male’s DNA inside the victim’s pockets. A review of the records by News 3 reveals the DNA wasn’t Faulcon’s, or Smith’s, or anyone the victim knew.
“I automatically assumed that was it,” said Faulcon. “Charges should have been dropped.”
About 20 minutes after the robbery, court records show an officer claimed he saw Faulcon and fellow basketball coach Smith “standing down” behind Faulcon’s white Acura parked in front of Smith’s home on River Birch Court, about a quarter of a mile away from where the pizza delivery woman was robbed.
However, Faulcon and Smith told News 3 they were in Faulcon’s car smoking marijuana when they saw police in their neighborhood. Faulcon and Smith said they were unaware of the robbery that occurred in the neighboring apartment complex.
“We saw the police car and we decided to go in the house thinking that somebody may have called the police on us for being in the car smoking,” Faulcon said.
Faulcon and Smith said after they went inside Smith’s home, the officer followed and began knocking on their door, demanding they come out. While waiting for Faulcon and Smith, court testimony reveals the officer saw a black gun on the floorboard of Faulcon’s car – a gun Faulcon legally owned.
“I know I didn't commit any crimes with the gun. So I didn't even think about, you know, trying to conceal [or] hide the gun,” said Faulcon. “The gun was sitting in my car in plain view.”
When Faulcon and Smith did respond to the officer’s commands to come out of Smith’s home, the officer said “Neither one of them had the hooded sweatshirts that I first observed when they went in," according to court transcripts.
Police detained Faulcon and Smith, placing them in handcuffs. Court testimony reveals not long after, another officer arrived with the victim in the backseat to get a look at Faulcon and Smith. The victim testified that she wasn’t sure about Smith, but she was certain Faulcon was the gunman who robbed her.
“I got handcuffs behind my back. I’m surrounded by police. I look guilty,” Faulcon said.
A suggestive show up identification is when an officer brings a witness to see someone they've already apprehended.
"When you're saying is this the person, it's really easy to say yes," said Dr. Jeffery Gibbons, a memory and cognition expert and professor at Christopher Newport University.
According to the Innocence Project, mistaken identifications are the leading cause of wrongful convictions. Gibbons said show up identifications can lead an already traumatized victim to believe they have the right person. However, he said there is a better way to be more certain the victim is identifying the right person.
"You would want to bring in several people and not have them in handcuffs, or have all of them in handcuffs," said Dr. Gibbons. "They should look relatively equal. [Then you say] can you pick the person out here?"
Faulcon’s attorneys later argued the show up identification of Faulcon was suggestive, and should have been thrown out. However, a judge ruled against their request.
“I think in her heart she firmly believes Brian committed the offense, but that doesn't mean he did it,” said one of Faulcon’s former attorneys, James Broccoletti, who represented Faulcon during the first trial in 2013. “These two poor guys just happen to be smoking marijuana in a car close by. It was a perfect storm. The moon the stars and the sun aligned, but aligned in the wrong way.”
The victim never wavered about her identification of Faulcon – not at the first trial that ended in a hung jury in 2013, or the mistrial in 2016 due to an issue with a juror, or at the trial that ended in his conviction in 2018. A judge sentenced Faulcon to serve more than five years in prison. He’s spent the years since appealing his conviction and requesting a new trial. His only options moving forward are an appeal to the United States Supreme Court or a pardon from Governor Ralph Northam before his term ends early next year.
The victim in this case declined to speak with News 3 about Faulcon’s claims and appeals.