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Chesapeake Police lawfully destroyed evidence a robbery convict says could have freed him

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Posted at 5:00 AM, Dec 08, 2021
and last updated 2021-12-08 18:32:29-05

CHESAPEAKE, Va. – Court records reveal a detective with the Chesapeake Police Department lawfully approved the destruction of a surveillance tape in an unsolved 7-Eleven robbery that may have created reasonable doubt in a separate robbery investigation.

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On the left: surveillance image of 7-Eleven robbery Suspect, On the right: Brian Faulcon’s mug shot for the robbery of a pizza delivery woman

“We did what we’re legally obligated to do,” said Chesapeake Police Chief Kelvin Wright, highlighting the lack of a court order to turn over the 7-Eleven evidence during Brian Faulcon’s trials and appeals. “I think this is that one in a million case where perhaps it would be beneficial for [Faulcon], but we’re not the arbiters to determine whether he gets that evidence or not. The court is.”

“[I] really just couldn't believe it,” said Faulcon, a former junior varsity basketball coach convicted in a third trial in 2018 of the robbery of a pizza delivery woman in 2012. “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.”

Faulcon and his former defense attorneys believe the man who robbed the 7-Eleven at 10:24 p.m. on January 23, 2012, on Providence Road in Chesapeake, is the same man who committed the robbery of the pizza delivery woman earlier that night at 8:20 p.m. three miles away near Eden Parkway.

However, Faulcon’s attorneys say they did not introduce the theory during Faulcon’s trials because police did not provide them with visual evidence of the 7-Eleven robbery.

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“It's tragic. It's inexcusable,” said James Broccoletti, who represented Faulcon at the 2013 trial that ended in a hung jury. “That picture. Those circumstances. The facts in that, I mean, tip the scales I think heavily in favor of Brian.”

News 3 learned the detective later located a digital image of the surveillance video on an old laptop in 2019, after Faulcon’s conviction in 2018, when the Faulcon’s defense attorney directly contacted the detective about the 7-Eleven evidence.

Chief Wright said there was nothing dubious about the evidence destruction, and later discovery of a digital copy of the surveillance video. He said his detective was unaware Faulcon’s defense attorneys were interested in the 7-Eleven robbery when he approved the destruction of evidence, even though police records reveal the pizza delivery woman’s description of the man who robbed her to 911 is similar to the description of the 7-Eleven robber.

“Even though the description may be similar, [it] does not mean they were the exact same suspects,” said Chief Wright, who also explained the records requests are handled by a special coordinator in the department and not by officers and detectives.

During the Providence Road 7-Eleven robbery, Faulcon and his fellow basketball coach Branden Smith were already in handcuffs outside Smith’s home, arrested for the robbery of the pizza delivery woman in a nearby neighborhood.

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The victim, admittedly “very shaken” after the robbery according to her testimony, said she couldn’t identify Smith, whose charges were eventually dropped. However, she was firm about Faulcon’s involvement, testifying “I know this is the man that robbed me.”

“I think [he] definitely could be mistaken [for me],” said Faulcon of robber in the 7-Eleven surveillance image.

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Brian Faulcon arrested for the robbery of a pizza delivery woman. This is how he was presented to the victim during her identification. Faulcon’s attorneys have argued this was a suggestive show up, leading the victim to believe he was guilty.

News 3’s review of forensic documents in court records reveals DNA evidence does not connect Faulcon or Smith to the robbery. Additionally, the victim’s initial description of a silver gun does not match the black gun found in Faulcon’s car – a weapon Faulcon legally owned.

“I automatically assumed that was it,” said Faulcon. “Charges should have been dropped.”

According to court records, defense attorneys first requested evidence in the 7-Eleven robbery in 2012, but police denied their Freedom of Information Act request citing an ongoing investigation. Chief Wright said Faulcon’s attorneys could have a filed a petition to preserve the 7-Eleven evidence when their Freedom of Information Act requests were denied to ensure the evidence would not be destroyed. A News 3 review of court records does not indicate that was ever pursued by any of Faulcon’s attorneys. Faulcon’s first trial in 2013 trial ended in a hung jury.

Additional court records reviewed by News 3 reveal the detective overseeing the 7-Eleven robbery approved the destruction of all evidence in that case in the March 2015 – including the VHS tape with video of the robbery. The Chesapeake Police Department destroyed the evidence in April 2015 – the year before Faulcon’s second trial in 2016, which ended in a mistrial due to an issue with a juror.

Related: Chesapeake man convicted of robbery says DNA evidence proves his innocence

“Our detective followed the correct procedure,” said Chief Wright, citing their evidence policy that allows evidence in unsolved cases not connected to prosecutions or appeals to be destroyed after a period of time. “He had no knowledge, no information whatsoever, that [Faulcon’s] attorneys were looking for this information.”

Court records reveal that in 2019, the year after Faulcon’s third trial in 2018 ended in his conviction, his attorney, Hugh “Teddy” Black, reached out to the detective to inquire about the possibility of any remaining evidence in the 7-Eleven robbery. That’s when, according the detective’s testimony at a posttrial hearing in 2019, he located a digital image of the 7-Eleven surveillance video on an old police department laptop. He testified that he was unaware anyone was looking for the evidence when he approved its destruction.

“They were told that the evidence had been destroyed!” argued Faulcon’s appeals attorney David Hargett in front of a Virginia appellate court this year. “[The 7-Eleven robber] has the same skin tone, facial features, facial hair. You can see all of that in the photograph.”

Faulcon’s attorneys appealed his conviction based on newly discovered evidence, but those efforts were denied at every turn.

The victim in Faulcon’s case never wavered on her testimony, but Faulcon can’t help but wonder if seeing the 7-Eleven evidence would have made her think twice.

“I was wrongly accused or all the charged wrongly convicted for a crime,” Faulcon said.

Faulcon’s only remaining options are an appeal to the United States Supreme Court or a pardon by Gov. Ralph Northam. His family has created a petition to get Northam’s support before he leaves office next month.

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