Altizer v. Commonwealth

• Decision Date: 06 May 2014
• Docket Number: Record No. 1280–13–3
• Citation: 757 S.E.2d 565,63 Va.App. 317
• Court: Virginia Court of Appeals
• Parties: James Robert ALTIZER, Petitioner, v. COMMONWEALTH of Virginia, Respondent.

63 Va.App. 317

757 S.E.2d 565

James Robert ALTIZER, Petitioner,

v.COMMONWEALTH of Virginia, Respondent.

Record No. 1280–13–3

Court of Appeals of Virginia.

May 6, 2014.

Keith William Diener, Alexandria (Art of Lawyering PLLC, on briefs), for petitioner.

Susan Mozley Harris, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for respondent.

Before FRANK, HUMPHREYS and CHAFIN, JJ.

Upon a Petition for a Writ of Actual Innocence.

James Robert Altizer (“Altizer”) petitions this Court to grant a writ of actual innocence based on non-biological evidence pursuant to Code §§ 19.2–327.10 through 19.2–327.14. Altizer seeks to vacate his February 2, 2009 conviction for forcible sodomy in violation of Code § 18.2–67.1. In support of his petition, Altizer proffers three witnesses' affidavits that purportedly demonstrate the minor-victim's “scheme to defraud the court.” Altizer alternatively argues that if this Court should not see fit to grant his petition, it should order an evidentiary hearing to further develop the facts underlying his claim of actual innocence. For the reasons that follow, we dismiss his petition.

I. Background

A. Altizer's Trial and Conviction

On October 8, 2008, Altizer was tried and convicted in a bench trial by the Montgomery County Circuit Court (“trial court”) for sodomizing a ten-year-old male child, in violation of Code § 18.2–67.1. The Commonwealth presented the testimony of the victim, J.Y. (also “A.Y.”), and the victim's mother, Teresa Young (“Teresa”). Altizer's live-in partner of thirteen years, Jay Phillips, Jr. (“Uncle Jay”), was J.Y.'s biological uncle and Teresa's brother. J.Y. testified that on December 28, 2007, he spent the night at Uncle Jay and Altizer's home. There was also a four-year-old boy who was spending the night. J.Y. had previously visited Uncle Jay and Altizer's trailer several times before without incident. While Uncle Jay was asleep on the couch in the living room, Altizer invited J.Y. to the master bedroom at the back of the trailer to see something. Once inside, Altizer threw J.Y. on the bed, pulled off J.Y.'s pants and underwear, and performed fellatio on J.Y. Altizer stopped when “[h]e heard like a car door and he ran out of the room.”

Initially, J.Y. did not tell anyone about the incident because he was afraid that it was going to ruin his family. After J.Y. heard his friends discussing another man who was a child molester, he decided to tell his mom what happened. According to Teresa's testimony, several months after the incident J.Y. came out of his room at 11:30 p.m. to tell her something. He was crying hysterically. He told her that he had been molested. It took him about fifteen minutes to calm down and stop crying. She called the police that evening and by the time they arrived J.Y. had calmed down. Teresa acknowledged at trial that she had to correct J.Y. about the date of the offense after he spoke to the police. He originally said it happened on New Year's Eve, but J.Y. actually spent the night at Altizer's several days before New Year's Eve, on December 28th.

After J.Y. and Teresa testified, the Commonwealth rested. The Commonwealth presented no physical evidence of the crime.

Altizer called four witnesses on his behalf: Uncle Jay; Patrick J. Phillips, Uncle Jay's adult son; Brandy Grundhl, Altizer's friend; and Michael Adams, Altizer and Uncle Jay's roommate. Altizer's witnesses contradicted some of the details of the event that J.Y. recalled—the date of the incident, the layout of the furniture in the residence, and who was present the night of the incident and at what times.

The Commonwealth called one rebuttal witness, Investigator Brad Roop. Investigator Roop testified that Altizer admitted to him that he had not known J.Y. to lie or to make up stories.

Noting that J.Y. was an especially articulate child, the trial court found that “[J.Y.] [wa]s a credible witness.” Considering all the evidence, the trial court found Altizer guilty of forcible sodomy.

B. Post–Trial Proceedings

Altizer's trial counsel filed a petition for appeal and a motion to withdraw as counsel with this Court. The argument asserted in the petition for appeal was that the trial court erred in affording greater weight to the testimony of the victim over the testimony of the defense witnesses. This Court granted counsel's motion to withdraw and denied the petition for appeal. In that October 22, 2009 per curiam order, this Court denied Altizer's petition for appeal because the trial court found the victim credible, a determination exclusively within the trial court's purview.

In 2010, the trial court denied Altizer's petition for a writ of habeas corpus. Altizer then appealed to the Supreme Court of Virginia, which denied his habeas petition for appeal.

C. Altizer's Petition for Writ of Actual Innocence

On July 10, 2013, Altizer filed a petition for a writ of actual innocence. In support of his petition, he offers three witnesses' affidavits which he claims to prove that J.Y. lied under oath at his trial and to describe J.Y.'s “scheme to defraud the court.”

In the first affidavit, Dale E. Hunt (“Hunt's Affidavit”) states that he overheard a group of boys, including J.Y., discussing the incident while he was smoking a cigarette in the road. Hunt said that the boys were discussing how J.Y. became jealous of the other little boy Altizer and Uncle Jay were taking care of because he “took over his place.” J.Y. asked the other boys “what to do to get back at Jay and James [Altizer].” Hunt says that the other boys said that the best way to get back at him was to say that Altizer touched him in the “wrong places.”

Hunt previously worked with Uncle Jay and J.Y.'s father, Brandon Young, at Long John Silver's. Almost two to three months after hearing the boys' conversation, Hunt ran into Uncle Jay at Wal–Mart and Uncle Jay told him about Altizer “going to jail because some little boy named [A.Y.] had said things about him.” Hunt asked Uncle Jay if A.Y. also went by the name J.Y. Hunt claims that he did not come forward until he discovered that J.Y. and A.Y. were the same person. Hunt further states that J.Y.'s father, Brandon Young, said that he was going to “get Jay back” for a situation at Long John Silver's where he was fired “even if it meant using his own kid, [J.Y.].”

In the second affidavit, Steven Thrasher (“Thrasher Affidavit”) describes how Altizer was hard of hearing. Thrasher was Altizer's former co-worker; Thrasher would occasionally pick up Altizer for work. Thrasher said that Altizer could not hear him when he would honk the horn of his car or knock on the door. Altizer alleges that Thrasher's statement about his hearing loss contradicts J.Y.'s testimony about Altizer hearing a car door slam the night of the incident.

Finally, in the third affidavit Carolyn Bussey (“Bussey Affidavit”) describes how she overheard J.Y. arguing with some other boys near her trailer. J.Y. told one of the other boys, “Do not fuck with me.” Another boy said, “[J.Y.], you will have their mom or dad put in jail, won't you?” J.Y. said, “Yes I will, I had my Uncle Jay's faggot boyfriend put in jail and I will your mom or dad. My mom told me what to say to put him in jail.” The affidavit does not specify the date of the argument; however, the affidavit itself was signed and sworn to under penalty of perjury on July 17, 2012.

Altizer argues that in considering the entire record in light of these three additional affidavits, no rational trier of fact would have found him guilty beyond a reasonable doubt and, therefore, this Court should grant him a writ of actual innocence based on nonbiological evidence.

II. Analysis

Code § 19.2–327.10 confers original jurisdiction upon this Court to consider a petition for a writ of actual innocence based on newly-discovered, non-biological evidence filed by any individual “convicted of a felony upon a plea of not guilty.” A petition for a writ of actual innocence based on non-biological evidence must allege “categorically and with specificity”:

(i) the crime for which the petitioner was convicted or the offense for which the petitioner was adjudicated delinquent, and that such conviction or adjudication of delinquency was upon a plea of not guilty;

(ii) that the petitioner is actually innocent of the crime for which he was convicted or the offense for which he was adjudicated delinquent;

(iii) an exact description of the previously unknown or unavailable evidence supporting the allegation of innocence;

(iv) that such evidence was previously unknown or unavailable to the petitioner or his trial attorney of record at the time the conviction or adjudication of delinquency became final in the circuit court;

(v) the date the previously unknown or unavailable evidence became known or available to the petitioner, and the circumstances under which it was discovered;

(vi) that the previously unknown or unavailable evidence is such as could not, by the exercise of diligence, have been discovered or obtained before the expiration of 21 days following entry of the final order of conviction or adjudication of delinquency by the circuit court;

(vii) the previously unknown or unavailable evidence is material and, when considered with all of the other evidence in the current record, will prove that no rational trier of fact would have found proof of guilt or delinquency beyond a reasonable doubt; and

(viii) the previously unknown or unavailable evidence is not merely cumulative, corroborative or collateral.

Code § 19.2–327.11(A)(i)–(viii). This Court may grant a petition “only upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of Code § 19.2–327.11, and upon a finding that no rational trier of fact would have found proof of guilt or delinquency beyond a reasonable doubt.” Code § 19.2–327.13. Otherwise, this Court “shall [ ] dismiss the ...