Fritter v. Com.

• Decision Date: 29 March 2005
• Docket Number: Record No. 0524-04-4.
• Citation: 45 Va. App. 345,610 S.E.2d 887
• Parties: Joshua FRITTER v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

610 S.E.2d 887

45 Va. App. 345

Joshua FRITTER v. COMMONWEALTH of Virginia.

Record No. 0524-04-4.

Court of Appeals of Virginia, Alexandria.

March 29, 2005.

Dawn M. Butorac, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Alice T. Armstrong, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., CLEMENTS, J., and COLEMAN, S.J.

CLEMENTS, Judge.

Joshua Fritter (appellant) was convicted in a jury trial of perjury, in violation of Code § 18.2-434. On appeal, he contends the evidence was insufficient to sustain his conviction because (1) his allegedly perjurious statement was not material and (2) the Commonwealth did not satisfy the "two witness" rule. Finding no error, we affirm appellant's conviction.

I. BACKGROUND

"Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below." Banks v. Commonwealth, 41 Va.App. 539, 543, 586 S.E.2d 876, 877 (2003). So viewed, the evidence presented at trial established that, in February 2003, Detective Steve Shillingford of the Fairfax County Police Department contacted appellant, who was a suspect in a homicide investigation, and had several conversations with him. During one conversation, appellant told Shillingford that he "had just received a letter from [Nick] Halteh," a friend of his, who was also a suspect in the homicide investigation. At the time, Halteh was being held without bond pending trial on charges of robbery and malicious wounding. Appellant and Halteh had grown up together in the same neighborhood and were both members of the "Yorkville Crew." Appellant told Shillingford that "the letter indicated that [Halteh] wanted him to either find the victim of the robbery and pay him off, or to find out where the person lived so [Halteh] could take care of [him]." In response to the detective's inquiry, appellant told Shillingford that he did not have the envelope the letter came in. Shillingford then went to appellant's house and appellant gave him the letter.

The letter read:

Dear Josh,

What up nigga? aint shit here just chillin, tryin to figure out a way to clean this shit up. I talked to my lawyer & he said I'm gonna get my ass railroaded when I get to court, my only chance is if dude don't show up — other than that I'm short, they won't give me a bond, so there aint no way I can clean up my case. Anyway I'll give you a call. tell everyone I said what up. Nun, tom-tom, Ahmad ... everyone in Da' Yorkville Crew. I don't wanna write anything hott, But I need you & AHMAD & TOM-TOM'S Help!! Nigga, I'm Faceing a rack of years. & it's not in my Blood to do. I'm gonna hit you up with someone's inmate # soon. in the mean time hollar At Jennifer, Mindy's Friend, get Dude's # from her, his name is Andy (Not the M.S. Nigga Andy that used to chill with Handia & Philly) its a Different Dude, Andy's older Bro is the one Pressing charges. I need you to touch BASE with him tell him I can't Be in this junk man. Ask him how much he want to Drop the case, I have court 4-2-03 so get to work for me. Nigga please, if he aint going for it tell Jennifer to find out where he live & give me the address so I can get this nigga Delt with somehow. any way I got to write Jesika so I'll hollar Back at you nigga

ONE

LOVE

Nick.

P.S.

Burn this letter when you finish reading it. Oh yea I still haven't put your name on the visit list But I put in a request form.

Detective Shillingford gave the letter to the detective who was working Halteh's case, who in turn gave it to Assistant Commonwealth's Attorney Jay Nanavati, the prosecuting attorney in Halteh's trial. Believing the letter "showed ... Halteh's consciousness of guilt in the case," Nanavati planned to call appellant as a witness at Halteh's trial to authenticate the letter.

Nanavati and Shillingford met with appellant on August 11, 2003, the day before Halteh's trial on the charges of robbery, malicious wounding, and use of a firearm in the commission of a felony. In response to Nanavati's inquiry whether "he still planned on testifying the next day that he had indeed gotten that letter from Nick Halteh," appellant said he would not testify against Halteh, stating, "He's my friend. We grew up together. I'm not testifying against him."

Nanavati then issued a Commonwealth's Subpoena commanding appellant to testify at Halteh's trial. The next day, appellant was sworn in at Halteh's trial and testified that he had grown up with Halteh and knew him well. He further testified that he did not receive the letter addressed to "Josh" from "Nick" that Nanavati showed him and had "never seen it before." When told by Nanavati that he was under oath and subject to penalties for perjury, appellant stated, "I really don't care. Hold me in contempt of court. Do what you've got to do."

Nanavati was later able to authenticate the letter using circumstantial evidence, and the letter was admitted into evidence to show Halteh's consciousness of guilt. It was further adduced through stipulation, that appellant had given Detective Shillingford the letter. Halteh testified in his defense on cross-examination that he wrote the letter and sent it to appellant. Halteh explained on redirect examination that the letter was an expression of his belief that the witnesses against him were "trying to lock [him] up for something [he] didn't do." Halteh was subsequently acquitted of the charges against him.

On September 15, 2003, appellant was indicted for perjury in connection with his testimony at Halteh's trial. He was tried by a jury in January 2004. After hearing the evidence, the jury found appellant guilty of perjury and recommended a sentence of nine months in jail and a fine of $2,500. By final order entered February 18, 2004, the trial court imposed the recommended sentence, and this appeal followed.

II. ANALYSIS

Appellant contends, on appeal, that the evidence was insufficient to sustain his conviction for perjury because the Commonwealth failed to (1) prove the materiality of the testimony in question and (2) satisfy the "two witness" rule. We disagree.

"When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it."

Clark v. Commonwealth, 30 Va.App. 406, 409-10, 517 S.E.2d 260, 261 (1999) (quoting Traverso v. Commonwealth, 6 Va.App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted))." `The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.'" Donati v. Commonwealth, 37 Va.App. 575, 578-79, 560 S.E.2d 455, 456 (2002) (quoting Sandoval v. Commonwealth, 20 Va.App. 133, 138, 455 S.E.2d 730, 732 (1995)).

A. Materiality

Appellant argues the Commonwealth's evidence was insufficient to convict him of perjury because the allegedly perjurious statement he made at Halteh's trial was not material to a proper matter of inquiry in Halteh's trial.

Code § 18.2-434 provides that, "[i]f any person to whom an oath is lawfully administered on any occasion willfully swear falsely on such occasion touching any material matter or thing, ... he shall be guilty of perjury, punishable as a Class 5 felony." (Emphasis added.) Thus, "[i]n order to sustain a perjury conviction under this statute, the Commonwealth [has] the burden of proving: (1) that an oath was lawfully administered; (2) that the defendant wilfully swore falsely; and (3) that the facts to which he falsely swore were material to a proper matter of inquiry." Mendez v. Commonwealth, 220 Va. 97, 102, 255 S.E.2d 533, 535 (1979) (emphasis added).

"Testimony is material if it is relevant to a main or collateral issue on trial." Sheard v. Commonwealth, 12 Va.App. 227, 232, 403 S.E.2d 178, 180 (1991). "Evidence is relevant if it has any logical tendency, however slight, to establish a fact at issue in the case." Ragland v. Commonwealth, 16 Va.App. 913, 918, 434 S.E.2d 675, 678 (1993) (emphasis added).

The ultimate issue in Halteh's criminal trial was whether Halteh was the criminal actor. Any evidence that tended to prove or disprove Halteh's guilt was relevant and admissible unless determined to be unduly prejudicial. "Evidence that a defendant `procured, or attempted to procure, the absence of a witness, or to bribe or suppress testimony against him, is admissible, as it tends to show the unrighteousness of the defendant's cause and a consciousness of guilt.'" Ragland, 16 Va.App. at 920, 434 S.E.2d at 679 (quoting McMillan v. Commonwealth, 188 Va. 429, 432-33, 50 S.E.2d 428, 430 (1948)). The contents of the letter from "Nick" to "Josh" demonstrated a desire by its author to effect the absence of a witness by some means available to the letter's recipient. Therefore, the letter was inculpatory because it tended to show a consciousness of guilt on the part of the one who wrote and sent it. Hence, evidence establishing the letter's authenticity and showing that Halteh authored the letter while awaiting his trial would be relevant at Halteh's trial to prove he was attempting to procure the absence of a witness who could testify as to his guilt. Prior to Halteh's trial, appellant told Detective Shillingford he "had just received" the "Josh"-to-"Nick" letter from Halteh and gave the letter to the detective. At Halteh's trial, however, appellant testified under oath that he had "never seen [the letter] before." Thus, appellant's failure to testify in accordance with his prior account prevented the Commonwealth from using relevant evidence...