Pijor v. Commonwealth

• Decision Date: 28 December 2017
• Docket Number: Record No. 161346
• Citation: 808 S.E.2d 408,294 Va. 502
• Court: Virginia Supreme Court
• Parties: David Stanley James PIJOR v. COMMONWEALTH of Virginia

294 Va. 502

808 S.E.2d 408

David Stanley James PIJOR

v.COMMONWEALTH of Virginia

Record No. 161346

Supreme Court of Virginia.

December 28, 2017

Patrick M. Blanch (Zinicola, Blanch & Overand, on briefs), Fairfax, for appellant.

Lauren C. Cambell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

PRESENT: All the Justices

OPINION BY JUSTICE CLEO E. POWELL

David Stanley James Pijor ("Pijor") was found guilty of perjury, in violation of Code § 18.2-434, in the Circuit Court of Fairfax County ("trial court"). The perjury conviction stemmed from testimony Pijor gave during a larceny trial in which he was acquitted. On appeal, Pijor argues that the Commonwealth was collaterally estopped from indicting him for perjury due to his previous acquittal and that the evidence was insufficient to prove he committed perjury.

I. BACKGROUND

On February 4, 2014, Pijor was tried for larceny of an animal and unlawfully entering another's property. The charges arose from the disappearance of a dog, Ben, that belonged to Pijor's ex-girlfriend, Kristy Gooch ("Kristy"). The Commonwealth's theory during the larceny trial was that Pijor took Ben after entering the home where Kristy and her parents resided, uninvited. Patti Gooch ("Patti"), Kristy's mother, testified she was home alone with Ben on the morning of September 6, 2013, when Pijor began ringing the front doorbell, calling out for Kristy or Patti to speak with him, and calling the house telephone. Patti did not respond to Pijor because she was scared and, instead, called the police from her upstairs bedroom while Ben barked at the front door. After Pijor fell silent, Patti opened her bedroom door and found Pijor with Ben beside him. Patti told Pijor to leave and he responded he was trying to check on Kristy. As Pijor proceeded back downstairs, Patti retreated to her bedroom and closed the door. Patti opened the door "seconds" later after she realized Ben was not with her and ran downstairs, where she did not see Pijor or Ben. Patti proceeded outside but saw no sign of Pijor or Ben.

In the larceny trial, Kristy testified she and Pijor had a troubled relationship that she had been trying to end for several years and that Pijor had previously threatened to take away everything she cared about if she ended their relationship. Kristy explained that, approximately two days before Ben's disappearance, she had stopped responding to Pijor's attempts to contact her. Kristy claimed that Ben was very well behaved and never ran away despite being unrestrained frequently. Ben also wore a collar and tags that bore Kristy's name, telephone number, and home address.

Pijor testified in his own defense and acknowledged using a key he knew was hidden under a rock to let himself into the Goochs' home. Pijor explained he was concerned about Kristy's welfare and that Ben followed him as he left the house after his encounter with Patti. Once outside, Ben tried to follow Pijor, and Pijor commanded Ben to stay in the Goochs' backyard, which he did. Pijor claimed that this was the last time he saw Ben. When asked, "At any point in time have you received information on where Ben might be?" Pijor responded, "No, I haven't". When asked, "[H]ave you seen the dog since September the 6th?" Pijor said, "No". Pijor claimed Ben would chase people, animals, and dogs unless told not to and that he had run away at least once. Pijor noted he tried to find Ben and denied threatening Kristy.

Pijor's father, David Pijor ("Pijor, Sr."), testified that Pijor lived with him "for periods of time" after Ben's disappearance but that he had not seen the dog. Pijor, Sr. recounted that his son left on a trip to Ocean City, Maryland the day Ben disappeared and that Pijor had tried to find Ben. The jury acquitted Pijor of both charges.

Post-trial, it was discovered Pijor had possession of Ben, and he was charged with perjury stemming from his trial testimony that he had no information regarding Ben's whereabouts after September 6, 2013 and that he had not seen the dog since that date.¹ Pijor moved to dismiss this charge and argued that principles of collateral estoppel prevented the Commonwealth from proving he perjured himself because it would require relitigating whether he stole Ben. The trial court disagreed and concluded that, although the Commonwealth could not present evidence Pijor stole Ben, it could prove that he lied about knowing where Ben was after the dog went missing.

From the day Ben disappeared, Kristy did not see either him or Pijor, except for seeing Pijor at the larceny trial. At Pijor's perjury trial, Kristy testified regarding a series of events that began five days after the larceny trial. On February 9, 2014, five days after Pijor's acquittal in the larceny trial, she saw a man in a hooded sweatshirt (i.e., a "hoodie") with the hood pulled up over his head,² walking a dog resembling Ben near her home. The dog carried an orange Frisbee in its mouth. On March 1, 2014, Kristy saw the man again, wearing what appeared to be the same hoodie with the hood pulled up over his head and walking the same dog carrying the same orange Frisbee near her home. Later that evening, an orange Frisbee struck the Goochs' front door.

On March 8, 2014, Kristy saw the man in a hoodie with the hood pulled up over his head and walking with a dog carrying the orange Frisbee again while she was driving with her boyfriend, Tam Nguyen. Nguyen pulled over, and Kristy identified the pair as Pijor and Ben. Kristy testified that when she called Ben's name, "the dog immediately dropped the Frisbee and tried to pull towards me." Nguyen tried to follow Pijor but he ran with Ben in tow. Nguyen testified and confirmed he and Kristy saw Pijor walking Ben on March 8.

Detective Jacquelynn Smith testified she began tracking Pijor's movements by GPS on March 10, 2014 due to allegations that he was stalking Kristy. She arrested Pijor on April 29, 2014, with Ben in his car. Pijor told Detective Smith that he had found the dog but would not tell her when he found Ben. In the back seat of Pijor's car was a dog bowl, dog food, a leash, and a blanket covered in dog hair.

Pijor, Sr. testified that Pijor lived with him between September 6, 2013 and February 4, 2014 and that he saw his son almost every day during that period. Pijor, Sr.'s house was four to six miles from where Kristy and Nguyen saw Pijor and Ben on March 8, 2014.

Pijor Sr. denied seeing Pijor with Ben or noticing any evidence that Pijor had Ben. Specifically, Pijor, Sr. testified that he saw the interior of Pijor's car regularly and that he saw no indication Pijor was transporting Ben in the vehicle. Pijor, Sr. acknowledged that Pijor occasionally visited a friend in Ocean City. Pijor offered into evidence a portion of the transcript from his first trial, which recounted his explanation of how he looked for Ben after he went missing.

The trial court found Pijor guilty of perjury. Pijor appealed his conviction to the Court of Appeals. The Court of Appeals denied Pijor's appeal, concluding in an unpublished opinion that collateral estoppel did not bar his prosecution and that the evidence supported his conviction. Pijor v. Commonwealth, Record No. 2065-15-4, slip op. at 2 (June 29, 2016). The Court of Appeals further held that the circumstantial evidence was competent and not inherently incredible to prove that Pijor was guilty of perjury. Id. at 3-5. This appeal followed.

II. ANALYSIS

A. Collateral Estoppel

Collateral estoppel is a doctrine of fact preclusion that is "embodied in" the Fifth Amendment "protection against double jeopardy." Simon v. Commonwealth, 220 Va. 412, 415, 258 S.E.2d 567, 569 (1979). "[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970).

However, before the doctrine of collateral estoppel may be applied, four requirements must be met: (1) the parties to the two proceedings must be the same; (2) the factual issue sought to be litigated must have been actually litigated in the prior proceeding; (3) the factual issue must have been essential to the judgment rendered in the prior proceeding; and (4) the prior proceeding must have resulted in a valid, final judgment against the party to whom the doctrine is sought to be applied.

Whitley v. Commonwealth, 260 Va. 482, 489, 538 S.E.2d 296, 299 (2000).

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this [realistic and rational] approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter."

Ashe, 397 U.S. at 444, 90 S.Ct. at 1194. "Collateral estoppel ... does not apply if it appears that the prior judgment could have been grounded ‘upon an issue other than that which the defendant seeks to foreclose from consideration.’ " Lee v. Commonwealth, 219 Va. 1108, 1111, 254 S.E.2d 126, 127 (1979) (quoting Ashe, 397 U.S. at 444, 90 S.Ct. at 1194 ).

"The defendant bears the burden of proving that the precise issue of fact sought to be precluded was raised and determined in the prior action." Commonwealth v. Leonard, 294 Va. 233, 239, 805 S.E.2d 245, 249 (2017) (citing Rhodes v. Commonwealth, 223 Va. 743, 749, 292 S.E.2d 373, 376 (1982) ). In Rhodes, the defendant was tried and acquitted of possession of phencyclidine ("PCP") based on laced cigarettes found in his car. In his subsequent trial for manufacture of PCP, Rhodes argued that collateral estoppel precluded the Commonwealth from introducing evidence of the presence of the PCP laced cigarettes in his car. His argument was grounded on the fact that the same evidence had been introduced in the possession trial of which he had been acquitted. We held that because Rhodes was unable to prove that "the precise issue of fact," i.e., the...