Waldrop v. Com.

• Decision Date: 17 December 1996
• Docket Number: No. 1343-95-2,1343-95-2
• Citation: 478 S.E.2d 723,23 Va.App. 614
• Parties: John A. WALDROP, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 723

478 S.E.2d 723

23 Va.App. 614

John A. WALDROP, Jr. v. COMMONWEALTH of Virginia.

Record No. 1343-95-2.

Court of Appeals of Virginia Richmond.

Dec. 17, 1996.

Anthony F. Troy (Claudia T. Salomon; Michael Morchower; Christopher C. Booberg; Mays & Valentine; Morchower, Luxton & Whaley, on briefs), Richmond, for appellant.

Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: COLEMAN and ELDER, JJ., and COLE, Senior Judge.

ELDER, Judge.

John A. Waldrop (appellant) appeals his conviction of two counts of perjury for making a false statement in a campaign finance report. He contends that the trial court erred in denying his motion for a mistrial because the Commonwealth's attorney during

his opening statement commented on Waldrop's Fifth Amendment right to remain silent. He also contends that the evidence was insufficient to support his convictions for perjury because (1) his campaign finance report listed all contributions as required by law; (2) the Commonwealth failed to prove that he was under oath when he made the alleged misstatements; and (3) if he made a misstatement, the evidence failed to prove that it was willful. For the reasons that follow, we affirm.

I. FACTS

In November, 1991, appellant was re-elected to his fifth term on the Henrico County Board of Supervisors. Due to appellant's slight margin of victory, his opponent filed a petition for a recount. Code § 24.1-249 (1985). Appellant hired an attorney to represent him in the recount proceeding.

In December, 1991, appellant received three checks from supporters intended to defray the cost of the recount proceeding. Appellant accepted a check from a business owned by a supporter, Kenny Graham, in the amount of $1,000 on December 2. On December 13, another business owned by a supporter of appellant, E. Carlton Wilton, Sr., issued him a check in the amount of $500. Appellant deposited these two checks into his personal checking account, which he testified was also his "defense fund." On December 19, appellant received a check from a third supporter, Henry Wilton, for $750, which he deposited into the separate checking account that he had previously designated for his campaign funds.

On January 15, 1992, appellant filed his report of candidate campaign contributions and expenditures (report) as required by the Fair Election Practices Act (Act). ¹ Code § 24.1-257.2(C) (1985, Supp.1991). In schedule A of the report, appellant was required to list all "contributions over $100." While this list included the check from Henry Wilton, it excluded the checks from Mr. Graham and E. Carlton Wilton, respectively. Appellant signed the report under an affirmation, which stated:

Under penalty of perjury, I declare that I have examined this report which covers the period Nov. 26, 1991 through Dec. 31, 1991, including its accompanying summary, reconciliation, schedules and statements and to the best of my knowledge and belief, it is true, correct and complete.

The signature page of the report was notarized by Stuart Inglehart under a written statement that the report had been "[s]ubscribed and sworn to (or affirmed) before" him.

In April, 1995, appellant was indicted for two counts of perjury stemming from the two checks that he had failed to list as contributions in his report. ² During the Commonwealth's opening statement, the Commonwealth's attorney made the following remarks:

That essentially is what I believe the Commonwealth's evidence will reveal. At the conclusion of the evidence, and let me say, while the Commonwealth has the burden of proof, and I am able to tell you what our evidence will be, because the defendant has no burden of proof he has no obligation to disclose to me what the defense is or what Mr. Waldrop's point of view on this will be, so I can't comment on that for you at this time. I am just able to tell you what I believe our evidence will be. I suspect--and I say this by way of asking you to listen closely to the evidence--I suspect that Mr. Waldrop will allege that these are minor bookkeeping errors that were overlooked by him at the time, and I think that's why it's important for you to listen to the evidence, to follow the money, where it went, to see if this type of conduct constitutes bookkeeping mistakes and errors, or deliberate purposeful, willful conduct on his part. It may well be that when Following the Commonwealth's opening statement, appellant's counsel moved for a mistrial, claiming that the Commonwealth's attorney had unconstitutionally commented on appellant's right not to testify at his trial. The trial court denied the motion.

Mr. Morchower ³ sits down, the issue will have been narrowed by him to that particular aspect of all the evidence, and you will know exactly what to look for when you're listening to the testimony of the witnesses.

At trial, the evidence proved that appellant failed to report the two checks he received for the legal expenses of the recount proceeding as contributions in his report of January 15, 1992. However, the evidence is in conflict on whether appellant signed the report under the oath required by the Act and whether appellant's statement was willful. Although the record proved appellant signed the report "under penalty of perjury" and that the report reflected that it was signed and affirmed before a notary, appellant testified that he did not read the signature page before he signed it and that the notary failed to administer an oath. Appellant also testified that he was a veteran of four prior elections and was familiar with the reporting requirements under the Act. The notary testified that although he had asked appellant during the 1987 election if he had read the oath, he had ceased this practice in 1991.

Regarding the issue of willfulness, the Commonwealth's evidence proved that appellant received and deposited the checks from Mr. Graham and E. Carlton Wilton and then did not report the checks as contributions on his report of January 15, 1992. Appellant testified that his attorney initially advised him that gifts of money intended to defray the cost of the recount proceeding were not campaign contributions and could be deposited into his personal account. Appellant also testified that later, sometime between December 25, 1991 and mid-January, 1992, he learned during a conference call with the secretary of the State Board of Elections that he was required to treat monetary gifts relating to his recount expenses as campaign contributions. The former secretary testified that he could not remember speaking with appellant during this period.

Following the Commonwealth's case-in-chief and again at the conclusion of the evidence, appellant moved to strike the evidence. The trial court denied the motion and the jury found appellant guilty of two counts of perjury. Following his conviction, appellant filed a motion to set aside the verdict on the ground that money received for a recount proceeding cannot be construed as a "campaign contribution" that a candidate must report. The trial court denied this motion.

II. COMMENT IN OPENING STATEMENT ON FIFTH AMENDMENT RIGHTS

Appellant contends that the trial court erred when it denied his motion for a mistrial because the Commonwealth's attorney's comments in his opening statement violated his Fifth Amendment right to remain silent by compelling him to testify at his trial. We disagree.

It is well established that any comment made by a Commonwealth's attorney "referring to the defendant's election not to testify is a violation of his rights against self-incrimination" guaranteed by the Fifth Amendment of the United States Constitution. Johnson v. Commonwealth, 236 Va. 48, 50, 372 S.E.2d 134, 136 (1988) (citing Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965)). In addition, the accused's right to remain silent at trial prohibits "the prosecutor's use of any language or device which compels a defendant to testify," including those made in opening statements. State v. Pierce, 231 Neb. 966, 978, 439 N.W.2d 435, 444 (1989); see State v. Turner, 433 A.2d 397, 401 (Me.1981); Clark v. State, 256 Ark. 658, 661, 509 S.W.2d 812, 815 (1974) (stating that pre-evidentiary coercion is just as forbidden as post-evidentiary comment).

In determining whether a comment relating to an accused's failure to testify is constitutionally forbidden, the test is whether, in the circumstances of the particular In this case, we hold that the comments of the Commonwealth's attorney did not violate appellant's Fifth Amendment right not to testify. The Commonwealth's attorney said that he was unsure of "Mr. Waldrop's point of view" but that he suspected that "Mr. Waldrop will allege that these are minor bookkeeping errors that were overlooked by him" and that Mr. Morchower, appellant's attorney, may narrow the issue to "that particular aspect of all the evidence" by the time he "sits down." When viewed in context, the Commonwealth's attorney's comments were neither manifestly intended nor likely to be taken by the jury as a comment on appellant's right to remain silent. Immediately after appellant made his motion for a mistrial, the Commonwealth's attorney explained to the court that he was "referring to a defense in the matter" and did not intend to represent to the jury that appellant would testify.

case, the language used was either (1) manifestly intended to comment on the failure of the accused to testify, or (2) of such character that the jury would naturally and necessarily take it to be such a comment. Johnson, 236 Va. at 50, 372 S.E.2d at 136 (citing Hines v. Commonwealth, 217 Va. 905, 907, 234 S.E.2d, 262, 263 (1977)). "When comments relating to an accused's opportunity to testify are followed by his actual testimony, the relevant inquiry is whether his testimony in effect was coerced or compelled by the prior comment." United States...