Whitaker v. Commonwealth
| Decision Date | 10 December 2019 |
| Docket Number | Record No. 1686-18-1 |
| Court | Virginia Court of Appeals |
| Parties | MARK M. WHITAKER v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Beales, Huff and Athey
Argued at Norfolk, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Harold W. Burgess, Jr., Judge Designate
Don Scott; Jon M. Babineau (Law Office of Don Scott; Jon M. Babineau, PC, on brief), for appellant.
Matthew P. Dullaghan, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Mark M. Whitaker ("appellant") was convicted by a jury of three counts of forgery under Code § 18.2-172. He appeals the convictions, arguing that the trial court erred in failing to quash the indictments due to what he alleges were irregularities in the special grand jury proceedings. He also argues that the evidence is insufficient to support his convictions and that the Commonwealth argued facts not in evidence in its closing argument that were so prejudicial that they require reversal of his convictions.
"In accordance with established principles of appellate review, we state the facts in the light most favorable to the Commonwealth, the prevailing party in the trial court." Riner v. Commonwealth, 268 Va. 296, 303 (2004). So viewed, the record establishes that at all times relevant to this appeal, appellant was a City Councilman for the City of Portsmouth. On January 17, 2017, the Commonwealth's Attorney for the City of Portsmouth filed a motion stating that the Portsmouth Sheriff's Office, the National Credit Bureau, and the U.S. Department of the Treasury had been investigating appellant and the New Bethel Credit Union ("credit union"), an organization for which appellant served as the Chief Executive Officer. The motion requested that the Circuit Court for the City of Portsmouth appoint a special prosecutor to handle any further investigation and prosecution of appellant "due to a conflict of interest and to avoid the appearance of impropriety." The motion was granted, and an attorney from the Office of the Commonwealth's Attorney in Frederick County was appointed as special prosecutor.
The Commonwealth - through the special prosecutor - made a motion requesting that a special investigative grand jury be convened. The motion also sought the appointment of three individuals - Captain Lee Cherry and Investigator Brett Johnson, both of the Sheriff's Office for the City of Portsmouth, and Special Agent Thomas Kim of the U.S. Department of the Treasury - as specialized personnel "to assist the special grand jury in its investigation pursuant to Virginia Code § 19.2-211." The motion was granted, and a special grand jury was impaneled.The special grand jury ultimately returned twenty indictments against appellant, including two for identity fraud, eleven for forgery, and seven for uttering a forged check. After the indictments were returned, the judges of the Circuit Court for the City of Portsmouth recused themselves from the case due to appellant's position as a City Councilman.
Appellant moved to quash the indictments, arguing that pursuant to Code § 19.2-211, only the special grand jury itself - not the special prosecutor - could request specialized personnel to help with the special grand jury's investigation. He also argued that, under Code § 19.2-213, the special grand jury was required to make findings of fact or a written report, which it did not do.2 The motion to quash the indictments was denied, and appellant's case proceeded to trial.
In addition to his role as a City Councilman, the evidence at trial established that appellant was the assistant pastor of the New Bethel Baptist Church (the "church") and the Chief Executive Officer and a board member of the New Bethel Credit Union, an institution started by the church's leaders that operated out of an office in the church.
At some point prior to 2013, the leaders of the church formed a plan to tear down and rebuild the Bonne Villa Apartments, a dilapidated apartment complex located across the street from the church. They formed New Bethel Development Company, LLC, to complete the project and hired a contractor, CDSI, to perform the demolition services. At some point during the tear-down process, United Disposal, a disposal company, told CDSI that CDSI could notdump the building debris from the demolition at its disposal site until it was paid $35,000. This demand stalled the project, leading the City of Portsmouth to send a letter on May 20, 2013, to appellant as the registered agent of New Bethel Development Company setting a deadline for the demolition to begin. The City also set a deadline of September 23, 2013, for the completion of the demolition and stated that failure to complete the project by that date would result in the City hiring its own contractor to complete the work - with the expenses for the completion assessed against the property. The letter triggered a push for New Bethel Development Company to quickly come up with $35,000 to pay United Disposal so as to be able to continue with the project.
Phillip Whitaker, appellant's brother, testified that he was a member of the credit union's board of directors and that he served as its loan officer. He testified that in August 2013, in order to make the $35,000 payment, the credit union issued seven unsecured $5,000 loans - each with a term of six months. He testified that because of the low value of the loans, the credit union did not have to "go through all the sophisticated means that [it] may otherwise, with credit reports and so forth, to approve" these loans. Each of the loan applications stated that the purpose in seeking the loan was as follows: "Emergency loan to prevent a tax lien by the City of Portsmouth on investment property at 4358 Greenwood Drive, Portsmouth VA 23701" - the location of the Bonne Villa Apartments. The loans were made to Phillip Whitaker; Kevin Blount, an employee of CDSI; Valor Contracting Corporation ("Valor"), Blount's defunct contracting company; Etta Whitaker Pierce, appellant's sister; James Whitaker, appellant'sfather; the church3; and appellant. Only the loans made to Blount and Valor Contracting Corporation are at issue in this appeal.4
Phillip Whitaker testified that he had personally spoken with Blount a few days before Blount's loan application was prepared and that Blount had agreed to allow the credit union to issue loans to Blount and to Valor. He testified that Blount was not present when the loan documents were prepared. However, he claimed that Blount had given permission for a member of the credit union's loan review committee to sign Blount's name on the loan documents for Blount and Valor. Phillip Whitaker also testified that he did not know which member of the review committee physically picked up a pen and signed Blount's name to the documents. He also stated that he was unaware that Valor was out of business at the time the loan was made.
Phillip Whitaker further testified that, after the loans were made, he delivered three checks to Blount - to then be delivered to United Disposal - to cover the cost of the debris disposal. One check was a $25,000 cashier's check, which the New Bethel Development Company had received from the loan proceeds from the other loans. The other two checks were for $5,000 each, made out to Blount and Valor. The word "loan" was written on the front of each check. Phillip Whitaker testified that all of the loans made were eventually paid back at some point in 2014 with "some of the funds c[oming] from church proceeds and then [some funds] from the individuals."
Blount testified that, at all relevant times, he worked for CDSI. He stated that he met appellant in meetings regarding the Bonne Villa project. He testified that he did not speak with anyone else from the church about the project, and he stated that he did not even know PhillipWhitaker. During Blount's testimony, the Commonwealth showed Blount a signature card for the credit union containing his information and his alleged signature. Blount testified that he did not fill out the card and stated that the signature on the card did not belong to him. He testified that he did not take out or agree to take out a loan from the credit union in his name or in the name of Valor. He reviewed the loan documents made in his name and testified that the signature on the documents did not belong to him. He testified that he did not give anyone permission to sign these documents on his behalf.
Blount testified that appellant asked him, "[W]ould I take the check in my name to help out with the situation and I told him yes." Blount testified that he accepted and endorsed a check in his name and in the name of Valor. He reiterated that although he agreed to endorse the checks, he did not agree to borrow the money or take out a loan. Blount testified that, after endorsing the checks, he went to the bank with appellant where he cashed both checks and gave appellant the proceeds, which appellant then used to obtain a check for $35,000. A copy of the check for $35,000 made payable to United Disposal was admitted into evidence.
Blount also testified that he had signed an affidavit prepared by Whitaker's counsel or his staff. The affidavit, which was admitted into evidence, states that Blount did not recall whether he gave appellant his permission to use his information to become a member of the credit union or if he gave appellant his permission to sign his name on the loan documents. On cross-examination, Blount was asked if he was under oath when he signed the affidavit, and Blount stated that he was. Appellant's trial counsel then asked, "Is it true?" and Blount responded, "Yes." Blount testified that he signed this affidavit in appellant's counsel's office prior to the trial but after he made two statements to investigators in which he stated that he did not apply for loans from the credit union nor...
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