Winder v. Commonwealth
| Decision Date | 06 February 2018 |
| Docket Number | Record No. 1813-16-1 |
| Court | Virginia Court of Appeals |
| Parties | BRANDON DOMINIC WINDER v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Chief Judge Huff, Judges Decker and AtLee
Argued by teleconference
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Andrew R. Sebok for appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Appellant Brandon Dominic Winder appeals two perjury convictions, assigning the following errors:
(Capitalization and formatting altered) (citations omitted). We affirm.
"Applying familiar principles of appellate review, we will state the facts in the light most favorable to the Commonwealth, the prevailing party at trial." Williams v. Commonwealth, 278 Va. 190, 191, 677 S.E.2d 280, 281 (2009). On February 6, 2013, Winder failed to appear in the Circuit Court of the City of Norfolk as previously required. Subsequently, Winder gave sworn testimony on two different occasions in the circuit court regarding his whereabouts on that date.
At a bond hearing on July 29, 2013, Winder testified that he was at Sentara Leigh Hospital on February 6, 2013 because he "got in an accident." While in the hospital, he received stitches.1 He explained that he arrived at the hospital at approximately 5:30 a.m. on February 6, 2013 and was discharged early that afternoon. He acknowledged that he knew he had court on February 6, 2013. At the bond hearing, Winder's attorney handed the judge a document purportedly related to Winder's hospital stay. The document was not entered into evidence, however, and Winder's attorney retrieved it from the judge before the end of the hearing. Ultimately, the circuit court denied Winder's motion for bond.
The Commonwealth subsequently indicted Winder for failing to appear in court, based upon his absence on February 6, 2013.2 On October 30, 2013, Winder was tried by a judge forthe failure to appear.3 At that trial, Winder testified that he did not appear in court on February 6, 2013 because the night before, he had been in a car accident after leaving a nightclub. He described his injuries as "[b]ack pains, cut in [his] thigh." He testified that he received two stitches, and offered into evidence what he described as "a bill" from Sentara Leigh Hospital.4 This document listed his name and address, as well as an "Account Number," which consisted of a nine-digit number followed by a dash and a four-digit number. It listed the "Admit/Visit Date" and "Discharge Date" as "02/06/2013."
The Commonwealth called Sentara Leigh Hospital's risk manager as a witness. The risk manager testified that she searched for records of Winder's presence at Sentara Leigh Hospital on February 6, 2013. Her search yielded no such records. On cross-examination, the risk manager conceded that the letter Winder introduced contained "one of the . . . logos that Sentara does use" and that the address on the letter appeared to be Sentara's billing department. The risk manager was not able to testify that the letter offered by Winder was forged.
The circuit court dismissed the failure to appear charge. It did not offer a detailed explanation for the dismissal, other than instructing Winder's attorney prior to closing argument:
Eventually, the Commonwealth indicted Winder for two counts of perjury, corresponding to his testimony at the bond hearing on July 29, 2013, and at the failure to appear trial onOctober 30, 2013. Prior to the perjury trial, Winder moved to dismiss the charges on collateral estoppel grounds. The circuit court took the motion under advisement. At the perjury trial, the Commonwealth offered copies of transcripts of the bond hearing and the failure to appear trial, which the circuit court admitted without objection from Winder.
Instead of calling Sentara's risk manager as a witness, the Commonwealth called Sentara's custodian of records. She testified that the account numbers used in connection with patient visits to Sentara hospitals actually comprise two different numbers with distinct meanings. The longer number is specific to each patient, and is never reused for a different patient. Every patient receives such a number, even if they do not receive treatment, and even if they leave the hospital against medical advice. The shorter number is "encounter specific" and corresponds to a date.5 The custodian of records testified that the "encounter specific" number on the letter Winder introduced did correspond to February 6, 2013. As to the patient number on that letter, although it corresponded to an actual Sentara patient, it was a different patient, not Winder. The custodian of records searched Sentara's records for any records related to Winder. She found that Winder had been to a Sentara Hospital twice. Neither visit was in 2013, and no record showed that Winder had ever been a patient at Sentara Leigh Hospital. Like the risk manager, the custodian of records could not say that the letter Winder offered into evidence was a forgery. She testified that the name at the bottom of the letter was a real employee of Sentara, as far as she knew, and that the substance of the letter, addressing insurance coverage, was not irregular.
The circuit court ultimately denied Winder's motion to dismiss on collateral estoppel grounds, and convicted him of both perjury charges. The circuit court sentenced Winder to fouryears in the penitentiary on each charge, for a total of eight years, and suspended all but six months of each charge. Winder then noted this appeal.
In his first assignment of error, Winder asserts that the circuit court erred in denying his collateral estoppel motion. We review de novo the applicability of collateral estoppel, though we remain "bound by the underlying factual issues as determined by the fact finder unless they are plainly wrong or unsupported by the evidence." Commonwealth v. Davis, 290 Va. 362, 368-69, 777 S.E.2d 555, 558 (2015) (quoting Loudoun Hosp. Ctr. v. Stroube, 50 Va. App. 478, 493, 650 S.E.2d 879, 887 (2007)).
"The principle of collateral estoppel 'means simply that when 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.'" Id. (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). "The party seeking the protection of collateral estoppel carries the burden of showing that the verdict in the prior action necessarily decided the precise issue he seeks to now preclude." Rogers v. Commonwealth, 5 Va. App. 337, 341, 362 S.E.2d 752, 754 (1987). In the criminal context, "[c]ollateral estoppel only bars the Commonwealth 'from introducing evidence to prove an offense for which a defendant has been previously acquitted.'" Painter v. Commonwealth, 47 Va. App. 225, 236, 623 S.E.2d 408, 413 (2005) (quoting Simon v. Commonwealth, 220 Va. 412, 417, 258 S.E.2d 567, 571 (1979)). But "[a]n acquittal, 'standing alone, does not permit a conclusion with respect' to a court's findings or rationale," Ramadan v. Commonwealth, 28 Va. App. 708, 714, 508 S.E.2d 357, 360 (1998) (quoting Copeland v.Commonwealth, 13 Va. App. 450, 453, 412 S.E.2d 468, 470 (1991)), because collateral estoppel only applies "when the defendant's prior acquittal necessarily resolved a factual issue that the Commonwealth seeks to litigate again in a subsequent proceeding," Commonwealth v. Leonard, 294 Va. 233, 239, 805 S.E.2d 245, 249 (2017). Thus, 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).
[T]he rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this 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 ). In Whitley v. Commonwealth, 260 Va. 482, 538 S.E.2d 296 (2000), the Supreme Court listed four requirements for the application of collateral estoppel:
(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.
Id. at 489, 538 S.E.2d at 299.
On brief Winder argues that, by dismissing his failure to appear charge, the circuit court "by definition found that Mr. Winder had not lied regarding his whereabouts on February 6, 2013." We disagree. "[T]he acquittal of one charged with a crime is no bar to a...
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