Waldrop v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia

JOHN A. WALDROP, JR.
OPINION BY
v. Record No. 1343-95-2 JUDGE LARRY G. ELDER
DECEMBER 17, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
James M. Lumpkin, Judge Designate

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

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

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 § 24.1-247.2(C)

1
The Fair Elections Practices Act was amended and
recodified in 1993 and is now called the Campaign Finance
Disclosure Act. Code § 24.2-900, et seq. (1993, Supp. 1996);
1993 Va. Acts 812, 872.

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(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
2
Appellant was tried and acquitted on a third count of
perjury regarding a check received in September, 1991.

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 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 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.

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.

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
3
Mr. Morchower was appellant's lead counsel at trial.

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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.

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 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 case, the

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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 v. Corleo, 576

F.2d 846, 850 (10th Cir. 1978), cert. denied, 439 U.S. 850, 99

S. Ct. 153, 58 L.E.2d 152 (1978). One factor of particular

concern in pre-testimony comments is whether the Commonwealth's

attorney challenged the jury to observe whether or not the

accused testified. Pierce, 231 Neb. at 978, 439 N.W.2d at 444

(citing Coleman v. The State, 111 Ind. 563, 566, 13 N.E. 100, 101

(1887)).

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

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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.

In addition, the character of the statement was such that

the jury would have understood it as a comment on the

Commonwealth's case and the issues involved and not as a comment

on whether appellant would testify. The Commonwealth's attorney

stated that appellant had no obligation to disclose his "point of

view" and that he was in no position to comment on the substance

of appellant's defense. He then stated that he "suspected"

appellant would assert as a defense that the false statement on

his report was not willful because it resulted from an

inadvertent bookkeeping error. These statements were a comment

on the nature of the Commonwealth's evidence offered to prove the

"willfulness" element of its case rather than comments on the

meaning of appellant's subsequent decision whether to testify.

We find no indication in the record that the purpose or effect of

the Commonwealth's attorney's comment was to coerce appellant to

testify. The statement neither raised the expectation in the

jury's mind that appellant would testify nor challenged the jury

to notice and possibly draw an inference from whether or not

appellant testified.

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 III.
CAMPAIGN CONTRIBUTIONS UNDER THE

FAIR ELECTIONS PRACTICES ACT

Appellant was convicted under Code § 24.1-279, a statute

that expanded the crime of perjury under Code § 18.2-434 to

include willfully false statements made while under oath in

reports required by Virginia election laws. 4 Appellant's perjury

conviction was based on his omission of Mr. Graham's and E.

Carlton Wilton's checks from a report requiring the disclosure of

all contributions to his campaign. That report was signified as

"true, correct and complete." Appellant contends that the

evidence fails as a matter of law to prove a violation of the Act

because money given to defray the cost of a recount proceeding is

not a contribution within the meaning of the reporting

requirements. Appellant argues that recount money is not a

"campaign" contribution because a person defending a recount

proceeding is no longer a "candidate" and because a recount

proceeding is not an "election." We disagree.
We hold that money received after an election that is

intended to defray the expenses of a recount proceeding was a

4
In 1991, Code § 24.1-279 stated:

Any wilfully false, fraudulent, or misleading statement
or entry made by any person in any statement or account
under oath required by this title shall constitute the
crime of perjury, and be punishable as such according
to the laws of this Commonwealth.

(1985) (amended and recodified at Code § 24.2-1016 (1993)).

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"contribution" under the 1991 version of the Act. 5 In 1991, the

Act required candidates for local office to periodically file

reports with the local electoral board listing all contributions

and expenditures. Code §§ 24.1-257.2(C), -258 (Supp. 1991).

Regarding contributions, the Act required candidates to report

every collection or receipt of "money, services or other things

of value over $100 in relation to his candidacy." Code

§ 24.1-255(B) (Supp. 1991). 6
We hold that recount money in excess of $100 was a

contribution under the Act in 1991 because it was money received

by a candidate "in relation to his candidacy." Under Virginia

election law, a recount proceeding is literally an extension of

the election process. The Act defined a candidate as "any person

who seeks or campaigns for any office of the Commonwealth or any

of its governmental units in a primary, general, or special

election by the people." Code § 24.1-1(2) (Supp. 1991). A

candidate is elected when the local electoral board determines

which person received the highest number of votes and the

secretary issues a certificate of election. Code §§ 24.1-146

5
Code § 24.1-251-263.1 (1985, Supp. 1991). See supra
note 1.
6
The relevant part of Code § 24.1-255(B) stated:

It shall be unlawful for any candidate, or anyone . . .
collecting, receiving . . . money, services or other
things of value over $100 in relation to his candidacy,
to fail to report every such collection, receipt . . .
as required herein and in this chapter.

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(Supp. 1991), -148 (1985), -151 (1985). However, in close races,

the losing candidate may appeal the determination of the

electoral board by filing a petition for a recount in circuit

court. Code §§ 24.1-148 (1985), -249(B) (1985). Following the

court-supervised recount, the circuit court declares the final

winner of the election. Code § 24.1-250(C), (G) (1985). Thus,

the recount is a necessary and integral part of the election. A

person defending a recount is a candidate because he or she is

still "seeking" election. Code § 24.1-1(2). Because a recount

proceeding is directly related to a person's candidacy, recount

money in excess of $100 given to a candidate following election

day is a "contribution" under the Act. Therefore, we hold that

money received to defend a recount is a contribution made to a

candidate in relation to his candidacy.
IV.

UNDER OATH

Appellant contends that the evidence at trial was

insufficient to prove that he was under oath when he signed his

report. We disagree.

When considering the sufficiency of the evidence on appeal

to support a criminal conviction, this Court views the evidence

in the light most favorable to the Commonwealth. Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On

review, this Court does not substitute its judgment for that of

the trier of fact. Cable v. Commonwealth, 243 Va. 236, 239, 415

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S.E.2d 218, 220 (1992). Instead, the jury's verdict will not be

set aside unless it appears that it is plainly wrong or without

supporting evidence. Code § 8.01-680; Traverso v. Commonwealth,

6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).

In a prosecution under Code § 24.1-279, the Commonwealth had

the burden of proving that appellant was "under oath," which in

1991 entailed swearing or affirming the oath printed on the

report before a notary public. Relying on Mendez v.
Commonwealth, appellant contends that his perjury conviction

cannot be sustained because the evidence failed to prove that he

and the notary strictly complied with the formal requirements of

an administered oath. 220 Va. 97, 225 S.E.2d 533 (1979). We

disagree.

We agree with appellant that Code § 24.1-279 required an

administered oath; 7 however, appellant misstates both the holding

of Mendez and the law regarding the requirements of the oath

element in a perjury prosecution. In Mendez, the defendant

agreed to make an affidavit stating that he had never possessed

marijuana as a condition of receiving a polygraph examination

regarding a pending charge for possession of the drug. Id. at
7
In 1993, the General Assembly amended and recodified this
section to eliminate the requirement of an administered oath.
Code § 24.2-1016. See Virginia Code Comm'n, Report on the
Recodification of Title 21 of the Code of Virginia 166, Sen.
Doc. 25, (1993). In its present form, this section punishes any
willfully false material statement made on a campaign finance
report. Id. In addition, the General Assembly changed the
offense punished under this section from perjury to election
fraud. Id.

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101, S.E.2d at 535. Although the affidavit was voluntarily given

and was not required by law, it was signed and acknowledged

before a general district court clerk. Id. The defendant was

convicted of perjury after he "failed" his polygraph test. Id.

at 101-02, S.E.2d at 535. The Virginia Supreme Court reversed

the conviction, holding that the oath taken by the defendant was

not "lawfully" administered because it was a gratuitous oath that

was beyond the statutory authority of the general district court

clerk to administer. Id. at 102, S.E.2d at 535.

Although Mendez stands for the proposition that a person

commits perjury only if the oath he or she breached was

acknowledged before a person with the legal authority to

administer the oath, it says nothing about the form the oath must

take. Instead, in a prosecution for perjury, no particular form

of oath is necessary, and an oath is "sufficient to form the

basis of a charge of perjury when there is some form of

unequivocal and present act, in the presence of an officer

authorized to administer the oath, whereby the [accused]
8
consciously takes on himself the obligation of the oath." 60A

Am. Jur. 2d Perjury § 10 (1988); see also 70 C.J.S. Perjury § 27

(1987). Proof that a written oath was signed and acknowledged

before a notary public is sufficient to prove that a person

8
Contrary to the assertion of appellant in his brief, the
jury instruction given by the trial court regarding the oath
element followed this language and was a correct statement of the
law.

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swears under penalty of perjury to the truth of his campaign

report. Moreover, the evidence is sufficient to prove that

appellant knew the content of the oath he signed.

Appellant was a veteran of five election campaigns and was

familiar with the procedures required under Virginia election

law. Prior to the report in question, he had previously signed

and filed reports in both the 1991 election and the 1987 election

that were notarized by the same notary public. This notary

public testified that during the election in 1987 he asked

appellant if he had read the affirmation before he signed it "the

first couple of times" he notarized a report. Although the

notary did not verbally administer an oath to appellant when he

signed his report of January 15, 1992, evidence proves that

appellant was aware when he signed the oath that he was swearing

and affirming the correctness and completeness of his report

"under penalty of perjury" and that he consciously undertook this

obligation when he signed the document in the presence of this

notary.
V.

WILLFULNESS

We also disagree with appellant's contention that the

evidence was not sufficient to prove that the omission and

misstatement on his report were willfully made. In a prosecution

for perjury, the Commonwealth must prove beyond a reasonable

doubt that the accused willfully swore falsely. Holz v.

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Commonwealth, 220 Va. 876, 880, 263 S.E.2d 426, 428 (1980). When

used in a criminal statute, "willfully" ordinarily means

"designedly, intentionally or perversely." Lambert v.

Commonwealth, 6 Va. App. 360, 363, 367 S.E.2d 745, 746 (1988).

Willfulness may be proved by circumstantial evidence. Id.

However, an allegedly perjurious statement "will not sustain a

charge of perjury when . . . the accused swears to the statement

in reliance on his attorney's advice and in the belief that his

attorney has correctly advised him as a matter of law."
60A Am. Jur. 2d Perjury § 114.

We hold that the evidence was sufficient to prove that

appellant willfully filed his false report. The Commonwealth's

evidence proved that appellant, an experienced candidate familiar

with the reporting mandates of Virginia election law, received

money following the November election that was intended to defray

the cost of the recount proceeding and then failed to include

this money in his report of contributions that he signed under

oath. From these circumstances, a reasonable juror could infer

that appellant intentionally did not disclose this money as a

contribution in his report and willfully swore falsely that his

report was complete.

Appellant argues that the evidence is insufficient because

he testified that his omission of the recount money from his

report was based on the legal advice of his attorney that recount

money was not a contribution within the meaning of the reporting

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requirements. Appellant testified that he acted on this legal

advice when he deposited the checks from Mr. Graham and E.

Carlton Wilton into his personal account in December, 1991.

However, appellant also testified that during a conference call

with the secretary of the State Board of Elections that occurred

between December 25, 1991 and mid-January, 1992 he learned that

he was required to include recount money in his report.

Appellant filed his report under oath on January 15, 1992 and his

report listed as a contribution the check he received from Henry

Wilton on December 19. Based on these facts, a reasonable fact

finder could conclude that appellant was not relying on the legal

advice of his attorney when he signed his report in mid-January,

1992 and that he willfully misstated that his report was "true,

correct and complete."
In light of the foregoing reasons, we affirm the conviction

of two counts of perjury.

Affirmed.

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