Michael Eugene Donati v. Commonwealth of Virginia , 37 Va. App. 575 ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Alexandria, Virginia
MICHAEL EUGENE DONATI
OPINION BY
v. Record No. 2127-00-4 JUDGE SAM W. COLEMAN III
MARCH 5, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge
James G. Connell, III (Devine & Connell,
P.L.C., on briefs), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Michael Eugene Donati appeals his jury trial conviction for
perjury. He contends the trial court erred by denying his motion
to strike the evidence as insufficient to prove perjury in
violation of Code § 18.2-434. He argues the Commonwealth failed
to prove falsity by two witnesses, or one witness supported by
significant corroborating evidence, as required by case law,
citing Schwartz v. Commonwealth, 68 Va. (27 Gratt.) 1025 (1876).
For the reasons that follow, we disagree and affirm his
conviction.
BACKGROUND
On November 18, 1999, during a hearing in the Fairfax Circuit
Court to revoke Donati's probation, the Commonwealth introduced
into evidence a videotape purporting to show Donati exposing
himself and masturbating in a public building in Bethesda,
Maryland. Security cameras in the building had recorded Donati's
activities on videotape. The videotapes were introduced to prove
that Donati had violated the terms and conditions of his probation
by exposing himself in public in violation of the conditions that
he be of good behavior and not violate the law. At the revocation
hearing, Donati admitted he was the man depicted on the videotape
but denied that the acts shown on the video were of him exposing
himself or masturbating. As a result of those denials by Donati
at the revocation hearing while under oath, the Commonwealth
charged Donati with perjury.
Viewing the evidence in the light most favorable to the
Commonwealth, Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,
407 S.E.2d 47, 48 (1991), it proved that on June 22, 1999,
Detective Herbert C. Kahala observed Donati enter a business
building at 4815 Rugby Avenue in Bethesda, Maryland, wearing a
white tank top, gym shorts, and white tennis shoes. Donati
remained in the building for fifteen to twenty minutes.
Surveillance tapes from the security system in the building
depicted Donati in a hallway with his penis exposed in a visibly
aroused state, masturbating. The Commonwealth also introduced
still photographs of Donati produced from the videotape.
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ANALYSIS
Since at least 1840, the Commonwealth
appears to have had in force a statutory
definition of the crime of perjury. See
Commonwealth v. Stockley, 37 Va. (10 Leigh)
712, 718 (1840). From that time to the
present, the Code has provided, in effect,
that "[i]f any person to whom an oath is
lawfully administered on any occasion
willfully swear falsely on such occasion
touching any Material matter or thing, . . .
he shall be guilty of perjury." See Code
§ 18.2-434. While the Code has never
expressly required corroboration to sustain
a perjury conviction, from an early date,
our courts have imposed a corroboration
requirement.
Keffer v. Commonwealth, 12 Va. App. 545, 547, 404 S.E.2d 745,
746 (1991) (footnote omitted). The corroborating evidence rule
"is founded upon the idea that it is unsafe to convict in any
case where the oath of one man merely is to be weighed against
that of another." Schwartz, 68 Va. (27 Gratt.) at 1027; accord
Stewart v. Commonwealth, 22 Va. App. 117, 120, 468 S.E.2d 126,
127 (1996); Keffer, 12 Va. App. at 548, 404 S.E.2d at 747.
"'[W]hen there is witness against witness, oath against oath,
there must be other evidence to satisfy the mind.'" Keffer, 12
Va. App. at 548, 404 S.E.2d at 747 (quoting Swartz, 68 Va. (27
Gratt.) at 1027). "The purpose of requiring corroborating
evidence is to 'confirm the single witness' testimony . . . .'"
Stewart, 22 Va. App. at 120, 468 S.E.2d at 127 (quoting 7
Wigmore on Evidence § 2042, at 364 (Chadbourn ed. 1978). In
Keffer we emphasized that the corroborating evidence rule of
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"Schwartz remains in effect . . . in the event the case is
supported by the testimony of only one witness." Keffer, 12 Va.
App. At 549, 404 S.E.2d at 747.
We find that the rule enunciated in Schwartz and its
progeny is inapplicable in light of the facts of the case before
us. This case does not involve the weighing of competing oaths
and is not supported by the testimony of only one witness,
circumstances which the Schwartz rule addresses. Instead,
Donati's denials under oath that he exposed himself and
masturbated in public, acts which constituted the basis of the
perjury charge, were contradicted by the video recording of his
actions. Thus, the jury weighed Donati's oath against
competent, authenticated, real evidence, consisting of a
videotape and photographs of the acts in which Donati denied
being engaged. As such, the concerns of oath against oath or
one witness testifying contrary to the defendant, which were
raised in Schwartz, are not at issue here. 1
"The credibility of the witnesses and the weight accorded
the evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995). The jury accepted the account of what was depicted
1
We do not in our ruling today overturn or modify Schwartz
and its progeny in any way. We find simply that those cases are
inapplicable.
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on the videotape and found that Donati falsely testified at the
revocation hearing when he denied that he exposed himself and
masturbated.
To support Donati's conviction, "[a]ll that was required to
be proven was that appellant, being duly under oath, willfully
swore falsely to material facts." Sheard v. Commonwealth, 12
Va. App. 227, 233, 403 S.E.2d 178, 181 (1991). The Commonwealth
introduced a properly authenticated videotape depicting Donati
exposing his penis and masturbating. The Commonwealth also
presented evidence that, under oath, Donati claimed he did not
engage in that activity. "Videotapes, like photographs, when
properly authenticated, may be admitted . . . 'as "mute,"
"silent," or "dumb" independent photographic witnesses.'"
Brooks v. Commonwealth, 15 Va. App. 407, 410, 424 S.E.2d 566,
569 (1992) (citation omitted).
[E]ven though no human is capable of
swearing that he personally perceived what a
photograph [or videotape] purports to
portray . . . there may nevertheless be good
warrant for receiving [it] in evidence.
Given an adequate foundation assuring the
accuracy of the process producing it, the
photograph [or videotape] should then be
received as a so-called silent witness or as
a witness which "speaks for itself."
Id. (citations omitted). In this case, the videotape speaks for
itself and proved that Donati testified falsely under oath. The
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evidence is sufficient, as a matter of law, to support Donati's
conviction for perjury.
Affirmed.
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Benton, J., dissenting.
The majority apparently believes that as a policy matter a
video recording is to be deemed more credible, as a matter of
law, than the testimony of the most reliable and credible human
witness. Consequently, it has found inapplicable the long
standing rule in Schwartz v. Commonwealth, 68 Va. (27 Gratt.)
1025 (1876), requiring corroborating evidence to prove perjury.
"If [Schwartz] is to be overruled, . . . it must be expressly
overruled by the Supreme Court." Bostic v. Commonwealth, 31 Va.
App. 632, 636, 525 S.E.2d 67, 68 (2000). Because we are
"constrained by our previous decisions and those of the Supreme
Court," id. at 635, 525 S.E.2d at 68, I would apply the Schwartz
rule, which is clearly stated and is contrary to the majority's
holding. Therefore, I dissent.
"The common law crime of perjury is codified at Code
§ 18.2-434." Williams v. Commonwealth, 8 Va. App. 336, 339, 381
S.E.2d 361, 364 (1989). For over a century, the Supreme Court
of Virginia has recognized the following principle applicable to
that crime:
No rule is perhaps better settled than that
to authorize a conviction of perjury there
must be two witnesses testifying to the
falsity of the statement, or one witness
with strong corroborating circumstances of
such a character as clearly to turn the
scale and overcome the oath of the party and
the legal presumption of his innocence.
This rule is founded upon the idea that it
is unsafe to convict in any case where the
oath of one man merely is to be weighed
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against that of another. . . . [T]he
confirmatory evidence however must be of a
strong character, and not merely
corroborative in slight particulars.
Schwartz, 68 Va. (27 Gratt.) at 1027. Elaborating further, the
Court explained that "[w]hen we speak of corroborative evidence,
we . . . mean . . . evidence aliunde, evidence which tends to
show the perjury independently." Id. at 1032. Indeed, we
recently applied the rule and reiterated its unambiguous command
as follows:
We hold that the law as stated in Schwartz
remains in effect and a perjury conviction
under Code § 18.2-434 requires proof of
falsity from the testimony of at least two
witnesses or other corroborating evidence of
falsity in the event the case is supported
by the testimony of only one witness.
Keffer v. Commonwealth, 12 Va. App. 545, 549, 404 S.E.2d 745,
747 (1991) (emphasis added).
The Commonwealth sought to prove that Michael Donati
committed perjury when he denied masturbating inside a building.
In its case-in-chief, the Commonwealth offered as evidence a
video, which depicted Donati inside the building. The
photographs, which the majority identifies as part of the "real
evidence," were derived from the video recording and, thus,
constitute the same evidence as the video. The photographs were
not independently generated by a still camera that captured
Donati's images. "Videotapes, like photographs, when properly
authenticated, may be admitted under either of two theories:
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'(1) to illustrate the testimony of a witness, and (2) as
"mute," "silent," or "dumb" independent photographic
witnesses.'" Brooks v. Commonwealth, 15 Va. App. 407, 410, 424
S.E.2d 566, 569 (1992) (citations omitted).
In this case, however, no witness testified concerning the
events depicted on the video recording. The video recording
obviously was admitted into evidence as a "'"mute," "silent," or
"dumb" independent photographic'" witness. Id. The video
recording and the photographs, which were derived from images on
the video recording, merely provided depictions of physical
facts that presented a jury question. See Carner, Adm'r v.
Hendrix, 205 Va. 24, 26, 135 S.E.2d 113, 115 (1964); Wilson v.
Commonwealth, 29 Va. App. 236, 240, 511 S.E.2d 426, 428 (1999).
The law does not conclusively presume a fact merely because the
Commonwealth alleges that a video recording or photograph
depicts such a fact.
At the conclusion of the evidence, the trial judge
instructed the jury that "[t]he Commonwealth must establish the
falsity of the statement under oath by two or more witnesses, or
by one witness whose testimony is corroborated by circumstances
inconsistent with the innocence of . . . Donati and directly
intended to support the testimony of the accusing witness."
This instruction has its genesis in Schwartz, 68 Va. (27 Gratt.)
at 1027, a rule of Virginia law that is more than a century old.
Giving little deference to this rule, the majority essentially
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eviscerates it, noting merely that the Commonwealth's proof in
this case was "real evidence, consisting of a videotape and
photographs." Upon that premise, solely, the majority holds
that because the jury did not have to decide between competing
oaths of a witness and the defendant, the "corroborating
evidence" rule is inapplicable.
This case presents no reason to deviate from the Schwartz
rule. Even if we assume (1) that the video recording is
evidence having the dignity of a witness under oath and (2) that
the jury found the video recording to be credible evidence from
a "witness" that Donati's testimony at the revocation proceeding
was false, the issue remains, under the Schwartz rule, whether
the Commonwealth proved "other corroborating evidence of
falsity." Keffer, 12 Va. App. at 549, 404 S.E.2d at 747. See
also Schwartz, 68 Va. (27 Gratt.) at 1032 (holding that
corroborating evidence means "evidence aliunde, evidence which
tends to show the perjury independently"). The only other
evidence that remotely bears on this issue was the detective's
testimony that he saw Donati enter the building and later leave
it. The fact that Donati was in the building was undisputed.
The detective's testimony does not tend to prove in any manner
what Donati did inside the building, which is the subject of
Donati's testimony that the Commonwealth alleges to be perjury.
Under the common law, perjury has always been difficult to
prove because of this stringent proof requirement. Citing "the
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two-witness rule, under which 'the uncorroborated oath of one
witness is not enough to establish the falsity of the testimony
of the accused,'" Dunn v. United States, 442 U.S. 100, 108 n.6
(1979) (citation omitted), the United States Supreme Court noted
that "the strict common law requirements for establishing
falsity . . . often [makes] prosecution for false statements
exceptionally difficult." Id. at 108.
As Wigmore notes, "there may be reasons of policy, founded
on experience . . . , sufficient to justify [the rule's]
maintenance." 7 Wigmore on Evidence § 2041, at 361 (Chadbourn
ed. 1978). "[W]hen we consider the very peculiar nature of this
offense, and that every person who appears as a witness in a
court of justice is liable to be accused of it by those against
whom his evidence tells, . . . we shall see that the obligation
of protecting witnesses from oppression, or annoyance, by
charges, or threats of charges of having borne false testimony,
is far paramount to that of giving even perjury its deserts."
Id. (citation omitted). "The rule may originally have stemmed
from quite different reasoning, but implicit in its evolution
and continued vitality has been the fear that the innocent
witnesses might be unduly harassed or convicted in perjury
prosecutions if a less stringent rule were adopted." Weiler v.
United States, 323 U.S. 606, 609 (1945). I believe that this
common law rule, which is long standing in Virginia, cannot be
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discarded merely upon a conclusion that Schwartz and similar
"cases are simply inapplicable" to the facts of this case.
For these reasons, I would hold that the Commonwealth
failed to introduce corroborating evidence of the videotape and,
for that reason, under Schwartz, the evidence was insufficient
to prove beyond a reasonable doubt perjury. I would reverse the
conviction.
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