Virginia Lawyers Weekly VA Lawyers Weekly
Where two witnesses allegedly perjured themselves by changing their prior statements and providing favorable testimony to the defendant at his trial, and the defendant had written letters from jail describing his plan to convince two unidentified witnesses to provide favorable testimony at his trial, the defendant was not guilty of suborning perjury because the letters were never received by the witnesses.
Background
On Nov. 18, 2013, Karen Hunter and Tameshia Dennis heard gunshots in the middle of the night. The next morning, they discovered bullet holes inside their residence.
Tyvon Lyncurtis Smith was charged with the shooting and a jury trial was held on July 22, 2014. Two of the government’s witnesses, Raquelle Johnson and Tyneisha Purnell, had implicated Smith before trial, but when they were called at trial, they testified that they could not recall the incident. As a result, the indictments against Smith were dismissed.
Smith was subsequently indicted for suborning perjury with respect to the trial. The same indictment also charged him with aiding, counseling, or procuring another to commit arson and participating in a criminal street gang predicate act of violence. At his trial, the government submitted letters Smith wrote while he was held in jail prior to the 2014 trial. In two letters, Smith described a plan to encourage two unidentified individuals to stop cooperating with the prosecution and to provide him with favorable testimony on the day of his 2014 criminal trial. In another letter, Smith encouraged the recipient to set fire to the home of two unidentified individuals. All of the letters were intercepted by law enforcement and never reached the intended recipients.
The government also called Accomack County Sheriff’s Deputy Levi Higgins and Sergeant Elliot Anderson, a gang activities expert for the Virginia State Police, to testify. Higgins testified that he heard Smith making a bird call from his jail cell that Anderson identified as a call used by certain gang members. In addition, Anderson identified various gang symbols in materials written by Smith.
Smith was found guilty of all charges and this appeal followed.
Analysis
The only evidence relied on to show that Smith procured or induced the allegedly false testimony given by Johnson and Purnell at the July 2014 trial was the letters Smith wrote discussing his plan to encourage two unidentified witnesses to provide him with favorable testimony. However, it is uncontroverted that these letters were intercepted at the jail and were never received by Johnson or Purnell. As such, there is no causal connection between the letters and their alleged perjury and there is no evidence to show that Smith prevailed upon the witnesses to perjure themselves.
While Smith acknowledges that he did not preserve his argument that the evidence was insufficient to convict him of arson because the prosecution failed to prove a fire was ever set, he asks that the argument be considered pursuant to the ends of justice exception. This requires Smith demonstrate that he was convicted for conduct that was not a criminal offense or the record must affirmatively prove that an element of the offense did not occur. Smith has met this burden.
The sole evidence that Smith aided, counseled or procured another to commit arson is a letter Smith wrote from jail directing the intended recipient to set fire to the residence of two unidentified individuals. However, as this letter was confiscated before it was mailed and was never communicated to the intended recipient, Smith could not have aided, counseled or procured the intended recipient to commit arson. Under these circumstances, the record affirmatively showed that an element of the offense did not occur.
Smith has likewise demonstrated that the evidence was insufficient to convict him of participating in a criminal street gang predicate act of violence because the government failed to prove a predicate act of violence. While arson is an enumerated offense that constitutes predicate act of violence under the statute, solicitation of an enumerated offense does not serve as a predicate act of violence. As such, the evidence affirmatively showed that Smith was convicted of a non-offense and, despite his failure to preserve this argument at trial, the ends of justice exception applies and his conviction must be overturned.
Reversed and dismissed.
Smith v. Commonwealth of Virginia, Record No. 0099-18-1, May 14, 2019. CAV (Frank), from Accomack Cir. Ct. (Hanson). Paul C. Galanides for Appellant; Liam A. Curry for Appellee. VLW 019-7-089. 9 pp. Unpublished.
