Steven Christopher Sevachko v. Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Annunziata, Bumgardner, Frank, Humphreys, Clements and
Senior Judge Coleman ∗
Argued at Richmond, Virginia
STEVEN CHRISTOPHER SEVACHKO
OPINION BY
v. Record No. 2513-98-2 JUDGE SAM W. COLEMAN III
APRIL 24, 2001
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
James M. Lumpkin, Judge Designate
Edmund R. Michie for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Steven Christopher Sevachko was convicted by a jury of
perjury, in violation of Code § 18.2-434. The basis for the
perjury conviction was that Sevachko had testified falsely under
oath at his trial for driving on a suspended license when he
testified that he had not been driving. The Commonwealth
attempted to prove that Sevachko had testified falsely about not
driving by proving through the arresting officer that Sevachko
∗
Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
was, in fact, driving at the time -- a fact the Commonwealth had
previously attempted to prove through the officer's testimony in
Sevachko's trial for driving on a suspended license.
A panel of this Court unanimously reversed the perjury
conviction, holding that the Commonwealth was collaterally
estopped from relitigating whether Sevachko was in fact driving.
The panel, however, was divided upon the question whether the
prosecution should be dismissed or remanded for further
proceedings. See Sevachko v. Commonwealth, 32 Va. App. 561, 529
S.E.2d 803 (2000). We granted rehearing en banc to resolve that
question.
Sevachko argues that the doctrine of collateral estoppel not
only precludes the Commonwealth, in the perjury prosecution, from
proving the underlying controverted fact from the original
prosecution that he was driving a motor vehicle on a particular
date, but also precludes the perjury prosecution altogether. Upon
rehearing en banc, we hold that the Commonwealth was collaterally
estopped from proving in the perjury prosecution that Sevachko
drove his motor vehicle on the date in question. Therefore,
because the Commonwealth introduced evidence to that effect and
undertook to relitigate that fact in the perjury prosecution, we
reverse the perjury conviction. However, because the Commonwealth
is not collaterally estopped from proving that Sevachko perjured
himself in the prior proceeding as to a material fact by proving
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facts other than that he was driving on the date in question, we
remand the case to the trial court for such further proceedings as
the Commonwealth may be advised.
Additionally, Sevachko argues that the trial court erred in
the perjury prosecution by admitting the testimony of his former
attorney, who represented him in the driving on a suspended
license case. Sevachko contends that allowing his former attorney
to testify about statements he had made to the attorney during the
course of the attorney's representation of him in the prior
proceeding violated the attorney-client privilege and, thus, was
inadmissible. Because this issue is likely to arise again on
remand if the Commonwealth elects to pursue the prosecution, we
address that question.
I. BACKGROUND
Sevachko was charged with having driven on a suspended
license. The general district court appointed an attorney to
represent Sevachko. Prior to trial, the attorney informed the
trial court that she was confronted with a "dilemma," and the
trial court permitted her to withdraw. Sevachko, who had a second
attorney appointed to represent him, was subsequently found not
guilty of the driving on suspended license charge after testifying
that he had not been driving on the date alleged.
Several months before Sevachko's driving on a suspended
license trial, his first court-appointed attorney became
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employed with the Albemarle County Commonwealth's Attorney's
Office, the same office that was prosecuting the driving on a
suspended license case against Sevachko. Following Sevachko's
acquittal of those charges, the first court-appointed attorney
heard the case being discussed in the office. She made "an
extemporaneous statement to [her] boss" that Sevachko "was a
former client of mine, I remember that case, he told me that he
was going to say he wasn't driving." Sevachko's former
court-appointed attorney and the Commonwealth's Attorney then
consulted the Code of Professional Responsibility and concluded
that the Code required the attorney to disclose to the circuit
court what had occurred. The attorney filed a report with the
Charlottesville Police Department and the City of
Charlottesville Commonwealth's Attorney's Office and, as a
result, the Commonwealth's Attorney indicted Sevachko for
perjury.
At the perjury trial, Sevachko's former court-appointed
attorney testified voluntarily for the Commonwealth and did not
assert the attorney-client privilege on behalf of her client.
Sevachko objected to her testifying on the ground that his
confidential discussions with his attorney were protected by the
attorney-client privilege. The trial court ruled that the
privilege did not apply to protect a fraud that had been
perpetrated on the court. The former attorney testified that,
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during the course of her representation of Sevachko for the
driving on a suspended license charge, Sevachko admitted he was
driving. She advised Sevachko to plead guilty based on his
admission. She testified that Sevachko then stated, "What will
happen if I say I wasn't driving." She advised Sevachko that
the statement would be perjury and that if he persisted in that
defense, she would seek leave to withdraw as his counsel. She
testified that Sevachko said he was going to testify that he was
not driving. The attorney then sought, and was granted, leave
to withdraw.
II. ANALYSIS
A. Collateral Estoppel
We first consider whether the doctrine of collateral
estoppel precluded the perjury prosecution or merely precluded
the Commonwealth from proving that Sevachko was driving on the
date in question.
Collateral estoppel is a doctrine of fact preclusion that
is "embodied in the fifth amendment protection against double
jeopardy." Simon v. Commonwealth, 220 Va. 412, 415, 258 S.E.2d
567, 569 (1979). "[W]hen 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." Ashe v. Swenson, 397 U.S. 436, 443 (1970). The
doctrine does not, however, operate to preclude a party from
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proving the elements of a cause of action or offense by other
evidence independent of the fact which the party is collaterally
estopped from proving. See Simon, 220 Va. at 419, 258 S.E.2d at
572. Only where proof of the estopped fact is essential to
proving an element of the newly charged offense or cause of
action does the doctrine of collateral estoppel also preclude
proof of an essential element of the other offense, thereby
foreclosing a prosecution for the other offense. See Ashe, 397
U.S. at 445–47 (holding that the state was collaterally estopped
from proving that the defendant was the robber in the subsequent
proceedings because the state failed to prove, in the first of a
series of prosecutions, that the defendant was the robber, and
proof of that fact was necessary and essential to prove the
subsequent robberies). "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 trial for driving on a suspended license, the fact
about which Sevachko allegedly testified falsely was that he was
not driving on the offense date. The dissenters reason that any
evidence which proved that Sevachko testified falsely as to that
fact must necessarily prove, at least by implication, that he
was driving on the offense date -- the very fact the
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Commonwealth is estopped from relitigating. However, that
reasoning by the dissenters would preclude every perjury
prosecution against a former defendant who was acquitted and who
testified falsely about an element of the Commonwealth's case.
That application of the doctrine of collateral estoppel would,
on the other hand, not preclude a perjury prosecution against a
defendant who had testified falsely but had been convicted. The
doctrine of collateral estoppel is neither that restrictive nor
should it be applied in a manner to reach such an anomalous
result.
Here, proof that Sevachko was driving on the date of the
charged offense was not a necessary and essential element to
prove the perjury offense. Whether Sevachko testified falsely
about driving was the essential element of the perjury
prosecution and that fact could have been proven by evidence
other than proof that Sevachko was, in fact, driving. While the
Commonwealth was estopped from proving in the perjury
prosecution the fact that Sevachko was driving, the Commonwealth
was not precluded from proving by other means that he perjured
himself, such as by discrediting his alibi that he was having
his car repaired, by an admission from him that he had perjured
himself, or perhaps by evidence that he admitted to others after
the fact that he had testified falsely. Even though the fact
finder may, in such situations, coincidentally or necessarily
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conclude that Sevachko was driving when the Commonwealth proved
that he testified falsely, the Commonwealth does not violate the
constitutionally based collateral estoppel bar by proving, by
such other evidence, that Sevachko implicitly lied when he
testified that he was not driving. Therefore, the bar created
by the collateral estoppel doctrine in this case is that the
Commonwealth cannot, as it did here, prove Sevachko perjured
himself by relitigating and proving that he was, in fact,
driving. See United States v. Carter, 60 F.3d 1532 (11th Cir.
1995); United States v. Haines, 485 F.2d 564 (7th Cir. 1973);
Adams v. United States, 287 F.2d 701 (5th Cir. 1961); State v.
Hutchins, 746 A.2d 447 (N.H. 2000); People v. Briddle, 405
N.E.2d 1357 (Ill. App. Ct. 1980).
At trial, the Commonwealth introduced Officer A.J. Gluba's
testimony that Sevachko was driving on a suspended license,
along with his former attorney's testimony, to prove that
Sevachko testified falsely in the prior proceeding. Because we
hold that the Commonwealth is estopped from proving that
Sevachko was driving, we find that the trial court erred in
admitting Gluba's testimony.
Accordingly, we reverse the conviction and remand the case
for further proceedings if the Commonwealth be so advised. See
Simon, 220 Va. at 419-20, 258 S.E.2d at 572-73 (remanding case
and holding that Commonwealth is not precluded from prosecuting
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the defendant in a subsequent prosecution based on other
evidence independent of the fact which the Commonwealth is
collaterally estopped from proving).
B. Confidential Communication
"The attorney-client privilege is the oldest of the
privileges for confidential communications known to the common
law." Upjohn v. United States, 449 U.S. 383, 389 (1981).
"Confidential communications between attorney and client made
because of that relationship and concerning the subject matter
of the attorney's employment 'are privileged from disclosure,
even for the purpose of administering justice.'" Commonwealth
v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301 (1988)
(citations omitted).
The relationship between an attorney and
[her] client is a sacred one. In that
relationship, the client must be secure in
the knowledge that any information he
reveals to counsel will remain confidential.
The confidentiality of the attorney-client
relationship is severely compromised, if not
destroyed, when, after representing a
client, a lawyer joins in the criminal
prosecution of that client with respect to
the identical matter about which the
attorney originally counseled the client.
Such switching of sides is fundamentally
unfair and inherently prejudicial. Without
question, the client's right to a fair
trial, secured by the due process clauses of
the fifth and fourteenth amendments, is
compromised under these circumstances.
United States v. Schell, 775 F.2d 559, 565 (4th Cir. 1985).
"The proponent has the burden to establish that the
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attorney-client relationship existed, that the communications
under consideration are privileged, and that the privilege was
not waived." Edwards, 235 Va. at 509, 370 S.E.2d at 301.
Sevachko's former attorney disclosed two confidences that
Sevachko had confided in her concerning the subject of the
litigation. First, she disclosed to her employer, the Albemarle
County Commonwealth's Attorney, that Sevachko admitted to her he
was driving the automobile on the date charged. Second, she
disclosed that Sevachko told her he intended to testify
untruthfully that he was not driving. As a result of that
disclosure, she sought and obtained leave of court to withdraw
as Sevachko's court-appointed attorney. 1 Thus, the issue on
appeal is whether the communications by Sevachko to his attorney
were privileged and whether the trial judge erred by admitting
the evidence over Sevachko's objection in violation of that
privilege.
1
A lawyer is prohibited from knowingly revealing a
confidence or secret of her client, except, among other things,
where the client has expressed his intention "to commit a crime
and the information is necessary to prevent the crime" or where
the lawyer has information which "clearly establishes that the
client has, in the course of the representation, perpetrated a
fraud related to the subject matter of the representation upon a
tribunal." Code of Prof. Resp. DR 4-101(C), (D) (1999). We do
not decide whether counsel's disclosures violated DR 4-101. See
Fisher v. Commonwealth, 26 Va. App. 788, 794, 497 S.E.2d 162,
165 (1998) (questioning "'the propriety of equating the force of
a disciplinary rule with that of decisional or statutory law'"
(citation omitted)).
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We hold that Sevachko's disclosure to his attorney that he
was driving on the date of the charged offense was made in
relation to and during the course of the attorney's
representation of her client and that the communication was
confidential and privileged and not subject to disclosure. See
Edwards, 235 Va. at 508-09, 370 S.E.2d at 301. However, we hold
that Sevachko's disclosure to his attorney that he was going to
testify untruthfully that he was not driving was not privileged,
and, thus, the statement was admissible under the crime-fraud
exception to the privilege.
"[I]t is settled under modern authority that the
[attorney-client] privilege does not extend to communications
between attorney and client where the client's purpose is the
furtherance of a future intended crime or fraud." 1 McCormick
on Evidence § 95, at 380 (John W. Strong, ed., 5th ed. 1995).
The Supreme Court in Seventh District Committee v. Gunter, 212
Va. 278, 183 S.E.2d 713 (1971), applying this principle, held
that "[t]he protection which the law affords to communications
between attorney and client has reference to those which are
legitimately and properly within the scope of a lawful
employment and does not extend to communications made in
contemplation of a crime, or perpetration of a fraud." Id. at
287, 183 S.E.2d at 719 (emphasis added) (citing Strong v. Abner,
105 S.W.2d 599 (Ky. 1937)).
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In Gunter, the defendant, an attorney, was charged with
malpractice and unethical and unprofessional conduct. The
Seventh District Committee of the Virginia State Bar (Committee)
was assigned to investigate the alleged misconduct. Gunter
employed counsel to represent him at the Committee hearing to
defend the allegations of malpractice and unethical and
unprofessional conduct. During his strategy meetings with his
attorneys, Gunter intentionally misrepresented to his attorneys
a material and critical fact. Believing their client's
representation, Gunter's attorneys perpetuated the
misrepresentation to the Committee. Gunter was fully aware of
his attorneys' intended representations and was fully apprised
of their strategy. Before final resolution of the matter before
the Committee, Gunter's attorneys learned of their client's
misrepresentation and sought leave to withdraw. At a subsequent
hearing before the Committee, after Gunter's counsel withdrew,
Gunter told the Committee that he initially considered
misrepresenting the facts to the Committee but that he changed
his mind and was coming forward with the truth of his own
volition. As a result of these developments, the Committee
filed a complaint against Gunter alleging that he, for the
purpose of misleading the Committee, altered, changed, and
falsified a date upon a statement, which was material to the
Committee's investigation of Gunter.
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At trial, the court admitted evidence from Gunter's
attorneys detailing communications Gunter had with his attorneys
which would prove that Gunter was aware of their strategy and
that Gunter gave his attorneys false information knowing that
the attorneys would misinform the Committee. The Supreme Court
affirmed the trial court's ruling that the evidence was
admissible, finding that the "communications alleged to be
privileged were made in the furtherance of the commission of an
intended fraud on the Committee." 212 Va. at 288, 183 S.E.2d at
719-20. The Supreme Court stated, "'[T]he perpetration of a
fraud is outside the scope of the professional duty of an
attorney and no privilege attaches to a communication and
transaction between an attorney and client with respect to
transactions constituting the making of a false claim or the
perpetration of a fraud.'" 212 Va. at 287, 183 S.E.2d at 719
(quoting Kneale v. Williams, 30 So. 2d 284, 287 (Fla. 1947) (en
banc)).
Here, Sevachko's disclosure to his attorney regarding his
intent to commit perjury was made prior to trial and in
contemplation of committing perjury and a fraud upon the court.
The privilege does not permit a litigant to commit a fraud upon
a court and, therefore, to that end, the privilege does not
apply to communications, which if not revealed would hamper the
administration of justice. See Gunter, 212 Va. at 287-88, 183
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S.E.2d at 719. Accordingly, the attorney-client privilege did
not attach to Sevachko's statement to his attorney pertaining to
his intent to commit perjury; therefore, the statement was
admissible in the perjury prosecution.
Accordingly, we hold that the trial court erred by admitting
Sevachko's communication to his attorney that he was, in fact,
driving, because the communication was made in the course of the
attorney-client relationship and it concerned the subject matter
of the attorney's employment; thus, it was privileged from
disclosure. However, Sevachko's communication to his attorney
that he intended to commit perjury was not protected by the
attorney-client privilege because the statement was made in
contemplation of a crime and, thus, was admissible.
Reversed and remanded.
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Bumgardner, J., with whom Benton, Annuziata and Clements, JJ.,
join, dissenting.
I respectfully dissent from the decision to permit another
trial. The unusual procedural posture of this case dictates
dismissal. The general verdict rendered in criminal trials is a
curtain that shrouds the components of the decision returned.
Normally, a trial record would not reveal whether the trial
resolved a single issue and a single fact. However, this record
is an exception.
The sole issue at the first trial was whether the defendant
drove his automobile on December 24, 1995. In the perjury
trial, the Commonwealth had to prove the defendant made a false
statement under oath. The only evidence offered to prove the
defendant lied at the first trial was the admission to his
attorney that he did drive. That was the sole specification of
perjury alleged, argued, or attempted at trial.
Dismissal would not, as the majority suggests, preclude
every perjury prosecution of a defendant who testified falsely.
Dismissal would simply acknowledge that collateral estoppel must
bar retrial in the rare situation that permits ascertaining a
single fact was disputed in each prosecution, and that fact was
the same in both.
I do not address the issue of attorney-client privilege
because collateral estoppel precludes another trial.
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