State v. Sanchez, 12690

• Citation: 204 Conn. 472,528 A.2d 373
• Decision Date: 21 July 1987
• Docket Number: No. 12690,12690
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Elsie SANCHEZ.

Page 373

528 A.2d 373

204 Conn. 472

STATE of Connecticut v. Elsie SANCHEZ.

No. 12690.

Supreme Court of Connecticut.

Argued April 2, 1987.

Decided July 21, 1987.

Laura A. Ingersoll, Certified Legal Intern, with whom were Todd D. Fernow and, on the brief, Michael R. Sheldon and Thomas G. Merrill, Certified Legal Intern, for appellant (defendant).

Leah Hawley, Deputy Asst. State's Atty., and James G. Clark, Asst. State's Atty., with whom, on the brief, was Peter Ponziani, Deputy Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, BORDEN and FRACASSE, JJ.

ARTHUR H. HEALEY, Associate Justice.

On November 11, 1984, the defendant, Elsie Sanchez, was convicted by a jury of the crime of perjury in violation of General Statutes § 53a-156(a). ¹ The defendant appeals from the judgment of conviction claiming that the trial court erred in: (1) denying her motion for judgment of acquittal; (2) directing the jury to find that the statements made in the prior judicial proceeding were material; and (3) instructing the jury that it could infer the existence of disputed elements of the charged offense by a preponderance of the evidence. The defendant also claims that she was deprived of her right to a fair trial when the assistant state's attorney was allowed to prosecute her for perjury after he had tried the case in which she allegedly committed the charged offense.

The perjury charge arose from the defendant's alibi testimony in the prior trial of her boyfriend, Marcos DeJesus. ² DeJesus had been charged with burglary in the first degree, assault in the second degree and larceny in the second degree in connection with an incident which occurred on May 22, 1982. At DeJesus' trial, the defendant testified that at approximately 2 p.m. on May 22, 1982, she and DeJesus had left East Hartford to drive to her godmother's home in Norwood, Massachusetts, to pick up the defendant's daughter, Angelica Haley. She testified that they had left Norwood at 10:30 that night and had returned home about 1:30 a.m. The defendant testified that she was sure they had been in Massachusetts on that date because she had taken her daughter out of school May 17 through May 21 and had dropped her off in Norwood on May 16. She testified that she had taken Angelica out of school and had taken her to Norwood "because she [had been] giving [the defendant] trouble in school." The jury found DeJesus not guilty and judgment was rendered accordingly.

In support of its claim that the defendant testified falsely at the DeJesus trial, the state presented three sets of school attendance records tending to show that, during the week of May 17-21, 1982, Angelica had been recorded as having been absent only on May 18. The records were presented through Hope Labet, Angelica's 1981-82 school year homeroom teacher, and Devon Delk, former supervisor of pupil accounting for the East Hartford board of education. From this testimony, the jury could reasonably have found the following: Attendance of the sixteen to eighteen fourth graders was taken each morning at 8:15 and transcribed on daily attendance sheets. If a child was absent, his or her name was recorded on the daily attendance sheet. These sheets were sent to the office each morning between 8:18 and 8:20. When a child was tardy, he or she had to go to the office and obtain a classroom pass. If that child had been marked absent on the daily attendance sheet, a single line was drawn through his name and a "T" for tardy was marked next to it by either the teacher, if he or she had the sheet, or by the office. Each day, the teacher copied each student's statistics from the daily attendance sheets onto white cards which, in turn, were used at the end of each marking period to prepare the student's report card attendance summary.

The daily attendance sheets for the 1981-82 school year showed that during the week of May 17-22, 1982, Angelica had been absent only on May 18, 1982. ³ The daily sheets showed that during the entire month of May, Angelica had been absent four times and tardy twice. The white card also showed that during the month of May, Angelica had been absent four times ⁴ and tardy twice. Angelica's June, 1982 report card, however, showed that she had been absent three times and tardy three times.

Labet explained that the discrepancy was the result of an error in transposing the figures to the report card. She testified that the daily sheets were accurate and that it is not likely that she had made an error on the daily sheets or white card "because those are the original things that I would write every day and [the report card] is something I copied over from a white sheet and I'm copying seventeen, eighteen per marking period." ⁵

Angelica Haley was the only witness to testify for the defense. She testified, inter alia: that during the week in question she had been in Norwood with her mother's godmother; that she had been sent there as punishment for playing hooky from school; and that her mother and DeJesus had picked her up and had taken her home. Angelica also testified that she could not remember how many times she had been absent during April, May or June in the sixth grade or how many times she had been absent during the total year of sixth, fifth or fourth grade.

I

The defendant's first claim of error is that the trial court erred in failing to grant each of her motions for judgment of acquittal on the grounds that the state had failed to prove a prima facie case of falsity. ⁶

In support of this claim of error, the defendant, pointing to the common law "two witness rule," argues that in order to support a charge of perjury, the prosecution must provide at least two independent sources of evidence as to the falsity of the allegedly perjured statement. The defendant maintains that in this case the state offered only a single set of attendance records to establish falsity and that this evidence falls short of the requisite degree of proof necessary to support a conviction of perjury. The defendant argues that one piece of uncorroborated documentary evidence is not enough to sustain a conviction for perjury.

Simply stated, the two witness rule is a quantitative rule of evidence which provides that a person may not be convicted of perjury upon the testimony of a single witness as to the falsity of the statement made. 7 J. Wigmore, Evidence (Chadbourn Rev.) § 2040; note, "Perjury and the Quantitative Evidence Rule," 36 Mo.L.Rev. 544 (1971). Originally, the rule required that in order to sustain a conviction for perjury, the falsity of the defendant's oath had to have been proven by the sworn testimony of two or more live witnesses. Over the years, however, the rule has been modified to permit a conviction upon the sworn testimony of one live witness if that testimony is supported by proof of corroborative circumstances, the so-called "one-witness-plus-corroboration" rule. State v. Campbell, 93 Conn. 3, 12, 104 A.2d 653 (1918); see 2 F. Wharton, Criminal Evidence (13th Ed. Torcia) § 488. It has been said that "[t]he rule of evidence in perjury cases presents an almost unique exception to the general rule that evidence which is sufficient to convince the jury of the defendant's guilt beyond a reasonable doubt is sufficient to sustain a conviction." United States v. Palese, 133 F.2d 600, 602 (3d Cir.1943). This "special rule" is "deeply rooted in past centuries." Weiler v. United States, 323 U.S. 606, 608-609, 65 S.Ct. 548, 549-50, 89 L.Ed. 495 (1945). The drafters of the Model Penal Code explain this evidentiary requirement as "a special gloss on 'reasonable doubt.' " Model Penal Code § 241.1, p. 141 (1980). The two witness rule is contrary to the principle followed in our justice system that the "ultimate measure of testimonial worth is quality and not quantity." Weiler v. United States, supra, 608, 65 S.Ct. at 549. ⁷

It has been said that "[t]he rule has value in safeguarding witnesses in official proceedings from harassment by disappointed litigants. It also protects them from their own or another's good-faith mistakes." Commonwealth v. Robinson, 332 Pa.Super. 147, 150, 480 A.2d 1229 (1984); see United States v. Nessanbaum, 205 F.2d 93, 95 (3d Cir.1953). " 'The ground of the rule is a suspicion of fraud.' " United States v. Wood, 39 U.S. 430, 443, 10 L.Ed. 527 (1840). In affirming the viability of the rule, Justice Hugo Black stated: "[I]mplicit in its evolution and continued vitality has been the fear that innocent witnesses might be unduly harassed or convicted in perjury prosecutions if a less stringent rule were adopted. Whether it logically fits into our testimonial pattern or not, the government has not advanced sufficiently cogent reasons to cause us to reject the rule." Weiler v. United States, supra, 609, 65 S.Ct. at 550. The Second Circuit Court of Appeals has stated: "The purpose of the rule [is] to prevent ill-founded retaliatory attack by perjury prosecution upon a witness on no more than the contrary oath of another." United States v. Collins, 272 F.2d 650, 652 (2d Cir.1959), cert. denied, 362 U.S. 911, 80 S.Ct. 681, 4 L.Ed.2d 619, reh. denied, 362 U.S. 957, 80 S.Ct. 859, 4 L.Ed.2d 874 (1960).

Unlike perjury statutes in other states that have either expressly rejected or adopted the common law two witness rule; see, e.g., State v. Farrington, 411 A.2d 396, 401 (Me.1980); State v. Storey, 148 Minn. 398, 182 N.W. 613 (1921); our perjury statute, § 53a-156, does not by its terms require a particular quantum of evidence as to falsity in order to support a conviction under that statute. In fact, the legislature in promulgating § 53a-156 was silent on the question of whether the one-witness-plus-corroboration rule would remain the law of this state after the effective date of § 53a-156. We have said on other occasions, however, that " '[n]o statute is to be construed as altering the common law, farther than its words import ...