O'Sullivan v. State

• Decision Date: 17 December 2021
• Docket Number: No. 3, Sept. Term, 2021,3, Sept. Term, 2021
• Citation: 476 Md. 602,265 A.3d 1015
• Parties: Michael O'SULLIVAN v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

476 Md. 602

265 A.3d 1015

Michael O'SULLIVAN

v.STATE of Maryland

No. 3, Sept. Term, 2021

Court of Appeals of Maryland.

December 17, 2021

Argued by Kristin C. Tracy and Thomas M. Donnelly (Law Offices of Thomas M. Donnelly, LLC, Baltimore, MD), on brief, for Petitioner/Cross-Respondent.

Argued by Peter R. Naugle, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Annapolis, MD), on brief, for Respondent/Cross-Petitioner.

Getty, C.J., McDonald, Watts, Hotten, Booth, Biran, Irma S. Raker (Senior Judge, Specially Assigned), JJ.

Biran, J.

Under Maryland's common law, the State may not obtain a conviction for perjury based solely on the word of one witness who testifies at trial that the defendant gave false testimony in the underlying case. If the State introduces that kind of direct evidence through a witness, the State must either put on a second witness who also provides direct evidence of the falsity of the defendant's prior testimony, or the State must introduce – in place of a second witness – other evidence that tends to corroborate the sole witness's claim that the defendant provided false testimony. This burden of production has come to be known as the "two-witness rule." Although the rule has been criticized in some quarters for many years, it has endured in perjury cases in Maryland, as well as in many other states and in the federal criminal justice system. In this case, taking up the cause of the two-witness rule's critics, the State asks us to judicially abrogate the rule in Maryland.

The State prosecuted Michael O'Sullivan, the Petitioner here, for perjury and misconduct in office. O'Sullivan was a veteran officer in the Baltimore Police Department when he was charged. After participating in an arrest of Yusuf Smith, O'Sullivan testified at Smith's trial in the District Court of Maryland that he saw Smith remove something from his waistband and toss it; according to O'Sullivan, the object he saw Smith discard was a .32 caliber revolver that O'Sullivan subsequently recovered. Based on O'Sullivan's testimony, the District Court found Smith guilty of a handgun charge and related offenses. Smith then appealed his convictions to the Circuit Court for Baltimore City. Before the appeal was heard, the State dismissed the case against Smith and began investigating O'Sullivan. The State subsequently obtained an indictment charging O'Sullivan with perjury and misconduct in office based on his allegedly false testimony at Smith's District Court trial.

At O'Sullivan's nonjury trial in the Circuit Court for Baltimore City, the State called Smith as a witness. Smith testified that O'Sullivan provided untrue testimony at Smith's trial when O'Sullivan claimed to have seen Smith remove a handgun from his waistband and throw it to the ground. In addition, the State introduced video footage from body cameras worn by O'Sullivan and another officer, which showed the two officers approach the area where O'Sullivan claimed he saw Smith discard an object. The footage from O'Sullivan's camera also showed him recover the revolver. The State argued that the video footage showed it was impossible for O'Sullivan to have seen Smith discard the revolver and, therefore, that O'Sullivan had testified falsely at Smith's trial. The circuit court found O'Sullivan guilty of perjury and misconduct in office.

The Court of Special Appeals affirmed O'Sullivan's convictions, holding that the two-witness rule did not apply to O'Sullivan's perjury charge because a reasonable factfinder could conclude that O'Sullivan testified falsely at Smith's trial, based solely on the video footage. Alternatively, the court held that the State satisfied the two-witness rule because the video footage sufficiently corroborated Smith's testimony.

O'Sullivan filed a petition for certiorari in this Court, contending that both of the intermediate appellate court's bases for affirmance are erroneous. The State filed a conditional cross-petition for certiorari , asking us to abrogate the two-witness rule prospectively. We granted both petitions.

For the reasons stated below, we decline to abrogate the two-witness rule. Further, we conclude that, in this case, the State met its burden of production under the two-witness rule as well as its burden to persuade the trier of fact beyond a reasonable doubt that O'Sullivan was guilty of perjury and misconduct in office.

I Background

A. The Two-Witness Rule

In Brown v. State , 225 Md. 610, 615-16, 171 A.2d 456 (1961), this Court noted that there had "been few cases in Maryland dealing with the crime of perjury and, so far as we know, none where the quantum of proof necessary for conviction has been before this Court." The Court explained that, "[a]t common law it was originally held that to warrant a conviction of perjury the falsity had to be shown by direct and positive testimony of two witnesses," and that perjury "required a greater measure of proof than any other crime known to law, treason alone excepted." Id. at 616, 171 A.2d 456. In defining the two-witness rule's parameters, the Court observed that the rule had "been relaxed so as to allow a conviction of perjury to stand if there are two witnesses, or one witness corroborated by circumstances proved by independent testimony." Id. The Court further stated that, if the State opts to produce a single direct witness and corroborating circumstantial evidence, the circumstantial evidence must be "of such a nature so as to be of equal weight to that of at least a second witness, thus foreclosing any reasonable hypothesis other than the defendant's guilt." Id. at 616-17, 171 A.2d 456.

This relaxation of the two-witness rule is a deviation from its history of strict application in medieval ecclesiastical courts, which conceived "of the oath as a formal act, mechanically and ipso facto efficacious ... and quantitative in its nature." Hourie v. State , 53 Md. App. 62, 70-71, 452 A.2d 440 (1982) (" Hourie I ") (internal quotation marks and emphasis omitted). Under those courts' quantitative system of proof, "a degree of greater certainty [was] thought to be attained, not by analyzing the significance of each oath in itself and relatively to the person, but by increasing the number of the oaths." Id. at 71, 452 A.2d 440 (internal quotation marks and citation omitted). Relying on the quantity, rather than the quality of testimony, ecclesiastical law "elaborated many specific rules as to the number of witnesses necessary in various situations; against a cardinal, for example, twelve or perhaps forty-four witnesses were required." John H. Wigmore, Required Numbers of Witnesses; A Brief History of the Numerical System in England , 15 Harv. L. Rev. 83, 84 (1901).

Although the rule endured in civil and ecclesiastical courts for centuries, most notably the Court of the Star Chamber,

[t]here was no such rule in use in common law courts until the first half of the Eighteenth Century. 7 Wigmore, Evidence § 2040 (Chadbourn rev. 1978). In 1640, the Court of the Star Chamber was abolished and its jurisdiction transferred to the King's Bench.... Since the crime of perjury had been prosecuted almost entirely in the Star Chamber, it follows that the rule requiring two witnesses accompanied the transfer of jurisdiction to the King's Bench. 7 Wigmore, Id. Since perjury was one of the few crimes in which the accused was allowed to testify, the rule gained acceptance in the common law court. If only one person's testimony was offered against the accused, the situation would present oath against oath, or a "draw". The quantitative theory of testimony, then, played a key role in the establishment of the rule.

Smith v. State , 51 Md. App. 408, 420-21, 443 A.2d 985 (1982).

While the quantitative system of proof was replaced at common law with a system that relies upon the quality of the prosecution's proof, the relaxed two-witness rule has endured in perjury cases in which the State has opted to introduce direct evidence of falsity through the testimony of at least one witness. Most recently, in State v. McGagh , 472 Md. 168, 244 A.3d 1117 (2021), after a nonjury trial, the circuit court convicted McGagh of perjury for falsely averring that a Verizon Wireless employee had sexually assaulted her. Id. at 181-82, 244 A.3d 1117. At trial, the State introduced both the testimony of the employee McGagh had accused of sexual assault, as well as surveillance footage from the Verizon store. The circuit court found McGagh guilty of perjury, based in part on the value the court assigned to the surveillance video. Id. at 179, 181, 244 A.3d 1117. This Court upheld the conviction, concluding that

[t]he Verizon surveillance video in this case also satisfies the purpose of the two-witness rule articulated in Brown . The two-witness rule prevents "oath against oath" by allowing the fact finder to observe and judge the credibility of witnesses offering competing recollections of events, while comparing the witness statements against independent, circumstantial evidence. The trial court here had the opportunity to judge and observe McGagh's and [the Verizon employee's] testimony. The Verizon surveillance video provided independent corroboration of the pertinent factual dispute: whether [the Verizon employee] cupped McGagh's breast and touched her inner thigh.

Id. at 202, 244 A.3d 1117 ; see also Mason v. State , 225 Md. App. 467, 491, 126 A.3d 129 (2015) (applying the two-witness rule and determining that there was sufficient evidence to sustain Mason's conviction for perjury where the State introduced both direct and circumstantial evidence).

Although the two-witness rule has endured in Maryland, this Court and the Court of Special Appeals have affirmed perjury convictions where the State did not put on the direct testimony of at least one witness to prove the element of falsity, but rather proved falsity entirely through other evidence. Brown itself was such a case. As the Court of Special Appeals explained in Hourie I ,...