Mason v. State

WOODWARD, J. On December 6, 2012, Sharon Marie Mason, appellant, was convicted of perjury in a bench trial in the Circuit Court for Saint Mary’s County because of her false testimony at the trial of her fiance, Jason Winnegar, for driving under the influence of alcohol (“DUI”). At the DUI trial, appellant testified that she had been driving a Ford Ranger that was pulled over by Trooper First Class Edward Mersman, but that she and Winnegar switched seats when they were stopped. Trooper Mersman testified that he observed a male, later identified as Winnegar, who was driving the truck when it sped past his patrol car, and was sitting in the driver’s seat when the truck was stopped. At appellant’s perjury trial, Trooper Mersman again testified that Winnegar was driving the truck, and the State introduced a video of the traffic stop taken from the dashboard camera in Trooper Mersman’s vehicle.

A transcript of appellant’s testimony from the DUI trial also was entered into evidence. Based on Trooper Mersman’s testimony, the video, and the transcript, the circuit court found appellant guilty of perjury. On appeal, appellant presents a single question for our review, which we have rephrased: 1 Was there sufficient evidence to convict appellant of perjury? For the reasons set ⁴⁷² forth herein, we uphold appellant’s conviction for perjury and thus affirm the judgment of the circuit court.

BACKGROUND On May 29, 2011, appellant and Winnegar were stopped for speeding by Trooper Mersman of the Maryland State Police. After smelling an odor of an alcoholic beverage on Winnegar’s breath and person, Trooper Mersman removed Winnegar from the truck and asked him to perform three field sobriety tests. Winnegar failed one test, 2 and Trooper Mersman arrested him for DUI. Winnegar’s jury trial was held on February 29, 2012.

At the trial, Trooper Mersman testified that he observed a speeding Ford Ranger drive past his patrol car, and that a white male, later identified as Winnegar, was driving. He also testified that there was a female in the passenger’s seat, and that, when the truck drove by, both the driver and the passenger were wearing seat belts. Trooper Mersman noted that Winnegar was still in the driver’s seat when he approached the truck after it had stopped. Appellant testified at Winnegar’s trial.

She stated that, contrary to Trooper Mersman’s testimony, she was driving the truck when it was pulled over, and Winnegar, who had been drinking, was in the passenger’s seat. Appellant explained that, when they were stopped, the two switched seats, because “the [truck’s] tags were dead” and Winnegar did not want to get appellant in trouble. 3 According to appellant, in the process of changing seats, she did not lift her weight off the bench seat of the truck, but shifted from one side to the other ⁴⁷³ while Winnegar lifted himself over her. Despite appellant’s testimony, the jury found Winnegar guilty of DUI. 4 On April 4, 2012, appellant was indicted for perjury based on her testimony at Winnegar’s DUI trial. She entered a plea of not guilty, and a bench trial was held on December 6, 2012.

Trooper Mersman was the only witness called by the State. He again testified that, when he saw the Ford Ranger drive by, a white male was driving the truck, a white female was in the passenger’s seat, and both were wearing seat belts. Trooper Mersman noted that the male was still in the driver’s seat wearing a seat belt when the truck came to a stop and the trooper exited his police vehicle. Trooper Mersman testified that he could “kind of see [appellant],” but could not tell if she was still wearing a seat belt until he reached the driver’s side window of the truck.

At that point, Trooper Mersman saw that appellant “was also still in the passenger seat buckled in.” Trooper Mersman noted that he “didn’t see any strange movement going on in the vehicle” when he approached. At the driver’s side window, Trooper Mersman made contact with Winnegar “and began [his] traffic stop.” In addition to Trooper Mersman’s testimony, the State presented a video taken by the dashboard camera in Trooper Mersman’s police vehicle. The video showed the entire stop of the truck and the encounter between Trooper Mersman, Winnegar, and appellant. Appellant did not testify at her perjury trial, but a "written transcript of her testimony from Winnegar’s DUI trial was introduced into evidence.

Based on Trooper Mersman’s testimony, the video, and the transcript, the circuit court concluded that appellant had perjured herself at Winnegar’s trial. In support of its conclusion, the court offered the following explanation: I’m going to find that the testimony [ ] given was false. And it’s based on what I saw. What I saw was a stop.

I ⁴⁷⁴ saw a policeman—heard a policeman testify that he had a vehicle in his radar beam operated by a white male and that white male, he was—as they went past, he exercised his police duties by turning on his equipment, following the vehicle into a parking lot and then stopping that vehicle. Let me get into more detail about why I believe that the documentary evidence of the videotape is very telling here and collaborates [sic] the officer’s testimony. The car turned into a right-hand turn into the parking lot of that carry-out, went past the fuel tanks. In the meantime, that’s a right-hand turn with continued maneuvering in order to come to the stop.

The trooper immediately got out of the vehicle, walked up to the vehicle, placed his hand on the back right-hand corner of that vehicle and the car did not move around and that was what [appellant’s counsel] was objecting to earlier, but my vision of it was I can look at and make my own beliefs, beyond a reasonable doubt standard beliefs, that nobody was moving around in that car. Now, not to be derogatory toward you or disrespectful, you are a fairly large individual. The vehicle came to a stop within a very short period of time, seconds if any, the man who was brought into the original trial, [ ] Winnegar, got out of the vehicle on the driver’s side, came straight out of the vehicle and the video was then fast forwarded to when you got out of the vehicle. When you got out of the vehicle, the car moved as it moved when he got out of the vehicle.

You walked around to the back, lowered the tailgate, sat on the tailgate and again the truck moved. And the Court cannot divest itself from the fact that this was a very small, two person pickup truck. And no further movements were observed by the Court looking at the videotape. I will tell you, I could not tell through the blacked out windows whether or not there was movement or not, but the vehicle itself, circumstantially I believe, that the movement did not take place.

As a result I find that your testimony was false. Appellant was sentenced to one year imprisonment, with all but three days time served suspended, and two years of supervised probation. Appellant then filed this timely appeal. ⁴⁷⁵ STANDARD OF REVIEW The standard of review for non-jury trials is governed by Maryland Rule 8—131(c), which requires this Court to accept the factual findings of the trial court unless clearly erroneous. Determinations of legal questions or conclusions of law based on the trial court’s findings of facts are reviewed de novo.

Saxon Mortg. Sews., Inc. v. Harrison, 186 Md.App. 228, 262-63 , 973 A.2d 841 (2009). “In reviewing a challenge to the sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We defer to the fact-finder’s decisions on which evidence to accept and which inferences to draw when the evidence supports differing inferences. In other words, we give deference to all reasonable inferences [that] the fact-finder draws, regardless of whether ... [we] would have chosen a different reasonable inference.

In our independent review of the evidence, we do not distinguish between circumstantial and direct evidence because [a] conviction may be sustained on the basis of a single strand of direct evidence or successive links of circumstantial evidence.” Montgomery v. State, 206 Md.App. 357, 385 , 47 A.3d 1140 (alterations in original) (quoting Morris v. State, 192 Md.App. 1, 30-31 , 993 A.2d 716 (2010)), cert. denied, 429 Md. 83 , 54 A.3d 761 (2012). DISCUSSION I. Factual Findings of the Trial Court Appellant initially argues that the trial court made improper factual inferences regarding the video showing Trooper Mersman’s traffic stop of Winnegar’s truck. According to appellant, the trial court was clearly erroneous in concluding that, because the truck moved when appellant got in and out of the vehicle, the truck also should have moved if appellant and Winnegar had switched seats. Appellant con ⁴⁷⁶ tends that this inference was not rational, because the truck would not move in the same way when appellant shifted her weight from one side of the truck to the other as when she added or subtracted her weight from the truck.

Appellant supports this argument by stating that the video shows that when appellant shifted her weight while seated on the truck’s tailgate, the truck did not visibly move. The State responds that it was rational for the trial court to infer that the truck would have moved if appellant and Winne-gar had traded seats. We agree with the State. As noted above, we defer to the fact finder’s inferences from the evidence when the evidence supports different inferences.

Montgomery, 206 Md.App. at 385 , 47 A.3d 1140 . Here, the trial court first observed from the video that the truck “did not move around” when the trooper exited his vehicle and walked up to the truck. The court then took note of “a very short period of time, seconds if any,” from when the truck stopped and Winnegar “got out of the vehicle on the driver’s side.” The court also saw on the video that, when appellant, “a fairly large individual,” got out of the truck, it moved, and when she sat on the tailgate, “again the truck moved.” Finally, the court stated that “this was a very small, two person pickup truck.” Based on these facts, the court concluded that the video showed that “nobody was moving around in that car,” and thus there was no switching of seats by Winnegar and appellant. We hold that the trial court’s factual conclusions based on the video are reasonable and rational inferences.

Our holding is based on our own viewing of the subject video. First, like the trial court, we note that the truck has a very small cab, in which switching seats would be an almost acrobatic task. Second, in addition to appellant being a “fairly large individual,” Winnegar is also a tall individual, adding to the difficulty of the driver and passenger changing seats. Third, once the truck came to a complete stop and the brake lights went off, approximately nine seconds elapsed before Trooper Mersman reached the driver’s side door of the truck, giving the occu ⁴⁷⁷ pants a very short amount of time in which to change places.

Fourth, within those nine seconds, the truck stays perfectly still. Finally, we find no merit in appellant’s contention that the video showed that the truck did not move when appellant shifted her position while sitting on the truck’s tailgate. Quite the opposite; when appellant shifted her weight, the truck visibly shook. Because the truck shook when appellant shifted her weight while sitting on the tailgate, it was more than reasonable for the trial court to conclude that, had Winnegar and appellant traded seats in the cab of the truck, the video would have shown movement by the truck.

Therefore, we conclude that the trial court was not clearly erroneous by inferring from the video that appellant and Winnegar did not trade seats at the time of the traffic stop. Having concluded that the trial court’s inferences regarding the lack of movement by the truck were not clearly erroneous, we next turn to whether the video and the inferences drawn therefrom sufficiently meet the requirements of the two-witness rule to sustain a conviction for perjury.

II

The Two-Witness Rule A. The Rule’s Applicability The two-witness rule originally required that a conviction for perjury be proved by the direct and positive testimony of two witnesses. Brown v. State, 225 Md. 610, 616, 171 A.2d 456 (1961). Maryland has relaxed the rule, and currently allows a perjury conviction to stand based on the direct testimony of two witnesses, or the testimony of one witness combined with other independent corroborative evidence. Id. at 616-17 , 171 A.2d 456 .

The State urges this Court to abandon the two-witness rule as “an artifact of the jurisprudence of the Court of Star Chamber.” According to the State, “[t]he last time the Court of Appeals discussed the two-witness rule in any detail was more than 50 years ago in Brown , where it criticized the rule.” The State argues that “the law of perjury should be made ⁴⁷⁸ consistent with the law of virtually every other crime in the State of Maryland—the finder of fact is entitled to make assessments of credibility without regard to the number of witnesses on either side.” The State concludes that, although the two-witness rule is stare decisis and this Court’s power to amend the common law is more limited than that of the Court of Appeals, we nonetheless may overturn a rule that “has become so unsound that it is no longer suitable to the people of this State.” (Quoting Malarkey v. State, 188 Md.App. 126, 162 , 981 A.2d 675 (2009)). Appellant responds that this Court is not the proper forum to abolish the two-witness rule. Appellant contends that a change in the two-witness rule should come from either the Court of Appeals or the General Assembly. Appellant concludes that public policy continues to be served by the two-witness rule, because it prevents “hasty and spiteful retaliation in the form of unfounded perjury prosecutions.” (Quoting Weiler v. United States, 323 U.S. 606, 609 , 65 S.Ct. 548 , 89 L.Ed. 495 (1945)).

As noted above, at its inception, the two-witness rule required that a conviction for perjury be proved by the direct and positive testimony of two witnesses. Brown, 225 Md. at 616 , 171 A.2d 456 . In Smith v. State, this Court set forth a basic history of the rule’s origins: In 1640, the Court of the Star Chamber was abolished and its jurisdiction transferred to the King’s Bench. Proceedings in the Star Chamber had always been conducted according to ecclesiastical or civil law.

Ecclesiastical law required at least the direct and positive testimony of two witnesses in order to convict. 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. 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 ⁴⁷⁹ of testimony, then, played a key role in the establishment of the rule. 51 Md.App. 408, 420-21 , 443 A.2d 985 (1982) (emphasis added) (footnote and citations omitted); see also Hourie v. State, 53 Md.App. 62, 68-82 , 452 A.2d 440 (1982) (providing a detailed and colorful history of the law of perjury from its origins in the civil system), aff'd, 298 Md. 50 , 467 A.2d 1016 (1983). Although the quantitative theory of testimony has been rejected in modern common law in favor of “the rational notion of analyzing and valuing testimony other than by numbers,” the two-witness rule has remained a part of common law perjury jurisprudence. See Hourie, 53 Md.App. at 69 , 452 A.2d 440 . As previously stated, Maryland has abandoned a strict interpretation of the two-witness rule, and no longer requires two witnesses’ direct and positive testimony.

In Brown , the Court of Appeals stated: [T]he rule has 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. The testimony of one witness and other independent corroborative 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. It has been held that circumstantial evidence, including documentary evidence, springing from the defendant himself, may take the place of a “living witness.” 225 Md. at 616-17 , 171 A.2d 456 (citations omitted). Nevertheless, this Court criticized the two-witness rule as articulated in Brown , stating that it was “incongruous in our present system of jurisprudence.” Smith, 51 Md.App. at 421 , 443 A.2d 985 (citations and internal quotation marks omitted). 'Writing for this Court in Hourie , Judge Moylan concluded, after detailing the history of the rule, that it was an “ancient fly in amber and preserved beyond its time by a fluke of history.” 53 Md.App. at 68-69 , 452 A.2d 440 .

The Court of Appeals, however, granted certiorari in Hour-ie and affirmed the petitioner’s conviction, basing its decision ⁴⁸⁰ on the standard articulated in Brown. Hourie, 298 Md. at 61, 64 , 467 A.2d 1016 . The Court concluded that “[t]he evidence in this case forecloses any reasonable hypothesis other than the defendant’s guilt. Thus, we hold that the evidence clearly was sufficient to prove beyond a reasonable doubt that [the petitioner] was guilty of perjury as charged.” Id. at 64 , 467 A.2d 1016 .

Since Hourie , Maryland courts have not had the opportunity to address the two-witness rule’s continuing applicability. Although the two-witness rule under Brown , has been criticized, the rule has not been overturned in Maryland. The State is correct that “the doctrine of stare decisis does not ‘preclude us from changing or modifying a common law rule when conditions have changed or that rule has become so unsound that it is no longer suitable to the people of this State.’ ” Malarkey, 188 Md.App. at 162 , 981 A.2d 675 (quoting Livesay v. Balt. Cnty., 384 Md. 1, 15 , 862 A.2d 33 (2004)).

This Court, however, has held explicitly that a change in the two-witness rule is not our task. Smith, 51 Md.App. at 426 , 443 A.2d 985 (“It remains for the Court of Appeals or the General Assembly to determine the continued validity of the [two-witness] rule in other circumstances.”); see also, e.g., Kulikov v. Baffoe-Harding, 215 Md.App. 193, 208 , 79 A.3d 995 (2013) (declining to change the common law regarding venue transfers); Evergreen Assocs., LLC v. Crawford, 214 Md.App. 179, 191 , 75 A.3d 1038 (2013) (“[T]he declaration of the common law of Maryland ... is the primary function of the highest court in Maryland, the Court of Appeals.”). Therefore, despite any concerns that we may have about the continued viability of the two-witness rule, we will not abandon it here. In addition, the two-witness rule was originally designed for oath-against-oath cases.

See Smith, 51 Md.App. at 421 , 443 A.2d 985 . The facts before us present just such an oath-against-oath case. Trooper Mersman and appellant testified to the same occurrence, both based on their first-hand observations, but offered contradictory testimony. The State then offered direct and circumstantial evidence via the video re ⁴⁸¹ cording of the traffic stop.

The instant case thus presents a factual setting well-suited for the application of the two-witness rule as articulated in Brown . B. Satisfaction of the Two-Witness Rule Appellant contends that the State presented insufficient evidence to convict her of perjury because the two-witness rule was not satisfied. According to appellant, “when the [S]tate seeks to prove its case with the direct testimony of one witness corroborated by independent evidence, that evidence must be (1) independent, (2) corroborative, and (3) at least as weighty as a second witness.” Appellant argues that the video was not sufficiently independent or corroborative of Trooper Mersman’s testimony, nor did it have the weight of a second witness. According to appellant, the video was not independent because it required Trooper Mersman’s explanation in order to support the State’s case. 5 Appellant argues that, because it is impossible to see through the back window of the truck on the video, without Trooper Mersman’s testimony, “the court had no way of inferring that Trooper Mersman’s narrative was any more likely than [appellant’s].” Appellant also contends that the video was not sufficiently corroborative of Trooper Mersman’s testimony.

According to appellant, “[e]vidence cannot be said to sufficiently corroborate one side if it is consistent with both sides’ narratives.” (Footnote omitted). Appellant concludes that, because the video could be completely consistent with her narrative of events, it cannot independently corroborate Trooper Mers-man’s testimony. Finally, appellant states that the video evidence did not provide the same weight as a second witness. Appellant argues that, “[i]f the evidence in this case were two witnesses ⁴⁸² and no video, and one of the witnesses testified to the exact content visible in the video, the State would not have been able to prove, by the two-witness requirement, that [appellant’s] statements were false.” Appellant thus concludes that the two-witness rule was not satisfied, and that her conviction for perjury must be overturned.

The State counters that there was sufficient evidence to convict appellant of perjury. According to the State, “independent evidence” is simply evidence outside of the testimony of the prosecution’s principal