Palmisano v. State

EYLER, Judge. Michael Anthony Palmisano, appellant, was convicted by a jury in the Circuit Court for Caroline County of perjury and sentenced to prison for ten years, to be served consecutively to a sentence he was then serving. The sole question presented on appeal is whether the evidence was sufficient to sustain the conviction. In answering that question, we are called upon, for the first time, to construe the statute dealing with perjury by conflicting statements, Md.Code (1957, 1996 Repl.

Vol.), Art. 27, § 437. We conclude the evidence was insufficient and reverse the judgment of the trial court. Facts On June 28, 1996, appellant entered a guilty plea in the Circuit Court for Caroline County to a charge of felony theft. The court sentenced appellant to prison for five years and ordered him to make restitution.

Before the presiding Judge, the Honorable J. Owen Wise, accepted appellant’s guilty plea, appellant was sworn and the following occurred: [THE COURT]: Are you under the influence of any alcohol, drugs, or medications now? [APPELLANT]: Medication, yes, sir. [THE COURT]: Do they affect your ability to know what’s going on around you? [APPELLANT]: No, sir. Appellant subsequently filed a petition for post conviction relief, 1 which was denied after a hearing before the Honorable ⁴²³ Dexter Thompson in the Circuit Court for Caroline County. At that hearing, appellant was again properly sworn and the following occurred: [THE PROSECUTOR]: Didn’t Judge Wise ask you on the day that he took your plea, whether you were under the influence of drugs or alcohol? [APPELLANT]: Yes he did. [THE PROSECUTOR]; And what was your answer? [APPELLANT]: No. [THE PROSECUTOR]: And you’re telling us today that you were? • [APPELLANT]: Yes. [THE PROSECUTOR]: So you perjured yourself on that day is that correct? [APPELLANT]: Yes I did. On the same day as that hearing, appellant was charged with perjury by making conflicting statements under Article 27, section 437.

At the subsequent perjury trial on April 9, 1998, the Honorable Robert L. Karwacki presiding, the State introduced a transcript from the guilty plea hearing and a partial transcript of the post conviction proceeding containing appellant’s testimony. Judge Wise then testified for the State, as follows: [THE PROSECUTOR]: Now, Judge Wise, if someone was to give you an affirmative answer to that question, in other words, that they were under the influence of alcohol, drugs or medications, what affect would that have on the taking of the guilty plea at that time? [JUDGE WISE]: It would either suspend it or divert it. It would cause me to ask further questions, how recent, what had you consumed, what substances, were they prescription, what affect. If they’re in jail I would cheek with the custodian to find out if they, you know, displayed any signs of incompetency or not being aware of their surroundings.

If they were not in custody I would probably have ⁴²⁴ them examined, given a breathalyzer test, some diversion from the standard procedure. [THE PROSECUTOR]: Specifically if someone was to answer that question by telling you that indeed they were under the influence of alcohol at that very moment at the time of the taking of the guilty plea, what would be your response? [JUDGE WISE]: I would probably suspend the proceedings and not proceed until I was satisfied that they had regained their sobriety. [THE PROSECUTOR]: Judge Wise, if you were to have found out that Mr. Palmisano in fact gave a false answer, that in fact he was under the influence of alcohol at the time you asked him that question on June 28 of 1996, would that have materially affected the outcome of the proceedings on that day? [JUDGE WISE]: It may have affected it if in turn the alcohol was affecting him to some degree. It would have generated probably an inquiry to his attorney by me, did you know about this or what do you know about it. On re-cross examination, appellant’s counsel inquired as follows: [DEFENSE COUNSEL]: Actually Your Honor, he’s never told you anything whether he was sober or not sober, he’s just silent on that issue. [JUDGE WISE]: As far as I’m concerned, by not saying he was drunk, he was telling me he was sober. When I asked him the question, he didn’t ... he selected the answer, I’m under medications, that led me to believe as it would I think most people that that meant the answer was no to drugs or alcohol.

The State offered no other evidence. Appellant made a motion for judgment of acquittal at the close of the State’s case. Counsel for appellant asserted in ⁴²⁵ part, “I don’t think silence can lead to perjury. I think perjury has to be [an] affirmative statement of some sort.” Appellant’s motion was denied.

Appellant did not thereafter take the stand or put on any affirmative evidence. A jury found him guilty of perjury, and he received the maximum ten-year sentence. Discussion Appellant’s sole argument is that the evidence supporting his perjury conviction was insufficient because the two sworn statements introduced during his trial for perjury were “not necessarily contradictory in any material way.” Appellant focuses on the testimony at his plea hearing and explains that he gave an incomplete answer at the plea hearing that did not exclude the possibility that he was under the influence of alcohol at that time. Appellant also states that it is immaterial whether he was under the influence of alcohol because simply being under the influence of alcohol, without more, would not have affected the validity of his plea.

The necessary implication of this is that appellant did not lie about the clearly material issue — whether his ability to enter a knowing and voluntary plea was impaired by his consumption of alcohol. The State argues that we are bound to view the evidence at the trial in the light most favorable to the State. See Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), Branch v. State, 305 Md. 177, 182-83 , 502 A.2d 496 (1986). Judge Wise had asked appellant, “Are you under the influence of any alcohol, drugs, or medications now,” and the Judge had testified thereafter that he understood appellant’s answer, “Medication, yes, sir,” to mean “no to drugs or alcohol.” The State suggests that the jury was entitled to accept Judge Wise’s interpretation of appellant’s answer at the plea hearing.

Accordingly, the State would have us arrive at the conclusion that, viewing the evidence in its favor, appellant in effect answered “no” at his plea hearing to being under the influence of alcohol. The State also argues that Judge Wise’s testimony at the perjury trial was sufficient to permit the jury ⁴²⁶ to conclude that appellant’s statement was material. We conclude that appellant did not make statements that necessarily contradicted each other, and reverse the judgment of the trial court on this basis. In doing so, we do not mean to imply that prosecution under the relevant statute should not be pursued when justified.

We hold only that the evidence offered and received in this case was legally insufficient. I. Contradictory Statements Statute Appellant was charged under a statutory definition of perjury that, while encompassing some elements of common law perjury, permits the State to prove that one of two statements made under oath was false, without having to specify which one. The statute, Article 27, Section 437, entitled, “Contradictory statements,” provides: Any person who shall make oath or affirmation to two contradictory statements, each of them in one of the cases enumerated in § 435 and in either case shall make oath or affirmation wilfully and falsely, shall be deemed guilty of perjury; and to sustain an indictment under this section it shall be sufficient to allege and prove that one of the said two contradictory statements is or must be false and wilful, without specifying which one. Md.Code (1957, 1996 Repl.Vol.), Art. 27 § 437.

This statute makes reference to section 435 of the Code, the primary perjury statute, which provides in part, “An oath or affirmation, if made wilfully and falsely in any of the following cases, shall be deemed perjury: First, in all cases where false swearing would be perjury at common law....” The statements at issue here were each given under oath in proceedings before the Circuit Court for Caroline County; thus, they would satisfy the oath requirement of the first “case” in section 435 above, the requirement of an oath at common law. See Smith v. State, 51 Md.App. 408, 418-19 , 443 A.2d 985 (1982). We also note that the requirements embodied in the terms “wilfully” and “falsely” appear in both statutes and are identical. Appellant does not contest the sufficiency of proof as to the above elements on appeal.

On the ⁴²⁷ element of wilfulness in a perjury conviction resting on conflicting statements, Professors Perkins and Boyce provide the following: Because of the requirement that the untrue testimony be wilfully and corruptly false, a conviction of perjury cannot rest upon the mere fact that a witness testified differently on different occasions. If on the first occasion he testified according to his honest belief he did not commit perjury however mistaken he may have been. If he discovered his mistake before he testified on the matter again he was bound to state the facts as he then knew them to be. It would have been perjury for him to have repeated his former statement under oath after learning of its inaccuracy.

At common law', it may be added, a conviction of perjury could not be based upon two contradictory sworn statements, even if one was obviously intentionally false, unless it could be established which one this was, — a rule sometimes, and very wisely, changed by statute. Generally, it has been said, a belief as to the falsity of testimony may be inferred by the jury from proof of the falsity itself. Rollin M. Perkins & Ronald N. Boyce, Criminal Law, Ch. 5, § 3, at 518-19 (3 ed.1982) (footnotes and internal quotation marks omitted). We have noted in the past, with quotation from Professor Perkins’s work, that “[a] wrongful intent is an essential ingredient of [perjury].” State v. Levitt, 48 Md.App. 1 , 10 n. 6, 426 A.2d 383 (1981) (quoting Rollin M. Perkins, Criminal Law, Ch. 5, § 3, at 460 (2nd ed.1969)).

While, in the crime of contradictory statements, the State need not prove which statement is false, and therefore need not prove which statement was made with a “wrongful” intent, the statute requires that the State prove one of the two statements “is or must be false and wilful, without specifying which one.” If the State elects to prove that any one of the two statements “must be” both false and wilful, the State must prove that both statements were made wilfully. See Part III, infra. ⁴²⁸ This is not the sum total, however, of what the State must prove to establish wilfulness as to any one of two statements under the statute. As professors Perkins and Boyce note above with respect to a defendant who comes to realize he has made an honest mistake in his initial testimony, the circumstances surrounding the making of the statements may render even wilfully made conflicting statements non-perjurious. It is apparent, therefore, that the State must address in some way the knowledge and intent of the defendant in making both statements.

Of the requirement of a wrongful intent, or wilfulness, in the crime of perjury, the Court of Appeals has stated that “the false oath must be deliberate and not the result of surprise, confusion or bona fide mistake.” State v. Devers, 260 Md. 360, 372 , 272 A.2d 794 (1971) (citing Brown v. State, 225 Md. 610 , 171 A.2d 456 (1961)), overruled on other grounds by In re Petition for Writ of Prohibition, 312 Md. 280 , 539 A.2d 664 (1988). This principle suggests possible defenses to a traditional perjury action, where the alleged perjurious statement is identified. When a single, identified statement is the focus of charges of perjury, normally, “a belief as to the falsity of testimony may be inferred by the jury from proof of the falsity itself.” Levitt, 48