O'Sullivan v. State , 476 Md. 652 ( 2021 )

Michael O’Sullivan v. State of Maryland, No. 3, September Term, 2021.
Opinion by Biran, J.
PERJURY – PROSECUTION’S BURDEN OF PRODUCTION – COMMON LAW
“TWO-WITNESS” RULE – The Court of Appeals declined to abrogate Maryland’s
common law “two-witness” rule. The rule provides that the State does not meet its burden
of production with respect to the falsity element of a perjury prosecution if it offers only a
single witness who testifies directly and positively that the defendant’s prior testimony was
false. The State can prove falsity entirely through circumstantial evidence, by introducing
direct evidence of falsity through multiple witnesses, or by introducing circumstantial
evidence as well as direct evidence of falsity through one or more witnesses.
APPELLATE REVIEW – SUFFICIENCY OF THE EVIDENCE – PERJURY – The
Court of Appeals held that, where the State meets its burden of production under the
two-witness rule, appellate courts review the sufficiency of the evidence supporting a
perjury conviction as they do in any other case, asking whether any rational trier of fact
could find each element of the offense, including falsity, beyond a reasonable doubt. In this
case, the State introduced sufficient evidence to convict Petitioner, a police officer who
allegedly testified falsely at the trial of an arrestee, of perjury and misconduct in office.
Circuit Court for Baltimore City
Case No. 119148010 IN THE COURT OF APPEALS
Argued: September 13, 2021
OF MARYLAND
No. 3
September Term, 2021
MICHAEL O’SULLIVAN
v.
STATE OF MARYLAND
Getty, C.J.
McDonald
Watts
Hotten
Booth
Biran
Raker, Irma S.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Biran, J.
McDonald and Raker, JJ., concur and dissent.
Filed: December 17, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-12-17 09:45-05:00
Suzanne C. Johnson, Clerk
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.
2
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 (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. 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
3
witness, thus foreclosing any reasonable hypothesis other than the defendant’s guilt.” Id.
at 616-17.
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 (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 (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
4
quantitative theory of testimony, then, played a key role in the establishment
of the rule.
Smith v. State, 51 Md. App. 408, 420-21 (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 (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. 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. 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; see also Mason v. State, 225 Md. App. 467, 491 (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).
5
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, although the Brown Court “paid lip service to the relaxed
two-witness rule,” a “close reading reveals nothing but circumstantial evidence as to the
key element of the falsity of the allegedly perjurious testimony.” Hourie I, 53 Md. App. at
78 n.15. The defendant in Brown was charged with perjury, based on her testimony in a
civil trial that she had not signed the confessed judgment note at issue in that case. See
Brown, 225 Md. at 613. The Court of Special Appeals’ description of the evidence the State
introduced in Brown to prove the falsity of Brown’s testimony in the civil trial
demonstrates that the two-witness rule did not come into play in that perjury prosecution:
The circumstantial case of falsity consisted of the confessed judgment note
itself bearing what was determined to be the defendant’s signature. To prove
this single fact, a number of links were necessary to forge the chain. The
State called the bank official who received the note itself with its questioned
signature; several other witnesses who supplied, for comparison purposes,
documents bearing the known signature of the defendant; and the
handwriting examiner who offered the expert opinion that the known and
questioned signatures emanated from the same source. This multiplication of
witnesses, however, is not the multiplication contemplated by the two-
witness rule (even in its relaxed form of one witness plus corroboration). The
two-witness rule mandated two direct witnesses (or at least one corroborated
direct witness) who could testify on oath that the defendant’s earlier
testimony was false. The two-witness rule had nothing to do with the total
number of witnesses paraded to the stand by the State to prove elements of
perjury other than the falsity or to provide circumstantial proof of the element
of falsity itself. The reality … is that the circumstantial evidence (the proved
signature on the document) was not the “functional equivalent of a second
witness” but was legally sufficient proof of guilt all by itself. The document
6
did not corroborate even a single direct witness as to falsity; standing alone,
it established that falsity.
Hourie I, 53 Md. App. at 78 n.15.
Similarly, in Smith, the Court of Special Appeals affirmed Smith’s perjury
conviction based on her testimony in a prior case that she had sent refunds to two
customers. At Smith’s perjury trial, the customers (Berry and Farber) testified that they did
not receive the checks Smith claimed to have sent them. Smith, 51 Md. App. at 410-11.
The State also introduced evidence of unsatisfied judgments that Berry and Farber had
obtained against Smith in the District Court, from which the jury could infer that Smith
knew they were unpaid. Id. at 411, 425. Further, the Court of Special Appeals noted, the
jury had the opportunity to observe Smith’s demeanor and attitude on the stand during the
perjury trial, and could form its own opinion as to her veracity. Id. at 425. Based on this
evidence, the jury could find beyond a reasonable doubt that Smith’s testimony in the prior
case was false, despite the fact that “there was no direct and positive testimony [at the
perjury trial] that [Smith] did not, in fact, send the checks to Berry and Farber[.]” Id. The
Court of Special Appeals relied on Brown in concluding that the State was permitted to
prove the element of falsity entirely through circumstantial evidence: “The mandate of
Brown is clear. Pursuant to [that] mandate, we explicitly hold that where the State produces
and relies upon circumstantial evidence, that circumstantial evidence in and of itself may
be sufficient for a conviction of perjury, and the two witness rule is not applicable.” Id. at
426.
7
The two-witness rule has long been the subject of criticism. See, e.g., Hourie I, 53
Md. App. at 74-76, 81 (explaining that commentators such as Wigmore “are disdainful of
the rule as an utterly discordant note in present-day jurisprudence” and describing the rule
as a “[r]elic [f]ound in a [b]ottle” that owes its continuing existence to having “been in the
right place at the right time”); Smith, 51 Md. App. at 422 (“While the rule may continue to
serve a practical purpose by preventing charges based solely on annoyance or retaliation,
… we are not sure that this purpose outweighs the desirability of consistency in proofs for
the various criminal offenses.”). These misgivings about the two-witness rule led the
Hourie I Court to limit the rule’s applicability to common-law perjury charges. See Hourie
I, 53 Md. App. at 88.
In this Court’s review of the Court of Special Appeals’ decision in Hourie I, we
stated that the two-witness rule should “be limited to the situation for which it was
designed, namely to prevent a conviction of perjury when there is no evidence other than
the word of one witness against that of the defendant,” and that the rule “has no place in a
case in which the falsity of [a] defendant’s testimony can be established by evidence of a
different kind.” Hourie v. State, 298 Md. 50, 60-61 (1983) (“Hourie II”) (quoting R.
Perkins, Criminal Law (2d ed. 1969)). In McGagh, we expressed approval of the two-
witness rule, opining that the rule’s “logical underpinnings remain sound.” 472 Md. at 199
n.14.
We glean from these cases that the two-witness rule, as it presently exists in
Maryland, is a burden of production that applies if the State elects to present the testimony
of a witness as “direct and positive” evidence of the element of falsity. Brown, 225 Md. at
8
616. If the State opts to introduce such witness testimony, the two-witness rule requires
that the State do more: the State must also produce evidence from at least one additional
witness that directly and positively contradicts the allegedly false testimony, or the State
must introduce other evidence that tends to corroborate a sole witness’s direct evidence,
i.e., that tends to establish the falsity of the defendant’s prior testimony. If the State does
not meet this burden of production, then the trial court must grant a defendant’s motion for
judgment of acquittal at the close of the State’s case.1 However, the State is not required to
prove falsity in a perjury case by calling at least one witness who testifies that the
defendant’s prior testimony was false. Rather, the State may obtain a conviction for perjury
if it produces “evidence of a different kind,” Hourie II, 298 Md. at 61 (internal quotation
marks and citation omitted), that is sufficient to prove the element of falsity beyond a
reasonable doubt (assuming, of course, that the State also proves the other elements of
perjury).
1
As discussed above, prior cases discussing the two-witness rule have stated that,
if the State produces direct and positive witness testimony as to falsity, as well as
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.” Brown, 225 Md. at 616-17. This
describes the burden of persuasion that the State must meet to obtain a conviction. See also
Smith, 51 Md. App. at 421 (describing the “relaxed” rule as “allow[ing] a conviction to
stand based on the testimony of one witness corroborated by circumstances sufficient to
equal the weight of a second witness”). These references to the State’s burden of persuasion
in describing the two-witness rule, which is a burden of production, have led to confusion.
We address the State’s burden of persuasion – and how an appellate court should review
the sufficiency of the evidence of falsity in a perjury case – in Section III.B. below.
9
B. O’Sullivan’s Perjury Prosecution
This appeal arises from the conviction of Baltimore Police Officer Michael
O’Sullivan stemming from his testimony at Yusuf Smith’s criminal trial in the District
Court of Maryland sitting in Baltimore City. After a nonjury trial in the Circuit Court for
Baltimore City, the court found O’Sullivan guilty of perjury and misconduct in office, and
the Court of Special Appeals affirmed O’Sullivan’s convictions.
1. Smith’s Trial
At Smith’s trial in the District Court in June 2018, O’Sullivan testified to the
following: On May 1, 2018, O’Sullivan received information of criminal activity at the
Alameda Apartments (the “Apartments”) in Baltimore City. That afternoon, he and his
supervisor, Sergeant Amy Streett, parked in the west surface lot of the Apartments and
entered the Apartments’ courtyard on foot. As O’Sullivan walked from the parking lot into
the courtyard, he saw a man officers later identified as Smith standing near the rear corner
of the Apartments next to another man named Shaqeil Cozart. O’Sullivan testified that, as
O’Sullivan
walked into the complex, the second male, Mr. Cozart, fled on foot straight
back. Mr. Yusuf Smith … removed an object from his waistband and threw
it, and then ran what would be southbound through the rear of the courtyard.
O’Sullivan testified that he recovered a .32 caliber revolver on the ground after walking
through the courtyard. Officers apprehended Smith as he ran through an alley south of the
Apartments.
10
On direct examination, O’Sullivan identified the gun that he recovered, responded
“Yes,” when asked whether he saw someone throw it, and further stated that the person he
saw throw the gun was Smith.
The District Court convicted Smith, after which Smith noted an appeal to the Circuit
Court for Baltimore City. While that appeal was pending, the State dismissed the charges
against Smith and began investigating O’Sullivan.
2. O’Sullivan’s Trial for Perjury and Misconduct in Office
On May 28, 2019, a grand jury in Baltimore City indicted O’Sullivan for perjury, in
violation of Md. Code, Crim. Law (CR) § 9-101, and for the common law offense of
misconduct in office, for allegedly providing false testimony at Smith’s trial. O’Sullivan
elected a nonjury trial in the Circuit Court for Baltimore City, which took place over two
days in October 2019.
The evidence adduced at trial, viewed in the light most favorable to the State,
showed the following: On May 1, 2018, O’Sullivan and Sergeant Streett were on patrol on
The Alameda in Baltimore City. After taking note of a man carrying a satchel in the vicinity
of an Exxon station, the officers saw the man notice them. The man, to whom we will refer
as John Doe,2 then started running and tossed the satchel into a dumpster. O’Sullivan
recovered the abandoned satchel and discovered a gun inside it. The officers arrested Doe
at the Exxon station, which is approximately one block away from the Apartments in the
5600 block of The Alameda. After his arrest, Doe told O’Sullivan that “a black male
2
The name of this man is not contained in the record.
11
wearing jeans, a white T-shirt, a red thermal and red shoes” was at the Apartments, carrying
a gun. Streett, O’Sullivan, and several other officers proceeded to the Apartments to
attempt to apprehend the individual described by Doe.
The Apartments consist of two parallel rows of townhomes separated by a
courtyard.3 To the west of the courtyard, and at a lower elevation than the courtyard, is a
surface parking lot. The courtyard can be reached from the west surface lot by ascending
two sets of steps, separated by a landing, or by walking up a dirt path alongside the steps.
To the east of the courtyard is another surface lot. Just to the south of the apartment
complex is an alley running from east to west. The alley is separated from the southern
portion of the apartment complex by a chain-link fence and, close to where the alley abuts
the Apartments’ east surface lot, a tall wooden fence.
On May 1, 2018, if one walked through the courtyard from west to east and turned
right at the end of the row of townhomes on the south side of the complex, a few steps later
one would come upon a stairwell leading down to a basement landing. The stairwell was
enclosed on one side by the outer wall of the townhomes and, on the opposite side, by a
tall wooden fence.
At trial, the State played Streett’s body-worn camera footage as she provided a
running narrative.4 The State also played O’Sullivan’s body-worn camera footage. The
3
We have included as an Appendix to this opinion an aerial view of the Apartments
and surrounding area, which the State introduced as State’s Exhibit 3 at O’Sullivan’s trial.
4
Baltimore Police Department officers are required to activate their body-worn
cameras from standby mode when beginning an investigation. Activation of the camera
restores the previous 30 seconds of captured footage, albeit without sound.
12
video footage and Streett’s testimony established that, after they arrived at the Apartments,
Streett and O’Sullivan parked in the west surface lot, exited their vehicle, and approached
the courtyard on foot. Streett and O’Sullivan were both in uniform. Meanwhile, other
officers had positioned themselves in the adjacent alley, based on the officers’ expectation
that, if there was an individual present with a gun, he might attempt to flee by way of the
alley after Streett and O’Sullivan made their presence known.
O’Sullivan walked from the parking lot to the courtyard using the paved steps, while
Streett took the dirt path on O’Sullivan’s right. As she walked up the hill, with O’Sullivan
to her left making his way up the steps, Streett could not see over the crest of the sidewalk
toward the proximate corner of the most distant townhome on the south side of the
complex, a corner where criminal activity frequently occurred. When the officers neared
the top of the hill, O’Sullivan smiled and greeted two children sitting on the top of the
stairs. Once she reached a point where she could see through the courtyard to the back
corner of the townhomes on the south side of the complex, Streett saw nothing concerning;
rather, she only saw individuals on the porches in front of their townhomes.
O’Sullivan and Streett proceeded through the courtyard, and the officers were never
separated by more than 10 to 15 feet. It took the officers approximately 30 seconds to cross
the courtyard. During that time, O’Sullivan said nothing to Streett about seeing anyone
throw something or take flight.
As the officers neared the proximate corner of the most distant townhome on the
south side of the complex, Streett activated her body-worn camera on the basis that, given
the criminal activity that regularly occurred near that location, she was “initiating an
13
investigation.” As the officers turned right at the corner and approached the stairwell,
Streett observed a man (later identified as Smith) in the alley running from east to west. At
first, Smith was obscured from Streett’s view by the wooden fence separating the eastern
part of the alley from the yard of the apartment complex, but as Smith continued to run
west through the alley, he came into Streett’s view. Other officers pursued Smith and at
least one other man as they ran west through the alley.
After Streett and O’Sullivan saw Smith and the other man running through the alley,
O’Sullivan proceeded down the stairs to the basement landing, shining his flashlight into
the stairwell. While O’Sullivan inspected the stairwell, Streett approached the alley. As she
did so, she walked past a revolver lying in the grass two to three feet to the left of the
wooden fence enclosing the stairwell.5 With her attention focused on the chase taking place
in the alley, Streett did not notice the gun as she walked past it. She then climbed over the
chain-link fence into the alley, and made her way west down the alley, where Smith had
been apprehended by officers. Smith was wearing a white t-shirt, jeans, and red and white
sneakers. This was consistent with John Doe’s description of the man carrying a firearm at
the Apartments.
5
During her testimony, Streett placed an “X” on State’s Exhibit 3 to indicate the
spot where the gun was recovered. See App. She also marked the spot where she and
O’Sullivan parked when they first arrived (with a dot), the steps where O’Sullivan greeted
the children before the officers entered the courtyard (with a triangular shaped mark), the
spot where she first saw Smith and another man running in the alley (with two circles) and
the direction they ran (with an arrow), and the spot where Smith was taken into custody
(with a square). See id.
14
After he completed his inspection of the stairwell, O’Sullivan walked back up the
steps. When he reached the top of the stairs, O’Sullivan turned right and then walked
around the tall wooden fence that enclosed the stairwell, approaching the alley. At that
point, O’Sullivan saw the black and silver handgun in the nearby grass, activated his
body-worn camera, radioed “got the gun” to the other officers, and picked up the firearm.
When O’Sullivan recovered the gun, it was in a spot that was at least 20 feet away from
the corner of the building at which he and Streett had turned after walking through the
courtyard and reaching the end of the south row of townhomes. A portion of the tall wooden
fence enclosing the stairwell was in the direct line between the corner of the building and
the spot where O’Sullivan recovered the gun. Thus, when O’Sullivan and Streett reached
the corner of the building, the wooden fence completely blocked their view of the gun. It
was only after O’Sullivan came back up the stairwell, walked around the wooden fence
and proceeded toward the alley with the fence to his right, that he saw the gun.
After he picked up the revolver, O’Sullivan climbed over the chain-link fence
between the apartment complex and the alley, and entered the alley. As he approached the
spot where Streett and other officers were detaining Smith, O’Sullivan radioed “30,” an
indication that someone should be taken into custody.
Smith testified that he was at the Apartments that day to visit with his cousin and
others. He admitted that he played dice and smoked marijuana with a group of people, but
denied that he had a handgun. Smith claimed that he was around the corner of the rear
apartment building when someone yelled “police,” after which he and the others playing
dice scattered. Smith testified that, prior to the moment when the group scattered, he had
15
been standing around the corner of the building with his back to the corner of the building.
According to Smith, he was in that spot for approximately five minutes before someone
yelled “police.” In other words, for approximately five minutes prior to the time Smith fled,
Smith was not in a position where he could be seen by someone on the landing between
the west surface parking lot and the second set of steps leading to the courtyard or by
someone who was approaching the rear corner of the south row of townhomes from the
west, by way of the courtyard.
The State asked Smith to specify what O’Sullivan testified to at Smith’s District
Court trial that was “inconsistent with the truth.” Smith replied: “He said that he saw me
with a silver handgun and I removed it from my waistband and threw it on the ground and
that was not true.”6
Testifying in his own defense, O’Sullivan stated that, as he walked on the landing
between the two sets of steps prior to entering the courtyard, he could see through the
courtyard to the corner of the rear townhome in the south row of townhomes. At that time,
according to O’Sullivan, he saw the man later identified as Smith standing next to the
corner of the rear townhome, facing O’Sullivan. Smith was standing next to the man
subsequently identified as Cozart. O’Sullivan testified that he then saw Cozart flee
eastbound through the east surface parking lot. According to O’Sullivan, at that same time,
he saw Smith turn and also begin to run. O’Sullivan further testified that, as Smith turned
away from him to flee, Smith reached into his waistband and tossed an object.
6
In its case-in-chief, the State also played an audio recording of O’Sullivan’s
testimony at Smith’s trial.
16
After the close of evidence, and after hearing argument from the State and
O’Sullivan’s trial counsel, the circuit court ruled as follows:
[T]he issue is whether … [O’Sullivan] was telling the truth on the statement
of charges [and] in his testimony in front of the district court, and this Court
finds that the detective did not tell the truth.
I sat and watched the body camera video of Sergeant Streett and the
observations from that body camera of what was possibly the vision of two
individuals approaching that area, and I took into great consideration that
Officer O’Sullivan had a different angle, a different perspective in his
testimony of what he saw of Mr. Smith being at the side of the building and
discharging or … tossing.
Today what he said was it was an object that – under oath he said it was a
gun and numerous times he was positive that it was a gun. The gun was found
so far away that it could not have been tossed. It had to go around the corner,
basically over a fence and that to me is inconsistent with the testimony of
Sergeant Streett, the video, body-worn camera video, the testimony of all the
other officers who didn’t observe any of it.
His lack of turning on his video, his stopping and talking with some kids
when allegedly suspects are running off, his not even mentioning to his
partner who was right beside him the possibility of something being tossed,
I found the testimony of Detective O’Sullivan to be challenged and I find that
his statements in district court, he perjured himself on direct examination
from the State’s attorney and from cross examination of the Defense
attorney.
So this Court finds beyond a reasonable doubt that the Defendant is guilty of
both perjury and misconduct in office.
On December 3, 2019, the circuit court sentenced O’Sullivan to concurrent
15-month terms of incarceration on the two counts of conviction.
C. Appeal
O’Sullivan noted a timely appeal, presenting the Court of Special Appeals with the
sole question of whether the evidence introduced at trial was legally sufficient to sustain
17
his perjury and misconduct in office convictions. In an unreported opinion, the Court of
Special Appeals affirmed the judgment of the circuit court. The intermediate appellate
court held that, “because a reasonable factfinder could conclude that O’Sullivan testified
falsely at Smith’s criminal trial based solely on the body camera footage, this was not an
oath-against-oath case implicating the two-witness rule.” O’Sullivan v. State, No. 2275,
slip op. at 17, Sept. Term, 2019, 2020 WL 7419686, at *8 (Md. Ct. Spec. App. Dec. 18,
2020). The court also held that, even if it were to apply the two-witness rule, the rule would
be satisfied because Streett’s body camera footage was independent corroborative evidence
of Smith’s testimony, and because “the direct and circumstantial evidence was legally
sufficient to foreclose any reasonable hypothesis other than O’Sullivan’s guilt.” Id.O’Sullivan filed a petition for certiorari in this Court, seeking review of the
following questions:
1. Whether, in an oath-against-oath perjury case, the State is relieved of its
burden of production under the two-witness rule by introducing
circumstantial evidence?
2. Whether there was sufficient evidence that [O’Sullivan] committed
perjury and misconduct in office?
The State subsequently filed a conditional cross-petition for certiorari, presenting
the following question:
Should the “two witness” rule, which provides for a heightened burden of
production that is only applicable to the misdemeanor offense of perjury, be
prospectively abrogated in favor of the standard burden of production in a
criminal case, which requires the State to prove guilt beyond a reasonable
doubt and trusts in the ability of the fact-finder to weigh evidence?
18
On April 9, 2021, we granted both petitions. O’Sullivan v. State, 474 Md. 221(2021).
II
Standard of Review
Maryland Rule 8-131(c) governs the appellate review of nonjury trials:
When an action has been tried without a jury, the appellate court will review
the case on both the law and the evidence. It will not set aside the judgment
of the trial court on the evidence unless clearly erroneous, and will give due
regard to the opportunity of the trial court to judge the credibility of the
witnesses.
In reviewing the sufficiency of the evidence, “Maryland appellate courts ... adopt a
deferential standard ... that asks whether ‘any rational trier of fact could have found the
elements of the crime beyond a reasonable doubt.’” McGagh, 472 Md. at 193 (emphasis in
original) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). An appellate court’s
only question, in reviewing sufficiency, is “whether the verdict was supported by sufficient
evidence, direct or circumstantial, which could fairly convince a trier of fact of the
defendant’s guilt of the offenses charged beyond a reasonable doubt.” State v. Manion, 442
Md. 419, 431 (2015) (internal quotation marks and citation omitted). “Weighing the
credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the
fact finder,” State v. Smith, 374 Md. 527, 533-34 (2003) (internal quotation marks and
citation omitted), and, upon review, the evidence must be viewed “in the light most
favorable to the prosecution.” Id. at 533.
We review questions of law de novo. State v. Robertson, 463 Md. 342, 358 (2019).
19
III
Discussion
A. Maryland Shall Retain the Two-Witness Rule.
We first consider the State’s cross-petition, in which the State asks us to
prospectively abrogate the two-witness rule. Because doing so would be inconsistent with
the doctrine of stare decisis, we shall retain the rule.
“Under stare decisis, absent extremely narrow exceptions, an appellate court does
not overrule its precedent.” Thompson v. UBS Fin. Servs., Inc., 443 Md. 47, 57 (2015)
(cleaned up). While “stare decisis does not preclude this Court from changing a common
law rule where, in light of changed conditions or increased knowledge,” a rule “has become
unsound in the circumstances of modern life” and “a vestige of the past,” State v.
Wiegmann, 350 Md. 585, 604 (1998) (cleaned up), there are only two exceptions to the
general rule that could potentially apply here. “First, the Court may strike down a decision
that is clearly wrong and contrary to established principles.” Wallace v. State, 452 Md. 558,
582 (2017) (cleaned up). “Second, precedent may be overruled when there is a showing
that the precedent has been superseded by significant changes in the law or facts.” Id.(internal quotation marks and citation omitted). Outside of these exceptions, to abide by
stare decisis “is the preferred course because it promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial process.” Livesay v.
Baltimore Cty., 384 Md. 1, 14 (2004) (quoting Payne v. Tennessee, 501 U.S. 808, 827
(1991)).
20
Neither of these exceptions applies with respect to the two-witness rule. Analyzing
the federal version of the rule more than 70 years ago, the Supreme Court observed that,
“[w]hether it logically fits into our testimonial pattern or not, the government has not
advanced sufficiently cogent reasons ... to reject the rule.” Weiler v. United States, 323
U.S. 606, 609 (1945). The same holds true with respect to the State’s arguments here.
1. The Two-Witness Rule Is Not Clearly Wrong and Contrary to Established
Principles.
The Supreme Court articulated the modern rationale7 for the rule in Weiler:
Lawsuits frequently engender in defeated litigants sharp resentments and
hostilities against adverse witnesses, and it is argued, not without
persuasiveness, that rules of law must be so fashioned as to protect honest
witnesses from hasty and spiteful retaliation in the form of unfounded perjury
prosecutions.
The crucial role of witnesses compelled to testify in trials at law has impelled
the law to grant them special considerations. In order that witnesses may be
free to testify willingly, the law has traditionally afforded them the protection
of certain privileges, such as, for example, immunity from suits for libel
springing from their testimony. Since equally honest witnesses may well
have differing recollections of the same event, we cannot reject as wholly
unreasonable the notion that a conviction for perjury ought not to rest entirely
upon “an oath against an oath.” The rule may originally have stemmed from
quite different reasoning, but implicit 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.
Weiler, 323 U.S. at 609 (footnote omitted). The modern purpose of the two-witness rule,
then, is not only to prevent the wrongful conviction of purported perjurers, but also to deter
their being wrongly prosecuted at all.
7
The parties agree – as do we – that the quantitative approach of the ancient
ecclesiastical courts, from which the two-witness rule originally developed, provides no
justification for the rule today. It would be bizarre to suggest otherwise.
21
As discussed above, in McGagh we stated that the “logical underpinnings” of the
two-witness rule “remain sound.” 472 Md. at 199 n.14. However, in McGagh, the State did
not seek the abrogation of the two-witness rule. In this case, the State makes several
arguments in support of its position that the logical underpinnings of the rule are not sound.
First, the State argues that, while the two-witness rule ostensibly serves as protection
against wrongful convictions, “by affording such extra protection only to those who have
been charged with giving false testimony, the rule potentially licenses the very harm it
seeks to avoid.” This concern seems overblown, given the relatively modest burden that
the two-witness rule imposes on the State. All the State must do to meet its burden of
production under the rule is introduce some evidence – direct and/or circumstantial – that
(in addition to a witness’s direct and positive testimony) tends to prove the defendant’s
prior testimony was false. As discussed further below, once the State meets this burden of
production, it is the factfinder’s task to determine whether the State’s proof as a whole
establishes the falsity of the defendant’s prior testimony (and the other elements of perjury)
beyond a reasonable doubt. A reasonable witness would not feel emboldened by the
two-witness rule to testify falsely, as the State likely will be able to produce some other
evidence of falsity in addition to the direct and positive testimony of a witness who asserts
that the defendant’s prior testimony was false. It is telling that, despite Maryland having
maintained the two-witness rule for more than two centuries, the State has provided us with
no empirical or anecdotal evidence that perjury occurs more frequently in Maryland than
in states that have dispensed with the rule.
22
Although we doubt that the two-witness rule encourages perjury, we think the rule
does encourage a reasonable, truthful witness – who otherwise might be reluctant to testify
out of fear that she may not be believed – to provide testimony. It does so by requiring the
State to have more than just one person’s uncorroborated contrary account to successfully
prosecute the witness for perjury. This gives the truthful witness confidence that, if the
factfinder does not accept the witness’ testimony, the State will not proceed against the
witness on a perjury charge based solely on a “he said/she said” dispute.
Second, the State argues that the modern justification for the two-witness rule
incorrectly assumes that there is a relatively greater likelihood of unfounded accusations
of perjury than there is for other crimes. In support of this contention, the State relies upon
Hourie I’s assertions that “fear [of retaliatory prosecution] now seems illusory” and that
“[t]he institutionalization of the charging mechanism in America, as opposed to the private
prosecution of crime that was for long permitted in England, effectively forestalls the
danger of reckless charging.” Hourie I, 53 Md. App. at 83. However, this criticism of the
two-witness rule does not convince us that the rule is clearly wrong. Perjury prosecutions
do differ from other prosecutions, in that a perjury charge concerns a defendant’s prior
sworn statement, often given to the detriment of the prosecution in a prior case. In such a
case, a prosecution for perjury resembles a private prosecution. McGagh observed that
perjurers harm not only the people of the state writ large, and not only those individuals
who may be wrongfully charged or convicted on the basis of their testimony, but also the
23
justice system itself.8 The individuals who make the decisions to investigate, charge, and
arrest are at the heart of that system. Thus, alleged perjurers may be perceived as wasting
the time and energy of the very people responsible for deciding whether to prosecute them
for perjury. Even where perjury occurs in a civil case as opposed to a criminal case, the
prosecutor becomes the defender of the administration of justice in such a case by virtue
of the existence of criminal penalties for perjury in civil cases.
Although most prosecutors undoubtedly strive to maintain objectivity when
considering whether to pursue a perjury case, we cannot say that the two-witness rule is a
wholly unnecessary check against a prosecutor potentially losing objectivity and bringing
an unfounded perjury case based on the word of a single witness who claims that the
putative defendant testified falsely.
Third, the State contends that maintaining the two-witness rule is not justified by
the concern that equally honest witnesses may have differing recollections of the same
event, “because falsity (the only element to which the rule applies) is only one element of
the criminal offense of perjury. It is thus not sufficient to prove the testimony was factually
untrue (i.e. false).” Rather, the State reminds us, it must also prove that the defendant acted
“willfully” in providing the false testimony, Md. Code, Crim. Law (CR) § 9-101(a) (Repl.
8
See McGagh, 472 Md. at 198 (“[T]he trial court identified multiple instances
where McGagh’s false statements harmed the justice system. The false accusation pulled
[a police officer] away from his other law enforcement duties to investigate her specious
claim. It occupied the attention of [a] Commissioner in evaluating and issuing the arrest
warrant. It wasted the time of the officers who arrested [the employee who allegedly
assaulted McGagh]. It consumed the time of the trial court in litigating her claim.”).
24
Vol. 2021); that is, that “the false oath [was] deliberate and not the result of surprise,
confusion or bona fide mistake.” McGagh, 472 Md. at 204 (cleaned up).
We recognize that the two-witness rule is not the only safeguard against a wrongful
perjury conviction. The requirement that the State prove the element of willfulness is also
significant. However, once the State sufficiently proves falsity, it often is a small leap from
that point to prove willfulness. Indeed, it has long been accepted that the trier of fact in a
perjury case may infer willfulness from the proof of falsity itself. See, e.g., McGagh, 472
Md. at 204 (“Proof of falsity permits a trial court’s inferences of wrongful intent.”); State
v. Boratto, 404 A.2d 604, 608 (N.J. 1979) (knowledge of falsity in a prosecution for perjury
may be inferred from surrounding circumstances, including “the objective falsity itself”);
State v. McCaslin, 482 N.W.2d 558, 564 (Neb. 1992) (“Proof of the falsity of a response
may circumstantially imply knowledge that such was untrue when uttered.”); La Placa v.
United States, 354 F.2d 56, 59 (1st Cir. 1965) (holding that “appellant’s belief that the
statements he made were false need not be proved by the ‘two witness rule;’ and that in
appropriate circumstances belief of falsity may be inferred by proof of the falsity itself”).
This principle makes it easier for the State to prove willfulness in a perjury case. But it is
sound only if one is confident that the State has sufficiently proven the element of falsity.
Because proof of falsity and proof of willfulness often are coextensive, or at least
intertwined, the willfulness element does not carry the weight that the State ascribes to it
here. But even if we assume that the State often will be able to point to additional evidence
besides the proof of falsity to establish the element of willfulness, we cannot say it is clearly
25
wrong to provide a second check against a wrongful perjury conviction in the form of the
two-witness rule.
We gather that the State seeks to abrogate the two-witness rule because it would like
to have the freedom and flexibility to bring a perjury case in the seemingly rare situation
where, after an investigation, the only proof of falsity it has is the word of a single witness.
It is true that the two-witness rule constrains the State’s prosecutorial discretion in such a
case. However, this burden does not justify a “departure from the established rules of law.”
Loeffler v. Carey, 181 Md. 648, 652 (1943).
2. The Rule Has Not Been Superseded by Changes in the Law or Facts.
The State identifies no changed factual circumstances in the 60 years since this
Court first analyzed and recognized the two-witness rule in Brown that would justify
abandoning it. Indeed, the two-witness rule appears to be thriving nationwide, growing,
rather than shrinking, in its applicability. While five states have statutorily abrogated the
rule9 and one state high court has declined to adopt it,10 no state high court has explicitly
9
See Alaska Stat. § 11.56.220 (2021); Ariz. Rev. Stat. Ann. § 13-2707 (2021); N.D.
Cent. Code § 12.1-11-01(2) (2021); Okla. Stat. Ann. tit. 21, § 498(a) (2021); 11 R.I. Gen.
Laws § 11-33-1(e) (2021).
10
See State v. Sands, 467 A.2d 202, 214 (N.H. 1983).
26
abrogated the rule,11 and 16 states have codified it.12 This case, then, is not like State v.
Jones, in which this Court abrogated the accomplice corroboration rule at a time when
“most jurisdictions (thirty-two states, the District of Columbia, the federal courts, Puerto
Rico, Guam, and the Virgin Islands) either [had] not adopted the ... rule or [had] repealed
it.” 466 Md. 142, 160 (2019) (footnote omitted). Indeed, when this Court decided Jones,
“Maryland and Tennessee [were] the only jurisdictions with a judicially-created
accomplice corroboration rule.” Id. at 160-61.
Still, the State identifies one potential change in the law that could support
abrogation. The State notes that, in 1970, the Supreme Court held “that the Due Process
Clause protects the accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is charged.” In re
Winship, 397 U.S. 358, 364 (1970). This was nine years after this Court first discussed the
two-witness rule in Brown, and 25 years after the Supreme Court preserved the two-witness
11
In State v. Storey, 182 N.W. 613, 615 (Minn. 1921), the Minnesota Supreme Court
held that “perjury may be proved by circumstantial evidence [alone] if proof is made
beyond reasonable doubt, as in the case of other crimes.” The Storey Court was not
“primarily concerned with the question whether the direct testimony of one witness without
more will sustain a conviction, for in [Storey’s] case there was no direct testimony of the
falsity of the oath. The evidence was circumstantial.” Id. at 614-15.
12
See Ala. Code § 13A-10-105 (2021); Ark. Code Ann. § 5-53-107 (2021); Cal.
Penal Code § 118(b) (2021); Del. Code Ann. tit. 11, § 1234 (2021); Haw. Rev. Stat. § 710-
1067 (2021); Ky. Rev. Stat. Ann. § 523.060 (2021); Mo. Rev. Stat. § 575.070 (2021); Mont.
Code Ann. § 45-7-201(7) (2021); Neb. Rev. Stat. § 28-915(7) (2021); N.J. Stat. Ann.
§ 2C:28-1(e) (2021); N.Y. Penal Law § 210.50 (McKinney 2021); Ohio Rev. Code Ann.
§ 2921.11(E) (2021); Or. Rev. Stat. § 162.115 (2021); 18 Pa. Cons. Stat. § 4902(f) (2021);
Tex. Code Crim. Proc. Ann. art. 38.18(a) (West 2021); Utah Code Ann. § 76-8-505(1)
(2021).
27
rule at the federal level and articulated its modern policy justification in Weiler. Arguably,
the justification for a burden of production unique to perjury and unknown to any other
crime (with the exception of treason) is undermined by the universal guarantee of this
burden of proof, one of the most stringent safeguards afforded criminal defendants, and
one that is “basic in our law and rightly one of the boasts of a free society[.]” Leland v.
Oregon, 343 U.S. 790, 803 (1952) (Frankfurter, J., dissenting).
Yet, the Winship Court itself identified multiple Supreme Court opinions indicating
that, by 1970, “it [had] long been assumed that proof of a criminal charge beyond a
reasonable doubt [was] constitutionally required.” 397 U.S. at 362. In Maryland, at least
by the 1870s, proof “beyond a reasonable doubt” was accepted as the relevant standard in
a criminal case. See, e.g., Norwood v. State, 45 Md. 68, 75 (1876) (stating that “[t]he corpus
delicti must be found beyond reasonable doubt”). Notwithstanding prior practice in
Maryland under which trial courts instructed juries that, consistent with Article 23 of the
Maryland Declaration of Rights,13 the jurors were the judges of the law in addition to being
the judges of the facts,14 the reasonable doubt standard was firmly entrenched in Maryland
by 1961, when this Court judicially recognized the two-witness rule in Brown. See, e.g.,
Johnson v. State, 227 Md. 159, 163 (1961) (“Everyone accused of crime is presumed to be
innocent; and, in order to justify a finding of guilt, it is incumbent upon the State
13
Article 23 of the Maryland Declaration of Rights provides, in part: “In the trial of
all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the
Court may pass upon the sufficiency of the evidence to sustain a conviction.”
14
For a discussion of this practice, see Stevenson v. State, 289 Md. 167 (1980),
overruled by Unger v. State, 427 Md. 383 (2012).
28
affirmatively to establish the defendant’s guilt beyond a reasonable doubt.”). Thus, the
State’s invocation of Winship as a changed circumstance that should cause us to abrogate
the two-witness rule is unavailing.
To conclude, we reaffirm what we said about the two-witness rule in McGagh: its
“logical underpinnings remain sound.” 472 Md. at 199 n.14. Nor do we perceive any
changed circumstances that warrant the rule’s abrogation. For these reasons, we shall retain
the two-witness rule in Maryland.
B. Evaluation of the Sufficiency of the Evidence in a Perjury Case
As discussed above, the two-witness rule is a burden of production that applies if
the State elects to present the testimony of a witness as “direct and positive” evidence of
the element of falsity. However, the State need not prove falsity in a perjury case through
the testimony of a witness who directly contradicts the truth of the alleged perjurious
statement. Rather, the State may prove falsity by producing “evidence of a different kind.”
Hourie II, 298 Md. at 61 (internal quotation marks and citation omitted). For example, the
State may prove falsity entirely through circumstantial evidence, as it did in Brown and
Smith. In such a case – which does not involve “oath-against-oath” – the two-witness rule
has no application. It is clear that, in reviewing the sufficiency of the evidence of falsity
(and the other elements of a perjury charge) in a case where the two-witness rule is
inapplicable, an appellate court applies the same standard of review as it does in all other
criminal cases that do not include perjury charges. That is, the appellate court asks whether
29
“any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Manion, 442 Md. at 430 (emphasis in original) (citations omitted).
O’Sullivan argues that, because Smith did provide direct evidence of falsity at
O’Sullivan’s trial, the two-witness rule applies to this case, and we must therefore review
the sufficiency of the evidence using a unique three-part test, which focuses on the
circumstantial evidence the State offered to corroborate Smith’s testimony as to the
element of falsity. Relying on Mason v. State for this test, O’Sullivan argues that, first, the
circumstantial evidence “must be ‘independent,’ meaning that it must come ‘from a source
other than that of the direct testimony.’” Pet. Br. at 23 (quoting Mason, 225 Md. App. at
486). Second, the evidence must be “sufficiently corroborative” of the direct testimony –
i.e., it must “tend[] to substantiate that part of the testimony of the principal prosecution
witness, which is material in showing that the statement made by the accused under oath
was false.” Mason, 225 Md. App. at 487. Third, the 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 488 (quoting Brown, 225 Md. at 616-
17).
The Court of Special Appeals opined that “a reasonable factfinder could conclude
that Officer O’Sullivan testified falsely at Smith’s criminal trial based solely on the body
camera footage[.]” O’Sullivan, slip op. at 17, 2020 WL 7419686, at *8. That being the case,
the court stated that “this was not an oath-against-oath case implicating the two-witness
rule.” Id. We agree with O’Sullivan that the two-witness rule does apply to his prosecution.
Whether or not the State could have proved the element of falsity without calling Smith as
30
a witness, the State did not proceed that way. Because the State chose to introduce Smith’s
direct and positive testimony to establish the element of falsity, the two-witness rule was
applicable, and the State was required to produce additional evidence that tended to prove
the falsity of O’Sullivan’s prior testimony.
However, we disagree with O’Sullivan’s contention that a different standard of
review should apply with respect to the sufficiency of the evidence of falsity in an “oath-
against-oath” perjury case versus a perjury case in which the two-witness rule is
inapplicable. Prior cases discussing the relaxed two-witness rule have conflated the rule’s
burden of production with the State’s burden of persuasion in proving falsity beyond a
reasonable doubt, resulting in confusion. Most notably, in Brown, this Court stated that, if
the State attempts to prove falsity in a perjury case through the use of direct testimony from
a single witness and corroborating circumstantial evidence, the latter 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.” Brown, 225 Md. at 616-17.
We find this formulation, ultimately, to be unhelpful. The State always has the
burden to prove all elements of a criminal charge beyond a reasonable doubt. As we have
explained, the two-witness rule prohibits the State from proving falsity in a perjury case
solely through direct and positive evidence from a single witness. Beyond that limitation,
the State may proceed as it sees fit. It may attempt to meet its burden to prove falsity
through direct and positive testimony from at least two witnesses; or entirely through
circumstantial evidence; or through a combination of direct witness testimony and
circumstantial evidence. How the State chooses to attempt to meet its burden of persuasion
31
as to falsity in any particular case does not affect the standard of review that a court applies
in determining whether the State has met that burden. Thus, circumstantial evidence in an
oath-against-oath perjury case need not be equal to the conceptual “weight” of a second
witness. This abstract proposition suggests that the reviewing court should compare the
weight of the direct witness testimony against the weight of the other evidence. That
inquiry is not necessary or appropriate. Rather, where the State introduces direct and
positive testimony from a single witness as well as circumstantial evidence to prove falsity,
a reviewing court should examine the totality of the evidence, as it does in every other case.
Again, under that standard of review, the court asks whether “any rational trier of fact could
have found the elements of the crime beyond a reasonable doubt,” McGagh, 472 Md. at
193 (emphasis in original) (quoting Jackson, 443 U.S. at 319), with the evidence presented
at trial viewed in the light most favorable to the State.15
C. O’Sullivan’s Convictions for Perjury and Misconduct in Office
With the principles we have discussed above in mind, we now review O’Sullivan’s
convictions for perjury and misconduct in office. We conclude that the State met its burden
15
O’Sullivan also contends that proof of falsity by circumstantial evidence is
permissible only where that evidence is documentary in nature. He is incorrect. Certainly,
circumstantial evidence that goes to the element of falsity often comes in the form of
documents. In days of yore, such circumstantial evidence sometimes could only be
documentary in nature, given the technology that existed at the time. See, e.g., United
States v. Wood, 39 U.S. 430, 440 (1840) (“[C]ircumstances, without any witness, when
they exist in documentary or written testimony, may combine to establish the charge of
perjury[.]”) (emphasis added). In McGagh, we recognized that evidence of falsity today
comes in multiple forms, including “documents, video footage, or other circumstantial
evidence.” 472 Md. at 199 n.14.
32
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 the charged offenses.
1. The State Met Its Burden of Production Under the Two-Witness Rule.
The State introduced more than the direct and positive testimony of a single witness
to prove the falsity element of perjury at O’Sullivan’s trial. In addition to Smith’s direct
testimony, the State introduced video evidence, informed by Sergeant Streett’s testimony,
which tended to prove that O’Sullivan could not have seen Smith throw a firearm where
and when O’Sullivan claimed Smith did so. Thus, the State met its burden of production
under the two-witness rule.
2. The Evidence Was Sufficient to Prove That O’Sullivan Committed Perjury and
Misconduct in Office.
Under the perjury statute that applies to O’Sullivan’s prosecution, CR § 9-101(a)(1),
“[a] person may not willfully and falsely make an oath or affirmation as to a material fact
... if the false swearing is perjury at common law.” At common law, perjury was “the wilful
[sic] giving of a false oath (a corrupt sworn statement made without sincere belief in its
truthfulness) in a judicial proceeding in regard to a material matter.” McGarvey v.
McGarvey, 286 Md. 19, 25 (1979). False testimony is “material” when it is “capable of
affecting the course or outcome of the proceedings or the decision-making of the court[.]”
McGagh, 472 Md. at 206 (emphasis, internal quotation marks, and citation omitted). False
testimony is “willful” when it is deliberate, and not the result of “surprise, confusion or
bona fide mistake[.]” State v. Devers, 260 Md. 360, 372 (1971), overruled on other
grounds, In re Petition for Writ of Prohibition, 312 Md. 280 (1988). As discussed above,
33
“[p]roof of falsity permits a trial court’s inferences of wrongful intent.” McGagh, 472 Md.
at 204.
Misconduct in office is a common law misdemeanor entailing “corrupt behavior by
a public officer in the exercise of the duties of his office or while acting under color of his
office.” Duncan v. State, 282 Md. 385, 387 (1978). The public officer’s “corrupt behavior
may be (1) the doing of an act which is wrongful in itself – malfeasance[;] or, (2) the doing
of an act otherwise lawful in a wrongful manner – misfeasance; or, (3) the omitting to do
an act which is required by the duties of the office – nonfeasance.” Id.O’Sullivan contends the evidence at trial showed that “it was entirely possible for
Smith to have been standing where [O’Sullivan] testified [Smith was at the time Smith
allegedly threw a gun] and for the gun … to have landed where it did.” That being the case,
O’Sullivan argues that the trial court’s verdict was based on “mere speculation or
conjecture,” Smith v. State, 415 Md. 174, 185 (2010), and that its reasoning therefore was
“obviously insufficient,” Taylor v. State, 346 Md. 452, 458 (1997) (citation omitted).
O’Sullivan also argues that, even if the evidence was sufficient to support the trial court’s
finding that he testified falsely, it was insufficient to support a finding that any false
testimony was willful. In regard to the former point, the State counters that O’Sullivan’s
arguments pertaining to his point of view and the physics of the gun’s potential landing
spot go to the weight of the evidence and therefore implicate issues that are within the
province of the factfinder. With respect to the latter point, the State responds that proof of
falsity permits, but does not require, a trial court’s inference of wrongful intent, and that
the trial court here, rather than finding O’Sullivan saw Smith throw something that was not
34
a gun, found that O’Sullivan did not see Smith throw anything at all. Based on this finding,
the State argues, the trial court reasonably could find that O’Sullivan’s testimony at Smith’s
trial was not mistakenly inaccurate, but rather was willfully false.
The State is correct on both counts. First, the trial court’s inferences from the
body-worn camera footage regarding what O’Sullivan could or could not see as he crested
the hill from the west surface lot, and whether the gun could have landed where it did from
where Smith allegedly threw it, are not based on speculation or conjecture, but are plainly
supported by the record. Pages 31, 41, and 42 of O’Sullivan’s opening brief contain
photographs extracted from body-worn camera footage depicting the geography and
architecture of the rear corner of the easternmost townhome near which O’Sullivan found
the gun. These photographs show that the trial court’s finding regarding the flight path of
the gun is not clearly erroneous. Given the tall wooden fence between the corner of the
building and the spot where O’Sullivan recovered the gun, it was highly unlikely, if not
physically impossible, for someone standing where O’Sullivan claimed Smith was
standing to have thrown the gun.
Nor is the trial court’s drawing an inference that O’Sullivan did not see anything
thrown from his “lack of turning on his video, his stopping and talking with some kids
when allegedly suspects are running off, [and] his not even mentioning to his partner who
was right beside him the possibility of something being tossed,” clearly erroneous or based
on mere speculation or conjecture. For O’Sullivan’s testimony regarding Smith’s having
thrown a gun to be accurate, he would have had to watch a gun being thrown in a
high-crime area, then fail to mention that to his supervisor or radio nearby police officers,
35
then calmly greet the two children at the top of the hill, and then walk all the way through
the Apartments’ courtyard before taking any action consistent with his having seen the gun
being thrown. In addition, Streett, who accompanied O’Sullivan closely up the hill from
the west lot and through the courtyard, testified that she saw nothing suspicious, despite
being prepared to investigate criminal activity at the proximate corner of the easternmost
townhome.
A rational trier of fact could find that these circumstances are inconsistent with
O’Sullivan having testified truthfully at Smith’s trial. Bearing in mind that “[w]eighing the
credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the
fact finder,” State v. Stanley, 351 Md. 733, 750 (1998), and, viewing the evidence in the
light most favorable to the prosecution, see, e.g., State v. Morrison, 470 Md. 86, 105
(2020), a rational factfinder could find beyond a reasonable doubt that O’Sullivan’s
testimony was false, based on the body-worn camera footage, Streett’s testimony, and
Smith’s testimony concerning his location prior to the time someone yelled “police” and
he started running.16
16
The defense impeached Smith effectively by playing a recording of a jailhouse
call from which the court could have concluded that Smith possessed a gun at the
Apartments that afternoon. Regardless, a rational trier of fact could have credited the
portion of Smith’s testimony in which he described his position for the five minutes prior
to someone yelling “police” and the crowd then scattering. According to Smith, he was
around the corner of the easternmost townhome during that period of time. Based on this
testimony, a rational trier of fact could have concluded that Smith was not visible to
O’Sullivan and Streett as they ascended the hill from the west parking lot and proceeded
through the courtyard.
36
A rational trier of fact also could infer wrongful intent from the State’s evidence
proving falsity. As stated above, perjury is willful when the pertinent testimony is not the
result of “surprise, confusion or bona fide mistake.” Devers, 260 Md. at 372. Here, the
circuit court discredited the very “possibility of something being tossed.” For the reasons
stated above, this was a rational inference from the available evidence. If O’Sullivan did
not see anything being tossed, then the trial court could conclude that O’Sullivan did not
testify falsely as a result of confusion or bona fide mistake.
As to the materiality element of perjury, as O’Sullivan was the only witness called
by the State at Smith’s trial, his testimony was plainly “capable of affecting the course or
outcome of the proceedings or the decision-making of the court[.]” McGagh, 472 Md. at
206 (emphasis, internal quotation marks, and citation omitted). O’Sullivan makes no
argument to the contrary.
Ultimately, a rational trier of fact could find beyond a reasonable doubt that
O’Sullivan gave “a false oath in a judicial proceeding in regard to a material matter,”
Hourie I, 53 Md. App. at 64, that was not the result of “surprise, confusion or bona fide
mistake.” Devers, 260 Md. at 372. Thus, the evidence was sufficient to convict O’Sullivan
of perjury.
The evidence also sufficiently supported the misconduct in office conviction. In
proving that O’Sullivan perjured himself – that is, that he willfully provided false testimony
– at the trial of a person he arrested, the State proved “corrupt behavior by a public officer
in the exercise of the duties of his office or while acting under color of his office.” Duncan,
282 Md. at 387.
37
“Requiring that the State prove corrupt intent in misfeasance cases shields public
officers from liability for ‘the consequences of mistakes honestly made.’” Sewell v. State,
239 Md. App. 571, 603 (2018) (quoting Bevard v. Hoffman, 18 Md. 479, 483 (1862)). Here,
the evidence presented at trial not only permitted a reasonable factfinder to conclude that
O’Sullivan testified falsely without surprise, confusion, or bona fide mistake, but also to
determine that his conduct was driven by corrupt intent. If the evidence allowed for the
determination that O’Sullivan’s testimony was not error, and that it emerged not from
confusion or surprise, but from a deliberate attempt to introduce falsehood, then there is no
question that the purpose of the “corrupt intent” inquiry, that is, to avoid conviction for
honest mistakes by public officials, has been satisfied.
IV
Conclusion
Maryland’s common law will retain the two-witness rule for “oath-against-oath”
perjury cases. Under the rule, the testimony of a single witness who testifies that the
defendant’s prior testimony was false cannot, by itself, satisfy the falsity element of a
perjury charge. The State can prove falsity by introducing only circumstantial evidence, by
introducing direct evidence from multiple witnesses, or by introducing circumstantial
evidence along with direct evidence from one or more witnesses. Any such combination of
forms of proof will satisfy the State’s burden of production as to the element of falsity. The
State met its burden of production under the two-witness rule in this case.
Appellate courts review the sufficiency of the evidence in an oath-against-oath
perjury case as they do in any other case, asking whether any rational trier of fact could
38
find each element of perjury, including falsity, beyond a reasonable doubt. Here, the
evidence was sufficient to sustain O’Sullivan’s convictions for perjury and misconduct in
office.
Accordingly, we affirm the judgment of the Court of Special Appeals.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED; COSTS
TO BE PAID BY PETITIONER.
39
APPENDIX
Circuit Court for Baltimore City
Case No. 119148010
Argued: September 13, 2021
IN THE COURT OF APPEALS
OF MARYLAND
No. 3
September Term, 2021
MICHAEL O’SULLIVAN
v.
STATE OF MARYLAND
Getty, C.J.
McDonald
Watts
Hotten
Booth
Biran
Raker, Irma S.
(Senior Judge, Specially Assigned),
JJ.
Concurring and Dissenting Opinion by Raker, J.,
which McDonald, J., joins.
Filed: December 17, 2021
Raker, J. concurring and dissenting, McDonald, J. joining.
I join in the judgment of the Court and agree that the evidence presented by the State
was sufficient to support the judgment of conviction. I write separately because I would
abrogate, prospectively only, the common law “two-witness rule” applicable to certain
common law perjury prosecutions under CR § 9-101(a)(1), and instead would adopt the
universal burden of production and persuasion applicable in all other criminal cases.
Because the majority retains the “two-witness rule” for certain perjury cases,1 I respectfully
urge the General Assembly to review the rule and the outmoded reasons supporting it. 2
It has been almost 40 years since Judge Charles E. Moylan, Jr., in Hourie v. State,
53 Md. App. 62 (1982), called for the abolition of the “two-witness rule” in perjury cases.
His reasoning was persuasive then, and no less so today. Judge Moylan wrote “the two-
witness rule is an alien from a long-dead world that was, during the English Civil War,
accidentally caught in a time warp.” Id. at 69. He said it perfectly, stating as follows:
“The glaring invalidity of this ‘oath versus an oath’ non
sequitur is clear to the modern mind. If there were vitality to
the argument, we should have to adopt a two-witness rule for
the prosecution of every crime, now that criminal defendants
are competent to testify in their own defense. Whenever the
single witness to a murder, rape, or robbery swears, ‘He did it,’
and the defendant swears, ‘No, I didn't,’ there is the old
quantitative standoff of an oath versus an oath. This does not
trouble us in the least. We overcome an oath (or even many
1
Even if this Court characterizes the rule in Maryland as modified or revamped from its
original iteration, it makes no sense to retain the rule as a unique exception to the general
rule that evidence that is sufficient to convince the jury of the defendant’s guilt beyond a
reasonable doubt is sufficient to sustain a conviction.
2
Other states have abrogated the rule by statute. See, e.g., Ariz.Rev.Stat. § 13–2707
(1978).
oaths) with an oath all the time. The modern resolution to the
problem of proof is to rely upon fact finders, in their unfettered
discretion, to judge credibility and weigh evidence. We guard
the liberty of the criminally accused not by some ancient and
artificial burden of production but by allocating the burden of
persuasion to the State and by establishing that burden at the
‘beyond a reasonable doubt’ level.”
Id. at 78-80 (footnotes omitted).
Dean Wigmore, in rejecting the quantitative measurement of proof,3 concluded as
follows:
“What we must conclude, then, is that our whole presumption
should be against any specific rule requiring a number of
witnesses, or corroboration of a single witness; that such
arbitrary measurements are likely to be of little real efficacy
and to introduce disadvantages greater than those which they
purport to avoid.”
7 J. Wigmore, Evidence §§ 2030–2043 at 342 (Chadbourn rev. 1978).
Judge Moylan, embracing Wigmore in Hourie, explained as follows:
3
In Dean Wigmore’s view, the common law rejected the quantitative approach by the end
of the sixteenth century, based on four general principles:
“The common law, then, in repudiating the numerical system, lays down four
general principles:
(1) Credibility does not depend on numbers of witnesses. Therefore:
(2) In general, the testimony of a single witness, no matter what the
issue or who the person, may legally suffice as evidence upon which
the jury may found a verdict.
(3) Conversely, the mere assertion of any witness need not be
believed, even though he is unimpeached in any manner, because to
require such belief would be to give a quantitative and impersonal
measure to testimony.
(4) As a corollary of the first proposition, all rules requiring two
witnesses, or a corroboration of one witness, are exceptions to the
general principle.”
Hourie v. State, 53 Md. App. 62, 73-4 (1982) (quoting Wigmore) (emphasis in original).
See id. at 74 for further explanation of “how. . .this single relic from the vanquished system
survive[d].”
2
“Under the general heading of ‘Synthetic (or Quantitative)
Rules,’ Wigmore demonstrated meticulously that the civil law
(including its English manifestations) was one where the
‘process of proof rested fundamentally on a numerical system,’
that the common law, by way of contrast, ultimately rejected
that mode of proof in favor of ‘the rational notion of analyzing
and valuing testimony other than by numbers,’ and that the
single exception to the triumph of the qualitative over the
quantitative analysis was truly of accidental origin. ‘By the
common law, there was but a single instance, and that a
borrowed and modern one, of almost accidental and of
anomalous origin (the rule in perjury), in which a numerical
rule existed.’”
Hourie, 53 Md. App. at 69 (internal citations omitted).
Judge Moylan and Dean Wigmore were correct then and are correct today.
Credibility does not depend upon the number of witnesses. Therefore, as jurors are
commonly instructed, the weight of the evidence “does not depend on the number of
witnesses on either side.” MPJI–Cr 3:16. Thus, the testimony of a single witness, if it
establishes the elements of an offense or cause of action, and if believed by the jury, may
be sufficient to support a verdict.4 Handy v. State, 201 Md. App. 521, 559 (2011); N.B.S.,
Inc. v. Harvey, 121 Md. App. 334, 342-3 (1998); United States v. Osborne, 886 F.3d 604,
4
Although not abrogating the two-witness rule in federal courts, the United States Supreme
Court, in Weiler v. United States, 323 U.S. 606, 608 (1945), observed as follows:
“Our system of justice rests on the general assumption that the truth is not to
be determined merely by the number of witnesses on each side of a
controversy. In gauging the truth of conflicting evidence, a jury has no
simple formulation of weights and measures upon which to rely. The
touchstone is always credibility; the ultimate measure of testimonial worth is
quality and not quantity. Triers of fact in our fact-finding tribunals are, with
rare exceptions, free in the exercise of their honest judgment, to prefer the
testimony of a single witness to that of many.”
3
613 (6th Cir. 2018) (quoting United States v. Washington, 702 F.3d 886, 891 (6th Cir.
2012)); People v. Smith, 708 N.E.2d 365, 369 (Ill. 1999).
The United States Court of Appeals for the Fourth Circuit, in Goins v. United States,
99 F.2d 147, 149-50 (4th Cir. 1938), discussed the viability of the “two-witness rule” in
the context of jury instructions and, in dicta, expressed strong doubt as to whether the rule
made sense anymore (in 1938). The court noted as follows:
“It may well be doubted whether any distinction should now
be made between the proof necessary to convict of perjury and
that necessary to convict of other crimes. See State v. Storey,
148 Minn. 398, 182 N.W. 613, 15 A.L.R. 629; Marvel v. State,
3 W. W. Harr., Del., 110, 131 A. 317, 42 A.L.R. 1058;
Wigmore on Evidence (2d ed.) vol. 4, sec. 2040. The old ‘oath
against oath’ reasoning of the earlier decisions is without force
now that the defendant is allowed to take the stand and that
corroboration sufficient to satisfy the jury of the falsity of the
oath may well arise from his demeanor and manner of
testifying. Boren v. United States, 9 Cir., 144 F. 801, 806;
State v. Miller, 24 W.VA. 802. And in any event it is difficult
to see why there should be any greater reason for charging with
respect to the necessity of corroboration in such cases than
there is for charging on the necessity of corroborating the
testimony of an accomplice, and on the duty of scrutinizing
such testimony, as to which we have recently held that the
giving of such charge is a matter resting in the sound discretion
of the trial judge. Both go to the weight to be accorded
testimony by the jury; and the ordinary rule is that charging as
to such matters should rest in the sound discretion of the trial
judge, upon whom rests the duty of guiding and directing the
jury in their consideration of the case.”
In Cohen v. United States, 27 F.2d 713, 714 (2d Cir. 1928), Judge Learned Hand, in
commenting on the two-witness rule, observed as follows:
“The doctrine itself has indeed a rational basis when applied to
mere recantations, though it must be owned that, if extended to
4
the oath of another than the perjured witnesses, it is hard to
justify in a court of common law.”
Justice Holmes observed as follows:
“It is revolting to have no better reason for a rule of law than
that so it was laid down in the time of Henry IV. It is still more
revolting if the grounds upon which it was laid down have
vanished long since, and the rule simply persists from blind
imitation of the past.”
Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV L. REV. 457, 469 (1897).
Finally, as is apparent from the discussion in the majority opinion, the “two-witness
rule” for perjury cases is neither a “rule” applicable to all perjury cases, nor does it
necessarily require two witnesses. See Maj. op. at 6-9. In attempting to reconcile the alien
origin of the “rule” to modern conceptions of the burden of proof and the sufficiency of
evidence, this Court and others have developed various exceptions. Ironically, under those
exceptions, the strictures of the rule do not apply if the State’s case consists entirely of
circumstantial evidence. Smith v. State, 51 Md. App. 408, 420 (1982). Similarly, it is
sometimes stated that the rule may be satisfied with a single witness if there is other
admissible evidence of “equal weight” to substitute for the second witness. State v.
McGagh, 472 Md. 168, 203 (2021). This approach echoes the origin of the rule in counting
numbers of witnesses (rather than looking to the substance of the witnesses’ testimony)
and simply invites a judge to intrude into the province of the jury in determining the weight
of the evidence.
5
In short, it appears as though the only crime requiring corroboration for conviction
is perjury.5 In today’s world it makes no sense.
The doctrine of stare decisis is not a bar to the abrogation of the two-witness rule in
this case. We all know that stare decisis is not absolute. Unger v. State, 427 Md. 383, 417
(2012) (quoting State v. Green, 367 Md. 61, 78-9 (2001)). Stare decisis is most meaningful
in those areas of the law where individuals and entities order their affairs in reliance on
past court decisions. See, e.g., Austin v. City of Baltimore, 286 Md. 51, 68 (1979) (Eldridge,
5
In State v. Storey, 182 N.W. 613, 615 (1921), the Minnesota Supreme Court reviewed the
rule, concluding as follows:
“The question is a new one in this state and we are at liberty to choose the
rule which appeals to us as being most consonant with reason.
Notwithstanding the high authority above cited, we are of the opinion that
the rule laid down is out of harmony with our system of jurisprudence. In
our opinion it is one of the rules of the common law inapplicable to our
situation and ‘inconsistent with our circumstances,’ and hence not to be
followed. See State v. Pulle, 12 Minn. 164 (Gil. 99). We find ourselves
unable to approve the doctrine that perjury is a more heinous crime than
murder or that one charged with perjury should have greater immunity than
one charged with murder. Suppose for example the only eyewitness to a
murder should testify that the accused is not the man who committed the
crime and yet the circumstantial evidence of guilt is so strong that the jury
convicts of first degree murder. With what consistency can it be said that a
quality of testimony which will justify a court in condemning a defendant to
life imprisonment, or, in some jurisdictions, to be hanged, is insufficient to
sustain a conviction of the falsifier of the crime of perjury for which he may
suffer a penalty of a short term of imprisonment. The lightness with which
we are pained to say, the oath of a witness is too often treated, does not
warrant us in making conviction of the crime of perjury most difficult of all
crimes of which state courts have jurisdiction. We hold that perjury may be
proved by circumstantial evidence if proof is made beyond reasonable doubt,
as in the case of other crimes. Nor is this doctrine without authority to sustain
it. Metcalf, Ex parte, 8 Okl. Cr. 605, 129 Pac. 675, 44 L. R. A. (N.S.) 513.
See People v. Doody, 172 N. Y. 165, 64 N. E. 807, holding that the old rule
has no application where the proof of the crime is necessarily based on
circumstantial evidence.”
6
J. concurring) (noting that stare decisis is compelling in areas of the law such as
testamentary law, property law, and commercial law, but less so in other areas of the law).
It seems unlikely that many people order their affairs in reliance on the “two-witness rule”
for perjury cases—and it would be difficult to do so, given the rule’s exceptions.
It is time that this Court ends its blind imitation of the past on this subject and
relegates the “two-witness rule” to the history books.
I am authorized to state that Judge McDonald joins in this opinion.
7