Appeal from the Superior Court of the District of Columbia (No. F-470-04) (Hon. Thomas J. Motley, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Argued September 19, 2007
Before REID and GLICKMAN, Associate Judges, and PRYOR, Senior Judge.
Appellant Dewayne Gaffney challenges the sufficiency of the evidence to support his conviction for perjury before the grand jury. We agree that, under the special "two-witness" rule applicable to perjury prosecutions, the evidence was insufficient. On that ground, we reverse appellant's conviction.*fn1
Appellant was indicted on two counts of perjury for statements he made under oath before a Superior Court grand jury investigating the murder of Michael Taylor. The target of the investigation, Harry Wheeler, was suspected of having ordered Taylor's murder in retaliation for his robbery of Wheeler's girlfriend, Brittany Johnson. Some $17,000-$27,000 of Wheeler's money allegedly was taken from Johnson in that robbery.
The first count of appellant's indictment charged him with having committed perjury when he told the grand jury that he did not know Harry Wheeler. The government elected to dismiss this count before trial. The second count of the indictment specified six other statements by appellant before the grand jury. The trial court granted appellant's motion for judgment of acquittal as to three of those statements on the ground that the government's evidence of their falsity did not satisfy the two-witness rule. The court permitted the jury to consider whether the three remaining statements supported the charge of perjury. Those three statements are the focus of the instant appeal.
The three statements were appellant's negative responses during his grand jury testimony to questions posed by the prosecutor. Under oath, appellant testified (1) that he had not spoken with anyone other than his girlfriend about Taylor's shooting; (2) that he had not told anyone he had information regarding who killed Taylor; and (3) that no one ever had spoken to him about Harry Wheeler.*fn2
At trial, to prove the falsity of those statements, the government relied exclusively on the testimony of Raina Curtis and her boyfriend Glenn "Petey" Smith. Mr. Smith was Michael Taylor's cousin, and both he and Ms. Curtis were appellant's friends. Ms. Curtis testified that appellant approached her approximately two weeks after Taylor's murder to warn her that Wheeler was trying to get someone to kill Mr. Smith. According to Ms. Curtis, appellant told her "he just came from Sursum Corda, talking to Harry," who had said he wanted to kill her boyfriend because "he think he has something to do with his girlfriend being robbed. . . . [M]y baby father supposed to robbed [sic] his girlfriend for . . . two or three thousand dollars." However, Ms. Curtis testified, appellant never spoke with her "about anything having to do with Michael Taylor's death."
Ms. Curtis conveyed appellant's warning to Mr. Smith, who testified that he then spoke privately with appellant himself. In their conversation, according to Mr. Smith, appellant said he had talked with Wheeler in Sursum Corda and had learned that "Harry wanted to pay somebody to kill [Mr. Smith] because Harry thought [Mr. Smith] and [Michael Taylor] had something to do with his babies' mother getting robbed." Appellant also told Mr. Smith that Wheeler had hired somebody to kill Taylor for the same reason.
We view the foregoing evidence, of course, in the light most favorable to sustaining the jury's verdict, recognizing the jury's right to determine the credibility of the witnesses and draw justifiable inferences from their testimony.*fn3
To prove a defendant guilty of perjury, the evidence must show that the defendant made a false statement of material fact under oath with knowledge of its falsity.*fn4 "[A]ctual falsity is necessary to conviction."*fn5 The government therefore had to present sufficient evidence that at least one of appellant's three challenged statements was false.*fn6 According to the venerable "two-witness" rule, "the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury."*fn7 The two-witness rule thus "imposes an evidentiary minimum" that the government must meet to satisfy its burden of proving falsity.*fn8 We agree with appellant that the testimony of Ms. Curtis and Mr. Smith did not meet the evidentiary minimum with respect to any of the three statements at issue.*fn9
As explained in Hsu, the two-witness rule "is somewhat misnamed today, for while two witnesses will accomplish the task, one witness plus independent corroborative evidence will also suffice."*fn10 In the latter case, "the independent, corroborative evidence need not be sufficient, by itself, to demonstrate guilt; rather, it need only tend to establish an accused's guilt and be inconsistent with the innocence of the defendant when joined with the one direct witness' testimony."*fn11 What must be corroborated is the part of the primary witness's testimony that falsifies the defendant's statement.*fn12 "Corroboration is required for the perjured fact as a whole," though, "and not for every detail or constituent part of it."*fn13
The first two statements of appellant at issue -- that he had not spoken with anyone other than his girlfriend about Taylor's shooting and that he had not told anyone he had information regarding who killed Taylor -- were contradicted by Mr. Smith's testimony that appellant told him Wheeler had arranged for Taylor to be murdered. Mr. Smith's testimony was not corroborated by any independent evidence, however. Neither Ms. Curtis nor anyone else was present when appellant spoke with Mr. Smith. And Ms. Curtis specifically denied that appellant said anything to her about Taylor. As a result, Ms. Curtis neither confirmed the critical part of Mr. Smith's testimony nor furnished independent evidence proving the falsity of appellant's first two statements.
Appellant's third statement, his denial that anyone ever had spoken to him about Harry Wheeler, was not contradicted by either Ms. Curtis or Mr. Smith. Neither witness was asked whether he or she had spoken to appellant about Wheeler, and neither claimed to have done so. The government argues that because both witnesses testified that appellant spoke to them about Wheeler, the jury could infer that, in the same conversations, they spoke to appellant about Wheeler too. That possible surmise is not enough to sustain a conviction for perjury. If either witness in fact had said anything to appellant about Wheeler, it was incumbent on the government to elicit that fact in order to prove that appellant lied when he ...