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Law Digest — Court of Appeals, Court of Special Appeals — Dec. 30, 2021

Maryland Court of Appeals

Criminal Law; Perjury: Under Maryland’s common-law “two-witness rule,” which provides that the State cannot prove the falsity element of a perjury prosecution solely by offering a single witness who testifies directly and positively that the defendant’s prior testimony was false but can prove falsity entirely through circumstantial evidence, by introducing direct evidence from multiple witnesses, or by introducing circumstantial evidence along with direct evidence from one or more witnesses, the State met its burden of production in a police officer’s trial for perjury where the State introduced not only the direct and positive testimony of a witness to prove the falsity element of perjury at the officer’s trial but also introduced video evidence, informed by another police officer’s testimony, which tended to prove that the charged officer had lied about his claim of seeing a suspect remove a firearm from his waistband and toss it to the ground. O’Sullivan v. State, No. 3, Sept. Term, 2021.

Maryland Court of Special Appeals

Family Law; Child in Need of Assistance: Where child was found to be a Child in Need of Assistance after testing positive for several drugs when born, and where it was also found that the mother had sexual relations with two men around the time of the child’s conception, the juvenile court did not err in ordering both men to submit to paternity tests to determine which of them was the father, and, upon receiving the results, properly dismissed the man who tested negative even though the mother wanted him to be deemed the father of the child. In Re: W.W., No. 1287, Sept. Term 2020.

Criminal Law

Perjury

BOTTOM LINE: Under Maryland’s common-law “two-witness rule,” which provides that the State cannot prove the falsity element of a perjury prosecution solely by offering a single witness who testifies directly and positively that the defendant’s prior testimony was false but can prove falsity entirely through circumstantial evidence, by introducing direct evidence from multiple witnesses, or by introducing circumstantial evidence along with direct evidence from one or more witnesses, the State met its burden of production in a police officer’s trial for perjury where the State introduced not only the direct and positive testimony of a witness to prove the falsity element of perjury at the officer’s trial but also introduced video evidence, informed by another police officer’s testimony, which tended to prove that the charged officer had lied about his claim of seeing a suspect remove a firearm from his waistband and toss it to the ground.

CASE: O’Sullivan v. State, No. 3, Sept. Term, 2021 (filed Dec. 17, 2021) (Judges Getty, McDonald, Watts, Hotten, Booth & BIRAN).

FACTS: 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.”

The State prosecuted Michael O’Sullivan 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. 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, 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 appealed to the Court of Appeals. The State filed a conditional cross-appeal, arguing that the Court should abrogate the two-witness rule prospectively. The Court of Appeals declined to abrogate the two-witness rule and concluded that, in this case the State had 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.

Accordingly, the Court of Appeals affirmed O’Sullivan’s conviction.

LAW: 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 the charged offenses. 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.

Under the perjury statute that applied to O’Sullivan’s prosecution, of Md. Code, Crim. Law (“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. False testimony is “material” when it is “capable of affecting the course or outcome of the proceedings or the decision-making of the court.” State v. McGagh, 472 Md. 206 (2021). 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).

O’Sullivan contended that 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 argued that the trial court’s verdict was based on “mere speculation or conjecture,” and that its reasoning therefore was “obviously insufficient.” Taylor v. State, 346 Md. 452, 458 (1997). O’Sullivan also argued 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.

However, O’Sullivan’s arguments pertaining to his point of view and the physics of the gun’s potential landing spot went to the weight of the evidence and therefore implicated issues within the province of the factfinder. Moreover, proof of falsity permits, but does not require, a trial court’s inference of wrongful intent. The trial court here, rather than finding O’Sullivan saw Smith throw something that was not a gun, found that O’Sullivan did not see Smith throw anything at all. Based on this finding, 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 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, were not based on speculation or conjecture, but were plainly supported by the record.

A rational trier of fact could find that these circumstances were inconsistent with O’Sullivan having testified truthfully at Smith’s trial. 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. A rational trier of fact also could infer wrongful intent from the State’s evidence proving falsity. 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.” 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.” McGagh, 472 Md. at 206. 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,” 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 v. State, 282 Md. 385, 387 (1978). 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.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: In its cross-petition, the State sought abrogation of the two-witness 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). 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). 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. Neither of these exceptions applied with respect to the two-witness rule. The “logical underpinnings” of the two-witness rule “remained sound.” McGagh, 472 Md. at 199 n.14. Neither were there any changed circumstances that warranted the rule’s abrogation. As such, the two-witness rule in Maryland was retained.

  

PRACTICE TIPS: Misconduct in office is a 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.” 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).

Family Law

Child in Need of Assistance

BOTTOM LINE: Where child was found to be a Child in Need of Assistance after testing positive for several drugs when born, and where it was also found that the mother had sexual relations with two men around the time of the child’s conception, the juvenile court did not err in ordering both men to submit to paternity tests to determine which of them was the father, and, upon receiving the results, properly dismissed the man who tested negative even though the mother wanted him to be deemed the father of the child.

CASE: In Re: W.W., No. 1287, Sept. Term 2020, No. 288, Sept. Term 2021 (consolidated) (filed Dec. 16, 2021) (Judges Fader, Nazarian & EYLER (Senior Judge, Specially Assigned).

FACTS: W.W. was born in a motel room outside Chestertown, in April 2020, and transported to Easton Memorial Hospital, where he tested positive for opiates, fentanyl, cocaine, morphine, and benzoylecgonine. Mother tested positive for cocaine, heroin, and cannabinoid (marijuana). W.W. remained hospitalized for more than one month to receive treatment for significant drug-withdrawal symptoms.

At the time of W.W.’s conception and birth, Mother was married to Mr. S., who lived in Tennessee, and whom she had not seen in two years. At the time of W.W.’s conception, Mother had been in sexual relationships with two men: Mr. W. and Mr. A. At different times, Mother identified to the Department both Mr. A. and Mr. W. as W.W.’s father. In May of 2020, Mother, who was living in a hotel with Mr. W., sought to remove W.W. from the hospital and take him with her to Delaware to live with Mr. W., whom she referred to as “the dad”. Because W.W. was being weaned from a morphine drip, he could not be discharged from the hospital. The court ordered that W.W. be sheltered by the Department upon discharge from the hospital. On May 29, 2020, the Department placed W.W. with the C. family.

The Department filed a CINA petition alleging that, because Mother was unable or unwilling to provide a safe, stable and drug-free home for W.W., and because the Department was unable to ascertain the identity of W.W.’s biological father, W.W. was a CINA. The Department requested that the court hold an adjudicatory and disposition hearing on the petition and order the alleged fathers to submit to paternity testing to determine the identity of W.W.’s biological father.

On August 27, 2020, following the adjudication hearing, the allegations in the CINA petition were sustained as to Mother only. The court found that: 1) Mother had given birth to W.W. in a motel room, where he was born drug-exposed to opiates and cocaine; 2) she had declined evaluation and treatment for substance abuse despite the Department’s referrals to multiple treatment centers (including both inpatient and outpatient settings), and had refused the recommended level of treatment; 3) she had charges pending and faced a possible prison sentence; 4) she presented no evidence that she had the ability to provide a safe, stable, and drug-free home for W.W.; and 5) she was unable to identify any maternal family members as relative resources for W.W.

The court determined that W.W. had undergone drug-withdrawal treatment for thirty-three days and noted there was no “greater circumstance” of being placed at risk of substantial harm than being born drug-exposed. The court concluded that: 1) W.W. had been abused and neglected, 2) Mother was unable and unwilling to provide W.W. with proper care and attention, and 3) Mr. S., the presumptive father, was unwilling to be a resource for W.W. or provide him proper care and attention. Accordingly, W.W. was adjudicated CINA.

The court proceeded to the disposition phase of the hearing and considered the issue of paternity. The court noted that the Department had been unable to definitively determine the identity of W.W.’s biological father and therefore was unable to ascertain any paternal resources for W.W. Mr. S. denied paternity because he had not had physical relations with Mother in three years. Mr. A. believed that he was W.W.’s biological father. He stated that he had known Mother for approximately sixteen years and that he and Mother had a sexual relationship between May and November of 2019. He stated that Mother had informed him during her pregnancy that he was W.W.’s father and he had attended several prenatal appointments with Mother prior to their separation. He explained that he ended the relationship when he learned that Mother was seeing other people, including Mr. W.

According to Mr. A., he and Mother had discussed possible names and Mother had created a collage that included the name that they had chosen together. On the day that W.W. was born, Mother called Mr. A. to tell him that she was in labor. Mother also texted Mr. A. a photo of W.W. and acknowledged that Mr. A. was the father. Mr. A. went to the hospital and attempted unsuccessfully to see W.W. Mother asked Mr. A. to relinquish his paternal rights to W.W., but Mr. A. declined.

Mr. W. testified that he had known Mother since 2019 and their sexual relationship began in June of 2019. During his sexual relationship with Mother, Mr. W. was aware that she was also in a relationship with Mr. A. Mr. W. stated that he had told everyone he knows that he is W.W.’s father. Mr. S. submitted to genetic testing and the results showed a 0.0% probability that he was W.W.’s father. Mother did not challenge the paternity results.

Mr. S. was excused from the case without objection. Based upon testimony presented by Mr. W. and Mr. A., the magistrate determined that it was in W.W.’s best interests that Mr. W. and Mr. A. both submit to genetic testing to determine whether either of them could be ruled out as W.W.’s father. The court adopted the magistrate’s recommendation and findings, concluding that it was in W.W.’s best interests. Mother and Mr. W. each noted an appeal from that order. 4 Mother did not challenge the court’s CINA finding.

Genetic testing revealed that Mr. A. is W.W.’s biological father. The magistrate recommended that Mr. A. be declared W.W.’s father and that Mr. W. be removed from the case. At the exceptions hearing on April 8, 2021, Mother argued that it was in W.W.’s best interests for their “family unit” to remain intact and to have Mr. W. named as W.W.’s father and Mr. A. excluded as a party. The court denied Mother’s exceptions and removed Mr. W. from the case. Mother and Mr. W. each appealed to the Court of Special Appeals, which affirmed the judgments of the juvenile court.

LAW:     At issue was whether the circuit court erred in determining that the best interests of W.W. required genetic testing of two possible fathers. Mother contended that the juvenile court erroneously applied Md. Code Estates and Trusts Article (“ET”), §1-208.1 in determining that it was in W.W.’s best interest to order genetic testing of two possible fathers. She asserted that the juvenile court should have relied on Family Law Article (“FL”), §5-306 to determine that Mr. W. was W.W.’s father, without the need for genetic testing.

In CINA cases, the juvenile court has a statutory obligation to identify the “natural or adoptive” parents of the subject child. CJP §3-822(a)(1) (“At each CINA hearing, the court shall inquire into, and make findings of fact on the record as to, the identity and current address of each parent of each child before the court.”). See also In re B.C., 234 Md. App. 698, 718 (2017) (stating that “CINA courts have the power to determine paternity in order to identify the proper parties to the CINA proceeding.”). The juvenile court is empowered with concurrent jurisdiction over the “paternity of a child whom the court finds to be a CINA[.]” CJP §3-803(b)(1)(i). After a finding that a child is CINA, the court is authorized to determine the paternity of that child. CJP §3-819(c)(2). See In re Thomas H., 381 Md. 174, 184 (2004).

In this case, once the court adjudicated W.W. as CINA, the court had the right to decide the question of his paternity. In determining the paternity of a child, the first issue to be considered is the presumption of legitimacy. “In Maryland, a child born to a married woman is presumed to be the offspring of the woman’s husband.” Sider v. Sider, 334 Md. 512, 526 (1994). That presumption was originally codified in FL §5-1027(c) (“There is a rebuttable presumption that the child is the legitimate child of the man to whom its mother was married at the time of conception”); Miles v. Stovall, 132 Md. App. 71, 81 (2000) (citing §5-1027 (Md. Code. 1999)) and ET §1-206(a)(1) (“A child born or conceived during a marriage is presumed to be the legitimate child of both spouses.”). See In re B.C., 234 Md. App. 698, 710-11 (2017). This presumption may be rebutted by evidence presented by the parties, including DNA evidence. See ET §1-208.1(d)(1).

Historically both FL §5-1027(c) and ET §1-206 have been applied in paternity proceedings. See Miles, 132 Md. App. at 80-81. In 2019, however, the legislature amended §5-1027(c) to clarify that “[t]he provisions of Title 1, Subtitle 2 of the Estates and Trusts Article regarding presumptions of parentage apply in an action under this subtitle.” See Acts 2019 c. 437, §1, effective June 1, 2019, Acts 2019 c. 438, §1, effective June 1, 2019. In 2019, the legislature also added §1-208.1 to the Estates and Trusts Article. See Acts 2019, c. 437, §1, effective June 1, 2019. Subsection (a) of §1-208.1 specifically provides that “[a]n individual who is the presumed parent of a child under this subtitle shall be considered to be the child’s parent for all purposes, including…Child in Need of Assistance proceedings, unless the presumption of parentage is rebutted in accordance with this section.” ET §1-208.1(a). Pursuant to ET §1-208.1(b) “a presumption of parentage…may be rebutted only if a court…determines in a written order that it is in the best interest of the child to receive and consider evidence that could rebut the presumption.” Subsection (d)(1) further provides that a presumption of parentage may be rebutted by “evidence of blood or genetic testing.”

Here, the juvenile court determined that, pursuant to ET §1-206(a)(1), Mr. S. was the presumed father of W.W. In accordance with ET §1-208.1(d)(1), the court ordered genetic testing to rebut that presumption. Based on the testing results excluding Mr. S. as the biological father of W.W., the presumption of his parentage was rebutted and he was dismissed from the CINA case, leaving Mr. A. and Mr. W. as potential fathers to W.W. By its terms, ET §1-208.1(d)(1) was limited to situations in which blood or genetic testing was used to rebut “the presumption of parentage.” Once Mr. S. was excused as a party, there was no longer a “presumption of parentage” in the case.

COMMENTARY: Mother argued that juvenile court should have relied on FL §5-306 to determine that Mr. W. was W.W.’s father without the need for genetic testing. She contended that Mr. W. met certain criteria set forth in §5-306, specifically, §5-306(a)(3), because she had named him as the father and he has not signed a denial of paternity, and, under subsection (a)(6), he acknowledged himself to be W.W.’s father and she has agreed. She argues that the juvenile court should have recognized Mr. W. as W.W.’s father pursuant to FL §5-306 and should not have ordered genetic testing

However, FL §5-306 was not applicable here. Both Mr. A. and Mr. W. had provided evidence relevant to §5-306(a)(3), as each had testified that Mother had, at varying times, identified each of them as W.W.’s father, and neither of them has denied paternity. There was also testimony relevant to §5-306(a)(6), indicating that at varying times, both men had acknowledged themselves to be W.W.’s father and Mother had agreed with them.

The application of FL §5-306 would not conclusively determine the question of parentage where, as here, the court is presented with two competing claims of paternity and both potential fathers satisfy the same elements of the statute. Moreover, FL §5-306 is a paternity statute that applies in guardianship and adoption cases. See FL §5- 302(a) (specifying that Subtitle 3 applies only to: (1) guardianship of an individual committed to a local department as a CINA; 2) an individual committed to a local department as a CINA, without prior termination of parental rights as to the individual; and 3) adoption of an individual under a guardianship governed by Subtitle 3).

Thus, FL §5-306 was not the proper statute to be applied in this CINA case to resolve the competing paternity claims of Mr. A. and Mr. W. Accordingly, the judgment of the juvenile court was affirmed.

  

PRACTICE TIPS: “The broad policy of the CINA Subtitle is to ensure that juvenile courts (and local departments of social services) exercise authority to protect and advance a child’s best interests when court intervention is required.” In re Najasha B., 409 Md. 20, 33 (2009). Where there has been evidence of abuse or neglect, the juvenile court’s role in a CINA case “is necessarily more pro-active.” In re Billy W., 386 Md. 675, 685 (2005).