Angelone v. Dabney

PRESENT: 	All the Justices
RONALD ANGELONE, DIRECTOR,
VIRGINIA DEPARTMENT OF CORRECTIONS
v. 	Record No. 011069 	OPINION BY JUSTICE BARBARA MILANO KEENAN
March 1, 2002
NORMAN K. DABNEY
FROM THE CIRCUIT COURT OF HANOVER COUNTY
John Richard Alderman, Judge
In this appeal, we consider whether the trial court erred
in awarding a writ of habeas corpus to a petitioner based on the
court's conclusion that the Commonwealth knowingly used perjured
testimony to obtain his conviction.
The petitioner, Norman K. Dabney, and his co-defendant,
Kabonji R. Roane, each were indicted for robbery in violation of
Code § 18.2-58, and use of a firearm in the commission of a
felony in violation of Code § 18.2-53.1. 	They were charged with
robbing an employee of a hotel in Hanover County. 	Dabney and
Roane were tried separately in cases presented by the same
prosecutor.
Alton Wells, a hotel employee, testified at both trials as
a witness for the Commonwealth. 	At Roane's trial, which
occurred first, Wells was unable to identify either of the male
robbers. 	He stated that he did not see their faces because the
"one [behind the counter] had the bandana on and the black hat
on. 	The other one was going out the door and I didn't get a
chance to see his face as he was going out the door."

At Dabney's trial, Wells testified that he observed one of
the robbers leaving the hotel while the other one was located
behind the front desk. 	Wells identified Dabney as the
individual leaving the hotel, stating that he had the
opportunity to view the "upper half" of Dabney and that Dabney
was not wearing a mask at that time. 	Wells further testified
that Dabney was wearing a baseball cap while the other robber
was wearing a bandana and a baseball cap. 	When asked what he
specifically recognized about Dabney, Wells responded, "[h]is
eyes, his facial structure." 	The jury found Dabney guilty of
both charges and fixed his punishment at 24 years' imprisonment
for robbery and at 3 years' imprisonment for the firearm charge.
Dabney filed a petition for a writ of habeas corpus against
Ronald Angelone, Director of the Virginia Department of
Corrections (the Director), alleging, among other things, that
the Commonwealth knowingly used perjured testimony to obtain his
conviction. 	The trial court conducted a plenary hearing on the
petition. 	Dabney testified regarding the substance of Wells'
testimony at Roane's trial and at his own trial. 	Wells did not
testify at the plenary hearing.
In a letter opinion, the trial court found that Wells'
testimony had "changed dramatically" between the two trials.
The trial court stated, in relevant part:
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In the Roane trial, asked if he saw the robbers, Wells
testified that he did, but could not identify either.
In contrast, in [Dabney's] trial Wells repeated that
he saw the robbers but identified [Dabney].
The trial court concluded that this error was "of significant
dimension" and stated that a writ of habeas corpus should issue.
In its final order awarding the writ of habeas corpus, the court
held that Dabney's "allegation concerning Commonwealth use of
perjured testimony as contained in the petition, [is] true as to
the testimony of Alton Wells."
The Director filed a motion to reconsider, which the trial
court denied. 	In a letter advising counsel of this decision,
the trial court stated that "[o]f greatest concern is that the
same prosecutor put the same witness on the stand in successive
trials of co-defendants and allowed that witness . . . to
testify differently." 	The Director appealed from the trial
court's judgment.
The Director argues that the trial court erred in awarding
the writ of habeas corpus. 	He contends that the record does not
establish that Wells gave perjured testimony, or that the
prosecutor made knowing use of perjured testimony, based on the
mere fact that Wells' testimony varied at the two trials.
In response, Dabney argues that the record supports the
trial court's judgment. 	He asserts that Wells' testimony
changed significantly from one trial to the next, and that this
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variance in his testimony was sufficient to establish perjury
under Code § 18.2-435. 	Thus, Dabney contends that he proved
that the prosecution made knowing use of perjured testimony to
obtain his conviction because the same prosecutor presented
Wells as a witness in successive trials and allowed him to
testify differently. 	We disagree with Dabney's arguments.
When a petitioner asserts that his conviction was obtained
by the prosecution's knowing use of perjured testimony, the
petitioner bears the burden of proving that the conviction was
founded on perjured testimony, and that the prosecution
knowingly used that testimony to secure the conviction. 	See
Smyth v. Godwin, 188 Va. 753, 768, 51 S.E.2d 230, 237 (1949);
Penn v. Smyth, 188 Va. 367, 374-75, 49 S.E.2d 600, 603 (1948).
In arguing that he met his burden of proving that Wells'
testimony against him was perjured, Dabney relies on Code
§ 18.2-435, which provides in relevant part:
It shall likewise constitute perjury for any person,
with the intent to testify falsely, to knowingly give
testimony under oath as to any material matter or
thing and subsequently to give conflicting testimony
under oath as to the same matter or thing. . . . 	Upon
the trial on such indictment, it shall be sufficient
to prove that the defendant, knowingly and with the
intent to testify falsely, gave such differing
testimony and that the differing testimony was given
on two separate occasions.
To prove that Wells had committed perjury under this
statute, Dabney was required to establish that Wells gave
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conflicting testimony under oath about a material matter on two
separate occasions, and that he did so knowingly and with the
intent to testify falsely. 	See Scott v. Commonwealth, 14 Va.
App. 294, 297, 416 S.E.2d 47, 49 (1992). 	Although Dabney
correctly notes that the proof requirements of Code § 18.2-435
are less extensive than those of Code § 18.2-434, which embodies
the common law crime of perjury, proof of perjury under either
statute requires proof that a witness intended to testify
falsely under oath. 	See Waldrop v. Commonwealth, 255 Va. 210,
215, 495 S.E.2d 822, 825 (1998); Holz v. Commonwealth, 220 Va.
876, 880, 263 S.E.2d 426, 428 (1980); Scott, 14 Va. App. at 297,
416 S.E.2d at 49.
Based on the record before us, we hold that the trial court
was plainly wrong in concluding that Dabney met his burden of
proving that Wells gave perjured testimony at Dabney’s trial.
Although Wells’ testimony at Dabney’s trial partially conflicted
with the testimony he gave at Roane’s trial, there is no
evidence indicating that he gave this partially conflicting
testimony with the intent to testify falsely. 	The record does
not show that Wells had any prior negative association with
Dabney or had any other motive to testify falsely at his trial.
Because Wells did not testify as a witness at the plenary
hearing on the habeas corpus petition, the trial court did not
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evaluate Wells’ credibility or question him regarding the reason
for the differences in his testimony at the two trials.
In the absence of any such evidence, the trial court
effectively determined that the differences in Wells’ testimony,
without more, supported a conclusion that his testimony at
Dabney’s trial was given with the intent to testify falsely.
Because the present record does not support such a conclusion,
Dabney was not entitled to the relief requested in his petition.
Absent proof of perjured testimony, a petitioner's claim that a
prosecutor made knowing use of perjured testimony is
insufficient as a matter of law. 	See Godwin, 188 Va. at 768, 51
S.E.2d at 237; Penn, 188 Va. at 374-75, 49 S.E.2d at 603.
Therefore, we hold that the trial court erred in awarding a writ
of habeas corpus.*
For these reasons, we will reverse the trial court’s
judgment and dismiss the petition for a writ of habeas corpus.
Reversed and final judgment.
* We do not address the Commonwealth's assignment of error
that "[t]he trial court erred in holding that the prosecution
committed a Brady violation when there was no evidence to
support such a holding and the petitioner never raised the
claim." 	The trial court did not make such a holding in its
final judgment order, nor did the court modify that order in any
respect.
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