Marcus Ganzie v Commonwealth

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COURT OF APPEALS OF VIRGINIA
Present : Judges Benton, Annunziata and Overton Argued at Richmond, Virginia
MARCUS GANZIE
OPINION BY v. Record No. 2768-95-2 JUDGE JAMES W. BENTON, JR. MARCH 25, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY Joseph F. Spinella, Judge Designate
Andrea C. Long (David E. Boone; Boone, Beale, Carpenter & Cosby, on brief) , for appellant.
Daniel J. Munroe, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief) , for appellee.
Marcus Ganzie was indicted and tried on five counts of perjury. See Code § 18.2-434. Ganzie argues (1) that the trial judge erred in refusing to merge the charges into one count and (2) that the convictions should be reversed because the statements he made were not material to the proceedings in which he testified. We affirm the convictions.
I.
At his perjury trial, Ganzie's trial counsel stipulated that on May 2, 1995, Ganzie and his prior attorney had a conference at the Commonwealth's Attorney's office with Henrico County Detective James Dorton and two prosecutors. At that meeting, Ganzie made statements concerning murders for which Paul Peyton was charged. Trial counsel also stipulated that the next day one of the prosecutors prepared a memorandum describing the

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information Ganzie disclosed in the conference. 	Trial counsel
also stipulated that the prosecutors, the detective, and Ganzie's
prior counsel, if called as witnesses, would "authenticate what
occurred in the office and what was said by . . . Ganzie on May
2, 1995."
The memorandum, consisting of five paragraphs of text on two
pages, was offered as a trial exhibit as part of the stipulation.
As pertinent to the three perjury convictions, the memorandum
recites as follows:
On May 2, 1995, Marcus Ganzie met with
myself, Wade Kizer, Jim Dorton, and his
attorney, Chris Collins. 	Ganzie agreed to
cooperate and testify in the case of
Commonwealth v. Paul Peyton.
Ganzie stated that on the day of the
murders, he was with Peyton, Jamaar Jefferson
and Jermaine Wimbley at Jermaine Wimbley's
house. 	He said that throughout the day Paul
Peyton had been beeping Terry Smith in an
effort to get marijuana from Terry Smith. 	On
one occasion, Smith returned the call and
said that he was on his way to give marijuana
to Paul Peyton. 	Smith never showed, and Paul
Peyton was upset. 	Paul Peyton said he felt
like killing him. 	Later in the day they
began to discuss sticking Terry Smith up and
robbing him of money. 	Paul Peyton then began
to beep Terry Smith again in the evening. 	At
some point in the evening, Paul Peyton
received a .357 from an individual who lived
in Fair Oaks by the name of Jemal. 	Paul
Peyton left Jermain[e]'s house and went to
his house where he got bullets to use in the
.357.
* 	* 	* 	* 	* 	* 	*
Paul Peyton and Marcus Ganzie were picked
up by Terry Smith and Angela Breeden at Fair
Oaks. . . . 	As they were driving down North
Washington Street, Paul Peyton shot Terry

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Smith in the back of the head. 	At the time
that Paul Peyton shot Smith, Marcus Ganzie
had his hands on the shoulders of Angela
Breeden. 	Paul Peyton then turned and shot
Angela Breeden in the head, and the car ran
off of the road into the ditch. . . . 	As
Paul Peyton was trying to get in the trunk
after having shot both victims, they heard
Angela Breeden moan. 	Paul Peyton then walked
around, shot Angela Breeden again in the head
and then went to the other side of the car
and shot Terry Smith again in the head.
Ganzie's trial counsel also stipulated that Peyton was tried
and convicted of capital murder and that Ganzie testified in the
sentencing phase of Peyton's trial. 	The transcript of Ganzie's
testimony, a stipulated exhibit, discloses that Ganzie testified
on direct examination as a witness for Peyton. 	Ganzie testified
that he met with the police and Commonwealth's attorneys on two
or three occasions and that when they sought to have him testify
against Peyton, he told them that Peyton did not commit the
killings. 	Ganzie further testified that Jefferson told him that
Jefferson and Jamal Flagg were planning to rob the victims when
Flagg shot the victims. 	Ganzie testified that he went to the
scene of the murders with Jefferson after the killings because
Jefferson wanted to check the pockets of the victims.
The transcript shows that on cross-examination by the
Commonwealth's attorney at Peyton's trial, Ganzie admitted that
he was present at the meeting on May 2, 1995 in the
Commonwealth's Attorney's office. 	The Commonwealth's attorney
then read from the memorandum and asked Ganzie if he made the
statements attributed to him in the memorandum. 	Ganzie generally

denied making the statements or responded, "I don't remember."

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As germane to this appeal, Ganzie testified as follows on
cross-examination:
Q 	Isn't it true, Mr. Ganzie, that in my
office and in front of your attorney, you
stated that on the day of the murders you
were with Peyton, Jamar Jefferson, and
Jermaine Wimberly at Jermaine Wimberly's
house. 	Didn't you state that?
A 	I didn't know if I did.
Q 	Didn't you state that in my office?
A 	I don't - you must have told me some big
words or something.
* 	* 	* 	* 	* 	* 	*
Q 	Did you say that at some point that
evening? 	Paul Peyton received a 357 Magnum
from an individual who lived in Fair Oaks, by
the name of Jamal?
A 	No.
* 	* 	* 	* 	* 	* 	*
Q 	Didn't you say that as you were driving
down N. Washington Street, Paul Peyton shot
Terry Smith in the back of the head?
A 	No, sir.
* 	* 	* 	* 	* 	* 	*
Q 	And didn't you say that Paul Peyton then
turned and shot Angela Breeden in the head,
and the car ran off the road into the ditch?
A 	No.
* 	* 	* 	* 	* 	* 	*
Q 	All right. 	And do you deny saying that as
Peyton was trying to get in the trunk, after
having shot both victims, that you heard
Angela Breeden moan? 	Do you deny that?
A 	Yes.

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Q 	And then Paul Peyton, you told us, walked
around and shot Angela Breeden again in the
head and then went to the other side of the
car and shot Terry Smith in the head. 	Do you
deny telling us that?
A 	Yes.
After presenting the stipulations and the exhibits, including the
transcript of the above testimony, the Commonwealth rested its
case-in-chief.
When the trial judge denied Ganzie's motion to strike the
evidence on the perjury charges, Ganzie's trial counsel called as
witnesses the Commonwealth's attorney and the detective who were
present at the May 2, 1995 conference with Ganzie and his prior
counsel. 	The Commonwealth's attorney testified that the
memorandum was prepared after the conference and that Ganzie made
no statements during the conference that contradicted the
statements attributed to Ganzie in the memorandum. 	In addition,
the detective testified that the memorandum "reflect[s] the sum
and substance of what . . . Ganzie . . . told [them] . . . about
the two homicides."
The trial judge convicted Ganzie of perjury on three of the
five counts charged in the indictments.
II.
On this appeal, Ganzie does not deny that he made the
statements that were attributed to him in the memorandum of May
2, 1995. 	He also does not argue that his responses under oath
upon cross-examination at Peyton's trial were the literal truth

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because the questions were asked in the phraseology of the
memorandum, which was a paraphrase of his words and not the
precise words that he used on May 2, 1995. 	See Bronston v.
United States, 409 U.S. 352, 360 (1973) (stating that a perjury
conviction will not be upheld "so long as the witness speaks the
literal truth [because] [t]he burden is on the questioner to pin
the witness down to the specific object of the questioner's
inquiry"). 	Instead, he argues that the three counts of perjury
should have been merged into a single count because his denials
during cross-examination at Peyton's trial constituted only a
single denial of the content of the memorandum as a whole.
The Commonwealth argues that the evidence proved Ganzie
committed perjury when he responded to each question.
Specifically, the Commonwealth contends that Ganzie committed
perjury at Peyton's trial when he "denied telling authorities
that at some point during the evening of the murders, Peyton
received a .357 magnum from Jamal Flagg . . . [,] denied telling
authorities that as he was driving down North Washington Street
. . . Peyton shot Terry Smith and Angela Breeden . . . [, and]
denied telling authorities that, after having shot both victims,
Angela Breeden began to moan, and Peyton shot her and Terry Smith
in the head once again."
III.
The perjury statute under which Ganzie was convicted
provides as follows:
If any person to whom an oath is lawfully

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administered on any occasion willfully swear
falsely on such occasion touching any
material matter or thing, . . . he shall be
guilty of perjury, punishable as a Class 5
felony.
Code § 18.2-434. 	The Commonwealth bears the burden of proving
the elements of the offense beyond a reasonable doubt. 	See Holz
v. Commonwealth, 220 Va. 876, 880, 263 S.E.2d 426, 428 (1980).
Ganzie asserts that because he made all of the alleged
perjurious statements on one "occasion," during his testimony at
the penalty phase of Peyton's trial, he committed only one
perjury offense. 	We disagree. 	The phrase "on any occasion" was
inserted into the statute to extend the scope of the statute to
cover sworn statements not given in judicial proceedings. 	See
Scott v. Commonwealth, 14 Va. App. 294, 297-98, 416 S.E.2d 47, 49
(1992).
We find nothing in the language of the statute that supports
Ganzie's theory that all intentionally false statements given
under oath on the same occasion must be combined into and treated
as one violation. 	The plain meaning of the statute is that if a
declarant under oath makes a false assertion about any material
fact, the declarant can be prosecuted for perjury for that false
assertion. 	Each separate "material matter or thing" in the sworn
testimony that is falsely stated gives rise to a separate
violation. 	Thus, multiple acts of perjury may occur on one
"occasion."
The evidence proved that the Commonwealth's attorney, who

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was present during the conference, prepared an "inter-office
memorandum" detailing Ganzie's statements. 	Although the
memorandum does not purport to contain precise quotations of
Ganzie's statements, Ganzie's counsel stipulated that all of the
persons present when Ganzie made his statement "would
authenticate what occurred in the office and what was said by
. . . Ganzie on May 2, 1995." 	Indeed, the Commonwealth's
attorney and a detective testified at the perjury trial that
Ganzie reported the facts recited in the memorandum.
Thus, the evidence proved beyond a reasonable doubt that
Ganzie lied at Peyton's trial when he denied (1) having told the
police that he and Peyton were driving down North Washington
Street when Peyton first shot the victims, (2) having told the
police that after Peyton shot the victims, Peyton heard one of
the victims moan and shot both of the victims a second time, and
(3) having told the police that Peyton obtained the gun from
Flagg. 	Each false statement constituted a separate offense.
Therefore, upon this evidence Ganzie was properly convicted of
three charges of perjury.
IV.
Ganzie argues that the trial judge erred in finding that the
statements were material to the issues in the proceeding in which
Ganzie made the statements. 	We disagree.
"Testimony is material if it is relevant to a main or
collateral issue on trial." 	Sheard v. Commonwealth, 12 Va. App.

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227, 232, 403 S.E.2d 178, 180 (1991). 	At Peyton's trial,
Peyton's attorney called Ganzie as a witness in the penalty
phase. 	The issue before the jury at the penalty phase was
whether to impose life imprisonment or the death penalty. 	See
Payne v. Commonwealth, 233 Va. 460, 470, 357 S.E.2d 500, 506
(1987). 	Ganzie testified that Flagg and Jefferson committed the
murders. 	His testimony, if believed, had the tendency to cause
the jurors to doubt their verdict finding Peyton guilty of the
murders and might have influenced their recommended sentence.
Moreover, Ganzie's denial of his prior statements was relevant
because the jury, in weighing mitigating evidence, had to decide
whether Ganzie was credible. 	See Sheard, 12 Va. App. at 232, 403
S.E.2d at 181. 	Because the statements were relevant to the
issues at the sentencing proceedings, see Holz, 220 Va. at 881,
263 S.E.2d at 429, we hold that the statements were material to
the issues on trial.
Affirmed.