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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