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 
- 2 - 

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 
- 3 - 

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 
- 4 - 

denied making the statements or responded, "I don't remember." 
- 5 - 

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. 
- 6 - 

 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 
- 7 - 

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 
- 8 - 

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 
- 9 - 

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. 
- 10 - 

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.