State v. LaCourse

State v. LaCourse  (97-108); 168 Vt. 162; 716 A.2d 14

[Opinion Filed 8-May-1998]
[Motion for Reargument Denied 13-Jul-1998]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press. PRIVATE  


                                 No. 97-108


State of Vermont	                        Supreme Court

                                                On Appeal from
     v.						District Court of Vermont,
                                          	Unit No. 3, Washington Circuit

John R. LaCourse	                        March Term, 1998



Edward J. Cashman, J.

Terry Trono, Washington County State's Attorney, Barre, for Plaintiff-Appellee.

Michael Rose, St. Albans, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       AMESTOY, C.J. 	Defendant appeals his jury conviction of perjury in
  violation of 13  V.S.A. § 2901.  He contends that: (1) the trial court
  erroneously failed to submit the issue of  materiality to the jury; and (2)
  the prosecutor improperly adduced testimony concerning defendant's 
  pre-arrest silence.  We affirm.

       In July 1995, defendant was arraigned on charges of reckless driving
  and attempting to  elude the police.  The trial court found probable cause
  based upon the affidavit of a police officer  who stated that on July 9,
  1995, she had observed defendant driving the vehicle that was the object 
  of a police pursuit.  The officer further noted that, at the time of the
  pursuit, defendant was on  parole for driving while intoxicated and was
  under a lifetime suspension from operating a motor  vehicle for multiple
  prior convictions.  Defendant testified under oath at the arraignment in
  support  of his request for release on his own recognizance.  He stated
  that he had last seen his truck on July  8, one day before the chase, and
  that he had reported the vehicle stolen on July 15.

 

       Defendant was later arraigned on one count of perjury.  13 V.S.A. §
  2901.  The basis of  the charge was defendant's statement under oath at the
  arraignment, contradicted by several officers  involved in the police
  pursuit, that he had neither seen nor driven his car since July 8.  At the 
  conclusion of the trial, the court instructed the jury in the language of
  the perjury statute, which  applies to any person "who, being lawfully
  required to depose the truth in a proceeding in a court  of justice,
  commits perjury."  Id.  The jury returned a verdict of guilty.  This appeal
  followed.

                                     I.

       Defendant first contends that the court erred in failing to instruct
  the jury on the issue of  materiality.  A false statement under oath
  generally may be punished as perjury only if it was  material to an issue
  in the proceeding in which it was made.  See State v. Rosenberg, 88 Vt.
  223,  230, 92 A. 145, 148 (1914) ("The rule that the matter sworn to must
  be material to the issue or  question in controversy in order that perjury
  may be assigned upon it is elementary.").   Historically, many courts,
  including our own, have considered the issue of materiality in a perjury 
  prosecution to be a question of law for the court to decide.  See e.g.,
  State v. Wood, 99 Vt. 490,  495, 134 A. 697, 698 (1926) (issue of whether
  false statement was material to proceeding "was one  of law for the court
  to decide"); United States v. Gribben, 984 F.2d 47, 50 (2d Cir. 1993) 
  ("Materiality of a false statement as an element of the crime of perjury is
  a question of law for the  district court to decide, not a question of fact
  for the jury"); People v. Hedgecock, 795 P.2d 1260,  1266 (Cal. 1990) (in
  perjury prosecutions "the accused historically has not been entitled to
  have the  jury decide the question of materiality").  

       In United States v. Gaudin, 515 U.S. 506 (1995), however, the United
  States Supreme  Court held that, in a prosecution for making false
  statements in violation of 18 U.S.C. § 1001, the  defendant was
  constitutionally entitled to have the element of materiality determined by
  a jury.   "The constitution gives a criminal defendant the right to have a
  jury determine, beyond a reasonable  doubt, his guilt of every element of
  the crime with which he is charged.  The trial 

  

  judge's refusal to  allow the jury to pass on the `materiality' of
  [defendant's] false statement infringed that right."  Id.  at 522-23. 
  Gaudin confirmed a view previously adopted by a number of jurisdictions. 
  See, e.g.,  United States v. Gaudin, 28 F.3d 943, 951 (9th Cir. 1994),
  aff'd, 515 U.S. 506 (1995);  Hedgecock, 795 P.2d  at 1266; see generally
  Annotation, Materiality of Testimony Forming Basis  of Perjury Charge as
  Question for Court or Jury in State Trial, 37 A.L.R.4th 948 (1985)
  (collecting  cases).

       In light of the high court's ruling in Gaudin, we will undoubtedly
  need to reconsider the  traditional rule in Vermont concerning the trial
  court's role in passing on the issue of materiality in  a prosecution for
  perjury.  We need not directly address that issue here, however.  For even 
  assuming that the court erred in failing to submit materiality to the jury,
  the issue was not raised by  defendant below; although Gaudin had been
  decided a year earlier, defendant neither objected to  the court's
  instructions nor submitted a proposed instruction of his own.  See State v.
  Pelican, 160  Vt. 536, 538, 632 A.2d 24, 26 (1993) (our rule and case law
  require an objection following  instructions to preserve issue for appeal). 
  Hence, we review defendant's claim for plain error  under V.R.Cr.P. 52(b),
  which provides: "Plain errors or defects affecting substantial rights may
  be  noticed although they were not brought to the attention of the court." 
  As we observed in Pelican,  plain error exists "`only in exceptional
  circumstances where a failure to recognize error would  result in a
  miscarriage of justice, or where there is glaring error so grave and
  serious that it strikes  at the very heart of defendant's constitutional
  rights."  Id. at 538, 632 A.2d  at 26 (quoting State v.  Hoadley, 147 Vt.
  49, 53, 512 A.2d 879, 881 (1986)).     

       Although the failure to submit materiality to the jury may implicate
  important constitutional  rights, Gaudin, 515 U.S.  at 522-23, this is not a
  case in which the presumed error resulted in a  fundamental miscarriage of
  justice or the denial of a fair trial.  The materiality of defendant's 
  statement was patent; indeed, materiality was uncontroverted at trial.  A
  transcript of the  arraignment hearing admitted at trial shows that
  defendant's statement was made in the context of  the trial court's
  assessment of defendant's risk of nonappearance, an assessment that 

  

  may include  the weight of the evidence against the accused.  See 13 V.S.A.
  § 7554(b).  Hence, defendant's  denial of his participation in the charged
  offenses was plainly material to the proceeding in which it  was made.  See
  Rosenberg, 88 Vt. at 230, 92 A.  at 148 (false statement "need not be
  material to  the main issue or question; but it is sufficient if it is
  material to a collateral inquiry in the course of  the proceedings").  The
  fact that defendant did not raise or contest the issue of materiality at
  trial  speaks to the ultimate futility of the argument rather than to any
  deficiency on the part of trial  counsel.  

       Our analysis and conclusion in this regard are entirely consistent
  with the United States  Supreme Court's recent decision in Johnson v.
  United States, 117 S. Ct. 1544 (1997).  There, as  here, the defendant
  claimed that the trial court had erred in failing to submit the issue of
  materiality  in a perjury prosecution to the jury, as required under
  Gaudin.  There, as here, the defendant had  failed to object at trial. 
  Applying a plain error analysis, the high court concluded that the error
  was  harmless in view of the fact that the issue was uncontroverted at
  trial, and the evidence of  materiality was overwhelming.  See id. at 1550. 
  "On this record," the Court held, "there is no  basis for concluding that
  the error `seriously affected the fairness, integrity or public reputation
  of  judicial proceedings.'"  Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).  Here,  similarly, the record provides no basis for
  finding that the presumed error seriously undermined the  "fairness" or
  "integrity" of the proceeding.  Id.  No fundamental "miscarriage of
  justice" will result  from failing to note the error.  Hoadley, 147 Vt. at
  53, 512 A.2d  at 881.

                                     II.


       Defendant additionally contends that the prosecutor improperly adduced
  testimony from a  State's witness commenting on defendant's constitutional
  right to remain silent.  The witness in  question, an investigator in the
  state's attorney's office, had testified that he contacted  defendant on 
  March 21, 1996, prior to his arrest and arraignment, to talk about the
  police pursuit that occurred  on July 9 of the prior year.  The prosecutor
  then inquired as follows: 

  

  "What essentially did  [defendant] say to you?"  The witness responded:
  "That if those were the type of questions that I  was going to ask that I
  should talk to his lawyer."  

       Defendant raised no objection to the question or the answer at trial. 
  Nevertheless, he now  contends that the witness's response represented an
  unconstitutional comment upon defendant's  right to remain silent.  Nothing
  in the record indicates that defendant was under arrest or in custody  when
  he made his remarks to the investigator.  Thus, there was no error, much
  less plain error, in  admitting the statement.  See State v. Houle, 162 Vt.
  41, 44-45, 642 A.2d 1178, 1181 (1994)  (defendant's statement to supervisor
  in non-custodial and non-coercive setting did not implicate  right against
  self-incrimination); State v. McElreavy, 157 Vt. 18, 25, 595 A.2d 1332,
  1336 (1991)  (right against self-incrimination did not attach under either
  Vermont Constitution or United States  Constitution absent custodial
  interrogation or police-dominated atmosphere).

       Affirmed.


	FOR THE COURT:



	_______________________________________
	Chief Justice