State v. Hutchins

State v. Hutchins (2004-188); 178 Vt. 551; 878 A.2d 241

2005 VT 47

[Filed 08-Apr-2005]

                                ENTRY ORDER

                                2005 VT 47

                     SUPREME COURT DOCKET NO. 2004-188

                            FEBRUARY TERM, 2005

State of Vermont	               }	APPEALED FROM:
                                       }
                                       }	District Court of Vermont,
     v.	                               }	Unit No. 2, Addison Circuit
                                       }	
Wayne Hutchins	                       }
                                       }	DOCKET NO. 916-12-02 AnCr

                                                Trial Judge: David A. Jenkins

            In the above-entitled cause, the Clerk will enter:


       ¶  1.  Defendant Wayne Hutchins appeals from his conditional guilty
  plea to committing perjury.  He argues that the trial court erred in
  denying his motion to dismiss the prosecution for lack of a prima facie
  case because: (1) the State failed to present sufficient independent
  corroborating evidence to support the charge; and (2) the State failed to
  show that the alleged perjurious testimony was material to any issue at the
  hearing where the alleged perjury occurred.  We agree that the State's
  corroborative evidence was insufficient to support the charge, and we
  therefore reverse. 

       ¶  2.  In August 2002, defendant pled guilty to committing a lewd act
  and furnishing malt beverage to a minor.  When the victim of the criminal
  acts learned that defendant had received a large monetary settlement from
  his insurance company in an unrelated matter, she filed a civil suit
  against him.  In connection with her suit, plaintiff filed an ex parte
  motion for trustee process, seeking to attach any of defendant's assets
  held by others.  The court denied the motion and set the matter for an
  expedited hearing at plaintiff's request.  At the hearing, held on
  September 18, 2002, defendant was served with a motion for a possessory
  writ of attachment.  Plaintiff asserted that there was a reasonable
  likelihood that she would recover judgment against defendant in an amount
  greater than or equal to $350,000, and there was a clear danger that
  defendant would spend whatever cash he received from his insurance
  settlement.  Although defendant indicated that he had not had time to hire
  counsel, the court asked him to respond to plaintiff's motions under oath.  
 
       ¶  3.  Defendant was then examined under oath by plaintiff's attorney. 
  He testified that he had received $100,000 in insurance proceeds
  approximately two weeks before the hearing.  He stated that he had spent
  $30,000 cash on a mobile home, buried $40,000, and given $10,000 to his
  son, $10,000 to Larry Lanphere, and $10,000 to Paul Mayer.  At the close of
  the hearing, the trial court approved the possessory attachment of $350,000
  worth of defendant's assets.  Later that day, Paul Mayer provided a signed
  affidavit denying that defendant had given him $10,000.  Mayer averred that
  on the morning of the attachment hearing, defendant had come running into
  his workplace, and said that he was being sued.  According to Mayer, he
  rebuffed defendant's attempt to give him $10,000. 

       ¶  4.  The State then charged defendant with perjury, alleging that he
  had knowingly testified falsely to a material matter.  Defendant moved to
  dismiss the charge for lack of a prima facie case, asserting that the
  State's evidence was insufficient to prove falsity and materiality.  As to
  his first argument, defendant maintained that the State failed to present
  any independent corroborating evidence to prove the falsity of his
  statements as required under Vermont law.  See, e.g., State v. Tinker, 165
  Vt. 548, 548, 676 A.2d 785, 785-86 (1996) (mem.) (when State presents only
  one witness to testify to falsity of defendant's statements, it must
  present independent corroborating evidence that is equal in weight to the
  testimony of another witness, and by itself, inconsistent with the
  innocence of the defendant).  

       ¶  5.  After a hearing, the court denied defendant's motion to
  dismiss.  It found that the hearing transcript provided circumstantial
  evidence that, along with Mayer's affidavit, lent sufficient support to
  Mayer's testimony to sustain the perjury charge.  The court explained that
  the transcript showed that defendant knew he had been convicted of the
  conduct at issue in the pending civil suit, and that the victim's family
  was trying to reach his assets.  The court noted that defendant had
  purchased a mobile home in cash but registered it in his son's name "in
  case something happens";  he had buried $40,000; and he had testified that
  he could not retrieve the money that he had given to his friends because he
  knew that they had spent it.  The court concluded that this circumstantial
  evidence showed motive, as well as actual attempts to prevent assets from
  being discovered, and it  sufficiently corroborated Mayer's assertion that
  defendant had not given him the money as he said he did.  The court also
  rejected defendant's argument that his testimony was not material to any
  issue at the attachment hearing.  Defendant entered a conditional guilty
  plea, and this appeal followed.   

       ¶  6.  We review the trial court's denial of defendant's V.R.Cr.P.
  12(d)(2) motion to dismiss to "determine whether the State met its burden
  in demonstrating that it had substantial admissible evidence as to the
  elements of the offense challenged by the defendant's motion."  State v.
  Dixon, 169 Vt. 15, 17, 725 A.2d 920, 922 (1999) (internal quotation marks
  and citation omitted); see also V.R.Cr.P. 12(d)(2) (State must establish
  that it has substantial, admissible evidence as to elements of offense
  challenged by motion sufficient to prevent the grant of a motion for
  judgment of acquittal at trial).  In conducting our analysis, we view the
  evidence in the light most favorable to the State, and exclude modifying
  evidence, to determine if the evidence can fairly and reasonably establish
  defendant's guilt beyond a reasonable doubt.  State v. Baron, 2004 VT 20, ¶
  2, 176 Vt. 314, 848 A.2d 275. 
 
       ¶  7.  Perjury must be proved by the testimony of two witnesses, or by
  the testimony of one witness with independent corroborating evidence. 
  Tinker, 165 Vt. at 548, 676 A.2d  at 785-86 (citing State v. Wheel, 155 Vt.
  587, 607, 587 A.2d 933, 945 (1990)).  As previously noted, when the State
  presents only one witness to testify as to the falsity of a defendant's
  statements, the "independent corroborating evidence must be equal in weight
  to the testimony of another witness, and it must be, by itself,
  inconsistent with the innocence of the defendant."  Id. (internal quotation
  marks and citations omitted).  The State's corroborative evidence was
  plainly insufficient here.

       ¶  8.  In support of the perjury charge, the State points to the
  "unequivocal" nature of Mayer's affidavit, the transcript of the attachment
  hearing proceedings, and the testimony of Deputy Sheriff Donald Keeler and
  defendant's probation officer Stephen Hoke.  Turning first to the
  transcript, we disagree with the trial court's conclusion that it contains
  circumstantial evidence that  sufficiently corroborates Mayer's affidavit. 
  The trial court discerned a motive to lie from the transcript, and pointed
  to defendant's attempts to hide his assets, as well as his knowledge that
  he had been convicted of the same conduct at issue in the civil proceeding. 
  The facts identified by the trial court are equivocal, however, and they
  are not by themselves inconsistent with defendant's innocence.  They
  equally support a finding that defendant testified truthfully at the
  attachment hearing.  Giving Mayer $10,000 would be consistent with
  defendant's attempts to keep his assets from plaintiff; it would also be
  consistent with defendant's testimony that he gave $10,000 to two other
  individuals.  Compare State v. Tonzola, 159 Vt. 491, 498, 621 A.2d 243, 246
  (1993) (sufficient corroborative evidence existed to sustain perjury
  conviction where defendant's testimony that he had not committed any lewd
  acts was contradicted by testimony of multiple complaining witnesses who
  provided similar accounts). 

       ¶  9.  The testimony of Sheriff Keeler and Stephen Hoke is equally
  insufficient to corroborate Mayer's assertion.  Sheriff Keeler averred that
  on the day of the attachment hearing, defendant left the courthouse and was
  gone for twenty minutes.  Stephen Hoke testified that defendant told him
  that he did not want the State to know about his insurance settlement. 
  This evidence is not, by itself, inconsistent with defendant's innocence,
  nor does it in any way tend to establish defendant's guilt of perjury
  beyond a reasonable doubt.  See United States v. Weiner, 479 F.2d 923, 929
  (2d Cir. 1973) (evidence that corroborates incidental facts in witness's
  testimony insufficient to satisfy two-witness rule; evidence must be
  independent and inconsistent with innocence of accused); United States v.
  Diggs, 560 F.2d 266, 270 (7th Cir. 1977) (no interpretation of two-witness
  rule permits perjury conviction "where the corroboration consists of merely
  peripheral testimony not tending to show the falsity of the accused's
  statements while under oath").  In this case, the record does not show what
  time defendant left the courtroom, nor how long it would take him to get to
  Mayer's workplace, assuming, of course, that he had $10,000 in cash with
  him at the hearing, or had sufficient time to retrieve it from another
  location.  Even if the record did establish the time that defendant left
  the courthouse, it would not suffice to corroborate Mayer's
  allegation-defendant could have gone anywhere during his absence from the
  courthouse.  Similarly, defendant's desire to keep his assets from the
  State is in no way inconsistent with his innocence of the charged crime;
  indeed, as discussed above, it equally supports an assertion that he
  testified truthfully. 

       ¶  10.  In Diggs, the United States Court of Appeals for the Seventh
  Circuit explained that

    [a]s in all criminal cases, the burden on the Government against
    which its evidence must be judged is that of proving the defendant
    guilty beyond a reasonable doubt.  The two-witness rule in perjury
    cases merely imposes an evidentiary minimum required to meet this
    burden as a matter of law.  The rule focuses on the totality of
    the Government's evidence in order to assure a sufficiency
    necessary to fulfill its underlying policy that perjury
    convictions not be based merely on an "oath against oath."  

  560 F.2d  at 270.  In this case, the evidence presented by the State,
  whether considered seperately or cumulatively, does not provide sufficient
  corroboration for Mayer's assertion that defendant lied under oath, and it
  is insufficient to establish defendant's guilt of perjury beyond a
  reasonable doubt.  Because the State failed to establish a prima facie case
  of perjury, the trial court erred in denying defendant's motion to dismiss. 
  See V.R.Cr.P. 12(d)(2) (trial court must dismiss information if State does
  not establish by affidavits, depositions, sworn oral testimony, or other
  admissible evidence, that it has substantial, admissible evidence as to the
  elements of the offense challenged by motion to dismiss); see also Tinker,
  165 Vt. at 548, 676 A.2d  at 786 (State's failure to present independent
  evidence to corroborate falsity of defendant's statements required reversal
  of his perjury conviction).  Given our conclusion, we do not address
  defendant's argument that his testimony was not material to any issue at
  the attachment hearing. 

       Reversed.      


                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
  
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned