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State v. Lacourse5/8/1998
Defendant appeals his jury conviction of perjury in violation of 13 V.S.A. Section 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. Section 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. Section 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 Form
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