PEOPLE v. VANCE (1997)

The issue presented by this interlocutory appeal is whether a defendant being tried for perjury is entitled to have a jury determine whether his false statement is material.   We hold that materiality is an element of the offense of first-degree perjury, section 18-8-502, 8B C.R.S. (1986), and that a defendant has a constitutional right to have a jury determine whether a statement is material.

I.

Defendant, Detective Carl Vance, was charged with two counts of first-degree perjury stemming from false testimony he gave in a murder trial.   Vance's nephew was one of the victims in a 1992 triple murder in Denver.   Vance obtained a wanted poster depicting the suspect and showed it to several of the murder witnesses.   When two of these witnesses were questioned at the murder suspect's preliminary hearing and trial, they testified that Vance had shown them the poster of the suspect and had asked them if “that was the guy.”   Vance testified at a motions hearing and again at the murder trial that he had not shown the poster to these witnesses.

The murder suspect claimed that the two witnesses' identification of him had been tainted when Vance showed them the poster.   The trial court found Vance's denial that he had shown the poster to the witnesses to be incredible.   The trial court nonetheless ruled that each witness had an independent basis for identification of the suspect, and admitted evidence of the identifications.   The jury found the defendant guilty of the murders.

Vance was charged with two counts of first-degree perjury.¹  The amended information alleged that Vance had made “a materially false statement in an official proceeding” when he denied, at the motions hearing and again at the trial, having shown the poster to the witnesses.   The prosecution contended that Vance's incredible denials provided support for the defense theories of misidentification and police conspiracy, which affected the course of the underlying trial, and could have affected the trial's outcome.   Vance maintained that his statements were not material because the judge in the murder trial had found an independent basis for admitting the identification by each witness.

The trial court ruled, over defense objection, that under the perjury statute the issue of materiality was a matter of law for the court to decide.   It heard evidence and arguments regarding materiality outside the presence of the jury, and determined that Vance's statements were material.   The jury heard no evidence concerning materiality, and was not instructed that a false statement must be material in order to constitute perjury.   The jury convicted Vance on both counts of first-degree perjury.

Before Vance's sentencing, the United States Supreme Court announced its decision in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995).  Gaudin involved a prosecution under a similar federal perjury statute which made the issue of materiality a question of law for the court to decide.   The Supreme Court held that Gaudin had a constitutional right to have the element of materiality determined by a jury.   The failure to submit the element of materiality to the jury entitled Gaudin to a new trial.   Id. at ----, 115 S.Ct. at 2320, 132 L.Ed.2d at 458.

Based on the holding in Gaudin, Vance filed a motion for a new trial.   The trial court concluded that materiality was an element of the Colorado perjury statute and granted Vance's motion for a new trial.   The prosecution brought this interlocutory appeal of the trial court's decision pursuant to section 16-12-102(1), 8A C.R.S. (1996 Supp.), section 13-4-102(1)(b) 6A C.R.S. (1996 Supp.), and C.A.R. 4(b)(2).²

II.

 The question of whether the element of materiality in our first-degree perjury statute must be determined by a jury was addressed by this court in People v. Smith, 198 Colo. 120, 597 P.2d 204 (1979).   In Smith, the jury was instructed that the issue of materiality was a question of law and that the trial court had found that the defendant's statement was material.  Id. at 122, 597 P.2d at 205.   We noted that the statutory definition of “materially false statement” specified that “[w]hether a falsification is material in a given factual situation is a question of law.”  Id. (citing § 18-8-501(1), C.R.S. (1973)).   We found that the constitutional right to a jury trial did not require that every element, whether a question of law or fact, must be determined by the jury.  Id. at 122-23, 597 P.2d at 205.   We held that, in the absence of controlling authority to the contrary, the determination of materiality by the court did not infringe upon the defendant's right to a jury trial.  198 Colo. at 123, 597 P.2d at 205-06.

In United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), the defendant was prosecuted under a federal perjury statute which required that the defendant falsify a “material fact.”  Gaudin, 515 U.S. at ----, 115 S.Ct. at 2313, 132 L.Ed.2d at 449 (citing 18 U.S.C. § 1001).   The trial court had instructed the jury that the “issue of materiality ․ is not submitted to you for your decision but rather is a matter for the decision of the court.   You are instructed that the statements charged in the indictment are material statements.”  Id.  On appeal, the prosecution stipulated that materiality was an element of the federal perjury statute.   Id.

Beginning from the basic constitutional premise that a criminal defendant has the right to have a jury determine every element of the crime, the Supreme Court rejected the prosecution's arguments that materiality was a question of law which may be determined by the court.   The Supreme Court noted that the materiality of a false statement is a mixed question of law and fact, and that such questions are typically resolved by juries.  Id. at ----, 115 S.Ct. at 2314, 132 L.Ed.2d at 451.   The Supreme Court also rejected the prosecution's contention that materiality had been historically decided as a question of law.   The Court reviewed the common law tradition in perjury prosecutions and determined that the practice of having a court rather than a jury determine materiality was not consistent, and had only emerged in the late nineteenth century.  Id. at ---- - ----, 115 S.Ct. at 2316-18, 132 L.Ed.2d at 453-55.   Having found the right to a jury determination of materiality to be constitutionally mandated, the Court overruled prior precedent to the contrary.  Id. at ----, 115 S.Ct. at 2319, 132 L.Ed.2d at 457.   The Court concluded that

[t]he 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 Gaudin's false statements infringed that right.

Id. at ----, 115 S.Ct. at 2320, 132 L.Ed.2d at 458.

Gaudin is a decision by the United States Supreme Court holding that the Sixth Amendment of the United States Constitution requires criminal convictions to “rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged.”  Id. at ----, 115 S.Ct. at 2313, 132 L.Ed.2d at 449.   Because we conclude that “materiality” is an element of first-degree perjury, we hold that the issue of materiality in perjury prosecutions must be submitted to a jury.

III.

The prosecution argues that Gaudin is not controlling because materiality is not an element of first-degree perjury in Colorado.   Alternatively, the prosecution contends that permitting the trial court to determine materiality in the instant case may be viewed as harmless error.   We are not persuaded by either argument.

A.

 The prosecution argues that because the General Assembly had defined materiality to be a question of law, it is not an element but a condition precedent, which is to be determined by the trial court before the jury is permitted to decide whether the actual elements of perjury have been proven.

The fact that the definition of “materially false statement” provided that materiality is a question of law does not itself establish that materiality is not an element of the crime of first-degree perjury.   Elements of a crime are “those constituent parts of a crime which must be proved by the prosecution to sustain a conviction.”   Black's Law Dictionary 520 (6th ed. 1990).   The plain language of the first-degree perjury statute requires that a false statement be material.   As such, materiality must be proven by the prosecution to sustain a conviction, and is an element of the crime of first-degree perjury.

The holding in Smith that materiality may be determined by the court as a matter of law provides no support for the proposition that materiality is not an element of the crime of first-degree perjury.   In Smith, as in all other perjury cases, materiality had to be proven to the court by the prosecution to sustain a conviction, and was thus an element of the offense.   In fact, Smith specifically referred to materiality as being an element of first-degree perjury.  Smith, 198 Colo. at 122, 597 P.2d at 205;  see also Marrs v. People, 135 Colo. 458, 463, 312 P.2d 505, 508 (1957) (materiality is an element of perjury);  People v. Onorato, 36 Colo.App. 178, 180, 538 P.2d 898, 899 (1975) (reversing perjury conviction for failure to prove materiality).

A legislature might choose to define a perjury-type offense in which materiality is not an element.   See Gaudin, 515 U.S. at ----, 115 S.Ct. at 2321, 132 L.Ed.2d at 459 (Rehnquist, C.J., concurring);  see also Beckley v. State, 443 P.2d 51, 54 (Alaska 1968) (holding that Alaska's perjury statute departed from the common law by intentionally excluding materiality as an element).   Such an offense would criminalize more behavior than any of the Colorado perjury statutes, all of which employ the defined term “materially false statement.” ³  A perjury offense which did not require materiality would permit a conviction for making a false statement completely irrelevant to the proceeding.

The fact that section 18-8-502(2) provides that “knowledge of materiality of the statement is not an element of this crime” does not imply that materiality is not an element of the crime of perjury.   This subsection makes the element of materiality a matter of strict liability-the statement must be material although the defendant need not know that it is material.   The subsection does not relieve the prosecution of its burden of proving that the false statement was in fact material.

The legislative response to Gaudin provides further evidence that our General Assembly did not intend to depart from the traditional common-law rule that a false statement must be material in order to constitute the crime of perjury.   In response to Gaudin 's holding that the question of materiality must go to the jury, our General Assembly did not remove the element of materiality from the definition of the perjury offenses in our Criminal Code.   Rather, the General Assembly removed from the definition of “materially false statement” in section 18-8-501(1) the constitutionally problematic sentence that “[w]hether a falsification is material in a given factual situation is a question of law.”   Ch. 155, sec. 11, 1996 Colo. Sess. Laws 738 (effective July 1, 1996).⁴

B.

 The prosecution contends that if we determine materiality is an element of perjury, we should nonetheless hold that the failure to submit the element to a jury was harmless error.   We disagree.

 It is true that some constitutional deprivations may be regarded as harmless error.   See Key v. People, 865 P.2d 822, 826 (Colo.1994).   However, “[h]armless error analysis does not apply when there is a ‘structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.’ ”  Id. (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991)).

The United States Supreme Court developed the concept of structural defects which preclude harmless error analysis in Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).   The Court held that a constitutionally deficient reasonable doubt instruction effectively vitiated all the jury's findings, and no jury verdict existed upon which to base a harmless error analysis.  Id. at 281, 113 S.Ct. at 2082.   The Court reasoned:

There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless.   There is no object, so to speak, upon which harmless error scrutiny can operate․   The Sixth Amendment requires more than appellate speculation about a hypothetical jury's action, or else directed verdicts for the State would be sustainable on appeal;  it requires an actual finding of guilty.

Id. at 280, 113 S.Ct. at 2082 (citations omitted).   The Court concluded that the error in depriving a criminal defendant of the right to be found guilty beyond a reasonable doubt of every element of an offense was inherently unquantifiable and indeterminate, and thus must be deemed a structural error.   Id. at 281-82, 113 S.Ct. at 2082-83.

This structural error analysis was recently applied by the United States Court of Appeals for the Tenth Circuit, sitting en banc, to the precise question presented here:  whether a trial court's failure to submit the element of materiality to a jury in a perjury prosecution was harmless error.   In United States v. Wiles, 102 F.3d 1043 (10th Cir.1996), the federal appeals court held that harmless error analysis could not be employed when the trial court determined the element of materiality-otherwise, the wrong entity would be permitted to judge the defendant guilty.  Id. at 1058.   The court concluded that this particular error is the sort of structural defect which necessarily defies harmless error analysis:

The Defendants' right to a jury trial with the accompanying right to be found guilty beyond a reasonable doubt of every element of [the perjury statute] is a “structural guarantee” that “reflects a fundamental decision about the exercise of official power-a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.   A defendant may assuredly insist upon observance of this guarantee even when the evidence against him is so overwhelming as to establish guilt beyond a reasonable doubt.”   In other words, “the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials.”

Id. at 1058-59 (quoting Carella v. California, 491 U.S. 263, 268-69, 109 S.Ct. 2419, 2422, 105 L.Ed.2d 218 (1989) (Scalia, J., concurring)).

We find this analysis persuasive.   We conclude that the right to have a jury render the verdict in a criminal trial is a fundamental aspect of our constitutional system, and the failure to submit the element of materiality to a jury for determination is a structural defect.   It cannot constitute harmless error.⁵  Vance is entitled to a new trial where the issue of materiality can be properly submitted to a jury.

IV.

The trial court's order granting Vance's motion for a new trial is affirmed, and the case is remanded for further proceedings.

The majority holds that the trial court correctly granted a motion for a new trial filed by the defendant, Carl S. Vance (defendant).   In so doing, the majority concludes that materiality is an element of the crime of perjury in the first degree and that the United States Supreme Court's holding in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), constitutionally requires that the element of materiality be considered by the jury.¹  I dissent because section 18-8-501(1), 8B C.R.S. (1986), expressly provides that the determination of materiality is a matter of law to be considered by the trial court judge.   The fact that our General Assembly has removed the issue of materiality from the jury's consideration distinguishes Gaudin from the present case and renders that decision inapplicable here.

I.

The majority decision sufficiently sets forth the facts of this case.   Section 18-8-502(1), 8B C.R.S. (1986), provides in pertinent part:

A person commits perjury in the first degree if in any official proceeding he knowingly makes a materially false statement, which he does not believe to be true, under an oath required or authorized by law.

Section 18-8-501(1) defines “materially false statement” as

any false statement, regardless of its admissibility under the rules of evidence, which could have affected the course or outcome of an official proceeding, or the action or decision of a public servant, or the performance of a governmental function.   Whether a falsification is material in a given factual situation is a question of law.

(Emphasis added.) ²

In construing a statute, a reviewing court must determine the intent of the legislature as expressed in the statutory language.   See Dunton v. People, 898 P.2d 571, 573 (Colo.1995).   Statutory words and phrases should be given effect according to their plain and ordinary meaning, and the statute must be read and considered as a whole.   See Wilczynski v. People, 891 P.2d 998, 1001 (Colo.1995).   Where the language of the statute is clear and unambiguous, the statute should be applied as written.   See Dunton, 898 P.2d at 573.   A court must avoid constructions that defeat an obvious purpose of a statute when that purpose is shown clearly on the statute's face.   See People v. Wiedemer, 852 P.2d 424, 428 (Colo.1993).

The plain language of section 18-8-502 and the prior section 18-8-501(1) is clear.   In section 18-8-501(1), the statement “[w]hether a falsification is material in a given factual situation is a question of law” reflects the General Assembly's desire to remove the question of materiality from the jury's consideration in cases where the defendant was charged with first degree perjury.   Under section 18-8-501(1), the prosecution was required to make a threshold showing of materiality to the trial court judge before the case could proceed to the jury.   In my view, we must apply the statute as it was written.

Nevertheless, the trial court and the majority rely heavily upon Gaudin for the proposition that a defendant has a constitutional right to have the question of materiality submitted to a jury.   Maj. op. at 577.   Gaudin involved the interpretation of a federal statute, which provided in part:

“Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and wilfully falsifies, conceals or covers up by any trick, scheme, or device a material fact ․ shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

Gaudin, 515 U.S. at ----, 115 S.Ct. at 2313 (quoting 18 U.S.C. § 1001 (1988)).   The Gaudin Court explained that a criminal defendant has a constitutional right to have each of the elements of an offense decided by a jury.  Gaudin, 515 U.S. at ----, 115 S.Ct. at 2314.   Because the government had conceded that materiality was an element of the offense prescribed in the federal statute, the Gaudin Court held that the question of materiality had to be submitted to the jury.  Id. at ----, 115 S.Ct. at 2320.

In contrast to the federal statute at issue in Gaudin, section 18-8-501(1), 8B C.R.S. (1986), in effect at the time of the offense in this case, expressly excluded materiality as one of the elements of first degree perjury by classifying it as a question of law.   Once the General Assembly chose to exclude an element by classifying it as a question of law, the constitutional requirement that the jury consider every element of the offense was no longer implicated.

Furthermore, the majority opinion in Gaudin ignores the role state legislatures play in defining crimes and their elements.   The power to define criminal conduct and establish the legal components of criminal liability is vested with the General Assembly.   See Wilczynski, 891 P.2d at 1001;  Rowe v. People, 856 P.2d 486, 490 (Colo.1993).   The legislature is also empowered to formulate principles of criminal responsibility and justification and, within constitutional limitations, may restrict defenses to particular crimes.   See People v. Low, 732 P.2d 622, 627 (Colo.1987).   The General Assembly's power in this area is subject to overriding constitutional norms.   See Ferguson v. People, 824 P.2d 803, 807 (Colo.1992).

Chief Justice Rehnquist wrote a separate concurrence in Gaudin in order to emphasize Gaudin 's limited impact on state authority to define criminal conduct:

Nothing in the Court's decision stands as a barrier to legislatures that wish to define-or that have defined-the elements of their criminal laws in such a way as to remove issues such as materiality from the jury's consideration.   We have noted that “ ‘[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.’ ”   Within broad constitutional bounds, legislatures have flexibility in defining the elements of a criminal offense.

Gaudin, 515 U.S. at ----, 115 S.Ct. at 2321 (Rehnquist, C.J., concurring) (citations omitted).   As Chief Justice Rehnquist's concurrence suggests, the Gaudin majority did not foreclose the authority of states to remove the issue of materiality from the jury's consideration.   In fact, the majority in this case concedes that state legislatures have the authority to remove the materiality requirement altogether.   Maj. op. at 579.³

Contrary to the majority's opinion, Gaudin does not order states to choose between submitting materiality questions to the jury and removing materiality from all consideration.   Rather, the Gaudin Court was faced with the task of interpreting a federal statute that included materiality as one of its essential elements.   Without any qualifying language on how the materiality question was to be addressed, the Gaudin Court was constitutionally required to have the jury consider the element of materiality.   The Gaudin Court's holding is therefore limited by the statute it was interpreting.   See United States v. Klausner, 80 F.3d 55, 60-61 (2d Cir.1996) (holding that Gaudin does not apply to a materiality determination under the tax evasion statute because the question is one of law);  United States v. Klais, 68 F.3d 1282, 1283 (11th Cir.1995) (finding the Gaudin holding inapplicable in an action considering materiality under 18 U.S.C. § 922(a)(6) (1994) because a materiality question under that statute is purely a question of law).

In this case, section 18-8-501(1) expressly excluded materiality as one of the elements of first degree perjury by classifying it as a question of law.   The General Assembly removed the issue of materiality from the jury's consideration and required that the trial court judge consider materiality as a threshold determination.   In my view, this procedure does not violate an accused's constitutional rights.   See People v. Smith, 198 Colo. 120, 122-23, 597 P.2d 204, 206 (1979).⁴  We are therefore obligated to give effect to the General Assembly's intent.

II.

The statutory language of section 18-8-501(1) is clear and unambiguous.   Under that statute, when a defendant is charged with first degree perjury, the question of whether a false statement is material is a question of law that must be decided by the trial judge prior to jury consideration.   The United States Supreme Court's holding in Gaudin has no effect on the constitutionality of this statute or the outcome of this case.   Therefore, the defendant's motion for a new trial should be denied.   Accordingly, I dissent.

I am authorized to say that Justice MULLARKEY joins in this dissent.

FOOTNOTES

1.   § 18-8-502, 8B C.R.S. (1986).   The offense provides:(1) A person commits perjury in the first degree if in any official proceeding he knowingly makes a materially false statement, which he does not believe to be true, under an oath required or authorized by law.(2) Knowledge of the materiality of the statement is not an element of this crime, and the defendant's mistaken belief that his statement was not material is not a defense, although it may be considered by the court in imposing sentence.At the time Vance gave false testimony, the term “materially false statement” was defined as:any false statement, regardless of its admissibility under the rules of evidence, which could have affected the course or outcome of an official proceeding, or the action or decision of a public servant, or the performance of a governmental function.   Whether a falsification is material in a given factual situation is a question of law.§ 18-8-501(1), 8B C.R.S. (1986).The General Assembly subsequently amended this definition of “materially false statement” by removing the last sentence:  “[w]hether a falsification is material in a given factual situation is a question of law.”   Ch. 155, sec. 11, 1996 Colo. Sess. Laws 738 (effective July 1, 1996).

2.   We previously concluded that an earlier version of section 16-12-102(1) did not grant to the People a right to an interlocutory appeal from a judgment which is not final, People v. Young, 814 P.2d 834, 836-38 (Colo.1991);  and that an order granting a new trial is not a final judgment.  People v. Campbell, 738 P.2d 1179 (Colo.1987);  C.A.R. 1(a)(1).   However, section 16-12-102(1) was amended effective June 3, 1993 and now specifically provides that an order of the trial court granting a new trial is a final order which is immediately appealable by the prosecutor.   See People v. Smith, 921 P.2d 80 (Colo.App.1996);  People v. Jones, No. 95CA1135, slip op., 942 P.2d 1258 (Colo.App. Dec.12, 1996).  Section 13-4-102(1)(b) denies jurisdiction to the Court of Appeals when a statute has been declared unconstitutional.   The trial court concluded that section 18-8-501(1) defining “materially false statement” as a question of law in a given factual situation violates the Sixth Amendment pursuant to Gaudin.

3.   See §§ 18-8-502 (perjury in the first degree), -503 (perjury in the second degree), and -504 (false swearing), 8B C.R.S. (1986).

4.   Raymond Slaughter, the executive director of the Colorado District Attorney's Council, testified before the House Judiciary Committee that this amendment was in response to the U.S. Supreme Court's decision in Gaudin, and was intended to bring Colorado's perjury statutes in line with the law of the nation.   See Hearings on H.B. 96-1120 Before the House Committee on the Judiciary, 60th Gen. Assembly, 2d Sess., Feb. 1, 1996, Audio Tape No. 96-6, 2:55 p.m.

5.   The federal appeals court also concluded that the failure to submit the issue of materiality to a jury was plain error.  Wiles, 102 F.3d at 1057-58.   A new trial was required even though Wiles had failed to preserve the issue by objecting to the trial court's decision to take the issue of materiality away from the jury.  Id.  We need not address the issue of plain error because Vance did object to the trial court's failure to submit the issue to the jury.

1.   Without addressing the issue directly, the majority has apparently declared section 18-8-501(1), 8B C.R.S. (1986), unconstitutional in light of the United States Supreme Court's holding in Gaudin.   The majority also explains in a footnote that the trial court declared section 18-8-501(1) unconstitutional.   Maj. op. at 577 n. 2.  In my view, the issue in this case is purely one of statutory interpretation.

2.   The majority opinion relies upon the fact that the underlined portion of this statute has since been repealed.   Maj. op. at 579.   However, this statutory amendment is irrelevant because it was enacted after the facts of this case arose.   Act approved May 22, 1996, ch. 155, sec. 11, 1996 Colo. Sess. Laws 734, 738.

3.   Alaska Stat. § 11.56.200(a) (Michie 1996) provides that “a person commits the crime of perjury if the person makes a false sworn statement which the person does not believe to be true.”   Alaska has therefore removed the materiality requirement from consideration in perjury actions.   See Nelson v. State, 546 P.2d 592 (Alaska 1976);  Beckley v. State, 443 P.2d 51 (Alaska 1968).

4.   In Smith, we upheld the constitutionality of the perjury statute from a challenge based upon an accused's right to a jury trial.   Smith, 198 Colo. at 123, 597 P.2d at 206.

Justice MARTINEZ delivered the Opinion of the Court.

VOLLACK, C.J., dissents, and MULLARKEY, J., joins in the dissent. SCOTT, J., does not participate.