People v. Lively

Decision Date16 June 2004
Docket NumberDocket No. 123145, Calendar No. 10.
Citation470 Mich. 248,680 N.W.2d 878
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Tiffany Free LIVELY, Defendant-Appellee.
CourtMichigan Supreme Court

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Donald J. McLennan, Prosecuting Attorney, and William E. Molner, Assistant Attorney General, for the people.

Earl R. Spuhler, Rogers City, for the defendant.


We granted leave to appeal1 to consider whether the materiality of a false statement is an element of the statutory offense of perjury, MCL 750.422 and 750.423. The Court of Appeals held that materiality is an element that must be submitted to the jury,2 but the plain language of MCL 750.423 sets forth a definition of perjury that does not require proof of materiality. Because the Legislature has decided that materiality is not an element, the trial court did not err in refusing to submit that issue to the jury. We thus reverse the judgment of the Court of Appeals and reinstate defendant's perjury conviction.


This case arises from an underlying divorce action. Defendant's husband sued her for divorce. A default judgment was entered. Defendant moved to set it aside. At the hearing on that motion, defendant testified that she was unaware of the divorce proceeding until after the judgment had entered and that the complaint for divorce had never been served on her. She also submitted an affidavit to that effect in support of her motion. The trial court set aside the default judgment.

The prosecutor charged defendant with one count of committing perjury in a court proceeding, MCL 750.422. The prosecutor alleged that defendant had falsely testified both that she had not been served with the complaint for divorce and that she had lacked knowledge of the divorce proceeding. Defendant moved to dismiss the charge on the ground that the allegedly false testimony was not material. The trial court denied the motion and ruled that the testimony was material.

The case proceeded to trial. The prosecution presented testimony from the divorce attorney for defendant's husband, an officer who served the complaint on defendant, and a caseworker for the friend of the court. Defendant did not object to the court's use of a standard criminal jury instruction, CJI2d 14.1, which, at the time, did not include materiality as an element for the jury to consider. Defendant did, however, request an instruction on specific intent that referred to a false statement on a material matter. The court denied defendant's request to include the phrase "on a material matter" in the instruction. The jury found defendant guilty.

The Court of Appeals reversed the conviction. It concluded that the materiality of a false statement is an element of perjury. The Court noted that in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), the Supreme Court had concluded that materiality is an element in a federal prosecution for making false statements on federal loan documents, and had rejected the contention that materiality in perjury cases is a traditional exception to the rule that all the elements of an offense must be submitted to a jury. The Court of Appeals rejected case law suggesting that materiality is an issue for the court, rather than the jury, to decide. See People v. Noble, 152 Mich.App. 319, 393 N.W.2d 619 (1986); People v. Hoag, 113 Mich.App. 789, 318 N.W.2d 579 (1982). Thus, the Court of Appeals concluded that the trial court erred in precluding the jury from considering materiality, and it determined that this error was not harmless beyond a reasonable doubt.

We granted the prosecution's application for leave to appeal.3


This case requires us to determine whether the materiality of the false statement is an element of the statutory offense of perjury. We review de novo this question of law. People v. Mendoza, 468 Mich. 527, 531, 664 N.W.2d 685 (2003).


To provide the proper context for our interpretation of Michigan's perjury statute, we must discuss the constitutional principle set forth in Gaudin, supra.

The Supreme Court explained in Gaudin that every essential element of an offense, including—where it is an element—materiality, must be submitted to the jury. Gaudin involved a federal statutory offense and the government had conceded that materiality was an element.4

Gaudin thus provides that if materiality is an element of a perjury-related offense, then it, like all other essential elements, must be submitted to the jury as a matter of federal constitutional law.

The holding in Gaudin offers no guidance on the interpretive question before us, i.e., whether materiality is an element of perjury under our state perjury statute. See Gaudin, supra at 525, 115 S.Ct. 2310 (Rehnquist, C.J., concurring) ("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."). In other words, Gaudin simply makes clear that if materiality is an essential element under our state statute, then it must be submitted to the jury. If, however, we conclude that materiality is not an element, then the holding in Gaudin has no bearing on our determination.

The central question we must resolve, then, is whether our Legislature has defined the offense of perjury to include materiality as an element. This Court has previously indicated that, at common law, materiality was an element of perjury. See, e.g., People v. Fox, 25 Mich. 492, 496-497 (1872). Our Legislature, however, has constitutional authority to change the common law. Const. 1963, art. 3, § 7; Donajkowski v. Alpena Power Co., 460 Mich. 243, 256, 596 N.W.2d 574 (1999). It appears that this Court has never expressly decided whether MCL 750.423 or its predecessors altered the common-law definition of perjury.

To discern the meaning of our perjury statute, we apply the interpretive principles recently set forth in Mendoza, supra:

Relying on established doctrines of interpretation, one cannot disagree that the first step in discerning legislative intent requires review of the statutory text adopted by the Legislature. House Speaker v. State Administrative Bd., 441 Mich. 547, 567, 495 N.W.2d 539 (1993). See also MCL 8.3a ("All words and phrases shall be construed and understood according to the common and approved usage of the language...."). If unambiguous, the Legislature will be presumed to have intended the meaning expressed. Lorencz v. Ford Motor Co., 439 Mich. 370, 376, 483 N.W.2d 844 (1992). [Mendoza, supra at 550, 664 N.W.2d 685 (Cavanagh, J., concurring in result).]

MCL 750.423 provides:

Any person authorized by any statute of this state to take an oath, or any person of whom an oath shall be required by law, who shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is authorized or required, shall be guilty of perjury, a felony, punishable by imprisonment in the state prison not more than 15 years. [Emphasis added.]

Our Legislature has thus defined perjury as a willfully false statement regarding any matter or thing, if an oath is authorized or required. Noticeably absent from this definition is any reference to materiality. The Legislature could easily have used a phrase such as "in regard to any material matter or thing", or "in regard to any matter or thing material to the issue or cause before the court," but the Legislature did not use such language.

The phrase "any matter or thing" is a broad one. The commonly understood word "any" generally casts a wide net and encompasses a wide range of things. "Any" has been defined as:

1. one, a, an, or some; one or more without specification or identification. 2. whatever or whichever it may be. 3. in whatever quantity or number, great or small; some. 4. every; all.... [Random House Webster's College Dictionary (2d ed, 1997).]

Thus, it is reasonable to conclude that the Legislature intended for perjury to consist of a willfully false statement concerning every matter or thing for which an oath is authorized or required, because it did not limit the matters or things in question on the basis of their materiality.

Reinforcing our conclusion that the Legislature's failure to include a materiality requirement in MCL 750.423 is dispositive is the fact that several perjury-related statutes not at issue here do require that the false matter or statement be material. See MCL 28.422a, 32.1131, 168.729, 257.254, 324.5531(2), 380.1003, 500.2014, 500.4509, 600.8813, 764.1e(2), and 765.25.5 These statutes demonstrate that the Legislature knows how to make materiality an element of a perjury-related offense. Thus, the failure to make materiality a requirement in the perjury statutes at issue here must be given meaning.

In light of the broad scope of the statutory phrase "any matter or thing," we conclude that the Legislature intended that a willfully false statement about any matter or thing concerning which an oath was authorized or required falls within the statutory definition of perjury and thus may be charged as perjury if a prosecutor so chooses.6

We note that many prior decisions of this Court have not analyzed the statutory language or adequately differentiated the statutory offense from its common-law counterpart.7 See, e.g., People v. Collier, 1 Mich. 137, 138 (1848); Hoch v. People, 3 Mich. 552, 554 (1855); Flint v. People, 35 Mich. 491 (1877); Beecher v. Anderson, 45 Mich. 543, 552, 8 N.W. 539 (1881); People v. McCaffrey, 75 Mich. 115, 123-124, 42 N.W. 681 (1889) (quoting the predecessor to MCL 750.423, yet still assuming that materiality is required); People v. Almashy, 229 Mich. 227, 230, 201 N.W. 231 (1924); People v. Kert, 304 Mich. 148, 7 N.W.2d...

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