People v. Schupper

• Decision Date: 18 May 2006
• Docket Number: No. 04CA1224.,04CA1224.
• Citation: 140 P.3d 293
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Sanford B. SCHUPPER, Defendant-Appellee.
• Court: Colorado Court of Appeals

140 P.3d 293

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Sanford B. SCHUPPER, Defendant-Appellee.

No. 04CA1224.

Colorado Court of Appeals, Div. I.

May 18, 2006.

Rehearing Denied June 29, 2006.

COPYRIGHT MATERIAL OMITTED

John R. Newsome, District Attorney, William Edie, Deputy District Attorney, Doyle Baker, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant.

Dennis W. Hartley, P.C., Dennis W. Hartley, Colorado Springs, Colorado, for Defendant-Appellee.

ROMÁN, J.

The People appeal the trial court's ruling that granted a judgment of acquittal on the charges against defendant, Sanford B. Schupper. We disapprove the ruling.

Schupper was charged with felonies in an unrelated matter and applied for court-appointed counsel. In his application, Schupper stated that he had no monthly income and received no salary for the prior four months. Above the signature line, the application form stated, "I swear under penalty of perjury that the following information is true and complete." Defendant filed the application with the county court clerk.

Initially, the office of the public defender was appointed to represent Schupper based on his application. After the People contested the appointment, the trial court determined that Schupper had "considerable assets and bank accounts" and revoked the appointment.

The People then brought charges against Schupper for first degree perjury, violation of bail bond conditions, attempt to influence a public servant, and offering a false instrument for recording based on his application for court-appointed counsel. At the close of the People's case, the trial court granted Schupper's motion for judgment of acquittal on all charges.

The People may appeal any decision of a court in a criminal case upon any question of law. Section 16-12-102(1), C.R.S. 2005; People v. Miller, 97 P.3d 171 (Colo. App.2003). However, nothing in this provision "shall authorize placing the defendant in jeopardy a second time for the same offense." Section 16-12-102(1); People v. Argomaniz-Ramirez, 102 P.3d 1015 (Colo. 2004).

To determine the merits of a motion for judgment of acquittal, the court must view the relevant evidence as a whole and in the light most favorable to the People. Thus viewed, the motion must be denied when the evidence is substantial and sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crime charged beyond a reasonable doubt. People v. Gonzales, 666 P.2d 123 (Colo.1983); People v. Jackson, 972 P.2d 698 (Colo.App.1998).

Moreover, we review a trial court's interpretation of a statute de novo. When interpreting a statute, we attempt to implement the intent of the General Assembly. To discern that intent, we look first to the plain language of the statute and interpret statutory terms in accordance with their commonly accepted meanings. We avoid constructions that defeat the obvious intent of the General Assembly. People v. Terry, 791 P.2d 374, 376 (Colo.1990); People v. Miller, supra.

I. First Degree Perjury

The People first contend the trial court erred in dismissing the charge of first degree perjury against Schupper. We agree.

A person commits perjury in the first degree if in any official proceeding the person knowingly makes a materially false statement, which the person does not believe to be true, under an oath required or authorized by law. Section 18-8-502(1), C.R.S.2005.

Here, the trial court dismissed the first degree perjury charge because it determined that Schupper's application for court-appointed counsel (1) was not made under oath and (2) was not part of an official proceeding. Specifically, the court found that "no official oath was given to Mr. Schupper at any time by any official, that's either one designated by the statute to give an oath or even by someone who is not designated by statute to give an oath."

The court further found that to constitute an official proceeding under People v. Chaussee, 847 P.2d 156 (Colo.App.1992), aff'd in part and rev'd in part on other grounds, 880 P.2d 749 (Colo.1994), "a person authorized to administer oaths must be somehow involved, and even in the written interrogatories, that is at least a notary public." Because the court found that "in this case there's no evidence that anyone was authorized" in such a manner, it held the filing of "the affidavit" with the public defender's office did not constitute an official proceeding.

A. Oath

"Oath" includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated. Section 18-8-501(2)(a), C.R.S.2005. A written statement shall be treated as if made under oath if the statement was made on or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable. Section 18-8-501(2)(a)(I), C.R.S.2005.

An oath is "required or authorized by law" when the use of the oath is specifically provided for by statute, court rule, or appropriate regulatory provision. Section 18-8-501(2)(b), C.R.S.2005. Section 21-1-103(3), C.R.S.2005, provides that a defendant shall submit an appropriate application for representation by a public defender and that "the form of [the application] shall state that such application is signed under oath and under the penalty of perjury and that a false statement may be prosecuted as such." This provision further states that before the trial court appoints a public defender based on such an application, the court shall advise the defendant "that the application is signed under oath and under the penalty of perjury."

Above the signature line on the court-appointed counsel application form is the affirmation, "I swear under penalty of perjury that the following information is true and complete," as required by § 21-1-103(3). Because § 21-1-103(3) authorizes notice of the punishment of false statements, such an oath is "authorized by law." See § 18-8-501(2)(b). Therefore, pursuant to the express terms of § 18-8-501(2)(a)(I), the application shall be treated as if made under oath because its form bears notice, authorized by law, to the effect that false statements made therein are punishable.

Moreover, we are not persuaded by Schupper's argument that we should give deference to the trial court's finding that "no official oath was given to Mr. Schupper at any time by any official." While this factual finding is not clearly erroneous, see People in Interest of S.G., 91 P.3d 443 (Colo.App.2004)(we accept the court's factual findings unless they are so clearly erroneous as to find no support in the record), it is not dispositive of whether Schupper signed his application under oath.

Thus, by signing the application for court-appointed counsel, Schupper made the statements contained therein under oath.

B. Official Proceeding

An "official proceeding" means a proceeding heard before any legislative, judicial, administrative, or other government agency, or official authorized to hear evidence under oath, including any magistrate, hearing examiner, commissioner, notary, or other person taking testimony or depositions in any such proceeding. Section 18-8-501(3), C.R.S.2005.

In Colorado, the office of the state public defender is an agency of the state judicial branch that provides legal services to indigent persons accused of crimes. Section 21-1-101(1), C.R.S.2005. The public defender determines indigency based on the submission of an application for representation made under oath. A copy of the application shall be sent to the prosecuting attorney for review, and upon request, the court shall hold a hearing on the issue of eligibility for appointment of the public defender's office. Section 21-1-103(3).

In People v. Chaussee, supra, a division of this court determined that the difference between first and second degree perjury depends upon whether the false statements made under oath occurred during an official proceeding. That division held, as a matter of law, that false statements committed in replies to interrogatories during civil litigation constitute perjury in the first degree. However, no Colorado court has considered whether, after a defendant is charged with a crime in an official proceeding, the defendant's application for court-appointed counsel itself constitutes an official proceeding under § 18-8-501(3).

We are persuaded by authority from other jurisdictions that such an application constitutes part of an official proceeding. In State v. Witte, 451 So.2d 950 (Fla.Dist.Ct.App. 1984), the court considered whether a conference to obtain sworn testimony before filing a criminal indictment is an official proceeding pursuant to a similar felony perjury statute. The court determined that the conference was mandated by Florida statutes and rules of criminal procedure, even though witnesses were not required to be subpoenaed or testimony to be recorded. Thus, the court held that "a proceeding is not made official by the formality with which it is conducted; instead, its officiality depends on its purpose and the authority from which it derives." State v. Witte, supra, 451 So.2d at 953.

Other authority supports the holding in State v. Witte. See Slavens v. State, 1 Ark. App. 245, 614 S.W.2d 529 (1981)(sworn statement to prosecuting attorney acting as grand jury equivalent constitutes a proceeding); Hagberg v. Cal. Fed. Bank FSB, 32 Cal.4th 350, 7 Cal.Rptr.3d 803, 81 P.3d 244 (2004)(acknowledging the general rule that communication to an official agency designed to prompt action is part of an official proceeding); Melendres v. State, 739 So.2d 1237 (Fla.Dist.Ct.App.1999)(sworn statement given during a police internal affairs investigation is given during an official proceeding); State v. Blaisdell, 253 A.2d 341 (Me. 1969)(false statements about property ownership made to bail commissioner constitute perjury); People v. Lumbard, 94 Mich.App. 16, 287 N.W.2d 354 (1979)(filing a false...