People v. Vance, 95SA394

• Decision Date: 24 February 1997
• Docket Number: No. 95SA394,95SA394
• Parties: 21 Colorado Journal 295 The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Carl S. VANCE, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 576

933 P.2d 576

21 Colorado Journal 295

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Carl S. VANCE, Defendant-Appellee.

No. 95SA394.

Supreme Court of Colorado En Banc.

Feb. 24, 1997.

Robert S. Grant, District Attorney, Seventeenth Judicial District, Donald S. Quick, Chief Deputy District Attorney, Michael J. Milne, Senior Deputy District Attorney, Thomas J. Kresl, Deputy District Attorney, Brighton, for Plaintiff-Appellant.

Bruno, Bruno & Colin, P.C., David J. Bruno, Janice K. Hollenbeck, Denver, for Defendant-Appellee.

Justice MARTINEZ delivered the Opinion of the Court.

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...