State v. Abrams, No. 79481-2.

• Court: United States State Supreme Court of Washington
• Writing for the Court: J. Johnson
• Citation: 163 Wn.2d 277,178 P.3d 1021
• Parties: STATE of Washington, Appellant, v. Dustin Gene ABRAMS, Respondent.
• Docket Number: No. 79481-2.
• Decision Date: 20 March 2008

178 P.3d 1021 163 Wn.2d 277 STATE of Washington, Appellant,
v.
Dustin Gene ABRAMS, Respondent. No. 79481-2. Supreme Court of Washington, En Banc. Argued November 6, 2007. Decided March 20, 2008.

[178 P.3d 1022]

John Dietrich Knodell III, Teresa Jeanne Chen, Grant County Prosecutor's Office, Ephrata, WA, for Appellant.

David Bruce Koch, Nielsen Broman & Koch PLLC, Seattle, WA, for Respondent.

J.M. JOHNSON, J.

¶ 1 The United States Supreme Court in both Gaudin¹ and Johnson² declared that the materiality of a false statement in a perjury prosecution must be submitted to a jury rather than decided by a trial judge. We must determine whether, under these cases, language in RCW 9A.72.010(1) is constitutionally infirm because it requires the trial judge to determine the materiality of a false statement as a matter of law. If we find this statutory directive invalid, we must determine whether we can sever and strike the offending clause and uphold the remainder of Washington's perjury statute.

¶ 2 We hold that the clause instructing a trial judge to determine the materiality of a false statement as a matter of law is unconstitutional. We declare that the clause "whether a false statement is material shall be determined by the court as a matter of law" must be severed and stricken and uphold the remainder of the perjury statute. We remand for trial with the issue of materiality to be submitted to the jury.

178 P.3d 1023

FACTS AND PROCEDURAL HISTORY

¶ 3 The State charged Dustin Gene Abrams with first degree robbery and first degree murder of Michael Mallon. Officers read Abrams his Miranda³ rights, and Abrams signed a written advisement, acknowledgement, and waiver. Abrams then terminated the interview, and the detectives left the interrogation room. A corrections officer went into the interrogation room where Abrams was sitting and had a brief conversation with Abrams in which he suggested that Abrams speak with the officers. Abrams agreed. During the subsequent interrogation, Abrams confessed in a written statement to killing Mallon. Later, at a CrR 3.5 hearing prior to his trial, Abrams was placed under oath and took the stand in his own defense. During the hearing, Abrams testified:

The detectives never gave me any Miranda rights, never readvised me of the rights. At no time during this part of the interview was it freely or done voluntarily. I would not have given the statement had [a corrections officer] not assaulted me and made me do it under duress. The written statement was not me. I didn't write it. I didn't sign it.

Clerk's Papers (CP) at 6.

¶ 4 The trial court determined that Abrams made and signed the confession voluntarily. Although the judge found that Abrams was initially read his Miranda rights, the judge deemed these initial warnings insufficient because Abrams confessed when officers reinitiated contact after he had terminated the interview. The court thus suppressed Abrams's confession in the State's case-in-chief.

¶ 5 The State then filed three counts of first degree perjury against Abrams, alleging that he knowingly made materially false statements during the CrR 3.5 hearing. Abrams moved to dismiss, arguing that Washington's perjury statute is unconstitutional because RCW 9A.72.010(1), which defines "materially false statement," provides that materiality "shall be determined by the court as a matter of law." The trial court agreed, declared Washington's entire perjury statute unconstitutional, and dismissed the perjury charges against Abrams with prejudice.

¶ 6 This court granted direct review pursuant to RAP 4.2(a)(2).

STANDARD OF REVIEW

¶ 7 "`The constitutionally of a statute ... is an issue of law, which we review de novo.'" State v. Watson, 160 Wash.2d 1, 5, 154 P.3d 909 (2007) (alteration in original) (quoting Kitsap County v. Mattress Outlet, 153 Wash.2d 506, 509, 104 P.3d 1280 (2005)).

ANALYSIS

A. RCW 9A.72.010(1) is unconstitutional insofar as it requires the judge to determine the materiality of a false statement as a matter of law in a perjury prosecution

¶ 8 "A statute is presumed to be constitutional, and the party challenging its constitutionality bears the burden of proving its unconstitutionality beyond a reasonable doubt." State v. Thorne, 129 Wash.2d 736, 769-70, 921 P.2d 514 (1996). "Wherever possible, it is the duty of this court to construe a statute so as to uphold its constitutionality." State v. Reyes, 104 Wash.2d 35, 41, 700 P.2d 1155 (1985). However, "`[w]e cannot press statutory construction `to the point of disingenuous evasion' even to avoid a constitutional question.'" Miller v. French, 530 U.S. 327, 341, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000) (quoting United States v. Locke, 471 U.S. 84, 96, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985) (quoting George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 77 L.Ed. 1265 (1933))).

¶ 9 RCW 9A.72.020(1) provides that "[a] person is guilty of perjury in the first degree if in any official proceeding he makes a materially false statement which he knows to be false under an oath required or authorized by law." RCW 9A.72.010(1) defines "materially false statement" as "any false statement oral or written ... which could have affected the course or outcome of the proceeding." Specifically

178 P.3d 1024

at issue in this case, RCW 9A.72.010(1) further provides that "whether a false statement is material shall be determined by the court as a matter of law." (Emphasis added.)

¶ 10 In United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) and Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), the United States Supreme Court held that the materiality of a false statement must be submitted to the jury rather than decided by the trial judge. In Gaudin, a case involving a defendant charged with making false statements on federal loan documents in violation of former 18 U.S.C. § 1001 (1948),⁴ the Supreme Court declared 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," and the materiality of the alleged false statements is an element of the offense. Gaudin, 515 U.S. at 522-23, 115 S.Ct. 2310. Two years later in Johnson, where the defendant was charged with violating 18 U.S.C. § 1623, which proscribes knowingly making any false material declaration under oath before a grand jury, the Supreme Court similarly declared that "there is no doubt that materiality is an element of perjury.... Gaudin therefore dictates that materiality be decided by the jury, not the court." 520 U.S. at 465, 117 S.Ct. 1544.

¶ 11 The State concedes that materiality is an element of perjury and must be submitted to the jury.⁵ The State argues, however, that the statutory language does not prohibit a jury from determining materiality, but merely requires a judge to determine materiality as well. The Gaudin court noted that "[i]t is commonplace for the same mixed question of law and fact to be assigned to the court for one purpose, and to the jury for another." 515 U.S. at 521, 115 S.Ct. 2310. Relying on this language, the State contends that the trial court's determination of materiality is analogous to a trial court's preliminary determination of the relevance of offered evidence, where a jury subsequently weighs the admitted evidence as it sees fit. See, e.g., Vandivier v. State, 822 N.E.2d 1047, 1052 (Ind.Ct.App.2005) (adopting a framework in light of Gaudin, where the trial court "make[s] a preliminary determination of materiality when assessing the admissibility of the evidence. If it finds the evidence admissible, it must then submit the issue to the jury for the jury to weigh the evidence and determine whether the State proved materiality beyond a reasonable doubt." (citations omitted)).

¶ 12 "When we interpret a criminal statute, we give it a literal and strict interpretation." State v. Delgado, 148 Wash.2d 723, 727, 63 P.3d 792 (2003). Here, the plain language of the perjury statute is expressly at odds with Gaudin and Johnson. The statute does not direct the judge to make an initial determination of materiality; rather, its direction for the judge to determine materiality "as a matter of law" seems conclusive. And indeed, this is how courts have interpreted this statutory language. See, e.g., In re Disciplinary Proceeding Against Dynan, 152 Wash.2d 601, 613, 98 P.3d 444 (2004); State v. Dial, 44 Wash.App. 11, 14, 720 P.2d 461 (1986).

¶ 13 Although, as the State suggests, it is consistent with Gaudin for the trial judge to make a preliminary determination of materiality and then submit the issue to the jury to find beyond a reasonable doubt, this procedure is inconsistent with the statutory directive

178 P.3d 1025

for the trial judge to determine materiality as a matter of law.

¶ 14 Under Gaudin and Johnson, the provision of RCW 9A.72.010(1) requiring the court to determine the materiality of a false statement as a matter of law is unconstitutional. There is no set of circumstances under which a judge can constitutionally apply a statute that requires a judge alone to determine the materiality of a false statement as a matter of law. Such a procedure would violate the defendant's right to a jury trial on every element of the crime with which he is charged, a right that our constitution has specifically declared to be "inviolate." Wash. Const. art. I, § 21. We find RCW 9A.72.010(1)'s directive that "whether a false statement is material shall be determined by the court as a matter of law" constitutionally infirm.

B. The remainder of Washington's perjury statute can be upheld by severing and striking the offending language as directed in RCW 9A.04.010(4)

¶ 15 The State asks this court to sever and strike the clause "whether a false statement is material shall be determined by the court as a matter of law" from RCW 9A.72.010(1) and uphold the...