State v. Dial
| Citation | 720 P.2d 461,44 Wn.App. 11 |
| Decision Date | 09 June 1986 |
| Docket Number | No. 14501-1-I,14501-1-I |
| Court | Court of Appeals of Washington |
| Parties | STATE of Washington, Respondent, v. Dallas DIAL, Appellant. |
The defendant, Dallas Dial, appeals from his conviction of perjury in the second degree. While this appeal was pending, Dial filed a personal restraint petition, which we will consider as a pro se brief pursuant to RAP 10.1(d). We affirm.
In January 1978, Dial was charged with 5 counts of incest with his stepdaughter, Jody Dial. Subsequently, the Children's Protective Services filed a dependency petition. At a hearing on February 3, three of the Dial children, including Jody, were ordered removed from their home. Mrs. Patricia Dial then left the state with the children and began living in Oregon. She remained in Oregon until late April or early May of 1978 when she moved with her children to Idaho. During this flight, she used assumed names and the children did not attend school in order to avoid the Washington dependency proceedings.
When the King County Prosecutor's Office lost contact with Dial's wife and stepdaughter, a motion was filed to compel Dial to disclose their location so the State could secure their presence at trial. The motion was heard on March 27, 1978. After several witnesses testified for the State, Dial was called by his attorneys. Under oath he testified that he had not seen his wife since the dependency proceedings on February 3, nor did he know she intended to leave the jurisdiction. The court granted the motion and Dial was ordered to disclose all the information he had on The State then learned of a letter sent by Patricia to Dial that had a Miami postmark. This letter was apparently provided to the State by Dial as per the court's order. The State then sought to depose Dial with regard to the location of his wife and Jody. The deposition was ordered on April 21, 1979 despite defense objections that it violated Dial's privilege against self-incrimination.
the whereabouts of his wife and Jody.
Dial again denied having any knowledge of the location of his wife or Jody. Since the State could not locate Patricia or Jody, the incest charges were dismissed without prejudice on May 1, 1978.
Patricia and Dial were divorced in January 1980. Dial and Jody were married on March 8, 1981.
On November 25, 1980, nearly one year after the divorce, Patricia Dial informed the King County Prosecutor's Office of her whereabouts. She alleged that Dial assisted in the family's various relocations to Oregon and Idaho and was instrumental in maintaining their absence from the jurisdiction. Dial was thereafter charged with tampering with a witness (Patricia) and second degree perjury stemming from his testimony of March 27 and April 21, 1978 in which he denied knowledge of Patricia and Jody's whereabouts.
Dial moved to suppress both the deposition of April 21 and his testimony of March 27 on Fifth Amendment grounds. The court ruled the testimony and deposition admissible.
Dial also moved in limine to exclude the fact that the original charges against him were 5 counts of incest against his former stepdaughter. The court limited the State to only divulge that Dial was charged with a felony in which his stepdaughter was the alleged victim. The witness tampering charge was dismissed.
Dial argues that the April 21 deposition violated his right against self-incrimination. He asserts, therefore, that the jury should have only considered whether he committed perjury in his testimony of March 27.
The defendant contends that if the deposition of April 21 were excluded, the testimony of March 27 alone could not sustain a finding of perjury. RCW 9A.72.030(1) states that:
A person is guilty of perjury in the second degree if, with intent to mislead a public servant in the performance of his duty, he makes a materially false statement, which he knows to be false under an oath required or authorized by law.
A "materially false statement" is defined as "any false statement oral or written, regardless of its admissibility under the rules of the evidence, which could have affected the course or outcome of the proceeding." RCW 9A.72.010(1). The materiality of a false statement is determined by the court as a matter of law. RCW 9A.72.010(1); see also State v. Carpenter, 130 Wash. 23, 28, 225 P. 654 (1924); State v. Daniels, 10 Wash.App. 780, 781, 520 P.2d 178 (1974).
Dial maintains that the testimony he gave on March 27 contained no "materially false" statements. He bolsters this argument by indicating that the immateriality of the testimony is evidenced by the fact that after his testimony the prosecutor continued to pursue the motion to compel disclosure. This motion was then granted and later extended by a second order. Dial argues that these facts make it apparent that neither the prosecutor nor the court believed his testimony. He reasons, therefore, that the testimony had no effect on the course or outcome of the incest proceedings.
The purpose of the hearing on March 27 was to determine if Dial should be compelled to disclose any information he had regarding the whereabouts of his wife and stepdaughter. He testified then that he had not seen his wife since February 3, nor did he know she intended to leave the jurisdiction. Dial's testimony "could have affected the course or outcome of the proceeding." (Emphasis added.) RCW 9A.72.010(1). It is probable that was precisely what Dial hoped to accomplish. Accordingly, the testimony given was material. The fact that the court chose to disbelieve Dial does not alter this conclusion.
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