State v. Fields

• Decision Date: 24 August 1988
• Docket Number: No. 82A01-8804-CR-108,82A01-8804-CR-108
• Citation: 527 N.E.2d 218
• Court: Indiana Appellate Court
• Parties: STATE of Indiana, Plaintiff-Appellant, v. Mike FIELDS, Defendant-Appellee.

Page 218

527 N.E.2d 218

STATE of Indiana, Plaintiff-Appellant, v. Mike FIELDS, Defendant-Appellee.

No. 82A01-8804-CR-108.

Court of Appeals of Indiana First District.

Aug. 24, 1988.

Linley E. Pearson, Atty. Gen., Donald B. Kite, Sr., Deputy Atty. Gen., Indianapolis, for plaintiff-appellant.

Wayne S. Trockman, Newman, Trockman, Lloyd, Flynn & Rheinlander, Evansville, for defendant-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

The State of Indiana (State) appeals the decision of the Vanderburgh Circuit Court dismissing a two count Information for perjury and assisting a criminal filed against defendant-appellee, Mike Fields (Fields).

We affirm.

STATEMENT OF THE FACTS

A grand jury was impaneled in Vanderburgh County for the stated purpose of conducting an investigation into allegations concerning the receipt of stolen property by members of the Evansville Fire Department at Hose House Number One. In September of 1987 Fields, a fireman at Hose House Number 15, was subpoened and gave testimony before the grand jury. The deputy prosecuting attorney commenced the relevant portion of the examination of Fields with the following statement and question:

Q. OK, we didn't talk about this earlier but I don't think it will change anything. What about the use of marijuana? Did you ever hear about that taking place on your shift?

Record at 71A. Fields answered questions concerning his knowledge of the use of marijuana or other drugs on his shift by himself or other firemen at the hose houses with a simple answer of "no" or "no sir." Thereafter he was indicted for perjury. The indictment reads as follows:

Count I: Perjury

The Grand Jurors of the County of Vanderburgh and State of Indiana, upon their Oaths, present and charge that MIKE FIELDS on or the 16 day or the 23rd day of September, 1987 at said County: made a false material statement under oath or affirmation, to-wit: that he had never smoked marijuana at Hose House # 1, knowing the statement to be false, all in violation of I.C. 35-44-2-1.

Record at 5. Fields was also indicted for assisting a criminal as follows:

Count II: Assisting a Criminal

The Grand Jurors for the County of Vanderburgh and State of Indiana, upon their Oaths, present and charge that MIKE FIELDS on or about the 9th day of August A.D., 1987 at said County: did assist Don Crecelius, knowing the said Don Crecelius had committed theft, a Class D felony, with the intent to hinder the apprehension of the said Don Crecelius by warning the said Don Crecelius that law enforcement officers may be surveilling him, while the said Don Crecelius was purchasing property he believed to be stolen and further the said Mike Fields did touch Willie Henderson in an attempt to discover an electronic transmitter on the body of the said Willie Henderson, the said Mike Fields not then standing in the relation of parent, child or spouse to the said Don Crecelius, all in violation of I.C. 35-44-3-2(1).

Record at 6.

The trial court granted Fields's motion to dismiss Count I on the grounds that the indictment did not state an offense because the testimony alleged to be false was immaterial to the investigation of receiving stolen property by firemen at Hose House Number One, and therefore could not be made a basis for a charge of perjury. The court granted the motion to dismiss Count II because:

5. The Indictment states only that Mike Fields warned Don Crecelius of the possible police surveillance of him and the attempt by Mike Fields to discover an electronic transmitter on Willie Henderson by touching him. The indictment does not specify in what manner Mike Fields hindered the apprehension or punishment, or harbored or concealed or otherwise assisted Don Crecelius. At best, the Indictment merely alleges that Mike Fields hindered the commission or completion of a crime.

Record at 66.

The sole issues presented by this appeal are the correctness of the trial court's rulings.

DISCUSSION AND DECISION

Count I: Perjury

Perjury is defined in IND.CODE 35-44-2-1, which states in pertinent part as follows:

(a) A person who:

(1) Makes a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true; ... commits perjury, a Class D felony. (Emphasis added.)

The State argues that the indictment sufficiently sets out all of the elements of the offense including the materiality element, and it was denied the opportunity to prove it in court. It argues that a bare allegation of materiality is sufficient to withstand a motion to dismiss.

A motion to dismiss may be supported by material outside the pleadings. IND.CODE 35-34-1-8 provides that a motion to dismiss may be supported by affidavits or documentary evidence and the court may even conduct a hearing, but the defendant has the burden of proving every fact essential to support the motion by a preponderance of the evidence.

Materiality is conceded to be an essential element of the offense of perjury as set forth in IND.CODE 35-44-2-1. Porter v. State (1965), 246 Ind. 701, 210 N.E.2d 657; Davis v. State (1941), 218 Ind. 506, 34 N.E.2d 23; Maddox v. State (1938), 213 Ind. 537, 12 N.E.2d 947. It has also been held that materiality may be pleaded by a general averment thereof unless the facts alleged show as a matter of law that the false statements were not material to the issue. Id. The issue of materiality is an issue for the court to decide as a matter of law. Wilke v. State (1986), Ind.App., 496 N.E.2d 616.

Materiality is defined as that which is reasonably calculated to mislead an investigation, or has a natural effect or tendency to impede, influence, or dissuade a grand jury from pursuing its investigation. Id. The question must relate to the subject matter of the investigation. State v. Kellis (1923), 193 Ind. 619, 141 N.E. 337. The materiality requirement is not limited to trials but has been considered applicable to grand jury proceedings, Richardson v. State (1971), 255 Ind. 655, 266 N.E.2d 51; Kellis, supra, to sworn statements made to police, Wilke, supra, and to sworn responses to questionnaires submitted by bidders for public works projects. Zordani v. State (1978), 175 Ind.App. 297, 371 N.E.2d 396.

The trial court could, and did, consider material outside the pleadings which disclosed that the grand jury was called for the purpose of investigating the receipt of stolen property by firemen at Hose House Number One. The State does not deny this. We fail to perceive how the use of marijuana is material to the allegations which were the subject of the investigation. Even the deputy prosecuting attorney did not think so as he indicated in the question set forth in the statement of facts. The State in its brief does not attempt to show how it was material or how it would support the charge of receiving stolen property. Because the trial court could and did receive material outside the pleadings pursuant to the motion to dismiss showing the alleged false statement was not material, the State was no longer entitled to rely on a bare allegation of materiality. The court did not err in sustaining the motion to dismiss under the procedural position of this case.

However, we are constrained to make certain qualifying statements to our holding. IND.CODE 35-34-2-2(a) contains the following language:

A grand jury shall hear and examine evidence concerning crimes and shall take action with respect to evidence as provided by law.

IND.CODE 35-34-2-3(g) states:

If a member of the grand jury has reason to believe that an offense has been committed which is triable in the county, he may report this information to his fellow...