State v. Gansz
| Decision Date | 13 November 1985 |
| Docket Number | No. 84-1774,84-1774 |
| Citation | 376 N.W.2d 887 |
| Parties | STATE of Iowa, Appellee, v. Dale Eugene GANSZ, Appellant. |
| Court | Iowa Supreme Court |
Charles L. Harrington, Appellate Defender, and Raymond E. Rogers, Asst. Appellate Defender, for appellant.
Thomas J. Miller, Atty. Gen., and Ann E. Brenden, Asst. Atty. Gen., for appellee.
Considered by REYNOLDSON, C.J., and UHLENHOPP, McCORMICK, SCHULTZ, and WOLLE, JJ.
Dale Eugene Gansz appeals from his conviction of perjury in violation of Iowa Code section 720.2. Gansz alleges that the trial court erred in submitting a marshalling instruction which allowed the jury to find him guilty of an offense not charged in the trial information and that was barred by the statute of limitations. We hold the instruction was erroneous and prejudicial to Gansz. Therefore, we reverse and remand.
In December 1979 Gansz was charged with two counts of first degree murder. He was represented by two attorneys. Gansz had consistently told his attorneys that he had not been at the scene of the murders, but rather was at home watching television. In April 1980, on the day before Gansz was to present his case at the murder trial, he changed his story. The next day Gansz took the stand and testified that he had been present at the killings. The jury acquitted Gansz of one murder count, but found he was guilty of second degree murder on the other count. At the sentencing, Gansz stated that he in fact had not been present when the crime occurred and that one of his attorneys had instructed him to testify falsely at trial.
After an unsuccessful appeal of the second degree murder conviction, Gansz applied for postconviction relief and in February 1983 a hearing was held pursuant to his application. At the hearing Gansz testified that one of his attorneys had visited him the night before he was to testify at his 1980 murder trial. Gansz further testified the attorney informed him that unless he admitted that he was present at the scene of the crime, he would probably spend the rest of his life in prison. At the postconviction hearing Gansz stated that his 1980 trial testimony relating to how he had been at the scene of the crime was false. The court denied Gansz's application for postconviction relief.
Thereafter, on March 27, 1984, the State charged Gansz with committing perjury and the trial information in pertinent part stated: "on or about the 9th day of February A.D. 1983 ... Gansz did, while under oath ... knowingly make a false statement of material facts...." The minutes of testimony noted that the State would call three witnesses: a shorthand reporter and Gansz's two murder trial attorneys. The minutes stated the reporter would testify that she was the reporter at the postconviction proceedings and that a copy of Gansz's postconviction testimony was attached to the minutes. The minutes also indicated that the two attorneys would testify that at no time did they suggest or encourage Gansz to tell any specific story, they did not make up or suggest any facts to him to testify to in court, and that Gansz's postconviction testimony was absolutely and completely false.
During his opening statement at Gansz's perjury trial, the prosecutor read the trial information, outlined the facts to the jury, and specified the State's charge of perjury. He stated:
And Dale [Gansz] said at that post conviction hearing that the story that [his lawyer] told him to tell was an absolute lie, that he was home watching television. The story that was concocted by [his lawyer] was the one that was told at the trial. That's why he's charged with perjury. The State has alleged that the testimony he gave at the post conviction hearing, the testimony that [his lawyer] made up a story for, that's the lie that we're alleging he told, not the lie back at the original trial or at the sentencing or at some other time, but the lie at the post conviction hearing that he said--that he was lying when he said at that hearing that his lawyers made up a story that they made him tell.
However, the marshalling instruction given to the jury was as follows:
You must find the defendant not guilty of the offense of perjury, unless you find the State has proved by evidence beyond a reasonable doubt, each of the following elements:
1.) That on or about the 9th day of February, 1983, the defendant testified during hearing upon his application for postconviction relief and was under oath.
2(a) That during hearing upon his application for postconviction, the defendant made a statement of fact, to wit: That he was not at the scene of the crime with which he was charged but was home watching television;
or
(b) That at the time of his trial on or about April 24, 1980, he was told by his attorney ... to testify to a story which was not true which involved him in the crime with which he was charged for the purpose of attempting to secure a conviction for a crime of a lesser degree.
3.) That on or about April 25, 1980, defendant testified during his trial, under oath, and made a contradictory statement of fact to that made during his post-conviction relief hearing on February 9, 1983, to wit: that he was at the scene of the crime and involved in the killing of one of the victims.
4(a) That when he made either the statement on February 9, 1983, or the statement on April 25, 1980, one of them was false;
or
(b) That when defendant made the statement on February 9, 1983, during his post-conviction relief hearing, that he had been told by ... his attorney, to testify to a story which was not true, such statement was false.
5.) That such statement or statements were made by the defendant with the knowledge that they were false and with the intent that they would be considered true.
If you find the State has proved beyond a reasonable doubt each and all of the elements, then you will find the defendant guilty and you will answer the special interrogatory submitted with these instructions; but, if you find the State has failed to prove beyond a reasonable doubt one or more of the elements, then you shall find the defendant not guilty.
Gansz properly objected at trial to the elements in parts 2(a), 3, and 4(a) on two grounds: the trial information did not allege that Gansz committed perjury by making contradictory statements at his 1980 trial and his 1983 postconviction relief hearing; and any statements Gansz made at his 1980 trial were beyond the statute of limitations. The trial judge overruled both objections and declined to change the instructions. Gansz was convicted of perjury and sentenced accordingly. Gansz unsuccessfully raised the same issues in his motion for a new trial and motion in arrest of judgment. He reasserts both of these issues on appeal to this court. We find the marshalling instruction was erroneous for both reasons urged by Gansz.
The trial information merely indicated that Gansz was charged with the crime of perjury because he allegedly made a false statement at his 1983 postconviction hearing. Because the charging information was not specific as to which particular statement Gansz made was alleged to be false, Gansz's attorney should have moved for a bill of particulars pursuant to Iowa Rule of Criminal Procedure 10(5). The minutes of testimony, however, set forth information concerning the attorneys' refuting Gansz's statement that one of them told him to lie at his murder trial. Additionally, in his opening statement, the prosecutor narrowed his charge to Gansz's statement that his attorney told him to testify to a story which was not true.
The State could have filed more than one charge of perjury and prosecuted on each individual false answer. State v. Fisher, 282 N.W.2d 684, 688 (Iowa 1979). Separate statements which have arisen from sworn testimony in the same time sequence and series of acts are separate offenses because they each have a separate essential element of proof--the different false statements. See State v. Stewart, 223 N.W.2d 250, 251 (Iowa 1974), cert. denied, 423 U.S. 902, 96 S.Ct. 205, 46 L.Ed.2d 134 (1975). Consequently, the State could have, but did not, file multiple perjury charges as separate counts within a single information. Iowa R.Crim.P. 6(1).
Even if we assume that the State's general charge of perjury was based on all of the statements Gansz made at the postconviction proceedings, including his sworn testimony that he was at home rather than at the scene of the crime, the marshalling instruction was still improper. The instruction specifically referred to the contradictory statements of fact made by Gansz in 1980 and 1983. Contradictory statements can be used to prove a party has committed perjury as follows A person who, while under oath or affirmation ... has made contradictory statements, the...
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