State v. Marrero

• Decision Date: 18 April 1988
• Docket Number: No. 87-KA-847,87-KA-847
• Citation: 525 So.2d 203
• Parties: STATE of Louisiana v. Raul MARRERO. 525 So.2d 203
• Court: Court of Appeal of Louisiana — District of US

Page 203

525 So.2d 203

STATE of Louisiana v. Raul MARRERO.

No. 87-KA-847.

525 So.2d 203

Court of Appeal of Louisiana Fifth Circuit.

April 18, 1988.

Sharon M. Williams, Chalmette, for defendant-appellant.

Dorothy A. Pendergast, Louise Korns, Dist. Attorney's Office, Gretna, for plaintiff-appellee.

Before GRISBAUM, DUFRESNE, and GOTHARD, JJ.

GRISBAUM, Judge.

On August 28, 1986, the defendant, Raul Marrero, was charged by grand jury indictment with perjury in violation of La.R.S. 14:123. This perjury was allegedly committed when Marrero testified before a grand jury on January 30, 1986. He was arraigned on September 30, 1986 and pled not guilty. After a bench trial he was found guilty as charged. A presentence investigation followed, and, on June 2, 1987, a motion for new trial was filed and denied; the defendant was sentenced to serve 11 months in Parish Prison, which sentence he now appeals. We reverse.

FACTS

Raul Marrero allegedly perjured himself when he testified during a grand jury investigation on January 30, 1986. Discovery proceedings related to the perjury charge were held on February 17, 1987, and counsel for the State was asked to clarify the purpose of the 1986 grand jury investigation. Counsel stated that the key focus of the investigation was the sexual abuse of which Marrero had been accused. Marrero claimed his estranged wife was the source of the accusations of sexual abuse and that she had threatened him with such accusation if he did not divide the community in their impending divorce as she wished. This alleged extortion was also a subject of inquiry at the grand jury investigation. Lastly, the investigation involved allegations that the Jefferson Parish Sheriff's Office showed favoritism to Raul Marrero by delaying or impeding the investigation of the complaints of sexual abuse; this favoritism was allegedly shown because of Marrero's involvement with the Jefferson Parish Sheriff's Office.

The record shows that for several years, Raul Marrero had a reserve deputy's commission in the Jefferson Parish Mounted Division, Reserve Unit, working crowd control during the carnival season. As a member of the Mounted Division, he wore a uniform and a badge (a gold shield), carried a gun and handcuffs, and had the authority to make arrests and issue warrants and attachments. In December 1985, when word got out about the impending grand jury investigation, Raul Marrero's reserve commission in the Mounted Division was picked up by Chief Moll, as well as his gold shield, or badge, and gun. Marrero was then placed in the Jefferson Parish Posse Division, which issues an ID instead of a commission. Like the Mounted Division, the Posse had its own uniform and badge (a star) and occasionally carried guns. The record shows that the Posse and the Mounted Division are completely distinct organizations. Marrero was not allowed to carry a gun as a Posse member because he could not shoot a qualifying score at the shooting range. He remained a member of the Louisiana Sheriff's Task Force for which he also had a badge; to be on the Task Force, one must be a deputy.

At the grand jury investigation on January 30, 1986, Marrero gave the following responses to the following questions:

Q. Do you have any associations at all with the Jefferson Parish Sheriff's Office?

A. Not with the Parish. I belong to the sheriff's posse.

Q. Do you have a commission; do you carry a badge and do you carry a gun?

A. I do not have a commission. I do not have a commission; I do not carry a gun; I do have an ID, not a badge.

Q. Are you paid by the sheriff's office in any capacity?

A. No, sir.

These statements form the basis for the perjury conviction.

Raul Marrero is an illiterate man whose native tongue is Spanish; he speaks only broken English. An interpreter was used to obtain his testimony during the grand jury investigation. Marrero waived his right to a trial by jury.

ASSIGNMENTS OF ERROR

The defendant has failed to file assignments of error as required by La.C.Cr.P. art. 844; however, in brief, five assignments of error are designated as follows:

(1) Whether the trial court erred in holding that Raul Marrero is guilty of perjury;

(2) Whether the trial court erred in holding that perjury was committed despite the uncontroverted fact that no lie was told by the defendant;

(3) Whether the trial court erred in holding that perjury was committed despite the lack of showing by the State that the accused knew the statement to be false;

(4) Whether the trial court erred in holding that perjury can be committed by dissembling; and (5) Whether the trial court erred in holding that Raul Marrero committed perjury in failing to volunteer additional information to the grand jury.

We note that all of the assignments of error center around one legal principle--whether there was sufficient evidence to convict the defendant. Accordingly, we will handle the five assignments of error in globo.

ANALYSIS

La.R.S. 14:123 provides:

Perjury is the intentional making of a false written or oral statement in, or for use in, a judicial proceeding, or any proceeding before a board or official, wherein such board or official is authorized to take testimony. In order to constitute perjury the false statement must be made under sanction of an oath or an equivalent affirmation, and must relate to matter material to the issue or question in controversy.

It is a necessary element of the offense that the accused knew the statement to be false; but an unqualified statement of that which one does not know or definitely believe to be true is equivalent to a statement of that which he knows to be false.

We are aided in our review by our jurisprudence, which states that for a statement to constitute perjury it must relate to a matter material to the issue or question in controversy. See State v. West, 419 So.2d 868 (La.1982). The materiality of false testimony is a matter of law for determination by the court, not a factual question for determination by the jury. State v. Occhipinti, 358 So.2d 1209 (La.1978). The government has the burden of proving the materiality of the false statement. In United States v. Giarratano, 622 F.2d 153, 156 (5th Cir.1980), the test for materiality was set out as follows: "The test for materiality is a broad one--whether the false testimony was capable of influencing the tribunal on the issue before it. Furthermore, we have held that 'the statements need not be material to any particular issue but may be material to any proper matter of inquiry.' " (citations omitted).

The trial court noted that the only controverted elements of the crime of perjury were materiality and falsity. The court addressed the issue of materiality as follows:

A purpose as was stated, uncontroverted of investigation of the grand jury was did Raul Marrero receive preferential or preferred treatment because he was a deputy? Now, with that question before the grand jury as part of their potency or powers to investigate, it became essential to determine if in fact he was a deputy. The questions then certainly were material to the investigation before the grand jury and the statements were made during that investigation. (emphasis added).

We agree the questions were material.

Therefore, the outcome of this case depends upon whether Marrero's statements were true or false. Falsity is also an essential element under the federal perjury statute. As there is little state jurisprudence focusing on whether a statement is true or false for the purpose of a perjury conviction, an examination of the more abundant federal jurisprudence on this issue is helpful. The federal definition of perjury, found in 18 U.S.C.A. Sec. 1623(a), reads as follows:

Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code [28 USCS Sec. 1746] ) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

This statute was interpreted by the United States Supreme Court in Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), when it held that the general federal perjury statute (18 U.S.C.A Sec. 1621 at that time) does not extend to a witness' literally true, but unresponsive answer, even if the witness intends to mislead his questioner. See also United States v. Abrams, 568 F.2d 411 (5th Cir.1978), cert. denied, 437 U.S. 903, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978).

In United States v. Cuesta, 597 F.2d 903, 920 (5th Cir.1979), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979), the court stated:

However, an answer that is responsive and false on its face does not come within Bronston's literal truth analysis simply because the defendant can postulate unstated premises of the question that would make his answer literally true. United States v. Kehoe, 562 F.2d 65, 68-69 (1st Cir.1977). ... Bronston does not deal with the situation where a defendant has given a "yes or no" answer, the truth of which can be ascertained only in the context of the question posed. United States v. Chapin, 169 U.S.App.D.C. 303, 309, 515 F.2d 1274, 1280 (1975). Bronston considered only the situation where a declarative statement made to a grand jury was true no matter what the context in which it was given.

See also United States v. Fulbright, 804 F.2d 847, 850-51 (5th Cir.1986) and United States v. Bell, 623 F.2d 1132 (5th Cir.1980).

The trial court addressed the element of falsity in Marrero by stating:

Black's Law Dictionary tells us falsehood is an assertion or statement known to be untrue which is intended to...