State v. Scanlon

• Decision Date: 05 October 1977
• Docket Number: No. 13476,13476
• Citation: 34 St.Rep. 956,569 P.2d 368,174 Mont. 139
• Parties: , 178 Mont. 498 The STATE of Montana, Plaintiff and Appellant, v. Jack M. SCANLON, Defendant and Respondent.
• Court: Montana Supreme Court

Page 368

569 P.2d 368

174 Mont. 139, 178 Mont. 498

The STATE of Montana, Plaintiff and Appellant, v. Jack M. SCANLON, Defendant and Respondent.

No. 13476.

Supreme Court of Montana.

Submitted Oct. 21, 1976.

Decided Dec. 30, 1976.

Submitted On Rehearing Feb. 23, 1977.

On Rehearing Aug. 24, 1977.

As Corrected Oct. 5, 1977.

Robert L. Woodahl, Atty. Gen., Thomas A. Budewitz argued, Asst. Atty. Gen., Albert Meloling argued, Special Asst. Atty. Gen., Helena, for plaintiff and appellant

Donald A. Garrity argued, Helena, for defendant and respondent.

JOHN C. HARRISON, Justice.

The state appeals from dismissal of eighteen counts of perjury returned by the grand jury against Jack M. Scanlon, defendant. The grand jury in Lewis and Clark County initiated an investigation into defendant's Workers' Compensation related activities. The foreman of the grand jury stated:

" * * * Pursuant to this inquiry, the Grand Jury will examine the activities of Jack Scanlon in his representation of claimants before the Industrial Accident Board and the Workmen's Compensation Division during the period between mid-1969 and mid-1973 and thereafter.

"This inquiry will include a review of each step of Mr. Scanlon's professional representation, commencing with initiation of the attorney-client relationship and continuing through the conclusion of such representation, including any related third-party litigation involving subrogation rights."

As a part of this investigation a number of defendant's clients were called and testified to the manner the attorney-client relationship was initiated. After this testimony, the grand jury requested the attorney general to file a complaint with the Commission on Practice charging defendant did solicit without legal cause or permission, the individuals who testified.

Defendant was called to testify before the grand jury and refused to answer questions posed to him asserting his right against self-incrimination. Thereafter, in an effort to find where defendant received the information, defendant was granted immunity against prosecution except prosecution for contempt and perjury. He testified for two days before the grand jury, denying he solicited these persons and offered explanation for the manner in which they became his clients. Following defendant's testimony there was further inquiry and some clients were recalled. Some people, whom defendant said referred these clients to him, were called to testify. The grand jury returned an indictment charging eighteen counts of perjury.

Defendant filed a motion to dismiss these charges, which was granted. The state appeals.

We summarize the issues presented to be:

1. Whether the evidentiary standard required for proof of perjury was met?

2. Whether the allegedly perjured testimony was material?

3. Whether off-the-record statements made to the grand jury were grounds for dismissal?

4. Whether there was sufficient prosecutorial misconduct to warrant dismissal of the indictment?

5. Whether the admonition of secrecy delivered to the grand jury witnesses was grounds for dismissal?

First, we consider the strict evidentiary standard required for the proof of perjury. Three Montana statutes are applicable:

Section 94-7-202(7), R.C.M.1947, provides:

"No person shall be convicted of an offense under this section where proof of falsity rests solely upon the testimony of a single person other than the defendant."

Section 93-401-1, R.C.M.1947, provides:

"The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, except perjury and treason."

Section 93-1401-2, R.C.M.1947, provides:

"Perjury and treason must be proved by testimony of more than one witness; treason by the testimony of two witnesses to the same overt act; and perjury by the testimony of two witnesses, or one witness and corroborating circumstances." (Emphasis added.)

The basis for unusually stringent evidence requirements is set out in an article in 19 UCLA Law Review 638, 642, 643 entitled "Perjury and Related Offenses Under the Proposed California Criminal Code." That same article points out at p. 645, that Tentative Draft No. 6 of the Model Penal Code on this point reads:

"Corroboration. Proof of guilt beyond a reasonable doubt shall suffice for conviction under this section as in other criminal cases, without special requirement of two witnesses or corroborating circumstances.

"(Alternate, rejected by the council: No person shall be convicted of an offense under this Section where proof of falsity rests solely upon contradiction by testimony of a person other than the defendant.)"

The official draft of the Model Penal Code, which served as the basis for section 94-7-202(7), R.C.M.1947, used the alternate provision. In Montana Criminal Code, 1973, Annotated, Prof. William F. Crowley Editor, at page 293 the annotator points out:

"The common law rule that falsehood be established by two witnesses is adopted in part by subsection (7). At the common law this rule was adopted to deal with the problem of an oath against an oath. The modern rationale is a policy determination based on a balancing of the need for protection of witness and the need to maintain the sanctions for false testimony. In adopting the requirement of more than one witness Montana has followed the majority of states in affording additional protection to the witness at the possible cost of being unable to convict an apparent perjurer. * * * "

As noted above, the standard of proof required in Montana under the new code section 94-7-202(7), R.C.M.1947, requires that the proof of the falsity of a statement must be more than the contradiction testimony of a person other than the defendant. The legislature recently made this policy determination and despite the contrary rule urged by the state, this is the rule in Montana.

The exact requirements of this evidentiary rule in perjury cases are apparent from an examination of the California cases interpreting the section of the California Civil Code, identical to Montana's section 93-1401-2, R.C.M.1947. In an article entitled "Proof of Perjury: The Two Witness Requirement", 35 Southern California Law Review 86, 97, it is stated "In summary, the California attitude is, and remains, that direct testimony of at least one witness must always be introduced to prove the falsity of the statement set forth in the indictment; circumstantial evidence alone will not support a perjury conviction."

In People v. Roubus, 65 Cal.2d 218, 53 Cal.Rptr. 281, 282, 417 P.2d 865, 866, 867, the California Supreme Court, sitting In Bank, outlined this evidentiary requirement:

"Perjury must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances. * * * This statutory provision has been interpreted as prescribing not only the amount but also the kind of evidence necessary to support a perjury conviction. * * * Direct, as distinguished from circumstantial, evidence of the falsity of the defendant's testimony by at least one witness is generally required. * * * This does not mean that there must be a denial in the very words of the defendant's testimony * * * but that there must be testimony by at least one witness furnishing direct evidence of facts contrary to, or absolutely incompatible or physically inconsistent with, that sworn to by the accused * * * . Evidence that establishes facts from which the falsity of an alleged perjured statement may or may not be inferred is insufficient under the direct evidence rule. * * *

"The rule requiring proof of falsity by direct evidence has been criticized. * * * However, this requirement was early established in this state by decisions construing our statutory provision. It is noteworthy that a majority of jurisdictions which apply the rule that falsity must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances, hold that circumstantial evidence alone is generally insufficient to establish falsity."

An early Montana case indicates this is the law in Montana as well. In State v. Gibbs, 10 Mont. 213, 219, 25 P. 289, 290, it is said:

" 'It is not necessary that there should be two living witnesses in contradiction of the statement of the defendant to justify a conviction of perjury. It is sufficient if, in addition to one directly opposing witness, corroborating circumstances, sufficient to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence are proved.' "

The Court in Gibbs approved this instruction as to proof of perjury:

" '* * * that such act of perjury has been established to your satisfaction beyond a reasonable doubt by more than one witness, or that the testimony of such witness has been corroborated upon that point by other facts and circumstances proved on the trial. In other words, the direct evidence of one witness alone is not sufficient to convict of the crime of perjury, unless corroborated by other facts and circumstances proved on the trial.' "

In Gibbs the Court was construing the then equivalent code section to section 93-401-1, R.C.M.1947. Section 93-1401-2 had not been enacted at that time. In State v. Jackson, 88 Mont. 420, 293 P. 309, the Court cited Gibbs as authority of the requirement that perjury must be proved by the testimony of two witnesses, or one witness and corroborating circumstances indicating that this was the law even prior to the passage of section 93-1401-2, R.C.M.1947.

A subsidiary question to be determined regards the nature of the corroborating circumstances that must be proved. The rule in California, that the state argues we should adopt, is stated in People v. Casanova, 54 Cal.App. 439, 202 P. 45, 47:

" * * * The statute respecting the quantum of evidence necessary in perjury cases will be satisfied, if there be the testimony of one witness to facts that are absolutely incompatible with the innocence of the accused, corroborated by circumstances...