State v. Singh

Decision Date03 May 2012
Docket NumberNo. 29783–7–III.,29783–7–III.
Citation275 P.3d 1156
PartiesSTATE of Washington, Respondent, v. Jasmine N. SINGH, Appellant.
CourtWashington Court of Appeals

OPINION TEXT STARTS HERE

Susan Marie Gasch, Gasch Law Office, Spokane, WA, for Appellant.

Mark Erik Lindsey, Andrew J. Metts, III, Spokane County Prosecuting Attorneys, Spokane, WA, for Respondent.

OPINION PUBLISHED IN PART

KORSMO, C.J.

¶ 1 Need there be independent witnesses to the crime of perjury where the crime is recorded and the recording played at trial? Believing that the common law rule has no force in that circumstance, we affirm Jasmine Singh's conviction for first degree perjury.

FACTS

¶ 2 Ms. Singh is the sister of Anthony Singh and Jamal Singh. Anthony Singh was incarcerated in the Spokane County Jail awaiting trial on various charges at the times relevant to this case. He and his sister engaged in several telephone calls while he was in jail. Pursuant to jail policy, the calls were recorded and the parties advised of that fact.

¶ 3 Three telephone calls involving the two were made on November 16, 17, and 20, 2009. They spoke about various matters relating to Anthony Singh's upcoming trial, including two of the expected witnesses for the State, Matt Thompson and Officer Michael Roberge. In order to contradict expected testimony from the officer, the two discussed the differences between the east side and west side Rollin '60s Crips gangs and what Ms. Singh's research had uncovered about them. Anthony Singh also asked her to find material about other gangs and supply it to his attorney for transmission to him, Ms. Singh agreed that she would testify that Anthony Singh was not a gang member. Anthony Singh also asked his sister to get a copy of the discovery in his case and provide it to their brother, Jamal, who was also a prospective witness in Anthony's case.

¶ 4 An ER 404(b) hearing was held in Anthony Singh's case on November 23, 2009, before the Honorable Kathleen O'Connor in order to determine if evidence of Mr. Singh's alleged gang affiliation would be admissible at trial. Jasmine Singh testified at the hearing and denied that Anthony Singh and several other named individuals were gang members.

¶ 5 During cross-examination, after confirming that Ms. Singh had spoken with her brother on the telephone, the prosecutor asked her the following questions:

Q. Have you ever talked to him about this case?

A. Not really. Just kinda what's going on.

Q. You ever talk to him about any of the witnesses involved in the case?

A. No.

Q. You ever talk to him about the facts of the case?

A. No.

Q. You ever talk to him about anything that anybody else has testified about in this case?

A. No.

Ex. 7 at 8–9.

¶ 6 After hearing testimony, the trial court concluded that some of the proffered gang testimony could be used in Anthony Singh's trial. He eventually was convicted and sentenced to prison.

¶ 7 The prosecutor's office filed one count of first degree perjury against Jasmine Singh, alleging that she made a materially false statement by “replying ‘no’ to ever talking to the defendant, Anthony Singh, about witnesses in the case and facts of the case and testimony of the witnesses.” Clerk's Papers (CP) at 1. The charges were based on the three recorded calls made from the jail and the cross-examination during the ER 404(b) hearing.

¶ 8 Ms. Singh waived her right to a jury trial and proceeded to a bench trial before the Honorable Salvatore Cozza. Officer Michael Roberge testified that he knew Ms. Singh and identified her voice on the recordings. Detective Jeffrey Barrington testified to the contents of the recordings and about Ms. Singh's testimony from the pretrial hearing in Anthony Singh's case. The detective had been the lead investigating officer in that prosecution and was present for Ms. Singh's testimony at the hearing.

¶ 9 The defense rested without presenting any witnesses. Defense counsel argued the case to the bench on the theory that her client's statements were not false because the prosecutor's questions were vague and the State had not proven that her client knew the statements were false. 2 Report of Proceedings (RP) at 113–15.

¶ 10 Judge Cozza disagreed. He found that the defendant's testimony was false and that the recording showed that she knew the statements were false. 2 RP at 115–16. In particular, her negative response to the question about talking to her brother concerning the case and the question about talking concerning the witnesses “were demonstrably not true statements.” 2 RP at 115. He believed that the statements were sufficiently significant that they could have misled Judge O'Connor, and concluded that the false testimony was therefore material. 2 RP at 116–17. Finding that the other elements were established, Judge Cozza turned to the heightened proof required in a perjury case:

I think there is also an additional comment that needs to be made that perjury cases require somewhat of a higher burden of proof. I think that that is provided by the recordings in question here.

2 RP at 117.

¶ 11 The court imposed a first-time offender waiver of the presumptive sentence and imposed a term of 90 days' partial confinement and 12 months of community custody. Ms. Singh then timely appealed to this court.

ANALYSIS

¶ 12 This appeal challenges the sufficiency of the evidence in two regards: whether the heightened standard of proof was met and whether the testimony was truly false. Ms. Singh also challenges three conditions of her sentence. Each challenge will be addressed in turn.

Sufficiency of the Evidence.

¶ 13 Evidence is sufficient to support a conviction if the record permits a trier-of-fact to determine that each element of the offense was proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 94 Wash.2d 216, 221–22, 616 P.2d 628 (1980). The reviewing court will consider the evidence in a light most favorable to the prosecution. Green, 94 Wash.2d at 221–22, 616 P.2d 628.

¶ 14 First degree perjury is committed “if in any official proceeding” a person “makes a materially false statement which he knows to be false under an oath required or authorized by law.” Former RCW 9A.72.020(1) (1975). A [m]aterially false statement” is one “which could have affected the course or outcome of the proceeding.” RCW 9A.72.010(1).

¶ 15 Heightened Proof. As recognized by the trial judge, the standard of proof in perjury proceedings is higher than in other criminal cases. The testimony of one witness or circumstantial evidence alone is insufficient to convict. State v. Wallis, 50 Wash.2d 350, 353, 311 P.2d 659 (1957). Instead, sufficient evidence requires;

‘There must be the direct testimony of at least one credible witness, and that testimony to be sufficient must be positive and directly contradictory of the defendant's oath; in addition to such testimony, there must be either another such witness or corroborating circumstances established by independent evidence, and of such a character as clearly to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence. Otherwise the defendant must be acquitted.’

State v. Rutledge, 37 Wash. 523, 528, 79 P. 1123 (1905) (quoting People v. Rodley, 131 Cal. 240, 63 P. 351, 359 (1900)). The direct testimony must come “from someone in a position to know of his or her own experience that the facts sworn to by defendant are false.” Nessman v. Sumpter, 27 Wash.App. 18, 24, 615 P.2d 522 (1980). Corroboration is required only on the knowledge of falsity element of the crime. Rutledge, 37 Wash. at 527, 79 P. 1123.

¶ 16 Ms. Singh's argument on the heightened proof requirement essentially focuses on the circular nature of the State's proof on the knowledge element. Detective Barrington knew that Ms. Singh's testimony was false because he had heard the recordings of her conversations with her brother, and those recordings also served to corroborate his testimony that she knew she was lying when she testified. As noted, the trial court expressly found the recordings to be the corroboration of the detective's testimony. 2 RP at 117. The essential question then becomes whether the recordings that served as the detective's basis of knowledge could also corroborate that testimony. For two reasons, we believe that is permissible.

¶ 17 First, courts have in other circumstances allowed witnesses to testify concerning information they viewed on videotape. See, e.g., Domingo v. Boeing Employees' Credit Union, 124 Wash.App. 71, 79–80, 98 P.3d 1222 (2004) (holding that where witness had viewed videotapes herself but was not physically present at events depicted in videotape, her statements as to what the videotapes contained were based on her personal knowledge and properly considered in summary judgment proceeding); United States v. Begay, 42 F.3d 486, 502–03 (9th Cir.1994) (holding that police officer had personal knowledge of events and could testify as to events depicted in videotape, even though he was not physically present at the events in question, where he had personally viewed videotape himself). Similarly, Detective Barrington had personal knowledge of the substance of the recorded conversations and based on that personal knowledge could properly provide testimony directly contradicting Ms. Singh's statements under oath.

¶ 18 Second, one purpose of the heightened proof requirement is to avoid swearing contests that pit one witness's oath against another.1 State v. Dial, 44 Wash.App. 11, 16, 720 P.2d 461 (1986); State v. White, 31 Wash.App. 655, 660, 644 P.2d 693 (1982). It ensures that there was a genuine or true lie. That objective is easily satisfied when the criminal incident is completely recorded. The three taped recordings here established what Ms. Singh said and did, and what she knew prior to taking the witness stand at her brother's hearing.

¶ 19 Although it appears this evidentiary situation has not arisen in...

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5 cases
  • State v. Arquette, 42546–7–II.
    • United States
    • Court of Appeals of Washington
    • December 10, 2013
    ...position to know of his or her own experience that the facts sworn to by defendant are false.’ ” State v. Singh, 167 Wash.App. 971, 976, 275 P.3d 1156 (2012) ( quoting Nessman v. Sumpter, 27 Wash.App. 18, 24, 615 P.2d 522 (1980)). The unique heightened standard of proof to support perjury c......
  • State v. Montgomery, 42938-1-II
    • United States
    • Court of Appeals of Washington
    • October 8, 2013
    ...... his or her own experience that the facts sworn to by the. defendant are false.'" State v. Singh, 167. Wn.App. 971, 976, 275 P.3d 1156 (2012) (quoting Nessman. v. Sumpter, 27 Wn.App. 18, 24, 615 P.2d 522,. review denied sub nom. ......
  • State v. Montgomery
    • United States
    • Court of Appeals of Washington
    • October 8, 2013
    ...to know of his or her own experience that the facts sworn to by the defendant are false.'" State v. Singh, 167 Wn. App. 971, 976, 275 P.3d 1156 (2012) (quoting Nessman v. Sumpter, 27 Wn. App. 18, 24, 615 P.2d 522, review denied sub nom. State v. Howie, 94 Wn.2d 1021 (1980)). And the corrobo......
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    • United States
    • Court of Appeals of Washington
    • October 30, 2018
    ...... specific to the heightened evidentiary requirements for. perjury (instruction 7). See, e.g., State v. Singh,. 167 Wn.App. 971, 976, 275 P.3d 1156 (2012) (explaining the. requirement). Instruction 7 provided:. . . To convict the defendant of the crime ......
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