State v. Whalen

Decision Date16 August 1989
Citation563 A.2d 457,235 N.J.Super. 506
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Thomas WHALEN, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

McAlevy & Costello, for defendant-appellant (Patricia K. Costello, Union City, on the brief).

Peter N. Perretti, Jr., Atty. Gen., for plaintiff-respondent (Arthur S. Safir, Deputy Atty. Gen., on the brief).


The opinion of the court was delivered by


Defendant, a City of Bayonne police officer, was convicted of perjury after a jury trial under State Grand Jury Indictment 148-85-4(2). The court sentenced him to three years probation and community service. He now appeals. The principal issue is whether New Jersey's perjury statute, N.J.S.A. 2C:28-1 The State presented evidence which, if credited, established the following facts. In January 1983, defendant, a Bayonne detective, told the state police that he had an informant who could provide information regarding a loansharking and gambling operation being conducted at a Jersey City luncheonette. On January 19, 1983, two state police detectives met with defendant and his informant, a woman whom defendant introduced as Grace. She told the detectives about a loansharking operation she permitted a man named Red to run from her luncheonette. Grace and defendant also provided other information about the loansharking activities.

                unconstitutionally delegates to the trial court the function of determining whether an allegedly false statement is material.   N.J.S.A. 2C:28-1b

The investigation was assigned to the State Police Organized Crime Bureau (Bureau). On January 31, 1983, Detective Place of the Bureau went to Grace's luncheonette. His observations there corroborated the information he had received about the loansharking operation. On February 1, 1983, Place met with Grace Walczyk and defendant at the Hackensack State Police Barracks. Defendant introduced Walczyk as his informant and his girlfriend, and he and Walczyk provided information to Place about the loansharking operation, including a list of debtors and collectors. Place confirmed the information through further investigation.

According to Place, he met with defendant and Grace Walczyk five or six times between February 1 and March 19, 1983 and also met with them after that date. On March 19, 1983, a listening device was placed at Walczyk's luncheonette and, thereafter, Place had daily conversations with Walczyk and met with her twice a week.

Walczyk was called to testify before the State Grand Jury on November 20, 1984 and February 5, 1985. On both occasions Walczyk denied any knowledge of Red's involvement in loansharking activity and denied having given information to Place or to any other law enforcement authorities concerning the Defendant was charged with perjury in a one-count indictment which alleged that defendant was called as a witness before the State Grand Jury inquiring into perjury and false swearing by Grace Walczyk, that "it then and there became material upon the hearing of the said matter to inquire among other things, whether the said THOMAS WHALEN and Grace Walczyk met with New Jersey State Police Officers in the first half of 1983" and further alleged that "in reference to the aforesaid material matters ... Thomas Whalen then and there before the State Grand Jury, not believing his answers to be true, said swore and gave in evidence, among other things, in substance and to the effect that he and Grace Walczyk did not meet with New Jersey State Police Officers."

loansharking activities. As a result of her testimony, the State presented evidence of Walczyk's perjury and false swearing to the Grand Jury on October 21, 1985. Defendant was called as a witness. He denied that Walczyk participated in the initial meeting with state police detectives, acknowledged that he had obtained information from Walczyk without her knowledge but denied that she was present at any of his meetings with Place.

N.J.S.A. 2C:28-1a. and b. provide:

2C:28-1. Perjury

a. Offense defined. A person is guilty of perjury, a crime of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true.

b. Materiality. Falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding or the disposition of the matter. It is no defense that the declarant mistakenly believed the falsification to be immaterial. Whether a falsification is material is a question of law.

The predecessor perjury statute, N.J.S.A. 2A:131-1 et seq., did not allocate the materiality issue to judge or jury. 1 However, in New Jersey the issue of materiality historically has been allocated to the court. Gordon v. State, 48 N.J.L. 611, 612, 7 A. 476 (E Materiality is decided by the trial judge in the great majority of American jurisdictions, see generally Annotation, "Materiality of Testimony Forming Basis of Perjury Charge As Question for Court or Jury in State Trial," 37 A.L.R. 4th 948 (1985), including the federal courts. In Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692 (1929), the Court discussed materiality in the context of a contempt of Congress conviction.

& A. 1886) ("[w]hether the evidence was material or not was a question entirely for the court, and not at all for the jury"); State v. Lupton, 102 N.J.L. 530, 534, 133 A. 861 (Sup.Ct.1926) ("[i]t is settled law that on a trial for perjury, the question whether evidence is material to the issue is solely for the court to determine and not for the jury"); accord State v. Molnar, 161 N.J.Super. 424, 450, 391 A.2d 1225 (App.Div.1978), rev'd in part on other grounds, 81 N.J. 475, 410 A.2d 37 (1980); State v. Winters, 140 N.J.Super. 110, 355 A.2d 221 (Cty.Ct.1976). 2

The question of pertinency under § 102 was rightly decided by the court as one of law. It did not depend upon the probative value of evidence. That question may be likened to those concerning relevancy at the trial of issues in court, and it is not essentially different from the question as to materiality of false testimony charged as perjury in prosecutions for that crime. Upon reasons so well known that their repetition is unnecessary it is uniformly held that relevancy is a question of law. Greenl. Ev. 13th ed. § 49; Wigmore, Ev. §§ 2549, 2550. And the materiality of what is falsely sworn, when an element in the crime of perjury, is one for the court. Carroll v. United States (C.C.A.2d) 16 F. (2d) 951; United States v. Singleton (D.C.) 54 Fed. 488; Cothran v. State, 39 Miss. 541, 547.

The reasons for holding relevancy and materiality to be questions of law in cases such as those above referred to apply with equal force to the determination of pertinency arising under § 102. The matter for determination in this case was whether the facts called for by the question were so related to the subjects covered by the Senate's resolutions that such facts reasonably could be said to be "pertinent to the question under inquiry." It would be incongruous and contrary to well-established principles to leave the determination of such a matter to a jury. Interstate Commerce Commission v. Brimson, 154 U.S. 447, 38 L.Ed. 1047, 4 Inters.Com.Rep. 545, 14 Sup.Ct.Rep. 1125; Horning v. District of Columbia, 254 U.S. 135, 65 L.Ed. 185, 41 Sup.Ct.Rep. 53. [Id. 279 U.S. at 298-299, 49 S.Ct. at 273-274.]

Accord United States v. Abadi, 706 F.2d 178 (6th Cir.1983), cert. den. 464 U.S. 821, 104 S.Ct. 86, 78 L.Ed.2d 95 (1983).

After careful consideration, we hold that the materiality issue in a section 1001 prosecution [18 U.S.C.A. § 1001] should be treated as a question of law. Although the materiality of a statement rests upon a factual evidentiary showing, the ultimate finding of materiality turns on an interpretation of substantive law. Since it is the court's responsibility to interpret the substantive law, we believe the district court properly treated the issue of materiality as a legal question. [Id. at 180.]

Recently, the Supreme Court in Kungys v. United States, 485 U.S. 759, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988), involving a denaturalization and deportation proceeding based on alleged material misrepresentations in a visa application, held that materiality was an issue of law and cited and quoted Sinclair and Abadi with approval. Id. at ----, 108 S.Ct. at 1547, 99 L.Ed.2d at 854.

People v. Clemente, 285 App.Div. 258, 136 N.Y.S.2d 202 (App.Div.1954), aff'd, 309 N.Y. 890, 131 N.E.2d 294 (1955) and Commonwealth v. McDuffee, 379 Mass. 353, 398 N.E.2d 463 (Sup.Jud.Ct.1979) exemplify the minority view that materiality is a jury question. However, unlike New Jersey, the New York and Massachusetts perjury statutes do not designate materiality as a legal issue.

In the United Kingdom, a 1911 statute provided that materiality "is a question of law to be determined by the court of trial." The Perjury Act, 1911, 1 & 2 Geo. 5 c. 6, § 1(6). This statute resolved a split of opinion on the issue. Compare Regina v. Goddard, 2 Fost. & F. 360, 175 Eng.Rep. 1096 (1861) and Regina v. Lavey, 3 Car. & K. 26, 175 Eng.Rep. 762 (1850) (materiality submitted to jury) with Regina v. Courtney, 7 Cox Crim. Cases 111 (Ireland Ct. of Crim.App.1856) and Regina v. Southwood, 1 Fost. & F. 356, Eng.Rep. 762 (1858) (materiality a legal issue decided by the court).

Defendant does not challenge the correctness of the trial judge's ruling that his allegedly perjured statements were material. He contends that there was evidence to support a contrary finding and that materiality, as an element of the Defendant cites State v. Ragland, 105 N.J. 189, 519 A.2d 1361 (1986) in support of...

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  • State v. Anderson
    • United States
    • New Jersey Supreme Court
    • March 16, 1992
    ...jury is unconstitutional, and agreed with the misgivings set forth in Judge Baime's concurring opinion in State v. Whalen, 235 N.J.Super. 506, 514-17, 563 A.2d 457 (App.Div.1989). Nevertheless, it felt constrained to uphold the validity of the [A]lthough we have serious doubts about the con......

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