State v. Wheel

• Decision Date: 30 November 1990
• Docket Number: No. 88-385,88-385
• Citation: 587 A.2d 933,155 Vt. 587
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Jane L. WHEEL.

Page 933

587 A.2d 933

155 Vt. 587

STATE of Vermont v. Jane L. WHEEL.

No. 88-385.

Supreme Court of Vermont.

Nov. 30, 1990.

Motion for Reargument Denied Jan. 11, 1991.

Jeffrey L. Amestoy, Atty. Gen., and David Tartter, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Richard E. Davis and T. Christopher Greene of Richard E. Davis Associates, Inc., Barre, for defendant-appellant.

Before DOOLEY, J., and BARNEY, C.J. (Ret.), MEAKER, Superior Judge, and MAHADY and PINELES, District Judges, Specially Assigned.

DOOLEY, Justice.

Defendant Jane Wheel, a former assistant judge in Chittenden Superior Court, appeals a jury conviction on three counts of false swearing, in violation of 13 V.S.A. § 2904. ¹ We affirm.

Defendant was a Chittenden County assistant judge from 1975 to 1987. On November 14, 1985, the attorney general began an investigation into whether defendant had improperly submitted false pay vouchers for days on which she did not work. Acting on information that defendant had not sat on a single case from March 5, 1985 to April 12, 1985, state investigator Randall Moran reviewed case files at Chittenden Superior Court for all cases heard during that period. Moran concluded from his review that defendant had neither participated in any hearings nor signed any orders in that period. During his review, Moran uncovered several case files where it appeared that defendant's name had been added in her handwriting to the docket entries on the file jacket. These entries were for proceedings outside the target period. As a result of this discovery and upon further investigation, the State concluded that defendant may have altered the case files in order to make it appear that she had attended court proceedings when in fact she had not.

Three inquests, one in January of 1986 and the other two in May of 1986, were held to assist the investigation of the alleged misconduct of defendant and the other Chittenden County assistant judge. Defendant testified at the inquests held on May 6 and May 13. As a result of statements she made at the May 6 inquest, she was charged with several counts of false swearing. Prior to trial, the court denied defendant's motions to suppress the statements and dismiss the case. Following the trial, held from January 28 to February 23, 1988, the jury found defendant guilty of three counts of false swearing.

On appeal, defendant seeks acquittal or a new trial because: (1) the Vermont inquest procedure is unconstitutional; (2) her constitutional rights were violated during the inquest proceedings; (3) the attorney general had no authority to conduct an inquest; (4) the jury panel expressed prejudice; (5) individual jurors expressed prejudice; (6) the court allowed the State to present evidence of defendant's prior bad acts; (7) the court admitted impeached testimony and hearsay; (8) the State's concession that defendant was surprised by the questions posed at the inquest negated the specific intent element of the perjury charge; (9) the prosecution was guilty of prejudicial misconduct; (10) the court failed to charge the two-witness rule; (11) the evidence does not support the verdict; and (12) the cumulative effect of errors mandates reversal.

I.

Defendant first argues that the charges against her should have been dismissed because the Vermont inquest procedure violates the separation of powers doctrine, Vt. Const. ch. II, § 5, as well as her right to the presence of legal counsel. U.S. Const. amend. V and XIV; Vt. Const. ch. I, art. 10. Defendant made the same arguments to this Court in a motion to bring an interlocutory appeal under V.R.A.P. 5(b). We denied the motion, stating that "even if there was error in the conduct of the inquest, that error will not offer a defense to the false swearing charge or a victory through the suppression motion." State v. Wheel, 148 Vt. 439, 441, 535 A.2d 328, 330 (1987).

On several occasions, the United States Supreme Court has stated the principle that

a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit.

One who elects such a course as a means of self-help may not escape the consequences by urging that his conduct be excused because the statute which he sought to evade is unconstitutional.

Dennis v. United States, 384 U.S. 855, 867, 86 S.Ct. 1840, 1847, 16 L.Ed.2d 973 (1966); see also United States v. Wong, 431 U.S. 174, 178-80, 97 S.Ct. 1823, 1825-27, 52 L.Ed.2d 231 (1977) (defendant not entitled to suppression of false grand jury testimony even assuming a violation of Fifth Amendment's testimonial privilege and due process requirements; perjury is not a permissible way to object to government questions); Bryson v. United States, 396 U.S. 64, 71 n. 10, 72, 90 S.Ct. 355, 359 n. 10, 360, 24 L.Ed.2d 264 (1969) (subsequent determination that statute is unconstitutional is legally irrelevant to validity of petitioner's perjury conviction for statement made pursuant to that statute); cf. United States v. Mandujano, 425 U.S. 564, 579-80, 96 S.Ct. 1768, 1777-78, 48 L.Ed.2d 212 (1976) (failure to give Miranda warnings to grand jury witness is no basis for suppression of false statements). Other courts, including this Court, have reiterated this principle. See, e.g., United States v. Weiss, 752 F.2d 777, 786 (2d Cir.) (suppression of perjurious testimony based on constitutional principles is disallowed), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985); United States v. Caron, 551 F.Supp. 662, 666 (E.D.Vir.1982) (fact that grand jury was constituted in violation of federal statute did not vitiate oath or void defendant's testimony as a basis for perjury charge), aff'd, 722 F.2d 739 (4th Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80 L.Ed.2d 132 (1984); State v. Wheel, 148 Vt. at 441, 535 A.2d at 329-30 (citing Wong, Weiss, and Bryson ); State v. Ploof, 133 Vt. 304, 304-05, 336 A.2d 181, 181 (1975) (despite violation of inquest's secrecy provision, suppression of perjurious statement is not appropriate where the defendant seeks to suppress verbal act of perjury rather than substance of statement).

In Wheel, we stated that defendant had made no showing that would take the case outside the scope of the United States Supreme Court decision in United States v. Wong and our own precedent of State v. Ploof. Except for her perjury trap argument, which we address later, defendant has yet to make any such showing. According to a trial court finding, which is supported by the record, defendant appeared at the May 6 inquest despite her claim that the subpoena ordering her to attend the inquest was defective. The trial court found that "[s]he made the defect known to those in attendance at the inquest, and stated that her appearance was voluntary." Defendant may not voluntarily swear to respond truthfully to questioning and then later, as a defense against a charge that the answers were intentionally false, cite the unconstitutionality of the proceedings at which they were provided.

For the same reason, we reject defendant's argument that the attorney general does not have the authority to apply for or conduct an inquest. In any case, we note that the inquest statutes, 13 V.S.A. §§ 5131-5137, give the state's attorney the authority to apply for an inquest, and "[t]he attorney general shall also have the same authority throughout the state as a state's attorney." 3 V.S.A. § 152.

The remainder of defendant's claims concerning the inquest proceedings amount to an allegation that the sole purpose of the May 6 inquest was an attempt to entrap defendant into making perjurious statements. ² In support of this allegation, defendant points out that (1) the definition of "official duties" ³ promulgated by the Vermont Supreme Court during the investigation effectively eviscerated the investigation and foreclosed any possibility of charging her with misconduct; (2) the Stateacknowledged that it had no case against her after promulgation of the definition but went ahead with the second inquest anyway; (3) the State did not require the other Chittenden County assistant judge, who was also under suspicion, to testify at the inquest; (4) she was unaware that the inquest would include questioning regarding a suspected coverup, and the prosecutor's tactics during the questioning were intentionally confusing and misleading; and (5) the prosecutor improperly failed to give her the opportunity to explain contrary evidence in his possession and terminated his line of questioning once he had obtained her alleged false testimony.

In the context of grand jury proceedings, courts have permitted a "perjury trap" defense: "[W]here a prosecutor exhibits no palpable interest in eliciting facts material to a substantive investigation of crime or official misconduct and substantially tailors his questioning to extract a false answer, a valid perjury prosecution should not lie." People v. Tyler, 46 N.Y.2d 251, 260, 385 N.E.2d 1224, 1228, 413 N.Y.S.2d 295, 299 (1978). This perjury trap theory is founded on the due process prohibition against outrageous government conduct. Nixon v. United States, 703 F.Supp. 538, 564 (S.D.Miss.1988), aff'd on other grounds, 881 F.2d 1305 (5th Cir.1989). In order to prevail on this theory, the defendant must establish that his or her testimony did not further the investigatory role of the proceeding, and that the prosecutor asked questions designed solely to entrap the defendant. Id.

In Tyler, the court concluded that the grand jury investigation was a perjury trap because the prosecutor directed his questioning toward "minor outward details of a single meeting" with no attempt to uncover the substance of the meeting or to show the pertinence of the meeting to the investigation. 46 N.Y.2d at 260-61, 385 N.E.2d at 1229, 413 N.Y.S.2d at 300. Further, the prosecutor had acquired outward details of the meeting from a surveillance team, but failed to...