State v. White, 9161-1-I

• Decision Date: 26 April 1982
• Docket Number: No. 9161-1-I,9161-1-I
• Citation: 31 Wn.App. 655,644 P.2d 693
• Parties: STATE of Washington, Respondent, v. Richard Gary WHITE, Appellant.
• Court: Washington Court of Appeals

Page 655

31 Wn.App. 655

644 P.2d 693

STATE of Washington, Respondent, v. Richard Gary WHITE, Appellant.

No. 9161-1-I.

Court of Appeals of Washington, Division 1.

April 26, 1982.

[644 P.2d 694] Cody, Hatch & Bedle, Inc., P.S., George Cody, Lynnwood (Court-appointed), for appellant in both cases.

Russell B. Juckett, Snohomish County Pros. Atty., Russell Jones, Deputy Pros. Atty., Everett, for respondent in first case.

Norman K. Maleng, King County Pros. Atty., William Fligeltaub, Deputy Pros. Atty., Seattle, for respondent in second case.

RINGOLD, Judge.

This is a consolidated appeal from two criminal convictions. Richard Gary White was convicted in Snohomish County Superior Court of one count of perjury in the first degree, and appeals the judgment and sentence entered thereon. White also appeals the judgment and sentence entered upon his conviction in King County Superior Court of one count of theft in the second degree. We reverse both convictions and remand the theft charge for a new trial.

PERJURY CONVICTION

In December, 1979, White was charged in Snohomish County by information with two counts of perjury in the first degree in violation of RCW 9A.72.020(1) and one count of making a false representation concerning title in violation of RCW 9.38.020. The trial court, sitting without a jury, found White not guilty on counts 2 and 3 and guilty on count 1, perjury in the first degree. ¹

The perjury charge arose out of White's sworn testimony in a civil case, Violante v. White, Snohomish County cause 78-2-02133-4, tried in March 1979. The critical facts in the civil action are set out in the margin. ²

White contends that the perjury conviction must be reversed because the evidence was insufficient to convict him of the crime charged in the amended information. The original information charged that White

did make a materially false statement, knowing such statement was false, under an oath required or authorized by law, in an official proceeding, to-wit: said Richard G. White testified in Snohomish County Superior Court Cause No. 78-2-02133-4 that he entered into an agreement with James Violante to assume the mortgages on Mr. Violante's house and that no provision was made for paying Mr. Violante for his equity in the house ....

The State amended this count at trial to make it more specific:

THE COURT: Now, tell me again, in Count One, you're using the words of line 20, page 112 of the report of proceedings?

MR. GISSBERG: Yes. In substance, line 20 is the equivalent of what's alleged in Count One, but I feel there must be a more particular statement of what we're alleging to be false ... (T)he specific language would be said Richard G. White testified in Snohomish County Superior Court Cause No. 78-2-02133-4 that there was no provision for equity on page 112 of the report of proceedings.

White was found guilty on this amended count. The trial court, in its findings of fact, stated only

That on or about the 14th day of March, 1979, the defendant, Richard G. White, made a materially false statement, to-wit: At page 112 of the transcript of proceedings, Snohomish County Superior Court, Cause No. 78-2-02133-4, the defendant stated "there was no provisions for equity."

Although this finding does not explain why the statement was false or material, the court's oral decision may be considered in interpreting a finding of fact. See State v. Eppens, 30 Wash.App. 119, 126, 633 P.2d 92 (1981), State v. Mallory, 69 Wash.2d 532, 419 P.2d 324 (1966). The trial court stated, at the conclusion of trial:

I find that the evidence does prove beyond a reasonable doubt that it was the agreement of the parties that Mr. Violanti (sic ) was to receive $28,000 for his equity in the property....

I do find the defendant guilty of Count One, perjury, when he stated in the prior proceeding that there was no provision for equity. The testimony of Mr. Violanti (sic ) was direct and it positively contradicted the later-or the earlier testimony under oath of the defendant in the prior civil proceeding....

At both the civil trial and the perjury trial it was undisputed by White that on or about June 7, 1978, in concluding the purchase of the house, he had signed a promissory note in the amount of $28,000 for the value of Violante's equity in the property. It is clear that the trial court found that the allegedly perjurious statement "There was no provisions for equity" was false because $28,000 had in fact been provided for equity.

White did indeed testify at page 112 of the transcript in the civil trial, that "there was no provisions for equity." ³ This testimony, however, which formed the sole basis for the criminal charge of perjury in count 1 of the amended information, was given in answer to a question concerning the events of the afternoon of June 5, 1978, 2 days before the promissory note was executed. The mere fact that the note was signed does not, therefore, render White's testimony false when viewed, as it must be, in the context of the question asked. State v. Olson, 92 Wash.2d 134, 594 P.2d 1337 (1979).

The requirements of proof in a perjury case are more stringent than those in any other area of law except treason. Olson, at 136, 594 P.2d 1337. Because of the special nature of a perjury charge, pitting as it does the oath of one person against that of another, the proof of falsity must not only satisfy the reasonable doubt standard, but must also meet certain requirements as to form. In order to prove perjury, the State must present

1. The testimony of at least one credible witness which is positive and directly contradictory of the defendant's oath; and

2. Another such direct witness or independent evidence of corroborating circumstances of such a character as clearly to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence.

Olson, at 136, 594 P.2d 1337, State v. Wallis, 50 Wash.2d 350, 311 P.2d 659 (1957), State v. Rutledge, 37 Wash. 523, 79 P. 1123 (1905).

If an answer is literally, technically, or legally true, it cannot form the basis of a perjury charge. State v. Olson, supra, 92 Wash.2d at 137, 594 P.2d 1337. Even an evasive answer intended to be misleading cannot constitute perjury if literally true. Olson, at 138, 594 P.2d 1337. Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973). The court in Olson, 92 Wash.2d at 139-40, 594 P.2d 1337 quoted with approval In Re Rosoto, 10 Cal.3d 939, 949-50, 519 P.2d 1065, 112 Cal.Rptr. 641 (1974):

It is thus apparent that when, as here, a witness' answers are literally true he may not be faulted for failing to volunteer more explicit information. Although such testimony may cause a misleading impression due to the failure of counsel to ask more specific questions, the witness' failure to volunteer testimony to avoid the misleading impression does not constitute perjury because the crucial element of falsity is not present in his testimony.

(Citations omitted.)

With these considerations in mind, we search the record for evidence directly contradictory of White's statement that "there was no provisions for equity" during the meeting on June 5. The relevant testimony of Violante in the civil ⁴ and criminal ⁵ trials is set out in the margin.

After searching the record, and keeping in mind that we must view White's testimony "at line 20, page 112 of the report of proceedings" strictly in the context of the meeting in person with Violante the afternoon of June 5, and not with respect to prior telephone calls or subsequent promissory notes, we conclude that Violante's testimony does not provide the positive, directly contradictory testimony required to support a perjury charge. White testified that no provision was made for equity. Violante testified, with respect to the critical meeting, that no agreement was reached and that he never told White he would let the house go with no provision for equity. The State failed to establish that provision for equity was made at that particular meeting, or that Violante's equity was even discussed, and thus failed to prove the falsity of White's testimony.

We recognize the inconsistencies between the stories of White and Violante, which could and did lead the court in the civil case to disbelieve White's version and enter judgment for Violante. These inconsistencies are not sufficient to sustain a charge of perjury.

The fact that Violante testified they discussed payment for the equity during the prior telephone conversation on June 5th does not contradict White's testimony that "there was no provisions for equity" at the later meeting. As the court stated in Olson, 92 Wash.2d at 139, 594 P.2d 1337:

(P)erjury statutes are not to be loosely construed nor are they to be invoked simply because a wily witness succeeds in derailing the questioner, so long as the witness speaks the literal truth. The burden is on the questioner to pin the witness down to the specific object of his inquiry. Precise questioning ... is imperative as a predicate for perjury.

Because there was no testimony presented that directly and positively contradicted White's testimony as charged in the amended information, the conviction was based on insufficient evidence. The conviction must be reversed ⁶ and the cause dismissed. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

THEFT CONVICTION

On April 10, 1980, in an unrelated matter, White was charged in King County with three counts of forgery, two counts of theft in the second degree, and one count of theft in the first degree. These charges arose out of alleged manipulations of bank accounts, and the cashing of forged checks by persons other than the defendant. During the course of the jury trial on these charges, White testified in his own defense and on cross-examination admitted that he had been convicted of perjury. The jury found White guilty of one count of second degree theft, and disagreed on...