Wheeler v. State

• Decision Date: 25 April 1975
• Docket Number: No. 74-449,74-449
• Parties: Jack R. WHEELER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 713

311 So.2d 713

Jack R. WHEELER, Appellant, v. STATE of Florida, Appellee.

No. 74-449.

District Court of Appeal of Florida, Fourth District.

April 25, 1975.

Joseph A. Varon of Varon, Stahl & Kay, Hollywood, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Thomas M. Carney, Asst. Atty. Gen., West Palm Beach, for appellee.

DOWNEY, Judge.

For many years appellant has been a public official in Broward County. On September 26, 1973, the Broward County grand jury indicted appellant for perjury in connection with testimony he gave before the grand jury during its investigation of the conduct of appellant's public office.

Appellant testified before the grand jury that in February 1969 appellant and his wife entered into a written employment contract pursuant to which his wife would work in his office for a period of five years at a specified annual salary. Appellant identified a written document presented to him as the contract in question. The indictment in question charged that appellant committed perjury when he gave the foregoing testimony because he knew it was false and because it pertained to a material matter the grand jury was investigating, namely, appellant's employment of his wife while he was a public official. Appellant was tried by a petit jury, convicted of perjury, and sentenced to three years imprisonment.

Appellant suggests five points requiring reversal, only three of which require comment: (1) he was not advised of his constitutional rights before testifying before the grand jury; (2) the indictment was invalid because more than one assistant state attorney appeared simultaneously before the grand jury while testimony was being adduced; (3) the state failed to prove the allegedly false testimony was material to the grand jury inquiry.

Under point one appellant complains that he was not advised of the nature of the grand jury's inquiry, nor was he given any Miranda warnings prior to testifying. However, this point is without merit. A witness testifying before a grand jury or prosecuting attorney does not have a right to be advised of the nature of the inquiry before testifying. Dinnen v. State, Fla.App.1964, 168 So.2d 703; In re Black, 47 F.2d 542 (2nd Cir. 1931); United States v. Schaier, 175 F.Supp. 838, 842 (S.D.N.Y.1959). Nor is a witness appearing before a grand jury entitled to the usual Miranda warnings. State ex rel. Lowe v. Nelson, Fla.App.1967, 202 So.2d 232, affirmed Fla.1968, 210 So.2d 197.

Appellant's second point that the indictment was defective because several assistant state attorneys simultaneously attended the grand jury during presentation of testimony was based upon the construction the District Court of Appeal, First District, placed upon §§ 905.17 and 905.19, F.S. in State ex rel. Christian v. Rudd, Fla.App.1974, 302 So.2d 821. However, the Supreme Court rejected that interpretation of §§ 905.17 and 905.19, F.S.1973, and held that said sections authorized the presence of more than one qualified assistant state attorney to be present at grand jury sessions. Rudd v. State ex rel. Christian, Fla.1975, 310 So.2d 295, opinion filed February 10, 1975. Thus, it appears appellant's second point is ill-founded.

Appellant's third point is more troublesome. By appropriate assignments of error and argument in his brief, appellant contends that the evidence adduced at trial was insufficient for the petit jury trying the case to determine whether appellant's grand jury testimony was material to the grand jury inquiry.

The law is well established in this jurisdiction that one of the essential elements of the crime of perjury is that the false testimony must be on a material point. 25 Fla.Jur., Perjury, § 6. In the case of false testimony before a grand jury, the testimony must be material to the subject matter about which the grand jury is inquiring. Gordon v. State, Fla.1958, 104 So.2d 524, 530-531. Accordingly, the indictment must explicitly describe the matter which was being investigated by the grand jury, and as to which the witness was testifying when he gave the false testimony. 25 Fla.Jur., Perjury, § 29. As with other essential elements of any crime, the state must at the trial of the perjury charge prove the materiality of the false testimony. Unlike the essential elements of other crimes, the determination of whether materiality has been sufficiently proven is generally a question of law for the court. Wolfe v. State, Fla.1972, 271 So.2d 132.

In the case at bar the trial judge submitted the question of materiality to the jury upon appropriate instruction for their decision even though in this case, there being no evidentiary conflict, it was a question of law for the court. The jury by its verdict obviously found appellant's testimony was material to the grand jury's inquiry. Appellant is hardly in a position to complain about the court's submission of the materiality issue to the jury because, as Judge Cowart noted in Wilson v. State, Fla.App.1973, 284 So.2d 24, such submission, even if erroneous, favored appellant. This is so because the state was thereby given the additional task of satisfying the jury as to the materiality issue when the trial judge had determined the testimony to be legally material to the grand jury inquiry by twice denying appellant's motions for judgment of acquittal, which motions were based in part upon the contention that materiality had not been proven.

All of which brings us to the main question involved here: Was the evidence adduced at trial sufficient to show the nature of the inquiry at the time appellant testified before the grand jury? To bring the issue into sharper focus, it seems to us there can be no question that appellant's testimony regarding the date of the employment contract with his wife was quite material to the grand jury inquiry if the subject matter of that inquiry was the manner in...