PUBLISHED OPINION
Case No.: 95-0635-CR
†Petition for
review filed.
Complete
Title
of
Case:STATE OF
WISCONSIN,
Plaintiff-Respondent,
v.
LINDA L. MUNZ,
Defendant-Appellant.†
Submitted
on Briefs: November 10, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: November 30, 1995
Opinion
Filed: November
30, 1995
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Grant
(If
"Special" JUDGE: John
R. Wagner
so
indicate)
JUDGES: Dykman, Sundby, and Vergeront, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendant-appellant the
cause was submitted on the briefs of Ralph A. Kalal of Kalal &
Associates of Madison.
Respondent
ATTORNEYSFor the plaintiff-respondent the
cause was submitted on the brief of James E. Doyle, attorney general,
and Michael R. Klos, assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED November
30, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0635-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
LINDA
L. MUNZ,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Grant County: JOHN R.
WAGNER, Judge. Affirmed.
Before
Dykman, Sundby, and Vergeront, JJ.
DYKMAN,
J. Linda L. Munz appeals from a judgment convicting her of one
count of perjury, contrary to § 946.31(1)(a), Stats. The trial
court withheld sentencing and placed her on probation for five years. Munz argues that her conviction should be
reversed because the allegedly false statements she made while testifying in
another trial were not material to the outcome of that trial. We disagree and, therefore, affirm.
BACKGROUND
In
January 1993, Linda L. Munz was tried and convicted of violating a restriction
of her occupational driver's license, contrary to § 343.10, Stats.
She had been stopped by a police officer while driving at about 8:20
p.m. on August 8, 1992, after she had visited a tavern. Her license permitted her to drive no later
than 7:00 p.m. and solely for occupational or homemaking purposes. At trial, Munz admitted driving after 7:00
p.m. She also made several allegedly
false statements concerning:
(1) the time she arrived at the tavern; (2) whether she had
money with her at the tavern; (3) whether she drank beer at the tavern;
and (4) what she told the officer when he stopped her.
After
she was convicted of violating the restrictions of her occupational license,
the State brought perjury charges against her.
At a bench trial, the parties stipulated that the facts adduced at the
preliminary hearing and the first trial would suffice for this trial. Munz's position, then and now, is that her
allegedly false statements were not material to whether she violated the
restrictions of her occupational license.
The trial court concluded that the statements were material and
convicted her of perjury. Munz
appeals.
MATERIALITY
A
person commits perjury when he or she testifies "wilfully and falsely,
with corrupt intent to shield the defendant[] from the incriminating
consequence of the real facts." Hanscom
v. State, 93 Wis. 273, 277, 67 N.W. 419, 421 (1896). Under § 946.31(1), Stats., perjury is defined as:
Whoever under oath or affirmation orally makes
a false material statement which the person does not believe to be true, in any
matter, cause, action or proceeding, before any of the following, whether
legally constituted or exercising powers as if legally constituted, is guilty
of a Class D felony:
(a) A
court.
To convict a person of perjury, the State must prove the
following elements: (1) the
defendant made a statement under oath; (2) the statement was false;
(3) the defendant knew the statement was false when he or she made it;
(4) the defendant made the statement in a proceeding before a judge; and
(5) the statement was material to the proceeding. State v. Petrone, 166 Wis.2d
220, 226, 479 N.W.2d 212, 214 (Ct. App. 1991).
Munz
focuses on the last element when she argues that her conviction should be
reversed because her allegedly false statements were not material to her
conviction for violating the restrictions of her occupational license. A material statement is one "which
tends to prove or disprove any fact that is of consequence to the determination
of the proceeding in which the statement was made." Wis
J I—Criminal 1750. This definition is adapted from the
definition of relevant evidence found in § 904.01, Stats.,[1]
and the court's decision in State v. Becker, 51 Wis.2d 659,
666-67, 188 N.W.2d 449, 453 (1971). In Becker,
the court looked at the concept of materiality in the context of permissible
lines of questioning during cross-examination.
The court said:
In the courtroom
the terms relevancy and materiality are often used interchangeably, but
materiality in its more precise meaning looks to the relation between the
propositions for which the evidence is offered and the issues in the case. If the evidence is offered to prove a
proposition which is not a matter in issue nor probative of a matter in issue,
the evidence is properly said to be immaterial.
Id. at 667, 188 N.W.2d at 453 (quoted source omitted).
State
v. Evans, 229 Wis. 405, 409,
282 N.W. 555, 556-57 (1938), provides additional guidance:
A statement is not perjury if it is not material to the
matter under investigation, or if it is misleading only as to a harmless
act. The false testimony must be given
wilfully and corruptly for the purpose of drawing the curtain over a material
fact under investigation, in order to lead the tribunal to a conclusion
contrary to the actual fact.
In Hanscom, 93 Wis. at 279, 67 N.W. at
421, the court said that a statement is material when it is intended "to
strengthen, corroborate, or render more probable the truth of ... false denials
...." And in State v.
Williams, 179 Wis.2d 80, 87-88, 505 N.W.2d 468, 470 (Ct. App. 1993), a
medical assistance fraud case upon which Munz relies, we concluded that
statements must have legal effect to be material.
Munz
argues that because she admitted that she was driving after 7:00 p.m. and
because the trial court in her first trial stated that it found her guilty of
violating the restrictions of her occupational license because she drove at an
improper time, the statements about why she was at the tavern or whether she
purchased alcohol were immaterial. In
other words, because Munz admitted that she drove outside of permitted hours,
she would have been convicted anyway.
Thus, her allegedly false statements could not have changed the outcome
of the trial, had no legal effect and were, therefore, immaterial. We disagree.
When
Munz testified, the trial court was considering her guilt based upon two
grounds: (1) whether she drove at
an impermissible time; or (2) whether she was driving for an impermissible
purpose. Munz testified that she was
picking up her children when she stopped at the tavern between 7:30 p.m. and
8:00 p.m. to use the telephone to call her baby-sitter. When she could not contact the baby-sitter,
she left a message that she could be reached at the tavern. She testified that she did not stop and call
the baby-sitter on a pay telephone and did not eat supper at the tavern because
she did not have any money with her.
But a police officer testified that she told him that she ate supper and
had two beers at the tavern, the tavern bartender testified that he sold her
four beers, and another witness testified that he saw Munz drinking beer at the
tavern. Munz, however, denied that she
had supper and drinks at the tavern and testified that she only stopped to make
a telephone call. She testified that
she told the arresting officer that she had had a few drinks at a friend's
home.
The
reason Munz offered this testimony was to provide an excuse for her driving
after 7:00 p.m. and to show that she was driving for homemaking purposes which
was authorized by her license. If
accepted, the testimony tended to show that she was driving outside of the time
restrictions but only because she was having difficulty contacting her
baby-sitter. From this, it appears that
she hoped that the trial court would excuse her tardiness because it was for a
proper purpose. And if the court believed
her, it could not conclude that she was driving for an unauthorized purpose. This testimony would, therefore, mislead the
court and make it less likely that it would find her guilty of violating her
license. Viewed in this light, her
false testimony was material to the court proceedings, irrespective of whether
the court ultimately relied upon the testimony in reaching its decision.
We
conclude that what makes testimony material is the fact that the trial court could
have relied on this testimony in rendering a decision. In other words, the testimony is material
because it tended to prove or disprove facts of consequence to the
determination. In making this decision,
we look at whether the statements are material to any of the various ways in
which a defendant could be found guilty.
Because the court could have relied upon these statements in rendering a
verdict even though it apparently did not, we conclude that they were
material. Consequently, the State
proved this element of the perjury charge.
By
the Court.—Judgment affirmed.