Opinion
No. 75-454
Decided April 14, 1977. Petition for rehearing granted and prior opinion withdrawn January 20, 1977. Certiorari denied August 22, 1977.
Convicted of first degree perjury on basis of two conflicting answers made during testimony in hearing relative to motion to suppress and in subsequent robbery trial, defendant appealed.
Affirmed
1. CRIMINAL LAW — Perjury — Conflicting Statement — Hearing — Robbery Trial — Could Have Affected — Outcome of Proceedings — Statement Was "Material." Where, relative to prosecution for robbery, defendant had testified during hearing on motion to suppress that he had switched places with driver of a truck just before being stopped by police car, but later, during in camera hearing in the robbery trial, defendant testified that no such switch had occurred, the fact that such switch had occurred was one of the factors leading to defendant's arrest, and thus false testimony concerning it could have affected the outcome of the robbery proceedings; therefore, statement was "material" within the meaning of the first degree perjury statute.
2. Perjury — Retraction — Made During Retrial — Separate Trial — Not Occur — Separate Stages of Trial — Not Affirmative Defense. A trial which ends in a mistrial, and subsequent retrial are separate proceedings, and where defendant made perjurious statement during the course of a robbery trial which ended in a mistrial, and then attempted to retract that statement during the retrial of the robbery charge, and after he had learned that perjury charges had been filed against him, such retraction did not occur during "separate hearings at separate stages of the same trial"; consequently, that retraction was not an affirmative defense to the perjury charge.
3. Mistrial — Not — Complete Legal Nullity. Testimony given during the course of a trial which ends in a mistrial may be used in subsequent trials, and a mistrial has legal significance in connection with the speedy trial act; accordingly, it follows that a proceeding which ends in a mistrial is not a complete legal nullity.
4. Perjury — Attempted Retraction — During Robbery Retrial — Same Case Numbers — Two Separate Trials — No Protection — Conviction — First Degree Perjury. Where defendant made perjurious statement during course of a robbery trial which ended in a mistrial, and then attempted to retract that statement during his retrial for robbery, after he had learned that perjury charges had been filed against him, the mere fact that the mistrial and the retrial both had the same case number did not change the fact that two separate trials were involved; therefore, the defendant's attempted retraction in his second trial did not afford him protection from conviction of first degree perjury.
Appeal from the District Court of Pueblo County, Honorable Richard D. Robb, Judge.
J. E. Losavio, Jr., District Attorney, William E. Maschal, Chief Deputy District Attorney, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Dorian E. Welch, Deputy State Public Defender, for defendant-appellant.
Defendant appeals from his conviction of first degree perjury in violation of 1971 Perm. Supp., C.R.S. 1963, 40-8-502 (now § 18-8-502, C.R.S. 1973). A review of the record indicates no error and we therefore affirm.
The facts are not disputed. In October of 1972 the defendant was arrested and charged with certain criminal violations. On August 29, 1973, a hearing was held on defendant's motion to suppress a gun found in the truck he was driving at the time of his arrest. The motion was based in part on defendant's allegation that his arrest was illegal, and that the evidence obtained as a result thereof was inadmissible. At the hearing the defendant testified under oath that just prior to his arrest he was the passenger in a truck driven by another, and that upon spotting a police car he switched places with the driver. Thereafter, the truck was stopped and defendant arrested. The arresting officer testified that he stopped the truck after observing the passenger and driver switch positions in the moving vehicle.
On November 27, 1973, during an in camera hearing in a trial for robbery, the defendant again testified in his own behalf under oath to the circumstances surrounding his arrest. The hearing was held on defendant's motion to exclude certain in-court identification testimony. He alleged that he had been illegally arrested, thus rendering his presentation in a lineup illegal and the identification stemming therefrom inadmissible. The defendant testified that at the time he was arrested and for several hours prior thereto he had been driving the truck. In response to a prosecution question as to whether there had been a switch of drivers prior to the arrest, the defendant answered, "No." This trial ended in a mistrial.
The defendant was subsequently indicted by the grand jury for first degree perjury, under the inconsistent statements statute, 1971 Perm. Supp., C.R.S. 1963, 40-8-505 (now § 18-8-505, C.R.S. 1973). Thereafter, in a trial to the court, the defendant was found guilty on the perjury charge. The court found that testimony given by the defendant at both hearings was "material" to the issues raised at those hearings, that the testimony was inconsistent, and that defendant's November 27th testimony was "materially false" within the meaning of 1971 Perm. Supp., C.R.S. 1963, 40-8-501(2) (now § 18-8-501(1), C.R.S. 1973).
I.
Defendant's principal contention on this appeal is that the evidence was insufficient to support the court's findings that defendant's November 27th testimony was "materially false." We disagree. In pertinent part, 1971 Perm. Supp., C.R.S. 1963, 40-8-501(2), states: " 'Materially false statement' means any false statement . . . which could have affected the course or outcome of an official proceeding, or the action or decision of a public servant . . . . Whether a falsification is material in a given factual situation is a question of law."
[1] At both hearings in which defendant testified, he contested the admissibility of certain evidence by specifically raising the question of whether his arrest was legal. The arresting officer's testimony at the August 29th hearing established that one of the factors leading to defendant's arrest was the switch of drivers which occurred. It is thus clear that the switch was material as to the issue of defendant's arrest, and that his false testimony at the November 27th hearing could have affected the outcome of that proceeding. The statute requires no more, and therefore we hold, as a matter of law, that the statement was "material" within the meaning of 1971 Perm. Supp., C.R.S. 1963, 40-8-501(2). See People v. Onorato, 36 Colo. App. 178, 538 P.2d 898 (1975).
II.
The defendant next contends that he attempted to retract his false testimony, and that pursuant to 1971 Perm. Supp., C.R.S. 1963, 40-8-508 (now § 18-8-508, C.R.S. 1973), the trial court was precluded from finding him guilty of first degree perjury.
The trial court declined to make a specific finding as to whether defendant's testimony during the retrial constituted a retraction. However, both parties have construed the trial court's ruling to be that, as a matter of law, retraction was not permissible in the retrial.
1971 Perm. Supp., C.R.S. 1963, 40-8-508, provides that:
"No person shall be convicted of perjury in the first degree if he retracted his false statement in the course of the same proceeding in which it was made. Statements made in separate hearings at separate stages of the same trial or administrative proceeding shall be deemed to have been made in the course of the same proceeding. Retraction is an affirmative defense." (emphasis added)
[2] In the instant case, defendant's perjurious statement was made during the course of his robbery trial, which ended in a mistrial. Defendant's attempted retraction occurred during his retrial for robbery, and after he had learned that perjury charges had been filed against him. He argues on this appeal that, since both the mistrial and retrial bore the same case number, his attempted retraction occurred during the "same proceeding," i.e., during "separate hearings at separate stages of the same trial." We disagree.
A trial which ends in a mistrial and a retrial are "separate proceedings." See Esperti v. State, 276 So.2d 58 (Fla.Dist.Ct.App. 1973); 58 C.J.S. Mistrial; see also 27 Words and Phrases 620 (Perm. Ed.) and definitions contained therein, rather than "separate hearings at separate stages of the same trial . . . ." (emphasis added) It is apparent that the legislature inserted the phrase "separate hearings at separate stages of the same trial" in the statute so that there would be no ambiguity as to what was meant by the phrase "same proceeding." The only requirement under the statute is that the witness recant during the course of a single continuous trial, which may include various hearings and stages which are a part thereof. A mistrial is not such a hearing or stage.
Defendant, however, argues in effect that even if a mistrial is not a separate hearing at a separate stage of the same trial it nonetheless is, legally, equivalent to no trial at all, leaving the defendant in the position he occupied beforehand. He concludes therefore that it was no "proceeding" at all, and that thus he could retract at the subsequent trial. This position, however, ignores the fact that it was during the defendant's mistrial that he made the statements which led to his present conviction, and that the mistrial was an "official proceeding" within the meaning of § 18-8-501(3), C.R.S. 1973.
[3] Also, after appropriate foundations are laid, testimony given during the course of a trial which ends in a mistrial may be used in subsequent trials. 2 C. Torcia, Wharton's Criminal Evidence § 469 (13th ed. 1972); Lyons v. State, 133 P.2d 898 (Okla.Crim.App. 1943); see State v. Thomas, 110 Ariz. 120, 515 P.2d 865 (1973); see also People v. Fink, 37 Colo. App. 143, 552 P.2d 529 (1976). In addition, a mistrial has legal significance in connection with our speedy trial act. See § 18-1-405, C.R.S. 1973, and Crim. P. 48(b)(6)(V). Accordingly, it follows that a proceeding which ends in a mistrial is not a complete legal nullity.
[4] The mere fact that the mistrial and the retrial both bore the same case number does not change the fact that two separate trials were involved. Though the first trial terminated as a result of some error in that proceeding, it nonetheless was a separate "trial," and not the "same trial." See Esperti v. State, supra. Therefore, it follows that the defendant's attempted retraction in his second trial would not afford him protection from conviction of first degree perjury under 1971 Perm. Supp., C.R.S. 1963, 40-8-508.
Judgment affirmed.
JUDGE COYTE concurs.
JUDGE RULAND dissents.