Opinion
110,707.
10-24-2014
STATE of Kansas, Appellee, v. Dana CRAIG, Appellant.
Sam S. Kepfield, of Hutchinson, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Sam S. Kepfield, of Hutchinson, for appellant.
Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and DANIEL L. LOVE, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Dana Craig (Dana) was convicted of perjury for testimony she gave at a preliminary hearing held to determine the likelihood that her ex-husband was involved in the murder of Jennifer Heckel. At the hearing, Dana testified that she had been with her ex-husband until about 30 minutes before the crime could have occurred and that before she left his house she had seen her daughter arrive to stay with him for the rest of the evening. Dana argues that she was convicted in error because her testimony was not material—that is, important to the determination of whether her ex-husband was involved in the murder. But the district court correctly determined that Dana's testimony—an imperfect alibi—was material. Dana also argues that she was wrongly convicted because the State did not present the evidence required to convict her of perjury under Kansas law: two witnesses or one witness and corroborating evidence that showed her testimony was false. But the State presented the testimony of Dana's daughter and her daughter's boss, as well as the corroborating evidence of her daughter's timecard, which showed that Dana's daughter was at work at the time Dana said that she had seen her. This evidence showed that Dana had testified falsely. The district court did not err by convicting Dana of perjury.
Factual and Procedural Background
Heckel was murdered between 6:30 p.m. and 7:09 p.m. on June 14, 2011. Police began to investigate Billy Craig (Billy), and on August 3, 2011, Detective Dean Harcrow conducted a recorded interview with Dana, Billy's ex-wife and the defendant in this case. Harcrow testified that Dana had told him she had not seen her ex-husband from the end of May until the end of June and had not seen him on the night of the murder.
Billy was later charged with Heckel's murder. The district court held a preliminary hearing on Billy's case, and the State called Dana to testify. The night before Dana was supposed to testify, Dana and Billy's daughter, Nikki Craig (Nikki), came to the police. Nikki told the police that she had been with her father on the night of the murder and had gone to his house after she had finished working for the night. Nikki said that it had been dark when she had arrived at her father's house.
The next day, Dana was called to testify at the preliminary hearing. Rather than tell the court the story that she'd initially told Harcrow, Dana testified, under oath, that she had been with her ex-husband on the night of the murder until around 6 p.m—just before the murder allegedly occurred. Dana also testified that as she was leaving her ex-husband's house, their daughter and her friend were arriving. Dana testified that her daughter had told her that she had stayed with her father for the rest of the evening. Dana admitted that her ex-husband had called her after he'd been arrested for Heckel's murder and that the police had told her the time during which the murder had supposedly occurred before she testified at the preliminary hearing.
Three days later, on February 10, 2012, Dana was charged with perjury under K.S.A.2011 Supp. 21–5903(a) for the testimony that she had given at the preliminary hearing. Dana's case was tried to a jury on February 27, 2013.
Dana's daughter, Nikki, testified. Nikki said she did not remember if she worked on the day of the murder but said that her time sheet showed she had. She testified she had never had anyone other than a manager clock her in or out of work before. Nikki testified that she had seen her father on the night of Heckel's murder and that it had been dark or getting dark at the time she saw him. She said she had not gone to her father's house until after her shift and acknowledged that her time sheet stated that her shift had not ended until 9:10 p.m. The State introduced Nikki's time card—showing that she did not leave work until 9:10 p.m.—into evidence.
The State also called Nikki's manager, Cheryl Bale, to testify. Bale testified that the State's exhibit—a time sheet for Nikki on the night of the murder—accurately reflected the company's time records. Bale testified that the time sheet showed that Nikki had clocked in on June 14, 2011, at 1:13 p.m. and out at 9:10 p.m. that evening, with a 30–minute break in the afternoon. Bale testified that she remembered seeing Nikki at the beginning of her shift but that she could not account for every minute of Nikki's time at work. She also admitted she did not have any specific recollection of Nikki after she left for break. Bale admitted it was possible that Nikki could have told someone her clock-in information to clock her in and out without her being there. But Bale also said she that she had no reason whatsoever to believe that someone else had used Nikki's codes to clock in or out.
Harcrow also testified. He confirmed that it had not been dark at around 6 p.m. on the night of the murder—the time at which Dana said she had seen her daughter—and stated that suspects' alibis are important in murder cases.
Dana did not put on any evidence; but after the close of the State's case, she moved for an acquittal on the grounds that the State had not proved that her testimony was either influential or material. The district court denied the motion and allowed the case to proceed to the jury, although the judge admitted that the case was “extremely weak as far as the court's concerned.” The judge said that he was not positive if Dana had intentionally falsely testified but said that whether she had was a decision for the jury, “I don't know if [Dana] was lying, mistaken, not telling the truth, getting events mixed up, or I have no idea. But ... [the court will] let 12 people on the jury decide that.” The judge also stated that the fact that Dana claimed to have been with her ex-husband within as little as 19 minutes of the homicide made her testimony material.
The jury convicted Dana. Dana moved for a new trial and, in the alternative, an acquittal, on the grounds that she was convicted of a crime that the State had not proved she had committed because she argued the State had not shown that she had testified concerning a material fact. In ruling on Dana's motions, the district court said it did not believe that Dana's testimony had impacted the judge's ruling regarding her ex-husband in any way. The district court denied the motion for acquittal, however, because it found that a situation could exist in which Dana's testimony could have influenced the courtmaking her testimony material under the perjury statute. Dana was then sentenced to 12 months' probation, with an underlying 6–month prison term.
Dana timely appealed.
Analysis
Dana was convicted by a jury of perjury, which is essentially giving false testimony in a legal proceeding related to a material fact and is defined under Kansas law as “intentionally and falsely ... testifying ... to any material fact upon any oath or affirmation legally administered in any ... proceeding before any court.” K.S.A.2011 Supp. 21–5903(a)(l). Dana argues that the district court erred by convicting her of perjury because: (1) Her allegedly false statements did not bear on a material fact in Billy's case; and (2) the State did not prove that Dana perjured herself by the testimony of two witnesses or by one witness and corroborating circumstances as required under Kansas law.
Dana's testimony was material under Kansas perjury law.
Dana argues that the district court erred by concluding that the statements she made to the court were material so as to justify convicting her of perjury. Dana is correct that her testimony must have been material in order for her to be convicted of perjury. K.S .A.2011 Supp.21–5903(a)(1).
Testimony is not material or immaterial in itself; rather its materiality must be determined in relation to the matter under investigation. Any statement that is relevant to that matter is sufficiently material to form the basis of a perjury charge. State v. Rollins, 264 Kan. 466, Syl. ¶ 4, 957 P.2d 438 (1998). It is not necessary that the false statement relate directly to the main issue under investigation. Rather, it is sufficient if the testimony is collaterally, remotely, corroboratively, or circumstantially material or has a legitimate tendency to prove any material fact in the chain of evidence, even though it is not alone enough to establish the main issue. 264 Kan. at 471 (quoting in part State v. Whitlock, 138 Kan. 602, 605, 27 P.2d 262 [1933] ); citing State v. Elder, 199 Kan. 607, 608, 433 P.2d 462 (1967). The test of materiality is whether the false testimony could have influenced the court, not whether it did. Rollins, 264 Kan. 466, Syl. ¶ 4.
Whether testimony is material in a perjury case is a question of law decided by the judge. 264 Kan. 466, Syl. ¶ 5. Because it is a legal question, this court determines whether the testimony at issue was material without deference to the district court's decision. See State v. Vandiver, 257 Kan. 53, 56, 891 P.2d 350 (1995) (noting that legal questions require independent appellate determination).
The false statements Dana was convicted of making related to whether she had seen her ex-husband on the night of Heckel's murder. During Dana's initial interview—before her ex-husband was charged with the murder—Dana told police that she had not seen Billy for about a month, including the night of the murder. Then, after Billy was charged with the crime, she testified at his preliminary hearing that she had been with him on the night of the murder, until about 6 p.m., and that as she was leaving she saw her daughter and her daughter's friend arriving at her ex-husband's house. She then said that her daughter had told her that she had stayed with her father for the rest of the evening. This time frame was relevant, according to the State, because the murder occurred between 6:30 and 7:09 p.m., and if Dana was with her ex-husband until 6 p.m. and her daughter was there immediately after, it would indicate that her ex-husband lacked the time to commit Heckel's murder,
Dana argues that her testimony was not material for two reasons: Because it did not concern a material fact in her ex-husband's case and because it did not influence the court.
Dana's testimony concerned material facts.
Dana's first argument is that her testimony regarding seeing her ex-husband near the time of the murder was not material because it did not establish an alibi. Dana argues she did not provide an alibi for her ex-husband because she did not testify that she was with him at the time the crime allegedly occurred and her only testimony about what happened after that time came from what her daughter had told her. This argument is problematic for three reasons: (1) Her testimony did attempt to establish an alibi; (2) even if it did not, her testimony did not need to establish an alibi to be material; and (3) courts have held that imperfect alibi testimony—testimony that utterly fails to establish an alibi but attempts to account for the accused's whereabouts—can be the basis for a perjury charge.
First, Dana did attempt to establish an alibi. By stating that she was with her ex-husband and that her daughter was with him directly after her would tend to show that he could not have committed Heckel's murder because someone was with him at his home during the time it occurred. Thus, Dana was attempting to show that her ex-husband was at some definite place other than the crime scene at the time of the murder to show it was impossible for him to have committed it. This was alibi testimony. See State v. Deffebaugh, 277 Kan. 720, 723–26, 89 P.3d 582 (2004). If an accused has an alibi during the time of a crime, this may establish the accused's innocence. Shumway v. State, 48 Kan.App.2d 490, 500, 293 P.3d 772, rev. denied 298 Kan. –––– (October 1, 2013). Whether Dana's ex-husband was innocent relates to the matter under investigation at the preliminary hearing, which was held to determine if the State had probable cause to try Billy for Heckel's murder.
Second, it is irrelevant whether Dana provided alibi testimony because she did not need to provide an alibi for her testimony to be material. Instead, for the purposes of perjury, it is enough if her statements were remotely relevant to Billy's whereabouts at or near the time of Heckel's murder. See Rollins, 264 Kan. at 471. So even if this court assumes for the sake of argument that Dana did not provide an alibi for her ex-husband, Dana's statement nonetheless had a legitimate tendency to disprove a fact in the State's case—that her ex-husband had the time to commit the crime.
Third, our Supreme Court has held that testimony that attempts to account for an accused person's whereabouts around the time of the crime can constitute the basis for a perjury conviction even if the testimony “fail[ed] utterly to establish an alibi.” State v. Fail, 121 Kan. 855, Syl. ¶ 1, 250 P. 311 (1926). Other courts have agreed that imperfect alibi testimony can be the basis for a perjury charge if it is false. For example, in Galloway v. State, 29 Ind. 442, 446–48 (1868), the Indiana Supreme Court upheld the perjury conviction of a man who said that he had been with an accused bank robber until about 40 minutes before the robbery occurred—over objections that his testimony was not material—because such testimony called into question the likelihood that the accused would have had time to get to the scene of the robbery. Accord State v. Montoya, 77 N.M. 129, 131–32, 13, 419 P.2d 970 (1966).
Though the Kansas case regarding poor alibi testimony—Fail —was decided in 1926, it has not been overturned, and our Supreme Court has noted that Kansas' perjury statute has remained relatively unchanged since its enactment in 1868. Rollins, 264 Kan. at 474. Fail is directly on point with Dana's case—and holds that testimony attempting to account for an accused's whereabouts around the time of a crime, even if such testimony utterly fails to establish an alibi, is sufficiently material to form the basis of a perjury charge. 121 Kan. 855, Syl. ¶ . This court is duty bound to follow Kansas Supreme Court precedent unless the Kansas Supreme Court indicates that it intends to depart from it. State v. Key, 50 Kan.App.2d 137, 150–51, 323 P.3d 174 (2014). No such indication has been given here. Regardless of whether Dana provided an alibi for her ex-husband, the district court did not err by concluding that her statements were sufficiently material to justify her perjury conviction.
Dana's testimony could have influenced the district court
Dana makes a second argument, however. She contends that even if her statements related to a material fact in her ex-husband's case, they were not material under the perjury statute because they could not have influenced the district court. Dana is correct that a component of materiality in a perjury case is whether the false testimony could have influenced the court on the ultimate issue-here, Dana's ex-husband's guilt. See Rollins, 264 Kan. 466, Syl. ¶ 4.
Dana contends that her testimony could not have influenced the district court for two reasons: (1) The evidence against her ex-husband was overwhelming, so it is unlikely that the court relied on her testimony; and (2) she gave the testimony at a preliminary hearing where the court was attempting to discern only if the State had a case against her ex-husband, not whether he committed the crime. Since the State just needed to prove it had probable cause to believe that Billy committed the murder, Dana points out that the State's burden of proof was relatively low and argues that her testimony had little chance of influencing the court to release her ex-husband. See State v. Palmer, 248 Kan. 681, 688, 810 P.2d 734 (1991).
The amount of evidence against Dana's ex-husband is again irrelevant. It does not matter whether the judge relied on Dana's testimony, or whether the judge would have made the same decision about the State's case even if Dana had not testified. The State only needed to prove that the district court could have relied on Dana's testimony. See Rollins, 264 Kan. 466, Syl. ¶ 4. A court could rely on testimony suggesting that a suspect did not have time to commit the crime to determine whether probable cause existed that the suspect committed the crime.
Further, the fact that Dana's testimony occurred at a preliminary hearing does not make her testimony any less capable of influencing the tribunal. Our courts have routinely held that an individual may commit perjury at a preliminary hearing because a preliminary hearing is a legal proceeding under the perjury statute. See State v. Smith, 84 Kan. 646, 652, 114 P. 1074 (1911) ; Butler v.. State, No. 93,564, 2006 WL 399141, at *8 (Kan.App.2006) (unpublished opinion) (noting that witness had been given immunity for perjury committed during preliminary hearing); accord 70 CJ.S., Perjury § 45. Even though the preliminary hearing is merely meant to establish that the State has probable cause to believe that a crime has been committed and that the accused committed it, testimony regarding an accused's whereabouts could impact the probable-cause determination, even if it did not in this case.
Dana's argument that her testimony was not material for the purposes of a perjury conviction therefore must fail.
The State presented the testimony of two witnesses and corroborating circumstances to demonstrate that Dana's statements were false
Dana also argues that the State failed to produce sufficient evidence that she committed perjury: the testimony of two witnesses or the testimony of one witness and corroborating circumstances.
Dana is correct that the State must prove perjury in one of these two ways. See State v. Gobin, 134 Kan. 532, Syl. ¶ 4, 7 P.2d 57 (1932) ; State v. Ellis, 25 Kan.App.2d 61, 61, 957 P.2d 520 (noting that the requirement remains good law), rev. denied 265 Kan. 887 (1998). Whether the State produced the appropriate type and amount of evidence is a question of the sufficiency of the evidence, which this court reviews in the light most favorable to the prosecution and determines if it is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Barker, 18 Kan.App.2d 292, 294, 851 P.2d 394 (1993).
At Dana's trial, the State produced the testimony of two witnesses and corroborating circumstances to show that Dana's testimony was untrue. Nikki testified that she had not gone to her father's house until after her shift at McDonald's had ended, which, according to her time card, was after 9 p.m. Nikki testified that while she did not remember the exact time she had left work, no one had ever clocked her in or out when she was not at her job.
Nikki's manager—a second witness—confirmed that Nikki would have had to have given someone her password to use her time card to clock in and out and that she had no reason to believe that Nikki was not at work when the time sheet said she was. Further, the State corroborated Nikki's testimony with her time card showing that she had worked until after 9 p.m. on the night of the murder.
While the evidence could have been stronger, the State nonetheless presented two witnesses—Nikki and Nikki's manager—to show that Dana could not have seen Nikki at her ex-husband's house when she said she had. This testimony was further corroborated by Nikki's time card, which showed that Nikki did not clock out of work until hours after Dana said she had seen her. This was sufficient as a matter of law to meet the perjury-proof requirement, and a reasonable factfinder could have relied on this evidence to hold that Dana was guilty beyond a reasonable doubt—even if other factfinders might have disagreed.
Dana's claim that the evidence was insufficient to support her conviction must therefore also fail.
Affirmed.