2011 VT 107


State v. Charland
(2010-149)
 
2011 VT 107
 
[Filed 16-Sep-2011]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions, Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801 of any errors in order that
corrections may be made before this opinion goes to press.
 
 

2011 VT 107

 

No. 2010-149

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


District Court of Vermont, 


 


Unit No. 2, Chittenden Circuit 


 


 


Diana Charland


February Term, 2011


 


 


 


 


Michael
  S. Kupersmith, J.


 

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, 
  Montpelier, for Plaintiff-Appellee. 
 
Anna Saxman, Deputy Defender
General, Montpelier, and Jeffrey B. Wilson, Portland, Maine,
  for Defendant-Appellant
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
DOOLEY, J.   Defendant appeals the sentence imposed on
her following her jury conviction on a charge of driving while intoxicated
(DWI), third or subsequent offense.  She argues that the trial court
improperly enhanced her sentence, without advance notice to her, based on its
unsupported assumptions that her husband gave perjured testimony at her trial
and that she suborned that false testimony.  We affirm.
¶ 2.            
On July 12, 2009, defendant’s stepson drove to the home of his father,
defendant’s husband, to help him move a freezer into his home.  The
stepson arrived at the home first and parked his truck in the driveway, waiting
for his father.  Defendant and her husband arrived a few minutes later in
a truck.  According to the stepson’s trial testimony, defendant was
driving the truck.  He testified that defendant backed into the driveway,
struck the stepson’s truck, and then began screaming at him, at which point he
called the police.  The officer who arrived on the scene testified that
after speaking to defendant’s stepson, she spoke to defendant, who informed the
officer that she had driven to the scene of the accident from Winooski and had
backed into the stepson’s truck because the truck was not normally there and he
was not supposed to be there yet.  The officer noticed signs of
intoxication and had defendant perform dexterity tests.  Defendant failed
the tests and was arrested for DWI.  While at the police station, defendant
changed her statement to say that her husband, not she, drove the truck from
Winooski to the scene of the accident.  Eventually, her blood-alcohol
concentration was tested at .239, which, according to the state chemist’s
testimony, related back at the time of operation to .261, more than three times
the legal limit.
¶ 3.            
Defendant did not testify at trial, but her husband testified that he
had driven the truck from Winooski to his home, and, after he had entered the
house, defendant moved the truck but only from the driveway to the lawn. 
He did not dispute that an accident had occurred while defendant was driving,
but testified that there was no damage to his truck.  He admitted on
cross-examination that he had submitted an affidavit to police on the day of
the accident stating that defendant had been hurriedly backing up in the
driveway and could not straighten the vehicle out in time to avoid the
accident.  He testified that his son told him to write that account in the
affidavit.
¶ 4.            
The jury convicted defendant of DWI, third or subsequent offense. 
At the sentencing hearing, the trial judge expressed his belief that there had
been perjured testimony at the trial.  Defendant’s attorney did not
respond to this comment.  Before imposing sentence, the court noted that
defendant had continued to drive while intoxicated despite her previous DWI
convictions, and then commented as follows:  “In addition, there was
clearly perjured testimony at this trial.  And perjured testimony doesn’t
come about by itself.  It comes about because the defendant invited it.”
 The court imposed a sentence of thirty months to five years, with the
expectation that defendant would be placed in a rehabilitative program after
one year in jail.  The court also imposed the maximum $2500 fine, noting
that “the penalty is particularly needed because of the perjury that I’ve been
alluding to.”
¶ 5.            
On appeal, defendant argues that the trial court erred by basing her
sentence, without advance notice, on her suborning perjury when there was no
evidence that her husband gave perjured testimony or that, even if he did, she
suborned such testimony.
¶ 6.            
A number of general principles guide our decision.  A judge
presiding at a trial may rely upon observations made during the trial in
sentencing a defendant who was convicted by the jury.  See United
States v. Grayson, 438 U.S. 41, 55 (1978) (reaffirming trial court’s
authority to take into account willfully false testimony in determining appropriate
sentence); State v. Loveland, 165 Vt. 418, 423, 684 A.2d 272, 276 (1996)
(holding that trial court could consider defendant’s testimony and demeanor at
trial in fashioning sentence because defendant’s truthfulness at trial is
probative of attitude towards society and prospects for rehabilitation); State
v. Noyes, 157 Vt. 114, 119, 596 A.2d 340, 342-43 (1991) (following Grayson). 
If the sentencing court believes that a defendant offered perjured testimony,
the court may take that into account in imposing sentence.  See United
States v. Dunnigan, 507 U.S. 87, 97 (1993) (“It
is rational for a sentencing authority to conclude that a defendant who commits
a crime and then perjures herself in an unlawful attempt to avoid
responsibility is more threatening to society and less deserving of leniency
than a defendant who does not so defy the trial process.”); see also Grayson,
438 U.S. at 55 (same); Noyes, 157 Vt. at 119, 596 A.2d at 343 (same).
¶ 7.            
The same principle applies if the sentencing court finds that a
defendant suborned perjury.  Fuller v. State, 860 A.2d 324, 333
(Del. 2004); see United States v. Johnson, 968 F.2d 208, 216 (2d Cir.
1992) (holding that federal sentencing guidelines allow sentencing court to
enhance sentence based on finding of suborned perjury even if there is no
necessary inconsistency between jury verdict and alleged perjured testimony); Fabiano v. Wheeler, 583 F.2d 265, 270 (6th
Cir. 1978) (holding, in pre-guideline decision, that “[i]t
is one thing to say a defendant may not be penalized for maintaining her
innocence and putting the prosecution to its proof and quite another to
sanction the fabrication of a defense”).  The rationale of Dunnigan that a person who commits perjury to avoid
criminal responsibility “is more threatening to society and less deserving of
leniency” than a person “who does not so defy the trial process,” 507 U.S. at
97, is equally applicable to the subornation of perjury.
¶ 8.            
In stating this last principle, the critical one in this decision, we
must clarify the proof necessary for consideration of the suborned perjury of a
witness in the sentencing context.  Subornation of perjury commonly
involves three elements:  (1) the suborner
should have known or believed or have had good reason to believe that the
testimony would be false; (2) the suborner should
have known or believed that the witness would testify willfully and corruptly,
and with knowledge of the falsity; and (3) the suborner
must have knowingly and willfully induced or procured the witness to give false
testimony.  United States v. Washington, 171 Fed. App’x 986, 988 (4th Cir. 2006); see also 13 V.S.A. § 2902
(crime of subornation of perjury requires person to procure another to commit
crime of perjury); State v. Bissell, 106 Vt. 80, 90, 170 A. 102, 106
(1934) (State must prove that suborner “caused a
false oath to be taken” and “knew at the time, that the false oath was taken
willfully, corruptly, and knowingly”).
¶ 9.            
Virtually all of the case law on the consideration of subornation of
perjury in sentencing arises in the federal courts under the United States
Sentencing Guidelines.  The Guidelines provide that a sentence must be
increased if “defendant willfully obstructed or impeded . . . the administration
of justice,” such as by suborning perjury.  U.S.
Sentencing Guidelines Manual § 3C1.1 cmt. n.4(b) (2010) (stating that suborning perjury falls within
conduct covered by Guidelines).  The Guidelines also emphasize that “the
defendant is accountable for [his] own conduct and for conduct that [he] aided
or abetted, counseled, commanded, induced, procured, or willfully
caused.”  Id. § 3C1.1 cmt.
n.9.
¶ 10.         The
most difficult of the elements of subornation to demonstrate is the third
because it cannot usually be observed in the courtroom and there is rarely
external evidence of the interaction between the defendant and the witness with
respect to the testimony.  Thus, the federal courts have found the third
element is satisfied if the evidence raises a plausible inference that the
defendant must have participated in the decision to present witness testimony
that was known to be false.  See United States v. Bradberry,
466 F.3d 1249, 1255 (11th Cir. 2006) (concluding that by calling witness whose
testimony defendant knew would be false, defendant created inference that he
procured false testimony or aided and abetted in its presentation); United
States v. Lowder, 148 F.3d 548, 553 (5th Cir.
1998) (concluding that trial court made reasonable inference of defendant’s
suborned perjury based on his pretrial discussion with his attorney about his
son’s testimony); United States v. Miller, 159 F.3d 1106, 1112-13 (7th
Cir. 1998) (upholding finding of suborned perjury where testimony of
defendant’s only witness directly contradicted testimony of government
witnesses).
¶ 11.         The
United States Court of Appeals for the Fourth Circuit has summarized these
cases into a general rule that the calling of a witness whom the defendant
knows will testify falsely can constitute obstruction of justice sufficient for
a sentence enhancement even absent complete proof of subornation of
perjury.  Washington, 171 Fed. App’x at
988; see United States v. Johnson, 261 Fed. App’x 611, 614 (4th Cir.) (explaining that this analysis is consistent with majority of
circuits that have considered issue).  We conclude that this general rule
is appropriate, and we adopt it for cases like the instant one, where the
inference is strong that defendant must have knowingly aided or abetted
procuring the false testimony.   In doing so, we reject defendant’s
argument, based on a dated United States District Court decision, Harris v. Prast, 459 F. Supp. 303, 305 (E.D. Wis. 1978), that a
finding of subornation of perjury, without independent evidence that the false
evidence was given at defendant’s direction, deprived defendant of due process
of law.  It is within our power to define what evidence must be available,
and what findings and conclusions must be reached, to allow consideration of
the introduction of false evidence at trial in imposing sentence.
¶ 12.         We
also reject, as inconsistent with reality, defendant’s argument that, because
the attorney rather than the client is responsible for trial tactics, including
calling witnesses, we cannot punish the client for the lawyer’s decision to
call a particular witness.  See Bradberry,
466 F.3d at 1255 (“The defendant is directly responsible for the proffering of
the perjured testimony before the court.”);  Lowder, 148 F.3d at 553 (concluding that
trial court’s finding of suborned perjury was supported by court’s reasonable
inference that defendant discussed with his attorney before trial what his
son’s trial testimony would be).
¶ 13.         With
these principles in mind, we review the trial court’s factual findings under a
clearly erroneous standard and the overall sentencing decision under an
abuse-of-discretion standard.  See State v. Corliss, 168 Vt. 333,
341, 721 A.2d 438, 444 (1999); see also United States v. White, 240 F.3d
656, 660-61 (7th Cir. 2001) (stating that sentencing court’s finding of perjury
is reviewed under clearly erroneous standard).
¶ 14.         As an
initial matter, the record in this case amply supports the trial court’s
determination that defendant’s husband gave perjured testimony at defendant’s
trial.  The sole issue in dispute at trial was whether defendant operated
a vehicle on a public highway.  Defendant’s son-in-law testified that he
witnessed defendant drive up to his father’s home on a public street and pull
into the driveway, striking his truck.  The officer who arrived at the
scene testified that defendant told him that she had driven to the scene of the
accident from another town.  In the affidavit he submitted the day of the
accident, defendant’s husband essentially acknowledged that defendant was the
one who had driven into the driveway, causing the accident.  At trial,
however, defendant’s husband—her sole witness—testified that he, not defendant,
had driven to his home, and that defendant had driven only from the driveway to
the lawn after he had arrived at the home.  Apart from the conflict
between the husband’s initial statement and his testimony, and the conflict
between the stepson’s testimony and defendant’s earlier statement, no reason is
given, or even suggested, why defendant would have driven on husband’s
yard.  Thus, the testimony was crafted to give defendant a defense that
she did not drive under the influence on a public highway.[*]  Having presided over the trial and
observed the testimony and demeanor of the witnesses, the trial court was more
than justified in concluding that defendant’s husband committed perjury at
defendant’s trial.
¶ 15.         Similarly,
there is a strong inference that defendant knew the testimony would be false
and intended to obstruct justice.  Defendant knew the true facts. 
Her husband’s testimony could have no other purpose except to induce the jury
to acquit her of the charged crime.  Her defense counsel knew that the
husband would testify differently from the stepson and stated so in his opening
statement to the jury.  In fact, the husband’s testimony was the only
defense evidence at trial.  Without it, defendant’s only defense was to
attack the credibility of the stepson.  As discussed above, the
calling of the husband as a witness, knowing that he would testify falsely, completes the elements necessary for the trial
judge to rely upon the presence of perjured evidence as a sentence enhancement.
¶ 16.         Defendant
presents several arguments for why the general principles should not control
this case.  First, in an effort to demonstrate that her husband did not
commit perjury, defendant suggests that her husband’s trial testimony was not
inconsistent with what he had previously stated in his affidavit submitted on
the day of the accident when she was arrested.  Such an inconsistency does
not appear to be necessary to support the trial court’s finding of perjured
testimony in this case.  Assuming that it is, however, defendant’s
argument is belied by her husband’s statement that defendant “was backing in
the driveway, and she was rushing to get in there.”  He testified that he
never told the police that he, not defendant, had driven his vehicle. 
When asked whether he wrote that defendant was driving, he answered that “I
wrote down what I was told to write.”  He testified that the stepson told
him that he (the stepson) would lose his job if he (the husband) did not write
the statement as he was told to do.
¶ 17.         Second,
defendant argues that even if her husband’s trial testimony was inconsistent
with his prior contemporaneous statement to police, this Court has held that
making an inconsistent statement is not equivalent to committing perjury. 
See State v. Ladabouche, 146 Vt. 279, 282, 502
A.2d 852, 855 (1985) (“Presentation of a witness who recants or contradicts his
prior testimony is not to be confused with eliciting perjury.”); see also State
v. Briggs, 152 Vt. 531, 538, 568 A.2d 779, 782-83 (1989) (drawing
distinction between offering perjured and inconsistent testimony).  The
statements in Ladabouche and Briggs
upon which defendant relies do not aid her cause.  In both cases, the
defendants claimed that their due process rights had been violated by the prosecutor’s
willful use of perjured testimony.  In both cases, we held that there was
no evidence that the prosecutor knowingly used perjured testimony.  Briggs, 152 Vt. at 538, 568 A.2d at 783; Ladabouche,
146 Vt. at 282, 502 A.2d at 855.  In contrast, in this case the
sentencing court found, based upon its observations at trial, that defendant’s
husband had perjured himself, and, as noted, the record supports this finding.
¶ 18.         Third,
defendant suggests that the trial court was precluded from finding perjury
because her husband’s testimony was not necessarily inconsistent with the
jury’s verdict.  According to defendant, the jury could have concluded
that her husband truthfully testified that she drove only in the driveway but
that damage caused by her operating a vehicle in the driveway precluded
application of the “driveway” exception to the DWI laws.  See 23 V.S.A.
§ 1200(7) (defining “highway” to exclude driveway serving single- or
two-family residence of operator unless operator causes bodily injury or
property damage).  Defendant cannot avoid the trial court’s perjury
finding on this basis.  Given the sentencing court’s responsibility to
make an independent finding of perjury, the theoretical possibility that the
jury verdict was not based on the jurors’ rejection of the alleged perjured
testimony did not preclude the court from finding perjured testimony.  See
Johnson, 968 F.2d at 216 (rejecting defendant’s argument that sentencing
court could enhance his sentence based on its finding of suborned perjury only
if there was inconsistency between jury verdict and alleged perjured
testimony).
¶ 19.         Fourth,
and most importantly from her perspective, defendant argues that even if there
was sufficient support in the record for the sentencing court to find that her
husband committed perjury, there was no support in the record for the court to
find that she was in any way involved in suborning that perjured
testimony.  In support of this argument, defendant notes the unremarkable
fact that her husband never testified that she discussed the case with him, let
alone that she asked him to commit perjury.  She states that she could not
have “known” that her husband would testify falsely, noting that friendly
witnesses may lie on their own initiative rather than at the direction of a
defendant.  As we discussed above, this argument is answered by the
adoption of the Fourth Circuit rule that calling a witness, knowing the witness
will give false testimony, is sufficient to find that the defendant suborned
perjury.
¶ 20.         Finally,
defendant raises a procedural due process argument.  She argues that the
court denied her due process by failing to provide her with advance notice that
it was contemplating enhancing her sentence based on her reliance at trial on
her husband’s perjured testimony.  Defendant starts this argument by
relying not on the Constitution but instead on  Vermont Rule of Criminal
Procedure 32(c)(3)-(4), contending that the rule requires the sentencing judge
to warn her of its intention to rely on the allegedly suborned false
testimony.  That rule requires the sentencing court to “disclose to the
defendant, his attorney, and the prosecution, all information submitted to
it for consideration at sentencing,” including the presentence investigation
report, “to afford reasonable opportunity for the parties to decide what
information, if any, the parties intend to controvert by the production of
evidence.”  V.R.Cr.P. 32(c)(3)
(emphasis added).  The rule also provides that “[w]hen a defendant objects
to factual information submitted to the court . . . in connection with
sentencing, the court shall not consider such information” without first making
findings, following a hearing, that the information is reliable.  V.R.Cr.P. 32(c)(4) (emphasis added).
¶ 21.         We
find unavailing defendant’s reliance on Rule 32.  Here, the trial court’s
observation of the testimony and demeanor of defendant’s husband and other
witnesses was not information submitted to the court for consideration at
sentencing.  Rather, the court found that defendant had suborned perjury
based on its own trial observations unconnected to any information submitted to
it for sentencing purposes.  We concur with the court in United States
v. Pavlico, which rejected the defendant’s claim
that he was entitled to notice of the trial court’s intention to enhance his
sentence based on his and his wife’s perjured testimony.  961 F.2d 440, 445 (4th Cir. 1992).  As the court
observed, the holding in Grayson that a sentencing court does not
violate due process by enhancing a sentence for perjury based on its
observation of trial testimony “suggests that no extraordinary process is due a
defendant when perjurious testimony is used as a factor
in sentencing.”  Id. (noting that case law in
other federal circuit courts supports this view).
¶ 22.         Our
response to the applicability of Rule 32 also answers defendant’s amorphous due
process argument, which relies primarily on Harris v. Prast,
a decision we have already rejected.   Defendant was aware that the
trial judge was also assigned to impose sentence on her.  Our prior
decisions plainly indicated that the court could take into account observations
during the trial in determining the sentence to impose.  Defendant was
aware of her husband’s false testimony.  Thus, she had all the notice
required to inform her that she might need to address that testimony at the
sentencing hearing.
¶ 23.         Even
if we were to hold that defendant was entitled to some kind of notice of the
judge’s consideration of witness perjury, we would not find it to be grounds
for relief in this case.  When the trial court indicated at the sentencing
hearing that it was considering that defendant had invited false testimony from
her husband, defendant neither objected to the court’s consideration of that
factor nor asked for a continuance for an opportunity to respond to the court’s
concern.  In fact, following the court’s disclosure, defendant made a
lengthy statement on her own behalf and never addressed the court’s indication
that it believed that the husband had committed perjury for her.  She
could have, at that time, addressed the question of her husband’s perjured
testimony.  Because defendant slept on the right she is now asserting, we
do not believe she could prevail, even if we recognized such a right.
¶ 24.         Although
we have addressed each of defendant’s arguments, we acknowledge that the United
States Supreme Court held in Dunnigan that
when a defendant objects to sentence enhancement resulting from the court’s
conclusion that the defendant committed perjury at trial, the trial court “must
review the evidence and make independent findings necessary to establish a
willful impediment to or obstruction of justice, or an attempt to do the same,
under the perjury definition we have set out.”  507 U.S.
at 95.  We see no reason why the same requirement would not apply
in a subornation of perjury context such as the instant one.  See Fuller,
860 A.2d at 333-34.  In this case, the trial
court made no findings meeting the standards of Dunnigan. 
The court concluded that defendant had suborned her husband’s perjured trial
testimony, but offered no rationale for that conclusion other than that it was
obvious.  While defendant’s failure to object meant that the Dunnigan findings requirement was not triggered, we
do not suggest that the court’s bare conclusion would have been sufficient if
there had been an objection.  We affirm on this record because the record
demonstrates that the court could reach the conclusion that it did.
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[*] 
As defendant appears to admit in her brief, the testimony was very weak for
that purpose.  The question at trial was whether defendant was driving on
a public highway while intoxicated.  See 23 V.S.A. § 1201(a). 
Defendant did not dispute that she was under the influence of intoxicating liquor
so the only issue in dispute was whether she drove on a public highway. 
Under the charge to the jury, the State could prevail on that element in either
of two ways: (1) defendant drove on the street to husband’s house; or (2)
defendant drove in the driveway of the husband’s house and caused damage to
personal property—that is, the stepson’s truck.  See id. § 1200(7)
(defining “highway” to include driveway of single-family or two-family
residence of operator if operator causes damage to the personal property of
another while operating vehicle in driveway).  The husband testified that
defendant did not drive on the street, addressing that theory.  But the
testimony did not directly address the second theory because no one asked him
if there was an accident and where it was.  Indeed, his garbled testimony
suggested that there was an accident and both vehicles were in motion at the
time.  In contrast, the stepson testified that there was an accident involving property damage to his truck, and that
the accident took place in the driveway.  Thus, even if the husband’s
testimony was believed, it is a stretch to say that it provided a defense to
the second theory.



