By Michael Tarrant
State v. Charland, 2011 VT 107
There aren’t many things out there that make getting convicted and sentenced for committing a crime worse. But when lies are told at trial by someone other than you that end up “enhancing” your sentence . . . well, that might just be one of those few things.
A jury convicted Defendant of Driving While Intoxicated (DWI). Because it was Defendant’s “third or subsequent offense,” the law mandates that she lose her driving privileges for the rest of her life. But Defendant’s new role as passenger for life was only part of her punishment. The trial judge at the sentencing hearing also expressed his conclusion that Defendant had suborned perjury (i.e., got someone to lie for her). The judge thus sentenced Defendant to a healthy thirty months up to five years in prison, and, just for good measure, a $2,500 fine.
The question you, and I imagine Defendant as well, are probably asking right about now is, “How and why did this all happen?” Well, sit down, crack an O’Doul’s, and let me tell you a story.
It all started innocently enough, with Defendant’s stepson coming over to her house to help move a freezer. Since neither Defendant nor her husband, stepson’s father, was home when he arrived, stepson decided that the driveway would be a nice spot to park his truck while he waited for his father and Defendant to arrive. When they did arrive, Defendant proceeded to back her truck into stepson’s truck. She then jumped out, and started screaming at stepson. Defendant’s antics were serious enough for stepson to call the police.
The officer who arrived at the scene spoke first with stepson and then Defendant. Defendant explained that she had driven the truck to the scene of the accident, and that she accidentally backed into stepson’s truck because she had not expected him to be there already. The officer noticed that Defendant exhibited signs of intoxication, and had her perform the “dexterity tests.” Defendant failed these tests, and the officer arrested her for DWI. While at the police station, Defendant decided to change her story and now claimed that her husband had driven the truck. This was duly noted alongside her previous statements and her blood-alcohol concentration, which rang in at .239 but would have been, according to the police’s calculation, .261 at the time she was driving.
Defendant did not testify at her trial, but her husband did. He testified that he had driven the truck to the scene of the accident that day, and that Defendant only operated the truck from the driveway to the lawn. Husband admitted, however, that he had signed an affidavit the day of the accident stating that Defendant had been hurriedly backing up the driveway and could not avoid stepson’s truck. In an attempt to explain this, husband testified that stepson had told him to write his account out that way.
Unfortunately for Defendant, the jury didn’t buy husband’s account and convicted her of DWI. Moreover at sentencing the trial court “enhanced” her sentence due to the fact that “there was clearly perjured testimony at this trial,” and “the penalty [was] particularly needed because of the perjury . . . .”
Defendant appealed to the SCOV, arguing that the trial court erred in basing her “enhanced” sentence, without advance notice, on the subornation of perjury when there was no evidence that Husband gave perjured testimony or even if he had that she had suborned it. The SCOV affirms.
The SCOV begins by noting that a trial court, during the sentencing phase, may rely on observations made during the trial. This includes taking into account the trial court’s belief that a defendant offered perjured testimony. The SCOV quotes favorably from a United States Supreme Court case, United States v. Dunnigan, that “[i]t 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.” The SCOV concludes that the rationale of Dunnigan applies with equal force to the subornation of perjury. Furthermore, the SCOV notes that under federal sentencing guidelines, a sentence must be increased if a defendant willfully obstructed justice (e.g., got her spouse to lie for her).
Now, no appellate opinion is ever truly complete without a multi-pronged test for the determination of something, and here the SCOV does not disappoint. It offers a three-pronged test to help future trial courts determine whether perjury has been suborned. A defendant has suborned perjury if the defendant: (1) knew or really should have known that the testimony would be false; (2) should have known that the witness would purposefully testify falsely; and (3) caused the witness to give false testimony.
While one purpose of such tests is to allow for simplified analysis, the SCOV realizes that prong three will not be so easy to prove because “there is rarely external evidence of the interaction between the defendant and the witness with respect to the testimony.” Looking to a variety of federal courts, the SCOV concludes that the “general rule” for determining prong three is simply calling the witness when prongs one and two (namely that the defendant knows the testimony will be false and knows that the witness knows that it is false and is planning to lie anyway) can be proven.
With these concepts in place, the SCOV reviews the trial court’s findings under a “clearly erroneous” standard and the overall enhanced sentencing decision under an “abuse of discretion” standard.
SCOV has no problem concluding that the record amply supports the trial court’s determination that husband perjured himself. The only issue in dispute in this case was whether Defendant had operated the truck on a public highway. Stepson witnessed Defendant drive the truck from the street into the driveway and then into his truck. The officer who responded to stepson’s call testified that Defendant herself initially told her that she had driven the truck to husband’s house that day. Husband signed an affidavit that essentially stated that Defendant had driven into the driveway that day. Only husband’s testimony on the day of trial offered a different version, one in which he gave Defendant a defense where she had no other.
The SCOV also finds a strong inference that Defendant knew husband’s testimony would be false and “intended to obstruct justice.” Basically, Defendant knew the truth. She also knew that husband’s testimony only had one purpose: to induce the jury to acquit her. She was also aware what husband would testify to as her counsel stated it in his opening statement to the jury. Essentially, without Husband’s testimony, her only defense would have been to challenge stepson’s credibility. SCOV easily found that the calling of husband to testify, knowing that he would do so falsely, completed the three-pronged subornation of perjury test and therefore gave the trial court reason to “enhance” her sentence.