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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v TIFFANY FREE LIVELY, Defendant-Appellee. _______________________________ BEFORE THE ENTIRE BENCH CORRIGAN, C.J.

Chief Justice

Justices

Maura D. Corrigan

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

FILED JUNE 16, 2004


No. 123145

We granted leave to appeal1 to consider whether the materiality of a false statement is an element of the The

statutory offense of perjury, MCL 750.422 and 750.423.

Court of Appeals held that materiality is an element that must be submitted to the jury,2 but the plain language of MCL 750.423 sets forth a definition of perjury that does not require proof of materiality. Because the Legislature

has decided that materiality is not an element, the trial

1 2

468 Mich 942 (2003). 254 Mich App 249; 656 NW2d 850 (2002).

court did not err in refusing to submit that issue to the jury. We thus reverse the judgment of the Court of Appeals

and reinstate defendant's perjury conviction. I. UNDERLYING FACTS AND PROCEDURAL HISTORY This case arises from an underlying divorce action. Defendant's husband sued her for divorce. A default At

judgment was entered.

Defendant moved to set it aside.

the hearing on that motion, defendant testified that she was unaware of the divorce proceeding until after the

judgment had entered and that the complaint for divorce had never been served on her. She also submitted an affidavit The trial court

to that effect in support of her motion. set aside the default judgment. The prosecutor charged defendant

with

one

count

of The

committing perjury in a court proceeding, MCL 750.422. prosecutor alleged that defendant had falsely

testified

both that she had not been served with the complaint for divorce and that she had lacked knowledge of the divorce proceeding. Defendant moved to dismiss the charge on the

ground that the allegedly false testimony was not material. The trial court denied the motion and ruled that the

testimony was material. The presented case proceeded from to trial. the divorce The prosecution for

testimony

attorney

2


defendant's husband, an officer who served the complaint on defendant, and a caseworker for the friend of the court. Defendant did not object to the court's use of a standard criminal jury instruction, CJI2d 14.1, which, at the time, did not include materiality as an element for the jury to consider. Defendant did, however, request an instruction

on specific intent that referred to a false statement on a material matter. include the The court denied defendant's request to "on a material matter" in the

phrase

instruction. The

The jury found defendant guilty. of Appeals reversed the conviction. It

Court

concluded that the materiality of a false statement is an element of perjury. The Court noted that in United States

v Gaudin, 515 US 506; 115 S Ct 2310; 132 L Ed 2d 444 (1995), the Supreme Court had concluded that materiality is an element in a federal prosecution for making false

statements on federal loan documents, and had rejected the contention that materiality in perjury cases is a

traditional exception to the rule that all the elements of an offense must be submitted to a jury. The Court of

Appeals rejected case law suggesting that materiality is an issue for the court, rather than the jury, to decide. See

People v Noble, 152 Mich App 319; 393 NW2d 619 (1986); People v Hoag, 113 Mich App 789; 318 NW2d 579 (1982).

3


Thus, the Court of Appeals concluded that the trial court erred in precluding the jury from considering materiality, and it determined that this error was not harmless beyond a reasonable doubt. We granted the prosecution's application for leave to appeal.3 II. STANDARD OF REVIEW This case requires us to determine whether the

materiality of the false statement is an element of the statutory offense of perjury. We review de novo this

question of law. People v Mendoza, 468 Mich 527, 531; 664 NW2d 685 (2003). III. ANALYSIS To provide the proper context for our interpretation of Michigan's perjury statute, we must discuss the The

constitutional principle set forth in Gaudin, supra. Supreme Court explained in Gaudin that every

essential

element of an offense, including--where it is an element-- materiality, must be submitted to the jury. Gaudin

involved a federal statutory offense and the government had

3

468 Mich 942 (2003).

4


conceded that materiality was an element.4

Gaudin thus

provides that if materiality is an element of a perjuryrelated offense, then it, like all other essential

elements, must be submitted to the jury as a matter of federal constitutional law. The holding in Gaudin offers no guidance on the

interpretive question before us, i.e., whether materiality is an element of perjury under our state perjury statute. See Gaudin, supra at 525 (Rehnquist, C.J., concurring)

("Nothing in the Court's decision stands as a barrier to legislatures that wish to define--or that have defined--the elements of their criminal laws in such a way as to remove issues such as In materiality other words, from Gaudin the simply jury's makes

consideration.").

4

The federal statute at issue in Gaudin provides: Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and wilfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $ 10,000 or imprisoned not more than five years, or both. [Gaudin, supra at 509, quoting 18 USCS 1001 (emphasis added).]

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clear that if materiality is an essential element under our state statute, then it must be submitted to the jury. If,

however, we conclude that materiality is not an element, then the holding in Gaudin has no bearing on our

determination. The central question we must resolve, then, is whether our Legislature has defined as an the offense of This perjury Court to has

include

materiality

element.

previously indicated that, at common law, materiality was an element of perjury. 492, 496-497 (1872). See, e.g., People v Fox, 25 Mich Our Legislature, however, has Const

constitutional authority to change the common law.

1963, art 3,

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Michigan Law