Patrick S. Cassidy
Cassidy, Myers, Cogan, Special Prosecuting Attorney
Voegelin & Tennant, L.C. Wheeling, West Virginia
Wheeling, West Virginia Attorney for the Respondent,
and State of West Virginia
Martin P. Sheehan
Sheehan & Nugent, P.L.L.C.
Wheeling, West Virginia
Attorneys for the Petitioner
JUSTICE ALBRIGHT delivered the Opinion of the Court.
1. 'In determining whether to grant a rule
to show cause in prohibition when a court is not acting in excess of its jurisdiction,
this Court will look to the adequacy of other available remedies such as appeal
and to the over-all economy of effort and money among litigants, lawyers and
courts; however, this Court will use prohibition in this discretionary way
to correct only substantial, clear-cut, legal errors plainly in contravention
of a clear statutory, constitutional, or common law mandate which may be resolved
independently of any disputed facts and only in cases where there is a high
probability that the trial will be completely reversed if the error is not
corrected in advance.' Syllabus Point 1, Hinkle v. Black, 164 W.Va.
112, 262 S.E.2d 744 (1979). Syl. Pt. 1, Farber v. Douglas, 178
W.Va. 491, 361 S.E.2d 456 (1985).
2. An affiant who commits the act of swearing to
the veracity of one or more matters set forth in an affidavit may only be
charged with a single count of false swearing within the meaning of West Virginia
Code § 61-5-2 (1923) (Repl.Vol.2000).
Petitioner Charles V. Porter, M.D., seeks a writ
of prohibition to prevent the Circuit Court of Ohio County from proceeding
to trial under an information charging him with twenty separate counts of
false swearing arising out of two affidavits he signed in connection with
a medical malpractice lawsuit. Petitioner argues that the information runs
afoul of the Double Jeopardy Clause of the West Virginia Constitution
(See footnote 1)
by charging him with separate counts of false swearing for each allegedly
false statement set forth in the affidavits. Upon our review of the relevant
statute combined with pertinent case law, we conclude that Petitioner is entitled
to the requested writ of prohibition to prevent him from being wrongly subjected
to multiple punishments for the same two offenses.
The circuit court denied Dr. Porter's motion for
an election and later denied his motion seeking reconsideration of that denial
by order entered on January 4, 2002. A trial in this matter was scheduled
for March 25, 2002, on nineteen of the twenty counts contained in the information.
Due to this Court's granting of a rule to show cause in connection with Dr.
Porter's petition for a writ of prohibition, which was filed with this Court
on March 6, 2002, the trial has been continued. Through the requested writ,
Dr. Porter seeks to prevent the State from proceeding to trial under the existing
information and to reduce the number of counts for false swearing that he
is charged with from twenty to two.
In determining whether
to grant a rule to show cause in prohibition when a court is not acting in excess
of its jurisdiction, this Court will look to the adequacy of other available
remedies such as appeal and to the over-all economy of effort and money among
litigants, lawyers and courts; however, this Court will use prohibition in this
discretionary way to correct only substantial, clear-cut, legal errors plainly
in contravention of a clear statutory, constitutional, or common law mandate
which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed
if the error is not corrected in advance. Syllabus Point 1, Hinkle
v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).
178 W.Va. at 492, 361 S.E.2d at 457; see also Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). With these principles in mind, we proceed to consider whether a writ should be issued.
To wilfully swear falsely,
under oath or affirmation lawfully administered, in a trial of the witness
or any other person for a felony, concerning a matter or thing not material,
and on any occasion other than a trial for a felony, concerning any matter
or thing material or not material, or to procure another person to do so,
is false swearing and is a misdemeanor.
Id. (emphasis supplied). Because the false swearing allegations at issue arise in connection with the signing of two affidavits in a medical malpractice action, rather than statements made during the course of a trial, we are concerned with the underscored portion of the statute.
In charging Dr. Porter with twenty separate counts of false swearing in connection with two affidavits that he signed, the State has taken the position that every statement made in an affidavit can be separately prosecuted under the false swearing statute.
See W.Va. Code § 61-5-2. Dr. Porter contends that in the instance
of an affidavit, as opposed to testimonial false swearing that occurs in the
context of court proceedings, the gravamen of the offense is the act of swearing
to the veracity of one or more facts set forth in the affidavit and not
the act of separately making each of those statements in the context
of the affidavit. Accordingly, Dr. Porter argues that the State's approach
in charging him with twenty, rather than two counts, of false swearing constitutes
over zealous prosecution and does not withstand scrutiny based on either a
statutory analysis or common law principles.
To support its position, the State relies heavily
on this Court's recent decision in State v. Green, 207 W.Va. 530, 534
S.E.2d 395 (2000). In Green, we examined the uttering statute
(See footnote 2)
to determine whether a conviction for ten counts of uttering that arose
from the contemporaneous presentment of ten forged money orders was sustainable.
As in this case, the issue of a double jeopardy violation arose from the prospect
of multiple punishments being levied for the same offense. See Syl.
Pt. 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977). We
explained in Green that the analysis of whether a criminal defendant
may be separately convicted and punished for multiple violations of a single
statutory provision turns upon the legislatively-intended unit of prosecution.
207 W.Va. at 537, 534 S.E.2d at 402.
In upholding the conviction for ten separate counts
of uttering in Green, this Court first determined that the unit of prosecution
established by the Legislature in West Virginia Code § 61-4-5(a) (1998)
(Repl.Vol.2000) was singular in nature. In making that determination, we looked
to the term any and its use in the statute to conclude that the
Legislature intended to permit each writing that was forged to constitute a
(See footnote 3) Because the term any is also
used in the false swearing statute in defining the offense, the State contends
that the false swearing statute necessarily permits separate charges for each
false statement set forth in an affidavit. The analysis required to resolve
the issue presented here, however, is more involved than merely identifying
a shared statutory term, and assuming that a similar result follows.
While this Court clearly focused on the singular
nature of any in reference to the writing required for a forgery
in Green, it is the act of forgery that is key to the offense, and
not the singular versus plural nature of the writings required to commit
a forgery. In attempting to extend the reasoning of Green to this case, the State
completely skirts the issue of the verb used to define the offense of false
swearing, choosing instead to focus solely on the statutory inclusion of the
term any. Yet, it is axiomatic that the operative verb employed
in the statute defines the offense, and not the nouns. See United States
v. Anderson, 59 F.3d 1323, 1338 (D.C. App. 1995) (Ginsburg, J., dissenting)
(stating that operative verb in the statutory definition of the crime
defines the unit of prosecution); United States v. Ryan, 894
F.2d 355, 360 (10th Cir. 1990) (Courts usually examine the verbs employed
in the statute to define the offense); see also United States v.
Palma-Ruedas, 121 F.3d 841, 848 (3rd Cir. 1997) (discussing
use of key verbs test for venue purposes to determine where offense
committed by examining verbs in the statute that define the criminal
conduct); accord United States v. Murphy, 117 F.3d 137,
139 (4th Cir. 1997).
In determining whether the Legislature intended
each false statement included in an affidavit, or the entire affidavit as
a whole, as the unit of prosecution under the false swearing statute, we must
look to the gravamen of the offense of false swearing. Rather than the making
of the individual false statements, it is the act of willfully swearing to
the truthfulness of those statements while under oath, whether they be singular
or multiple in number, that is the essence of the charge of false swearing
under West Virginia Code § 61-5-2. Given the mechanics of executing an
affidavit, the act of swearing to the veracity of the statement(s) set forth
cumulatively within the document occurs after the affidavit, complete with
averments, has been prepared for the affiant's signature. While the signature
is not the equivalent of the oath, it is the method by which the affiant indicates
that he has sworn to the veracity of the statements set forth above his signature.
Each of the extra-jurisdictional cases cited by
the State as support for its conclusion that a separate misdemeanor results
each time a person swears falsely in an affidavit is factually
and legally distinguishable. Those cases are not false swearing cases; instead,
they involve charges of perjury; obstruction of justice; making false declarations
before a court; and making inconsistent material declarations in any judicial
proceeding in violation of a federal statute.
(See footnote 4) Clearly overlooked by the
State in its reliance on perjury-based cases as authority for its position
is the long-established demarcation in the law with regard to perjury and
false swearing cases.
False swearing is a common law offense which was
distinguishable from the offense of perjury based on the lack of a requirement
that the false statements be made in a judicial setting. See Charles
E. Torcia, Wharton's Criminal Law § 579 (15thed. 1996);
State v. Crowder, 146 W.Va. 810, 827, 123 S.E.2d 42, 53 (1961). As
we explained in Crowder, [t]he facts necessary to constitute
perjury always include false swearing, but the converse in not true, since
the separate statutory offense of false swearing in many instances does not include perjury. Id. With the exception of a handful of states,
(See footnote 5)
it has long been the law that multiple perjury convictions can result
from statements made in the courtroom or in a court proceeding which follow
the taking of an oath. See Seymour v. United States, 77 F.2d 577, 581
(8th Cir. 1935) (recognizing that [t]he commission of perjury
as to one matter does not absolve the witness or afford him immunity as to
all other matters covered by his testimony at the same hearing); accord
United States v. Tyrone, 451 F.2d 16, 18 (9th Cir. 1971) (upholding
convictions on two counts of perjury for two separate and distinct lies
told to grand jury on subject[s] entirely separate and distinct from
the other). This same approach, however, does not extend to false swearing
cases due to the distinctions between the oath- taking mechanisms and the
reduced severity of the offense at issue.
(See footnote 6) Thus, the State's reliance
on perjury cases as support for its position is clearly misguided.
(See footnote 7)
To aid us in our determination of whether the statutory
offense of false swearing permits the State to separately prosecute each false
statement set forth in an affidavit, we look to the established principle that unless there is clear legislative intent
to permit multiple punishments, all 'doubt will be resolved against
turning a single transaction into multiple offenses.' State v. Collins,
174 W.Va. 767, 773, 329 S.E.2d 839, 845 (1984) (quoting United States v.
Canty, 469 F.2d 114, 127 (D.C. Cir. 1972)). Given the clear language of
the statute, which defines the offense in terms of the operative act of swearing
falsely and not in terms of the making of each statement, we cannot
conclude that the Legislature intended that a single affidavit containing
various statements that were falsely sworn to could result in multiple offenses.
Accordingly, we hold that an affiant who commits the act of swearing to the
veracity of one or more matters set forth in an affidavit may only be charged
with a single count of false swearing within the meaning of West Virginia
Code § 61-5-2.
Based on the foregoing, we determine that a writ
of prohibition should issue to prevent the State from proceeding to prosecute
Dr. Porter on the information which charges him with twenty separate counts
of false swearing. Upon the return of this matter to the circuit court, the State should amend the information to reflect only two counts
of false swearing,
(See footnote 8) consistent with our rulings in this opinion
and the facts of this case.