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01/26/95 PEOPLE STATE ILLINOIS v. LLOYD R. DAVIS

January 26, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
LLOYD R. DAVIS, APPELLEE.



The Honorable Justice Heiple delivered the opinion of the court: Justice McMORROW, concurring: Justice Freeman joins in this concurrence. Chief Justice Bilandic, dissenting:

The opinion of the court was delivered by: Heiple

The Honorable Justice HEIPLE delivered the opinion of the court:

The defendant, Lloyd R. Davis, a/k/a L.R. Davis, was indicted in the circuit court of Lake County with eight counts of perjury based on statements he made during a discovery deposition in a civil libel suit. On the defendant's motion, the trial judge dismissed the indictment on the basis that the allegedly perjurious statements had not been before the trier of fact and, thus, were not material. The appellate court affirmed (No. 2-92-0593 (unpublished order under Supreme Court Rule 23)). We reverse.

The Criminal Code of 1961 defines perjury as follows:

"(a) A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, he makes a false statement, material to the issue or point in question, which he does not believe to be true." 720 ILCS 5/32-2 (West 1992).

Although the instant case is a criminal prosecution, it is premised on a civil libel suit which defendant brought against Keystone Printing Service (Keystone) and Adrienne Drell. The complaint in the libel suit alleged that false statements regarding defendant's sexual activities were published in Keystone newspaper articles written by Drell. As part of that litigation, defendant gave a discovery deposition under oath. During the deposition, defendant was asked eight questions about his past sexual conduct. Defendant eventually settled the civil libel suit against Keystone and Drell without a trial. The allegedly false answers given in response to those questions form the basis of the perjury prosecution.

Defendant was indicted for eight counts of perjury under section 32-2 of the Criminal Code based on the eight questions and answers in his deposition. Defendant moved to dismiss the indictment. At the hearing on the motion, Judge Stephen Walter, the trial judge in the civil libel suit, testified that he did not recall relying on the eight questions and answers in making any of his rulings. Judge Walter stated that he was not previously aware that any of the eight questions had been asked or answered until the hearing on the motion to dismiss the indictment. Thus, he could not have relied on these questions and answers. Although Judge Walter testified that the eight questions and answers were material to issues in the libel suit, the statements were not material to him, since he had not relied on them in making any of his rulings during the course of the litigation. The indictment was then ordered dismissed on defendant's motion.

The appellate court, relying on People v. Mason (1978), 60 Ill. App. 3d 463, 17 Ill. Dec. 730, 376 N.E.2d 1059, affirmed the dismissal because the statements were not before the trier of fact. The appellate court opined that in order for the statements to be material, the trier of fact must be in a position to be influenced by them. Thus, since the eight questions and answers were not material to Judge Walter's rulings, they could not form the basis for a perjury indictment.

On appeal to this court, the State argues that the word "material" as used within the perjury statute refers to the relevance of the statements. The State asserts that the key analysis for materiality is whether the statements tend to prove or disprove any issue in the prior civil proceeding. The State also contends that there is nothing in the perjury statute which indicates that the statements must be before the trier of fact. We agree.

The language of the perjury statute does not require the alleged false statements to be before the trier of fact or anyone else. The law only requires that the statements be given under oath or affirmation in any type of matter where the law requires an oath or affirmation; that they be false; that they be material to the issue or point in question; and that the person making the statements believes them not to be true.

Accordingly, we reverse the judgments of the trial and appellate courts and remand this cause for further proceedings consistent with this opinion.

Judgments reversed; cause remanded.

The Honorable Justice McMORROW, concurring:

I agree with the majority's conclusion that the trial court erred in granting the motion of the defendant, Lloyd Davis, to dismiss the perjury indictments that had been returned against him. However, I write separately to express my belief that the decision in People v. Mason (1978), 60 Ill. App. 3d 463, 17 Ill. Dec. 730, 376 N.E.2d 1059, upon which the trial and appellate courts relied, was misguided and wrong with respect to its determination of what constitutes materiality under our perjury ...


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