Find Legal Information

Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                  FILED

                                                              MAY 03, 2012

                                                        In the Office of the Clerk of Court
                                                     WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  29783-7-III
                                                )
                             Respondent,        )
                                                )         Division Three 
         v.                                     )
                                                )
JASMINE N. SINGH,                               )
                                                )         OPINION PUBLISHED IN PART
                             Appellant.         )
                                                )

       Korsmo, C.J.  --  Need there be independent witnesses to the crime of perjury 

where the crime is recorded and the recording played at trial?  Believing that the common 

law rule has no force in that circumstance, we affirm Jasmine Singh's conviction for first 

degree perjury.

                                            FACTS

       Ms. Singh is the sister of Anthony Singh and Jamal Singh.  Anthony Singh was 

incarcerated in the Spokane County Jail awaiting trial on various charges at the times 

relevant to this case.  He and his sister engaged in several telephone calls while he was in 

jail.  Pursuant to jail policy, the calls were recorded and the parties advised of that fact. 

No. 29783-7-III
State v. Singh

       Three telephone calls involving the two were made on November 16, 17, and 20, 

2009.  They spoke about various matters relating to Anthony Singh's upcoming trial, 

including two of the expected witnesses for the State, Matt Thompson and Officer 

Michael Roberge.  In order to contradict expected testimony from the officer, the two 

discussed the differences between the east side and west side Rollin '60s Crips gangs and 

what Ms. Singh's research had uncovered about them.  Anthony Singh also asked her to 

find material about other gangs and supply it to his attorney for transmission to him.  Ms. 

Singh agreed that she would testify that Anthony Singh was not a gang member.  Anthony 

Singh also asked his sister to get a copy of the discovery in his case and provide it to their 

brother, Jamal, who was also a prospective witness in Anthony's case.

       An ER 404(b) hearing was held in Anthony Singh's case on November 23, 2009, 

before the Honorable Kathleen O'Connor in order to determine if evidence of Mr. 

Singh's alleged gang affiliation would be admissible at trial.  Jasmine Singh testified at 

the hearing and denied that Anthony Singh and several other named individuals were 

gang members.  

       During cross-examination, after confirming that Ms. Singh had spoken with her 

brother on the telephone, the prosecutor asked her the following questions:

       Q. Have you ever talked to him about this case?
       A. Not really.  Just kinda what's going on.
       Q. You ever talk to him about any of the witnesses involved in the case?

                                               2 

No. 29783-7-III
State v. Singh

       A. No.
       Q. You ever talk to him about the facts of the case?
       A. No.
       Q. You ever talk to him about anything that anybody else has testified 
       about in this case?
       A. No.

Ex. 7 at 8-9.

       After hearing testimony, the trial court concluded that some of the proffered gang 

testimony could be used in Anthony Singh's trial.  He eventually was convicted and 

sentenced to prison.  

       The prosecutor's office filed one count of first degree perjury against Jasmine 

Singh, alleging that she made a materially false statement by "replying 'no' to ever 

talking to the defendant, Anthony Singh, about witnesses in the case and facts of the case 

and testimony of the witnesses." Clerk's Papers (CP) at 1.  The charges were based on 

the three recorded calls made from the jail and the cross-examination during the ER 

404(b) hearing.

       Ms. Singh waived her right to a jury trial and proceeded to a bench trial before the 

Honorable Salvatore Cozza.  Officer Michael Roberge testified that he knew Ms. Singh 

and identified her voice on the recordings.  Detective Jeffrey Barrington testified to the 

contents of the recordings and about Ms. Singh's testimony from the pretrial hearing in 

Anthony Singh's case.  The detective had been the lead investigating officer in that 

prosecution and was present for Ms. 

                                               3 

No. 29783-7-III
State v. Singh

Singh's testimony at the hearing.  

       The defense rested without presenting any witnesses. Defense counsel argued the 

case to the bench on the theory that her client's statements were not false because the 

prosecutor's questions were vague and the State had not proven that her client knew the 

statements were false.  2 Report of Proceedings (RP) at 113-15.

       Judge Cozza disagreed.  He found that the defendant's testimony was false and 

that the recording showed that she knew the statements were false.  2 RP at 115-16.  In 

particular, her negative response to the question about talking to her brother concerning

the case and the question about talking concerning the witnesses "were demonstrably not 

true statements."  2 RP at 115.  He believed that the statements were sufficiently 

significant that they could have misled Judge O'Connor, and concluded that the false

testimony was therefore material.  2 RP at 116-17.  Finding that the other elements were 

established, Judge Cozza turned to the heightened proof required in a perjury case:

       I think there is also an additional comment that needs to be made that perjury cases 
       require somewhat of a higher burden of proof.  I think that that is provided by the 
       recordings in question here.

2 RP at 117. 

         The court imposed a first-time offender waiver of the presumptive sentence and 

imposed a term of 90 days' partial confinement and 12 months of community custody.  

                                               4 

No. 29783-7-III
State v. Singh

Ms. Singh then timely appealed to this court.

                                         ANALYSIS

         This appeal challenges the sufficiency of the evidence in two regards:  whether 

the heightened standard of proof was met and whether the testimony was truly false.  Ms. 

Singh also challenges three conditions of her sentence.  Each challenge will be addressed 

in turn.  

         Sufficiency of the Evidence.

         Evidence is sufficient to support a conviction if the record permits a trier-of-fact 

to determine that each element of the offense was proven beyond a reasonable doubt.  

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. 

Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).  The reviewing court will consider 

the evidence in a light most favorable to the prosecution.  Green, 94 Wn.2d at 221-22.

         First degree perjury is committed "if in any official proceeding" a person "makes 

a materially false statement which he knows to be false under an oath required or 

authorized by law."  Former RCW 9A.72.020(1) (1975).  A "[m]aterially false statement"

is one "which could have affected the course or outcome of the proceeding." RCW 

9A.72.010(1).

       Heightened Proof. As recognized by the trial judge, the standard of proof in 

                                               5 

No. 29783-7-III
State v. Singh

perjury proceedings is higher than in other criminal cases.  The testimony of one witness 

or circumstantial evidence alone is insufficient to convict.  State v. Wallis, 50 Wn.2d 350, 

353, 311 P.2d 659 (1957). Instead, sufficient evidence requires:

              "'There must be the direct testimony of at least one credible witness, 
       and that testimony to be sufficient must be positive and directly 
       contradictory of the defendant's oath; in addition to such testimony, there 
       must be either another such witness or corroborating circumstances 
       established by independent evidence, and of such a character as clearly to 
       turn the scale and overcome the oath of the defendant and the legal 
       presumption of his innocence.  Otherwise the defendant must be 
       acquitted.'"  

State v. Rutledge, 37 Wash. 523, 528, 79 P. 1123 (1905) (quoting People v. Rodley, 131 

Cal. 240, 63 P. 351, 359 (1900)).  The direct testimony must come "from someone in a 

position to know of his or her own experience that the facts sworn to by defendant are 

false."  Nessman v. Sumpter, 27 Wn. App. 18, 24, 615 P.2d 522 (1980). Corroboration is 

required only on the knowledge of falsity element of the crime.  Rutledge, 37 Wash. at 

527.

         Ms. Singh's argument on the heightened proof requirement essentially focuses 

on the circular nature of the State's proof on the knowledge element.  Detective 

Barrington knew that Ms. Singh's testimony was false because he had heard the 

recordings of her conversations with her brother, and those recordings also served to 

corroborate his testimony that she knew she was lying when she testified.  As noted, the 

trial court expressly found the recordings to 

                                               6 

No. 29783-7-III
State v. Singh

be the corroboration of the detective's testimony.  2 RP at 117.  The essential question 

then becomes whether the recordings that served as the detective's basis of knowledge 

could also corroborate that testimony.  For two reasons, we believe that is permissible.

         First, courts have in other circumstances allowed witnesses to testify concerning 

information they viewed on videotape.  See, e.g., Domingo v. Boeing Employees' Credit 

Union, 124 Wn. App. 71, 79-80, 98 P.3d 1222 (2004) (holding that where witness had 

viewed videotapes herself but was not physically present at events depicted in videotape, 

her statements as to what the videotapes contained were based on her personal knowledge 

and properly considered in summary judgment proceeding); United States v. Begay, 42 

F.3d 486, 502-03 (9th Cir. 1994) (holding that police officer had personal knowledge of 

events and could testify as to events depicted in videotape, even though he was not 

physically present at the events in question, where he had personally viewed videotape 

himself).  Similarly, Detective Barrington had personal knowledge of the substance of the 

recorded conversations and based on that personal knowledge could properly provide 

testimony directly contradicting Ms. Singh's statements under oath.

         Second, one purpose of the heightened proof requirement is to avoid swearing 
contests that pit one witness's oath against another.1  State v. Dial, 44 Wn. App. 11, 16, 

       1 Another purpose of the rule is to encourage witnesses to voluntarily appear by 
protecting them from harassment and threats. Nessman, 27 Wn. App. at 23-24. 

                                               7 

No. 29783-7-III
State v. Singh

720 P.2d 461 (1986); State v. White, 31 Wn. App. 655, 660, 644 P.2d 693 (1982).  It 

ensures that there was a genuine or true lie.  That objective is easily satisfied when the 

criminal incident is completely recorded.  The three taped recordings here established 

what Ms. Singh said and did, and what she knew prior to taking the witness stand at her 

brother's hearing.  

       Although it appears this evidentiary situation has not arisen in earlier Washington 

perjury cases, it has been considered in New York in the context of wiretap cases.  See,

e.g., People v. D'Alvia, 171 A.D.2d 96, 575 N.Y.S.2d 495 (1991) (finding that the falsity 

of the defendant's testimony was sufficiently proved by a tape recording of the subject 

meeting, the testimony of the investigator who wired the informant prior to the meeting 

and monitored the meeting through a transmitter, and the defendant's own testimony, 

which corresponded to many details in the tape recording); People v. La Placa, 89 

Misc. 2d 530, 392 N.Y.S.2d 214 (1977) (holding that recordings of defendant's 

conversations captured by court-ordered wiretap, monitored by two detectives who 

identified the voices, and the testimony of a third detective who interpreted the language 

as relating to gambling activities was sufficient to support indictment charging defendant 

with first degree perjury).  

         In La Placa, the court noted that under New York law, the falsity of a statement 

                                               8 

No. 29783-7-III
State v. Singh

may not be established by the uncorroborated testimony of a single witness, and 

recognized that the purpose of the rule was to avoid unfounded perjury prosecutions 

"based on the complaints of defeated litigants and made in retaliation against honest 

witnesses." 89 Misc. 2d at 531.  However, the court went on to recognize that the case 

before it was not one where the Grand Jury was asked to believe one oath against 

another, and that "[t]he very concern of the Legislature in promulgating the two-witness 

rule and the concern of the courts in commenting thereon do not reach nor condemn a 

situation in which the defendant has supplied all of the evidence against himself."  Id.  

Just like the defendant in La Placa, Ms. Singh supplied all the evidence against herself 

here by having conversations with her brother that the jail recorded, and then 

subsequently lying under oath about the substance of those conversations.  The 

recordings, although not truly independent from Detective Barrington's testimony, 

corroborate the testimony and are of such a character as to clearly overcome the oath of 

Ms. Singh and the legal presumption of her innocence.  Rutledge, 37 Wash. at 528.  The 

concern of "one oath against another" that often arises in perjury cases is not present 

here. 

       When faced with a perjury case in which the defendant's trial testimony was in 

direct contradiction to a videotape recording of the defendant's conduct, the Virginia 

                                               9 

No. 29783-7-III
State v. Singh

Court of Appeals decided that there was no need to apply its corroboration rule.  See 

Donati v. Commonwealth, 37 Va. App. 575, 577-78, 560 S.E.2d 455 (2002) (holding that 

corroborating evidence was not required to convict a defendant of perjury, where the 

defendant's denials under oath that he exposed himself and masturbated in public, acts 

which constituted the basis of the perjury charge, were contradicted by a properly 

authenticated videotape and photographs of his actions).  While this approach is arguably 

applicable to an audio recording of a telephone conversation, we need not go that far in 

this case since the detective testified without objection to the contents of the recording.  

The recording amply corroborated his testimony.

         For both reasons, we conclude that the purposes behind the heightened proof 

requirements for perjury are satisfied when the evidence of the knowingly false statement 

is recorded prior to the hearing at which the perjury is subsequently committed.  In such

circumstance, the recorded evidence can both provide a basis for the witness's testimony 

and corroborate that testimony.

         The evidence was sufficient to satisfy the heightened proof requirements 

applicable to a perjury prosecution.  
         Falsity of Testimony. Ms. Singh's other challenge2 to the sufficiency of the 

       2 Ms. Singh also contends that her statements were not materially false statements.  
Her argument is made in a single footnote that states that they were not materially false 
because they were not genuinely false.  See Br. of Appellant at 14 n.5. In other words, 

                                               10 

No. 29783-7-III
State v. Singh

evidence is a contention that her testimony was not false.  She believes the questions 

asked on cross-examination were too vague or imprecise to make her answers false. We 

disagree.  

       An answer that is literally true does not constitute perjury, even if it is misleading 

or evasive.  State v. Olson, 92 Wn.2d 134, 137, 594 P.2d 1337 (1979).  When 

determining whether perjury has occurred, the questions and answers at issue must be 

interpreted in the context of what immediately preceded and succeeded them.  State v. 

Stump, 73 Wn. App. 625, 628, 870 P.2d 333 (1994).  To sustain a perjury conviction, the 

questions and answers which support the allegation must demonstrate both that the 

defendant was fully aware of the actual meaning behind the examiner's questions and that 

the defendant knew her answers were not the truth.  Id.

       In the case at bench, Judge Cozza as fact-finder focused on the first of the two 

cited questions from the prosecutor's cross-examination -- did Ms. Singh talk to her 

brother about the case and did she talk to him about any of the witnesses involved in the 

case.  He found those answers to be "demonstrably not true." 2 RP at 115.  

       The answer to the first question was: "Not really.  Just kinda what's going on."

That answer was contrary to the recorded conversations in which she repeatedly 

the materiality of her testimony (importance to the outcome of the hearing at which it was 
made) is not disputed, but only the truth or falsity of that testimony is at issue. 

                                               11 

No. 29783-7-III
State v. Singh

discussed her brother's case with him.  However, the answer was qualified in its terms 

and, hence, ambiguous in the context of her testimony.  Since the answer essentially 

affirmed that she had talked to her brother, it would not alone support a perjury 

conviction.  While misleading with respect to the degree and nature of her conversations, 

the answer was true in its most basic sense -- she had talked to her brother.

       The second question was answered with a simple "no" -- she had not talked to him 

about any of the witnesses.  As the trial court aptly characterized it, this answer was 

"demonstrably" false.  There had been express conversations about two State's witnesses, 

Matt Thompson and Officer Roberge.  Nearly the entire 13-page transcript of the final 

recorded conversation involved how to address the officer's anticipated testimony that 

Mr. Singh was a gang member.  Ms. Singh was directed to find information to feed 

defense counsel to combat that testimony.  She also reported to her brother on the results 

of some of her research to that point.  She also was directed to find the discovery and 

provide it to their brother so that he might assist the defense case.  She also agreed to be a 

witness for her brother and testify that he was not a gang member.  

       This evidence established that Ms. Singh did talk to her brother about the 

witnesses at the upcoming hearing and that she knew that they would be witnesses. Her 

denial of that fact under oath was a false statement that she knew to be false.  The 

                                               12 

No. 29783-7-III
State v. Singh

subsequent denial of talking about the witnesses also tended to more clearly make the 

answer to the first question ("Just kinda what's going on.") a false statement. As noted, 

testimony is considered in context with the other questions and answers given by the 

witness.  Stump, 73 Wn. App. at 628.  While that first answer standing alone would be 

insufficient to support a perjury conviction, it was still evidence showing the false nature 

of the testimony.

       The evidence at bench permitted the trier-of-fact to conclude that Ms. Singh 

knowingly made a materially false statement under oath during an official court 

proceeding.  The evidence therefore supported the judgment.  It was sufficient.

         The conviction and judgment are affirmed.

       The remainder of this opinion has no precedential value.  Therefore, it will be filed 

for public record in accordance with the rules governing unpublished opinions.  

       Sentencing Conditions.

       Ms. Singh also challenges three conditions imposed upon her as part of the 

sentence.  She contends that the court had no authority to impose conditions concerning 

gangs and also could not prohibit her from possessing weapons.  We disagree with her 

first contention, but agree that there was no basis for prohibiting possession of weapons.

       Gang-related Conditions. Ms. Singh argues the trial court lacked authority to 

                                               13 

No. 29783-7-III
State v. Singh

prohibit her from associating with known gang members or possessing gang clothing or 

insignia, or obtaining any gang-related tattoos during her 12-month term of community 

custody.  She argues that perjury in support of her brother was not a gang-related crime.  

Considering the subject matter of her perjury, we disagree.

       The Sentencing Reform Act of 1981, chapter 9.94A RCW, empowers trial courts 

to impose "crime-related prohibitions" during the course of community custody.  RCW 

9.94A.505(8).  A "crime-related prohibition" is "an order of a court prohibiting conduct 

that directly relates to the circumstances of the crime for which the offender has been 

convicted." RCW 9.94A.030(10).  Crime-related prohibitions are reviewed for abuse of 

discretion.  State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993).  Discretion is abused 

when it is exercised on untenable grounds or for untenable reasons.  State ex rel. Carroll 

v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).  

       Despite Ms. Singh's protests to the contrary, the trial court had very tenable 

reasons to believe this was a gang-related crime.  The subject matter of the hearing at 

which Ms. Singh committed perjury was whether or not gang evidence would be admitted 

at her brother's trial.  She lied to the court about discussing the expected testimony of the 

State's gang expert and conducting research to counter the officer's testimony.  This was 

in fact a gang-related offense. 

                                               14 

No. 29783-7-III
State v. Singh

       The trial court did not abuse its discretion when it imposed the two gang-related 

conditions of community supervision.

       Weapons Possession. The trial court also imposed a condition that Ms. Singh not 

possess any weapons.  CP at 50.  She argues that this is not a valid crime-related 

prohibition.  We agree.

       Trial judges are empowered to limit possession of firearms upon conviction for a 

felony.  RCW 9.41.045.  They also are required to advise the defendant at sentencing 

about the loss of the right to possess firearms.  RCW 9.41.047(1)(a).  There is no similar 

statutory authority for limiting the possession of the general class of "weapons." Thus, 

any limitation on possession of a non-firearm "weapon" must come from the court's 

authority to issue crime-related prohibitions.  

       Ms. Singh argues that there was no weapon involved in her offense and that the 

trial court lacked authority to prohibit her from possessing a weapon.  We agree.  Her 

offense did not involve the use of any weapon and we can discern no connection between 

the crime of perjury and the numerous varieties of objects that can constitute a weapon.  
There is no basis in the record for this restriction.  The trial court erred in imposing it.3

       3 In light of our conclusion, we need not consider whether the term "weapons" is 
vague.

                                               15 

No. 29783-7-III
State v. Singh

       We remand for the court to strike the weapons prohibition clause of the judgment 

and sentence.  In all other respects, the conviction and judgment are affirmed.

                                                    _________________________________
                                                                  Korsmo, C.J.
WE CONCUR:

______________________________
       Kulik, J.

______________________________
       Siddoway, J.

                                               16