NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501,
in order that corrections may be made prior to
permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
DANNY J. HARRISON, )
) Court of Appeals No. A-5700
Appellant, ) Trial Court No. 1SI-S94-111CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1479 - August 23, 1996]
______________________________)
Appeal from the Superior Court, First Judi-
cial District, Sitka, Larry C. Zervos, Judge.
Appearances: Patrick W. Conheady, Olmstead
and Conheady, Juneau, for Appellant. James L.
Hanley, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Bruce M. Botelho, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Danny J. Harrison was convicted by a jury of two counts
of perjury in violation of AS 11.56.200(a). Harrison appeals,
contending that Superior Court Judge Larry C. Zervos erred in
denying Harrison's motion for a judgment of acquittal. We affirm.
After being convicted of misconduct involving weapons and
theft by receiving, Harrison filed an application for post-
conviction relief, challenging his convictions. The state moved to
dismiss Harrison's application. In reply to the state's motion,
Harrison filed a factual statement claiming, among other things,
that the police officers who arrested him "broke his arm and killed
his dog." To this statement, Harrison attached a signed document
that he entitled "Affidavit in Support of Reply to Opposition to
Motion for Post Conviction Relief." Harrison's affidavit attested
to the truth of his factual statement:
I, Danny J. Harrison, being duly sworn
upon my oath, depose and state the following:
1. That I am Defendant in the above-
captioned cause of action.
2. That the representations and allega-
tions made in the Reply attached hereto and
referred to herein by reference are true and
correct to the best of my knowledge.
3. That I have thoroughly read Cr.R. 11
and 35(a) and found nothing in either which
overrides the jurisdiction of this Court in
this matter.
4. That I firmly believe that once
presented the facts, and the positive changes
effected by the Defendant since the original
sentencing, relief will be justified.
FURTHER AFFIANT SAYETH NAUGHT.
DATED this 12th day of November, 1993, at
Eagle River, Alaska.
/s/
Danny J. Harrison
Defendant, Pro se
COMES NOW Danny J. Harrison, pursuant to
the provisions of A.S. 09.63.020, and Title
28, United States Code, Section 1746, and
declare under penalty of perjury that the
foregoing is true and correct.
EXECUTED on November 12, 1993.
/s/
Danny J. Harrison
The state eventually discovered that Harrison's factual
statements were false: the police neither broke Harrison's arm nor
killed his dog. As a result of these false statements, the state
charged Harrison with two counts of perjury. At trial, Harrison
moved for a judgment of acquittal, arguing that the affidavit upon
which his perjury prosecution was based failed to qualify as a
"sworn statement," as defined in Alaska's perjury statute. Judge
Zervos denied Harrison's motion. On appeal, Harrison renews this
argument.
Alaska Statute 11.56.200(a) states that "[a] person
commits the crime of perjury if the person makes a false sworn
statement which the person does not believe to be true." Alaska
Statute 11.56.240(2) defines two types of "sworn statement":
(A) a statement knowingly given under
oath or affirmation attesting to the truth of
what is stated, including a notarized
statement; or
(B) a statement knowingly given under
penalty of perjury under AS 09.63.020.
Harrison contends that his "affidavit" did not qualify as
a "sworn statement" under either of these definitions. Although
Harrison's affidavit recited that Harrison had been "duly sworn
upon [his] oath," the affidavit did not purport to have been signed
before a notary or any other official empowered to administer
oaths. No official actually placed Harrison under oath, and no
official was present or available when Harrison signed the
affidavit.
For purposes of this decision, we assume that the absence
of a notary or any other official empowered to administer oaths
bars Harrison's affidavit from being deemed a sworn statement under
subparagraph (A) of AS 11.56.240(2): "a statement knowingly given
under oath or affirmation." (EN1) We thus consider only whether
the affidavit might qualify as a sworn statement under subparagraph
(B) of AS 11.56.240(2): "a statement knowingly given under penalty
of perjury under AS 09.63.020."
The definition of "sworn statement" set out in
subparagraph (2)(B) incorporates the provisions of AS 09.63.020(a),
entitled "[c]ertification of documents." The certification statute
states:
A matter required or authorized to be
supported, evidenced, established, or proven
by the sworn statement, declaration, verifica-
tion, certificate, oath, or affidavit, in
writing of the person making it (other than a
deposition, an acknowledgment, an oath of
office, or an oath required to be taken before
a specified official other than a notary
public) may be supported, evidenced, estab-
lished, or proven by the person certifying in
writing "under penalty of perjury" that the
matter is true. The certification shall state
the date and place of execution, the fact that
a notary public or other official empowered to
administer oaths is unavailable, and the
following:
"I certify under penalty of perjury that
the foregoing is true."
In the present case, even though Harrison's affidavit
expressly stated that Harrison "declare[d] under penalty of perjury
that the foregoing is true and correct" -- language tracking the
form certification required by this statute -- the affidavit failed
to include another required statement: "that a notary public or
other official empowered to administer oaths is unavailable[.]"
Harrison argues that, due to this omission, his affidavit
was not a proper certification under AS 09.63.020, and so did not
qualify as a "sworn statement" under the definition set out in AS
11.56.240(2)(B), which requires proof of "a statement . . . given
under penalty of perjury under AS 09.63.020." Harrison reasons
that since his affidavit could not be considered a "sworn
statement," it was legally insufficient to support convictions for
perjury, which under AS 11.56.200(a), require "false sworn
statement[s]."
Harrison's argument is overly technical and ignores the
basic policy underlying Alaska's perjury statute; this policy
favors substance over form. As noted in the commentary to the
Model Penal Code, upon which Alaska's perjury statute was
patterned:
The guiding principle [of the offense of
perjury] is that when the community commands
or authorizes certain statements to be made
with special formality or on notice of special
sanctions, the seriousness of the demand for
honesty is sufficiently evident to warrant the
application of criminal sanctions. Upon this
principle, it makes little difference what
formula is employed to set this seal of
special importance on the declaration.
. . . .
Within the same principle, technical
irregularities in the administration of an
oath should not be regarded as mitigating the
offense.
Model Penal Code  241.1, Commentary at 129-30 (1980).
Mindful of this policy, Alaska's appellate courts have
chafed at arguments favoring a narrow interpretation of the term
"sworn statement." See Anchorage Sand and Gravel Co. v.
Wooldridge, 619 P.2d 1014 (Alaska 1980); Knix v. State, ____ P.2d
____, Op. No. 1477, (Alaska App., August 2, 1996); Gargan v. State,
805 P.2d 998 (Alaska App. 1991).
In Gargan, this court dealt with a perjury conviction
involving an affidavit that purported on its face to be sworn
before a notary. Evidence at trial established that the notary had
not actually placed Gargan under oath. We nevertheless affirmed
Gargan's perjury conviction, observing that, for purposes of
determining whether a sworn statement had been made, the crucial
issue was not whether an oath was actually given, but rather
whether the statement amounted to "a verification on its face of
the truthfulness of the facts contained therein." Gargan, 805 P.2d
at 1005.
More recently, we followed the same approach in Knix v.
State, which involved a notarized statement that did not state on
its face that it was sworn before the notary and that in fact was
not given under oath. The statement nevertheless expressly
declared that it was "made under penalty of perjury." We found
that this language "readily qualifie[d] as an affirmation," and,
relying on Gargan, we concluded that "its presence on the face of
the notarized statement renders the statement one that 'purports to
be sworn.'" Knix, ____ P.2d at ____, Op. No. 1477 at 6-7 (quoting
Gargan, 805 P.2d at 1005). We thus affirmed the perjury
convictions.
Gargan and Knix dealt with notarized statements and thus
addressed the definition of "sworn statement" set out in AS
11.56.240(2)(A). (EN2) In contrast, Harrison's case involves an
unnotarized statement purportedly certified under penalty of
perjury; thus we address the definition of "sworn statement" set
out in subparagraph (B) of the same statute. Nevertheless, the
policies we invoked in deciding Gargan and Knix apply with equal
force to Harrison's case.
When a false statement pertaining to an important matter
is sworn, affirmed, or certified, the resulting evil is the
likelihood that the statement's formal assertion of truthfulness
will be honored and relied upon. This is the evil the perjury
statute seeks to prevent. Hence, the pertinent question in
Harrison's case is not whether Harrison's omission of a formally
required phrase could conceivably cause his affidavit to be
rejected on technical grounds in some situations; rather, the
question is whether the affidavit, despite this omission, manifests
Harrison's intent to formally declare the truthfulness of the
affidavit's factual assertions, so that reasonable persons would be
expected to honor and act on them. (EN3)
Despite its failure to expressly state that no notary was
available, Harrison's affidavit declared that it was made under
penalty of perjury "pursuant to the provisions of A.S. 09.63.020."
By including this language, the affidavit in effect incorporated by
reference and implicitly professed compliance with the requirements
of the certification statute.
As we have already mentioned, no notary was actually
available when Harrison signed his affidavit. Harrison's affidavit
clearly amounted to "a verification on its face of the truthfulness
of the facts contained therein." Gargan, 805 P.2d at 1005. Given
these circumstances, Judge Zervos did not err in finding the
evidence legally sufficient to establish that the affidavit was a
"sworn statement" within the meaning of AS 11.56.240(2)(B). (EN4)
Harrison's conviction is AFFIRMED.
ENDNOTES:
1. In Gargan v. State, 805 P.2d 998 (Alaska App. 1991), we
affirmed a perjury conviction based on an affidavit that was signed
before a notary, even though the notary did not actually administer
an oath. We found the affidavit to be a sworn statement under
subparagraph (2)(A) because it purported on its face to have been
given under oath. The complete absence of a notary or other
official empowered to administer oaths arguably distinguishes
Harrison's case from Gargan. Our conclusion that Harrison's
affidavit qualifies as a sworn statement under subsection (2)(B)
makes it unnecessary to consider the state's argument that the
affidavit also qualifies as a sworn statement under subsection
(2)(A).
2. Although the affidavit in Knix incorporated wording of the
certification statute by declaring that it was signed "under
penalty of perjury," it had in fact been signed before a notary.
Accordingly, we found it to be a notarized statement and concluded
that it fell within the definition of a sworn statement set out in
subparagraph (A) of AS 11.56.240(2). For this reason, we found it
unnecessary to decide whether the affidavit might also have
qualified as a sworn statement under the definition set out in
subparagraph (B) -- "a statement given under penalty of perjury
under AS 09.63.020." Knix, Op. No. 1477 at 4 n.2.
3. Cf. Martin v. State, 896 S.W.2d 336, 339 (Tex. App. 1995)
("That [an affidavit's] formalities were not met does not negate
the existence of the oath; it merely vitiates the use of the
instrument as proof that an oath was taken.").
4. Harrison acknowledges AS 11.56.200(b)(2), which provides that
"[i]n a prosecution [for perjury] under this section, it is not a
defense that . . . the oath or affirmation was taken or
administered in an irregular manner." However, Harrison
strenuously argues that this provision applies only to the
definition of "sworn statement" set out in AS 11.56.240(2)(A) and
that it is inapplicable when a perjury prosecution involves a false
statement that qualifies as a sworn statement only under the
definition set out in AS 11.56.240(2)(B). Our reliance on Gargan
and Knix makes it unnecessary to determine the scope of AS
11.56.200(b). While our prior decisions make passing reference to
this provision, neither purports to give it determinative weight.
