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NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
JULY TERM, A.D. 2001
CASE NO. 3D99-2407
THE STATE OF FLORIDA,
CASE NO. 97-38873
Opinion filed October 3, 2001.
An appeal from the Circuit Court of Dade County, Ronald
Joel Kaplan, for appellant.
Robert A. Butterworth, Attorney General, and Steven R. Berger,
Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., and GERSTEN, and FLETCHER, JJ.
Roslyn Vargas, a former police officer, was charged by amended
information with three counts of perjury. Each count of perjury
alleged that the crime occurred when, as a public officer, she made
"a false statement which [she] did not believe to be true, under
oath in an official proceeding" at a statement taken by an
assistant state attorney during the course of an official
investigation into the homicide of one Neil Napolitano. Vargas was
convicted after jury trial of all three counts and the trial court
denied her post-trial motions. For the reasons that follow, we
reverse and vacate her convictions.
The elements of perjury in official proceedings are 1) making
a false statement, 2) which one does not believe to be true, 3)
under oath in an official proceeding, 4) in regard to any material
matter. Fla. Stat. § 837.02(1) (1999); see also Hirsch v. State,
279 So. 2d 866, 869 (1973)(essential elements of perjury). In the
instant case, the three charges against Vargas arose from her sworn
statement taken on February 22, 1996, before an assistant state
attorney pursuant to an offer of use immunity. Count 1 of the
final charging document alleged to be false Vargas' statement "that
when she met with Neil Napolitano in August 1995 it was for work
related purposes." Count 2 alleged to be false Vargas' statement
that she was not with Napolitano voluntarily from September 5-11,
1995. Count 3 alleged to be false Vargas' statement that she did
not voluntarily go with Napolitano on September 12, 1995.
We note at the outset that "materiality" is not an element of
the crime of perjury in Florida but is a threshold issue that a
court must determine as a matter of law prior to trial. State v.
Ellis, 723 So. 2d 187 (Fla. 1998); State v. Diaz, 785 So. 2d 744
(Fla. 3d DCA 2001). To be material, statements must be germane to
the inquiry, and have a bearing on a determination in the
underlying case. Diaz, 785 So. 2d 744, 746.
In the instant case the State argued that the allegedly
perjurious statements were material, i.e., if Vargas was untruthful
about her relationship with Napolitano, that created a different
avenue of investigation into his murder than if she was truthful.
The trial court noted its difficulty with the State's position,
stating that the rationale was "thin." Nonetheless, the trial
court found in the State's favor on the element of materiality. R.
836, 841. Our review of the record leads us to conclude that the
State's position is less than thin. We find as a matter of law
that the allegedly perjurious statements were immaterial to the
underlying investigation and prosecution of Neil Napolitano's
murder. The statements as recorded for all three perjury counts
charged were not germane to the inquiry; their truthfulness was not
the vital issue in the underlying investigation. See Diaz, 785 So.
2d at 745-46.
The record transcript of Vargas's sworn statement provides the
following, identified by the State as specific instances of her
Regarding Count 1:
"Q: So you didn't document the meetings in August that
you had with Neil Napolitano?
Q: And those meetings in your mind were personal meetings
or work related meetings or a combination?
A: Work related. I was still on county time."
"Q: So in August you continued to meet with him although
Barbara Gentile and the squad didn't know really that
that's going on?
Q: But your testimony is you were doing it for work
The statement alleged to be perjury must be one of fact, and
not of opinion or belief. E.g., Doyle v. Dept. Business and
Professional Reg., 713 So. 2d 1040 (Fla. 1st DCA 1998). The
questions posed to Vargas with regard to Count 1 elicited a
statement of opinion, not of fact. When asked what she believed
"in her mind" to be the nature of the August meetings with
Napolitano, Vargas was being asked to express her opinion whether
she believed the incidents were work-related or personal. The
question as posed did not call for a factual response, and the
crime of perjury does not encompass expressions of opinion, see
Doyle, 713 So. 2d at 1045-46. Indeed, the State's evidence did not
show that all of Vargas's encounters with Napolitano were not work-
related; there was no empirical showing that this statement was
false. As a result, the conviction for Count 1 must be reversed.
Regarding Count 2:
"Q: And you were with him by your own choice all this
time? It wasn't ever a situation where, you know, you
couldn't leave or anything like that?
A: It's not that I didn't try to leave. . . . In
Neil's mind there was a lot more to this relationship
than there actually was.
Q: Okay, but we are going into Saturday night now and up
until this point in time was there ever a time that you
wanted to leave or tried to leave and you didn't feel
like you could leave?
Q: When was that?
A: That was when Monday, Tuesday I said, "Look, I've
got to go get clothes . . ." . . . I guess it's kind of
like you had to know him and know how he was and that
there was almost like there were two sides to this
Q: But did you try to leave at any point?
A: Yes, I did. [Vargas describes how she attempted to
leave and Napolitano grabbed her purse and removed the
gun she was carrying. After a brief struggle with him he
returned gun and purse] . . .
Q You didn't try to leave?
A: No more at that point. . . .
Q: During the following day did you want to leave and
you only stayed there because he was . . .
A: From fear.
Q: So when you were in the shopping malls and all of
that, and at Disney and all of that you didn't feel you
could walk away?
In the same manner, the conviction for Count 2 fails. The
questions as phrased in the record could only elicit statements of
opinion, not fact. One's asking, "you didn't feel like you could
leave," or "you didn't feel you could walk away," calls for answers
based on personal opinion and perceptions at the time, and cannot
sustain a conviction for fact-based perjury.
Regarding Count 3:
"Q: On the 11th then you call your son late in the day
and he comes and picks you up, right?
Q: Did you ever have an opportunity on the 11th to walk
away from Neil Napolitano?
A: He actually watched my son pick me up and take me
. . . .
A: I got in the car and my son took me home.
Q: Is there any reason you couldn't have done that the
A: He just wouldn't let me.
Q: Did he ever tell you that he wouldn't let you?
A: It was just the fear like I told you before in his
mind it was a totally different relationship than what it
actually was. . . ."
. . . .
"Q: Was there a reason you didn't get into the car with
one of the kids?
. . . .
Q: What was the reason?
Q: Did he say anything? Did he tell you to get in the
car with him?
. . . .
Q: Did he have a weapon?
A: Not that I remember, no.
Q: I mean, are you trying to tell us that he kidnaped you
that day in front of your kids?
A: Did he hold something to me? Did he physically force
me in the car? No. He didn't. But it was the fear
again. And I said, 'leave them alone and let them do
whatever it is they have to do, just leave my kids
alone.' So I got in the car with him.
Q: So you didn't go in the car with Neil by choice?
A: (shaking head)."
The statements upon which Count 3 is based are, as well,
grounded in Vargas' perceptions at the time and not on
empirical fact. In addition, the questions posed to elicit
the allegedly perjured testimony were, in all three counts,
not asked with the appropriate specificity necessary to result
in an equally specific statement of fact. See Argyros v.
State, 718 So. 2d 222 (Fla. 2d DCA 1998); see also Doyle, 713
So. 2d at 1046, citing to Bronston v. U.S., 409 U.S. 352, 362,
93 S. Ct. 595, 602, 34 L. Ed. 2d 568 (1973)("[p]recise
questioning is imperative as a predicate for the offense of
perjury."). Indeed, in the statements forming the basis for
Count 3, Vargas was non-responsive to the first question
asked, and did not respond with a vocal statement at all to
the last question asked. In neither case did the interviewer
follow up with a specific and affirmatively fashioned question
designed to elicit an equally specific answer. T.274-285.
See Argyros, 718 So. 2d at 222.
Vargas's answers in all three counts were immaterial to
the underlying investigation into Napolitano's murder, and
merely reflect her state of mind at the time these events
occurred. In the context of the record, Vargas's statements
can only be characterized as statements of opinion or belief,
and not of fact. For this reason, the statements forming the
basis for all three counts of perjury are outside the reach of
that crime under Florida statutory and common law. We
therefore reverse Vargas's convictions and sentences for
Reversed; convictions vacated.
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