Charles Kreck v. James Spalding , 721 F.2d 1229 ( 1983 )

HATFIELD, District Judge.

Appellant seeks reversal of the judgment of the District Court for the Eastern District of Washington granting the appellee a Writ of Habeas Corpus and vacating the conviction of the appellee for second degree felony murder. The appellant, State of Washington (hereinafter the “State”), raises on appeal the issues of (1) whether or not the information by which the appellee was charged is sufficient to sustain the appel-lee’s conviction for second degree felony murder, and (2) whether the failure of the appellee to attack the sufficiency of the information prior to trial barred federal habeas relief.

FACTUAL BACKGROUND

Appellee, Charles Kreck, was convicted of second degree felony murder after a non-jury trial in Superior Court for Spokane County, Washington. The Washington Court of Appeals reversed the conviction.¹ On petition of the State, the Washington Supreme Court reversed the decision of the Court of Appeals, affirming the trial court’s decision. State v. Kreck, 86 Wash.2d 112, 542 P.2d 782 (1975).

Kreck filed a petition for collateral review with the Washington Court of Appeals, which was denied on August 12,1977.

In September of 1977, Kreck filed a petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Eastern District of Washington. Having concluded that Kreck had exhausted the remedies available to him under Washington law, the District Court appropriately reviewed the merits of the petition. On July 30, 1980, the District Court granted Kreck’s petition, by vacating the judgment of the trial court, upon the ground that the information with which Kreek was initially charged was constitutionally defective.²

The conviction of Kreck was based on the felony murder statute of the State of Washington under which a person may be found guilty of murder in the second degree if, while he is engaged in a felony, he kills another human being.³ Under Washington law, second degree assault is a felony. Section 9.01.020 Revised Code of Washington (hereinafter “RCW”). Thus, a killing in the course of the commission of a second degree assault can serve as the basis for a second degree felony murder conviction. The second degree assault statute, in turn, sets forth seven situations in which conduct by a defendant constitutes second degree assault.⁴

Kreck, in his petition for Writ of Habeas Corpus before the federal district court, contended that the information filed by the State failed to specifically set forth which subsection of the second degree assault statute he violated.⁵ Kreek contended this failure deprived him of due process of law.

The State countered by contending that the inclusion of the term “chloroform” in the information necessarily limited the violation to subsection 2, § 9.11.020, RCW. As such, the State maintained, the information sufficiently apprised Kreck of the charge he would have to be prepared to meet (i.e., second degree murder during the commission of a felony, namely, second degree assault by administering chloroform). Although the State acknowledges that, to prove second degree assault under subsection 2 of the statute, the chloroform must be used in the commission of another crime and that no underlying crime was identified in the information, the State contends that such identification was not required and, moreover, that an underlying crime, burglary, was proven by the facts adduced at trial.⁶

The federal district court, apparently accepting the State’s proposition that the violation was limited to subsection 2 of the second degree assault statute, still found the information fatally defective on two grounds. First, the court held that the information failed to allege two of the essential elements of the second degree assault charge (i.e., that the conduct of Kreck (1) enabled and assisted him to (2) commit any crime). Second, the court held that the information failed to identify the specific “any crime” (i.e., burglary) which was assisted by the second degree assault. Noting that the resolution of the question of the sufficiency of any information presents a practical question which is to be answered by a practical inquiry,⁷ the federal district court concluded that under federal law,⁸ the information at issue was fatally defective since it did not give Kreck adequate notice of the charges against him to enable him to adequately prepare his defense. Accordingly, the district court concluded that the Washington Supreme Court improperly affirmed a conviction for an offense which was not sufficiently charged. Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979).

DISCUSSION

I. Sufficiency of the Information

Resolution of the question of whether the information at issue is sufficient to satisfy the prescriptions of the due process clause of the fourteenth amendment must begin with an analysis of what is required in order for a charging document to meet the precepts of fundamental fairness upon which the due process clause is bottomed. The requirement that any charging document must furnish a defendant with a sufficient description of the charge against him has long been recognized to serve a dual function, namely (1) to enable the defendant to adequately prepare his defense and (2) to enable him to plead double jeopardy against a second prosecution.⁹ It is the former of these functions with which resolution as to the sufficiency of the charging instrument at issue lies, and upon which the decision of the federal district court which we are asked to review was founded.

We agree with the conclusion of the federal district court that the information was in fact insufficient in that it failed to serve the function that the law intended it to, namely, providing Kreck with adequate notice of the charges against him so as to enable him to prepare his defense.

The practical inquiry mandated by Williamson v. United States, 310 F.2d 192 (9th Cir.1962), leads to the inescapable conclusion that the failure to set forth the “any crime” on which the second degree assault under subsection 2 was founded prejudiced Kreck in the preparation of his defense. The principle of fundamental fairness, essential to the concept of due process of law, dictates that the defendant in a criminal action should not be relegated to a position from which he must speculate as to what crime he will have to meet in defense.

The State seeks to impress upon this court that to require the inclusion in the information of the underlying crime on which the second degree assault is founded would institute a return to code pleading which was abolished by the Washington legislature in 1881. Section 10.01.030, RCW. In essence, the State maintains that to require it to set forth the underlying crime is to require it to allege a matter of proof. We concur with the trial judge of the district court in rejecting this contention as merely begging the issue at hand. The simplification of the technical requirements of common law pleading was not intended to force a defendant to trial without informing him of the crime charged against him. We cannot accept the proposition that his attempt to simplify the rules of pleading was in any way intended to undermine the fundamental rights of a criminal defendant.

Support for this conclusion, that a defendant facing a second degree murder charge which rests upon a second degree assault must be notified of the underlying crime on which the second degree assault is founded, is provided by the Washington Supreme Court. In evaluating the state’s second degree assault statute in State v. Royse, 66 Wash.2d 552, 403 P.2d 838 (1965), that court held that a defendant charged with second degree assault under subsection 6 of the statute, § 9.11.020(6), RCW, which like subsection 2 involves intent to commit an underlying crime, must be made aware of the underlying crime on which the assault is founded. It cannot be credibly argued, as the State attempts to do in the present case, that the State may forgo this requirement when second degree assault is utilized in conjunction with the felony murder rule.

Although the federal district court’s conclusion that the information in question was defective should be affirmed, on the basis set forth in the above discussion, we feel compelled to comment on the State’s proposition (which was accepted by the federal district court) that the inclusion of the term “chloroform” in the information necessarily limited the violation at issue to subsection 2 of the second degree assault statute, § 9.11.020, RCW. Analysis of the second degree assault statute reveals that the information as presented could arguably stand for the proposition that the defendant’s violation fell within the purview of either subsection 1 or subsection 2 of that statute.¹⁰ As such, Kreck was presented with the dilemma of preparing a defense to the second degree assault upon which the felony murder was founded without knowing whether the State would proceed on the theory that the second degree assault was founded on the “intent to injure” under subsection 1 or “to enable or assist himself ... to commit any crime” under subsection 2. To allow the State to charge in such nebulous terms and proceed to trial on either of these theories would in itself be violative of the principle of fundamental fairness on which due process of law is bottomed. The practical inquiry as to the sufficiency of the information, as mandated by Williamson, supra, reveals that on this basis alone, Kreck would not have received the requisite notice to adequately prepare his defense. The information simply failed to adequately notify Kreck of the charge he should have been prepared to meet.¹¹

II. Procedural Default

Charles Kreck was convicted on the basis of a constitutionally repugnant charging instrument. Nonetheless, the State contends that Kreck is barred, under the principle of waiver as espoused in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), from obtaining federal habeas review via 28 U.S.C. § 2254.

Kreck first challenged the sufficiency of the information in his direct appeal to the Washington Court of Appeals. See State v. Kreck, 12 Wash.App. 748, 532 P.2d 285 (1975). The issue was subsequently presented, without success, to the Washington Supreme Court. See State v. Kreck, 86 Wash.2d 112, 542 P.2d 782 (1975). Kreck again raised the issue of sufficiency, but to no avail, in his petition for collateral review. The Washington Court of Appeals specifically relied on the fact that the Washington Supreme Court had addressed and disposed of the sufficiency of the information issue in Kreck’s direct appeal when it denied his collateral petition. In the Matter of Kreck, No. 2465 — III (Wash.App. decided August 12, 1977). The District Court concluded that Kreck had exhausted his state remedies on this question. Finally, both parties have now expressly agreed in submissions to this court that Kreck challenged the constitutional sufficiency of the charging instrument in every available state appellate forum.

The dissent, arguing that Kreck failed to raise the sufficiency of the information issue in his state appeals, looks only to ambiguous language in the Washington Courts’ published opinions and ignores what the record before us shows Kreck raised and the state courts considered. The dissent is therefore factually mistaken when it asserts that Kreck is challenging the sufficiency of the information for the first time in these proceedings. We are acutely aware of the rule espoused by this court that a state cannot concede exhaustion. Jackson v. Cupp, 693 F.2d 867 (9th Cir.1982). The present situation, however, is distinct from the bare concession made by the state in Jackson. The record in this matter substantiates the conclusion that the Washington Supreme Court was presented with a fair opportunity to rule on the merits of Kreck’s claim regarding the sufficiency of the information. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1970); Cartwright v. Cupp, 650 F.2d 1103 (9th Cir.1981), cert. denied, 455 U.S. 1023, 102 S.Ct. 1722, 72 L.Ed.2d 142 (1982).

The State asserts that Washington’s contemporaneous objection procedure, at the time of Kreck’s trial, required that challenges to the sufficiency of a charging instrument be made at the trial level. The failure of Kreck to challenge the information with which he was charged, the State submits, represents an “independent and adequate” state ground for the state court judgment against Kreck, as recognized by the United States Supreme Court in Sykes. 433 U.S. at 86-87, 97 S.Ct. at 2506-2507. We disagree.

The rationale of Sykes is premised on comity and respect for the function of procedural rules in our judicial system. 433 U.S. at 88-90, 97 S.Ct. at 2507-2508. Accordingly, “... if neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim.” Ulster County Court v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979); see also Maxwell v. Sumner, 673 F.2d 1031 (9th Cir.), cert. denied, — U.S. —, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982). Restated, if a particular state has no clear policy barring review of constitutional claims not previously asserted, the rule of Sykes is simply inapplicable, since the principles of comity and finality, on which the rule is bottomed, are not fostered by federal non-intervention.

On two occasions, this court has rejected a state's invocation of the Sykes rule, upon the ground that the state procedural policy at issue did not qualify as an “independent and adequate” state ground for denying a federal habeas petitioner’s claim. See Maxwell v. Sumner, supra; Quigg v. Crist, 616 F.2d 1107 (9th Cir.), cert. denied, 449 U.S. 922, 101 S.Ct. 323, 66 L.Ed.2d 150 (1980). We are again presented with a situation where a state’s reliance on the Sykes rule is misplaced.

We conclude that there is no support either in the law of Washington or the history of this litigation for an inference that the Washington courts decided Kreck’s constitutional claim on an independent and adequate state procedural ground that would bar federal intervention via 28 U.S.C. § 2254. Washington has no clear contemporaneous objection policy that applies in this case.

We agree with the conclusion of the District Court in this matter, that the procedural rules of the State of Washington do not mandate that constitutional challenges to the sufficiency of a charging instrument be made before trial. Rather, Washington’s contemporaneous objection procedure, at the time of Kreck’s trial, allowed for errors of constitutional dimension to be raised on appeal even though they were not brought to the attention of the trial court. Section 7.36.130(1), RCW; Rule § 2.5(a) of The Rules of Appellate Procedure of the State of Washington (“a party may raise the following claimed errors for the first time in the appellate court: ... (3) manifest error affecting a constitutional right”). Our conclusion, in this respect, is clearly in accord with the decisional law extant in the State of Washington on this subject. See In re Myers, 91 Wash.2d 120, 587 P.2d 532 (1978), cert. denied sub nom. Myers v. Washington, 442 U.S. 912, 99 S.Ct. 2828, 61 L.Ed.2d 278 (1979) (“In cases on direct appeal, we have uniformly reviewed questions of constitutional dimension even though they were not raised at trial”; 587 P.2d at 534); State v. Ruzicka, 89 Wash.2d 217, 570 P.2d 1208 (1977) (because constitutional questions existed, Washington Supreme Court could hear a claim even though it was not raised at trial; 570 P.2d at 1210); see also State v. Rhinehart, 92 Wash.2d 923, 602 P.2d 1188 (1979); State v. Peterson, 73 Wash.2d 303, 438 P.2d 183 (1968).

Moreover, the Washington Supreme Court, in accordance with the foregoing statutory and decisional law, addressed the merits of Kreck’s contention regarding the sufficiency of the information at issue, rather than disposing of the issue on procedural grounds.

The case falls squarely within the purview of the decision of the United States Supreme Court in Ulster County v. Allen, supra, and this court’s decision in Quigg v. Crist, supra. Accordingly, we reject the State’s invocation of the Sykes rule.

III. Remaining Issues Raised

In addition to the issues raised by the State, the briefs submitted to this court by the respondent and amicus curiae have addressed extensively the propriety of (1) the second degree felony murder statute, § 9.48.040, RCW, of the State of Washington and (2) the admission of hearsay evidence pursuant to the business records exceptions, which evidence goes to the heart of crucial issues on trial.

Since the federal district court’s decision must be affirmed on the basis of the inadequacy of the information at issue, this court need not and should not address those constitutional issues. Life Insurance Co. of North America v. Reichardt, 591 F.2d 499 (9th Cir.1979); Taylor v. United States, 320 F.2d 843 (9th Cir.1963).

AFFIRMED.

1 . The Washington Court of Appeals reversed on the ground that the defendant’s constitutional right to confront the witnesses against him under the sixth amendment to the United States Constitution had been violated. State v. Kreck, 12 Wash.App. 748, 532 P.2d 285 (1975).

2 . The petition asserted three grounds:

1. The information did not adequately inform the petitioner of the charge, thus depriving him of due process of law.

2. The admission of a laboratory report blocked the defendant’s statutory and constitutional right of confrontation.

3. The felony murder statute of the State of Washington which allows the utilization of second degree assault as the underlying felony in a second degree felony murder is unconstitutional.

3 . It should be noted that the Washington legislature adopted a new criminal code, effective July 1, 1976. 1975 Wash.Laws §§ 9A.04.010 et seq. That code is codified in Title 9A of the Revised Code of Washington. All references in this opinion, however, are to the code in effect and therefore applicable to Kreck’s trial in 1973. The felony murder statute in effect in 1973 provided inter alia:

RCW § 9.48.040 MURDER IN THE SECOND DEGREE. The killing of a human being, unless it is excusable or justifiable, is murder in the second degree when—

(1) Committed with a design to effect the death of the person killed or of another, but without premeditation; or

(2) When perpetrated by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a felony other than those enumerated in RCW § 9.48.030.

Murder in the second degree shall be punished by imprisonment in the state penitentiary for not less than ten years.

4 . RCW § 9.11.020 ASSAULT IN THE SECOND DEGREE. How punished. Every person who, under circumstances not amounting to assault in the first degree—

(1) With intent to injure, shall unlawfully administer to or cause to be taken by another, poison or any other destructive or noxious thing, or any drug or medicine the use of which is dangerous to life or health; or

(2) With intent thereby to enable or assist himself or any other person to commit any crime, shall administer to, or cause to be taken by, another, chloroform, ether, laudanum or any other intoxicating narcotic or anesthetic; or

(3) Shall wilfully inflict grievous bodily harm upon another with or without a weapon; or

(4) Shall wilfully assault another with a weapon or other instrument or thing likely to produce bodily harm; or

(5) Being armed with a deadly weapon shall wilfully assault another with a whip; or

(6) Shall assault another with intent to commit a felony, or to prevent or resist the execution of any lawful process or mandate of any court officer, or the lawful apprehension or detention of himself or another person; or

(7) While hunting any game or other animals or birds, shall shoot another;

Shall be guilty of assault in the second degree and be punished by imprisonment in the state penitentiary for not more than ten years or by a fine of not more than one thousand dollars, or by both.

5 . The information contained the following language:

Comes now the Prosecuting Attorney in and for Spokane County, Washington, and charges the defendant, Charles Kreck, with the crime of Second-Degree Murder, committed as follows: That the defendant, Charles Kreck, in the County of Spokane, State of Washington, on or about the 14th day of June, 1971, then and there being, did then and there wilfuly and unlawfully, without excuse or justification, and while engaged in the commission of the crime of Assault in the Second Degree, make an assault upon Jacosa Kreck, and did administer to, and cause to be taken by, the said Jacosa Kreck, chloroform, and as a result thereof the said Jacosa Kreck did then and there, and on or about the 14th day of June, 1971, die.

6 . The Washington Supreme Court in addressing the defendant’s contention that the State failed to prove the crime charged, held that the State did in fact prove the crime of second degree burglary.

7 . Williamson v. United States, 310 F.2d 192 (9th Cir.1962).

8 . The constitutional sufficiency of an information is determined under federal law. Paterno v. Lyons, 334 U.S. 314, 320, 68 S.Ct. 1044, 1047, 92 L.Ed. 1409 (1948).

9 . Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Gordon, 641 F.2d 1281 (9th Cir.), cert. denied, 454 U.S. 859, 102 S.Ct. 312, 70 L.Ed.2d 156 (1981); United States v. Bohonus, 628 F.2d 1167 (9th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980); United States v. Cecil, 608 F.2d 1294 (9th Cir.1979).

10 . See footnote 4, supra.

11 . See footnote 9, supra.