State v. Kjorsvik ( 1991 )

Utter, J.

(dissenting) — I concur in the majority's resolution of Issue One. However, I dissent in the majority's conclusion that the court should adopt a stricter standard of review for challenges to the sufficiency of a charging document³⁸ first raised on appeal. That conclusion ignores past precedent of this court, undercuts the importance of the essential elements rule, and denies defendants due process.

The majority adopts a 2-prong test. The first prong asks whether "the necessary facts appear in any form, or by fair construction can they be found, in the charging document". Majority opinion, at 105. In other words, the majority looks to see if the words of the charging document can in any way be construed to include all of the essential elements of the crime. That interpretation has been implicitly rejected many times by this court.

The essential elements rule has always been the law of this state. State v. Leach, 113 Wn.2d 679, 688, 782 P.2d 552 (1989). The first Washington case to overturn a conviction due to the insufficiency of the charging document was Leonard v. Territory, 2 Wash. Terr. 381, 7 P. 872 (1885). The defendant in Leonard was convicted of murder. The prosecutor charged Leonard with "purposely. . . deliberately] and [with] premeditated malice" assaulting and shooting the victim. 2 Wash. Terr, at 390. The charging document did not, however, specifically allege that the killing was done purposely and with premeditated malice. In holding that the indictment was insufficient to sustain a charge of minder, the court specifically rejected an argument that the missing element could be inferred from the language of the indictment.

Under our laws an indictment must be direct and certain, both as regards the crime charged and as regards the particular circumstances thereof, when they are necessary to constitute a complete crime. The circumstances of purpose and malice, as ingredients of the killing, are necessary to constitute the complete crime of murder . . ..

... It is true that our statute . . . abolishes the embarrassing and injurious technicalities of the common law; but it also declares, in the interest both of the public and of the party accused, that the act or omission charged as crime shall be "clearly and distinctly set forth, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended."

2 Wash. Terr, at 392.³⁹

Since 1885 the courts of this state have consistently refused to liberally construe the language of a charging document to find a missing essential element. Blanton v. State, 1 Wash. 265, 24 P. 439 (1890) (issue raised for first time on appeal); State v. Dengel, 24 Wash. 49, 63 P. 1104 (1901) (failure to allege property of another in robbery charge, raised for first time after verdict); State v. Morgan, 31 Wash. 226, 71 P. 723 (1903) (failure to allege property of another in larceny charge); State v. Hall, 54 Wash. 142, 102 P. 888 (1909) (robbery); State v. Catalino, 118 Wash. 611, 204 P. 179 (1922); Seattle v. Jordan, 134 Wash. 30, 235 P. 6 (1925); Seattle v. Proctor, 183 Wash. 299, 48 P.2d 241 (1935); State v. Taes, 5 Wn.2d 51, 104 P.2d 751 (1940); State v. Unosawa, 29 Wn.2d 578, 188 P.2d 104 (1948) (raised for first time on appeal); State v. Moser, 41 Wn.2d 29, 246 P.2d 1101 (1952) (raised for first time on second appeal); State v. Royse, 66 Wn.2d 552, 403 P.2d 838 (1965); State v. Holt, 104 Wn.2d 315, 704 P.2d 1189 (1985) (raised for first time on appeal); State v. Leach, 113 Wn.2d 679, 782 P.2d 552 (1989) (raised for first time on appeal). Thus, it has always been the rule in this state that the failure to state an element of the offense renders the charging document constitutionally defective and subject to dismissal. Leach, 113 Wn.2d at 687; Holt, 104 Wn.2d at 321.

In many of the cases cited above the defendant first challenged the charging document on appeal. Yet, in none of those cases did the court apply a stricter standard of review. Indeed, had the courts in those cases applied the liberal rule the majority adopts today, they would probably have reached a different conclusion regarding the sufficiency of the charging documents.

The majority's new rule also ignores other precedent firmly established in this state. First, this court has long held there is no presumption of validity for a charging document that fails to state all of the elements of an offense. State v. Morton, 83 Wn.2d 863, 866, 523 P.2d 199 (1974); State v. Moser, 41 Wn.2d 29, 31, 246 P.2d 1101 (1952). Yet the majority's rule that the charging document is to be liberally construed in favor of validity is just such a presumption.

Second, in actually applying the test, the majority looks at the jury instructions to determine whether the omission of the element prejudiced the defendant. Majority opinion, at 111. This ignores our long-standing rule that a jury instruction cannot cure a defective charging document. Holt, 104 Wn.2d at 322; State v. Unosawa, 29 Wn.2d at 586.

Finally, the majority fails to explain how its holding in this case can be distinguished from our holdings in the "common understanding" cases. The common understanding rule is a 2-part test for determining the sufficiency of the charging document. First, the court looks to see if all of the elements of the offense are actually charged. Second, if all of the elements are charged, then the court looks to see if a person of common understanding can, from the document's allegations, discern the nature of the charge. Unosawa, 29 Wn.2d at 589.

The rule the majority adopts today asks whether the words of the charging document "would reasonably apprise an accused of the elements of the crime charged." Majority opinion, at 109. Since the defendant is presumed to be innocent, and therefore to know nothing of the charge, we must ask this question from the perspective of the common person. Note, Indictment Sufficiency, 70 Colum. L. Rev. 876, 894 (1970). Therefore, the majority's interpretation of the essential elements rule is essentially the same as our common understanding rule. Decisions of this court and of the Court of Appeals make it clear, however, that the common understanding rule does not apply where an essential element of the offense is missing from the charging document. State v. Moser, 41 Wn.2d at 32; State v. Ternan, 32 Wn.2d 584, 587, 203 P.2d 342 (1949); State v. Unosawa, supra; State v. Smith, 49 Wn. App. 596, 600 n.1, 744 P.2d 1096 (1987), review denied, 110 Wn.2d 1007 (1988).

Before applying the common understanding rule, we must first determine whether or not the information charges all of the . . . elements of the particular crime involved. Upon being satisfied as to this fact, we can then, and not until then, look to the information as a whole and determine whether a man of common understanding can know the exact nature of the charges against him. . . .

(Italics mine.) Unosawa, 29 Wn.2d at 589. Similarly, the liberal interpretation rule adopted by the majority today should only apply where it is first determined that the charging document actually alleges all of the essential elements of the offense. Since the information in this case does not actually allege the "intent to steal" element of robbery, we should not apply the liberal interpretation rule.

Interpreting the language of the information liberally in order to fill in a missing element of the offense undercuts the importance of the essential elements rule. The majority states that "[t]he primary goal of the 'essential elements' rule is to give notice to an accused of the nature of the crime that he or she must be prepared to defend against." Majority opinion, at 101.

Historically, however, the essential elements rule was distinct from the notice requirement. As our Court of Appeals recognized:

The constitutional principle is generally formulated in terms of due process, i.e., an accused's right to be informed with reasonable certainty of the nature of the charges in order to prepare a defense and to plead a judgment as a bar to any further prosecution for the same offense. . . .

Given the harsh consequences of a violation, however, it is evident that the essential elements rule constitutes a category sui generis and rests on principles other than notice alone. Even in situations where the notice function has been satisfied, i.e., the defendant has actual notice of the elements of the charged crime and has not been prejudiced at trial by the defective charging document, the Holt rule mandates automatic dismissal.

State v. Leach, 53 Wn. App. 322, 328-29, 766 P.2d 1116, aff'd, 113 Wn.2d 679, 782 P.2d 552 (1989). See also State v. Strong, 56 Wn. App. 715, 720-21, 785 P.2d 464 (Petrich, J., dissenting), review denied, 114 Wn.2d 1022 (1990).

Leading commentators also recognize the distinction between the essential elements rule and notice. As two such commentators note, a charging document, to be sufficient, must:

(1) inclu[de] . . . the elements of the offense; (2) provid[e] adequate notice as to the charge; and (3) provid[e] protection against double jeopardy.

2 W. LaFave & J. Israel, Criminal Procedure § 19.2(b), at 445 (1984) (hereinafter LaFave & Israel). Thus, the essential elements rule is considered separate from, and serves a different purpose than, the notice requirement. LaFave & Israel § 19.2(b), at 449. LaFave and Israel describe the functions of the essential elements rule as facilitating judicial review, allowing the trial court to assess the sufficiency of the prosecution's case prior to trial, and as reflecting the historic importance of the charging document in both initiating the proceedings and providing the formal basis for the judgment. LaFave & Israel § 19.2(b), at 446-50.

Another commentator describes the function of the essential elements rule as providing the court with sufficient information to determine whether the facts are "sufficient in law to support a conviction, if one should be had.'" 1 C. Wright, Federal Practice § 125, at 363 (2d ed. 1982) (quoting United States v. Cruikshank, 92 U.S. 542, 558, 23 L. Ed. 588 (1876)). While Wright notes that this role of the essential elements rule is not often cited, he asserts that it is still important. 1 C. Wright § 125, at 363. See also Russell v. United States, 369 U.S. 749, 763-64, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962); United States v. Bohonus, 628 F.2d 1167, 1173 (9th Cir.), cert. denied, 447 U.S. 928 (1980).

Professor Torcia describes this function as assuring that the

accusation [is] legally sufficient, i.e., it must contain facts which in law amount to an offense, and which, if proved, would establish prima facie the accused's guilt of such offense.

2 C. Torcia, Wharton's Criminal Procedure § 258, at 61 (12th ed. 1975) (hereinafter Torcia). He also notes that the essential elements rule allows the trial court to "determine the evidence which is admissible and the judgment which should be pronounced." (Footnote omitted.) Torcia § 260, at 67.

The rule the majority adopts today ignores these historical, and still vital, functions of the essential elements rule. Instead, the majority would limit the essential elements rule to serving merely as a notice requirement. While the essential elements rule is a key component of the notice requirement, the rule also serves other important functions.

Even if the majority were correct in assigning this limited role to the essential elements rule, there are several problems with its analysis. The majority acknowledges, as it must, that the essential elements of an offense must be alleged "directly and with certainty." Majority opinion, at 100. Our cases establish that failure to allege an essential element is a constitutional defect. Leach, 113 Wn.2d at 687; Holt, 104 Wn.2d at 322. The majority never makes it clear, however, why a constitutional defect should be treated differently just because it is raised for the first time on appeal.

The majority offers two possible reasons for adopting the stricter standard of review. First, the majority argues that without the different standard of review

the defendant has no incentive to timely make such a challenge, since it might only result in an amendment or a dismissal potentially followed by a refiling of the charge.

Majority opinion, at 103. What the majority fails to realize, however, is that nothing in its proposed rule provides the defendant any additional incentive for raising the challenge prior to trial. Such a challenge will still only result in "an amendment or dismissal potentially followed by a refiling of the charge." The defendant who recognizes the defect prior to trial still has nothing to gain by raising a preverdict challenge. The defendant who honestly does not realize the charging document is defective, however, will be penalized by the higher standard of review. Thus the majority's rule penalizes the unwary while doing nothing to eliminate the "sandbagging" problem the rule allegedly addresses.

The prejudice prong of the majority's test does nothing to change this unjust result. Under the majority's test the reviewing court looks to see if the words of the charging document "reasonably apprise an accused of the elements of the crime charged." Majority opinion, at 109. In other words, did the charging document give the defendant notice of all the elements? If the court concludes the charging document gave the defendant notice of all the elements, the majority then looks to see "whether the defendant . . . was nonetheless prejudiced by any vague or inartful language in the charge." Majority opinion, at 111. The majority would have us believe that this prejudice inquiry provides additional protection to the defendant. Yet, in reality, it is difficult to imagine a situation where a court would find that the defendant had actual notice and yet was still prejudiced. If the charging document did not give the defendant notice of an element, then the court never looks at the prejudice question. If the charging document did give the defendant actual notice of all the elements, then how could the defendant ever show prejudice?

The second reason the majority offers for adopting the rule is to further the "orderly administration of criminal justice". Majority opinion, at 105 (quoting State v. Majors, 94 Wn.2d 354, 358, 616 P.2d 1237 (1980)). In fact, the majority rule does not further the orderly administration of justice. As noted above, the rule does not provide defendants any incentive to make earlier challenges to the sufficiency of the charging document. Given the time constraints and intricacies of preparing for trial, it is likely that most such challenges will still be raised for the first time on appeal. Our previous rule, however, required dismissal if the charging document failed to allege an essential element of the offense. Under that rule, the prosecution has a great deal of incentive to see to it that the charging document is constitutionally sufficient in the first place. This should result in fewer appeals, since the prosecutor will presumably be more careful if he or she knows an error could result in dismissal of the charge. Therefore, our original rule better serves the orderly administration of justice.

A dismissal rule does place a greater burden on the prosecutor. This is fair, however, since it is the prosecutor who is responsible for assuring that the charging document is constitutionally sufficient. All of these cases are, after all, the result of prosecutorial error in the charging process. Therefore, the burden on correcting that error should rest with the prosecutor. As the majority notes at footnote 13, that is not a heavy burden. All the prosecutor has to do is see to it that all of the elements listed in the respective "to convict" instructions set out in the Washington Pattern Jury Instructions are alleged in the charging document.

The majority's rule also places a greater burden on the appellate courts. Under the test enunciated by the majority, the reviewing court will (1) look to see if all of the elements of the offense are actually charged; if not, then (2) examine the words used to see if they can be construed as giving reasonable notice of the missing element; and, if so, (3) determine from the record whether the vague wording of the charging document actually prejudiced the defendant. Under our old rule, however, the reviewing court merely looked to see if the charging document actually alleged all of the essential elements of the offense. Thus, the old rule better serves the interests of judicial economy.

The majority cites numerous federal cases as justification for adopting the stricter standard. As the discussion above makes clear, however, this court has never applied a stricter standard in such situations. The majority offers no reason for ignoring our own precedent in favor of the federal rule. Furthermore, the majority does not discuss the fact that our court rules make no reference to a higher standard of review, and yet those rules specifically allow appellants to raise constitutional issues for the first time on appeal. RAP 2.5(a)(3).

Finally, in adopting the federal rule, the majority ignores a fundamental precept of that rule. In enunciating the rule the majority now adopts, the Supreme Court wrote:

The rigor of old common law rules of criminal pleading has yielded, in modem practice, to the general principle that formal defects, not prejudicial, will be disregarded.

(Italics mine.) Hagner v. United States, 285 U.S. 427, 431, 76 L. Ed. 861, 52 S. Ct. 417 (1932). Since that time the Court has consistently held that convictions are not to be overturned based on "minor and technical deficiencies" in the form of the charging document. Smith v. United States, 360 U.S. 1, 9, 3 L. Ed. 2d 1041, 79 S. Ct. 991 (1959). Thus, the liberal interpretation rule applies only to matters of form, not of substance. Carlson v. United States, 296 F.2d 909, 912 (9th Cir. 1961); United States v. Tornabene, 222 F.2d 875, 878 (3d Cir. 1955). See also LaFave & Israel § 19.2, at 442. The omission of an essential element, however, is more than just a technicality, and therefore requires reversal. United States v. Wabaunsee, 528 F.2d 1, 3 (7th Cir. 1975).

This is especially true where the missing element goes to mens rea. In Henderson v. Morgan, 426 U.S. 637, 49 L. Ed. 2d 108, 96 S. Ct. 2253 (1976), the Court invalidated a guilty plea where the defendant was never informed that intent to cause death was an element of second degree murder. The Court noted that the defendant's attorney was "certainly" familiar with the intent requirement, and the Court assumed the defendant would have pleaded guilty even if he had been told of the element. 426 U.S. at 644 n.1. Nonetheless, the Court overturned the guilty plea because

"real notice of the true nature of the charge against him, [is] the first and most universally recognized requirement of due process."

(Italics mine.) 426 U.S. at 645 (quoting Smith v. O'Grady, 312 U.S. 329, 334, 85 L. Ed. 859, 61 S. Ct. 572 (1941)). The Court also noted that, while a description of every element may not always be necessary, "intent is such a critical element of the offense" that notice of that element is always required. 426 U.S. at 647 n.18.

Thus, the intent to steal element of robbery must be set out in the charging document. Omission of the mental element of the crime can never be considered the kind of technical error to which the rule of liberal construction should be applied. This is so because notice of the essential elements, to be constitutionally sufficient, must be the "real notice" contemplated in Henderson v. Morgan, supra.

The test the majority adopts today does nothing to assure that the defendant is provided with real notice of all of the essential elements of the offense. Instead, the majority imposes a constructive notice that is constitutionally insufficient under both the federal and state constitutions. In so doing the majority ignores years of Washington case law, undermines the import of the essential elements rule, and denies the defendant due process. For that reason, I must dissent.

Johnson, J., concurs with Utter, J.

38 The majority excludes misdemeanor citations from its holding. Majority opinion, at 97 n.l. I note, however, that the essential elements rule applies to misdemeanor citations. Seattle v. Hein, 115 Wn.2d 555, 799 P.2d 734 (1990). Therefore, the majority's interpretation of that rule should also apply to citations.

39 The prosecutor contended that this objection "should have been taken by demurrer, and not by motion in arrest of judgment." 2 Wash. Terr, at 387. Therefore, it appears the challenge to the sufficiency of the indictment was raised for the first time after the verdict.