Kreck v. Spalding, No. 81-3106

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore SCHROEDER and ALARCON; HATFIELD; ALARCON; HOROWITZ; STAFFORD; MUNSON; McINTURFF, C.J., and GREEN
Citation721 F.2d 1229
PartiesCharles KRECK, Plaintiff-Appellee, v. James SPALDING, Defendant-Appellant.
Docket NumberNo. 81-3106
Decision Date13 December 1983

Page 1229

721 F.2d 1229
Charles KRECK, Plaintiff-Appellee,
v.
James SPALDING, Defendant-Appellant.
No. 81-3106.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Aug. 6, 1981.
Decided Dec. 13, 1983.

Page 1230

Victor J. Felice, Mark Vovos, Vovos, Voermans & Murphy, Spokane, Wash., for plaintiff-appellee.

LeRoy C. Kinnie, Chief Deputy Pros. Atty., Spokane, Wash., for defendant-appellant.

Appeal from the United States District Court for the Eastern District of Washington.

Before SCHROEDER and ALARCON, Circuit Judges, and HATFIELD, * District Judge.

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 appellee'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. Sec. 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

Page 1231

ground that the information with which Kreck 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 Kreck contended this failure deprived him of due process of law.

The State countered by contending that the inclusion of the term "chloroform" in

Page 1232

the information necessarily limited the violation to subsection 2, Sec. 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

Page 1233

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, Sec. 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, Sec. 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...

To continue reading

Request your trial
24 practice notes
  • Schwartz v. State, No. SCWC–10–0000199.
    • United States
    • Supreme Court of Hawai'i
    • November 19, 2015
    ...he or she must speculate as to what crime he or she will have to meet in defense." Id. (alterations omitted) (quoting Kreck v. Spalding, 721 F.2d 1229, 1233 (9th Cir.1983) ) (internal quotation marks omitted); see also id. at 73–75, 890 P.2d at 310–12 (characterizing a defective charge as a......
  • Burris v. Farley, No. 3:92cv0755 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 27, 1994
    ...also asserts a claim based on the information. Specifically, the petitioner maintains that "the issue is controlled by Kreck v. Spalding, 721 F.2d 1229 (9th Cir.1983), which holds that an information which affords the State the opportunity to proceed on alternative theories at trial violate......
  • State v. Smith, No. 271PA84
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 4, 1984
    ...the door to the legislative department of government to establish new public records with like probative value.' " Kreck v. Spalding, 721 F.2d 1229, 1243 (9th Cir.1983) (quoting Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465 (1923)). It bears repeating that the exceptions to the hears......
  • Schwartz v. State, No. SCWC–10–0000199.
    • United States
    • Supreme Court of Hawai'i
    • November 19, 2015
    ...he or she must speculate as to what crime he or she will have to meet in defense.” Id. (alterations omitted) (quoting Kreck v. Spalding, 721 F.2d 1229, 1233 (9th Cir.1983)) (internal quotation marks omitted); see also id. at 73–75, 890 P.2d at 310–12 (characterizing a defective charge as a ......
  • Request a trial to view additional results
24 cases
  • Schwartz v. State, No. SCWC–10–0000199.
    • United States
    • Supreme Court of Hawai'i
    • November 19, 2015
    ...he or she must speculate as to what crime he or she will have to meet in defense." Id. (alterations omitted) (quoting Kreck v. Spalding, 721 F.2d 1229, 1233 (9th Cir.1983) ) (internal quotation marks omitted); see also id. at 73–75, 890 P.2d at 310–12 (characterizing a defective charge as a......
  • Burris v. Farley, No. 3:92cv0755 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 27, 1994
    ...also asserts a claim based on the information. Specifically, the petitioner maintains that "the issue is controlled by Kreck v. Spalding, 721 F.2d 1229 (9th Cir.1983), which holds that an information which affords the State the opportunity to proceed on alternative theories at trial violate......
  • State v. Smith, No. 271PA84
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 4, 1984
    ...the door to the legislative department of government to establish new public records with like probative value.' " Kreck v. Spalding, 721 F.2d 1229, 1243 (9th Cir.1983) (quoting Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465 (1923)). It bears repeating that the exceptions to the hears......
  • Schwartz v. State, No. SCWC–10–0000199.
    • United States
    • Supreme Court of Hawai'i
    • November 19, 2015
    ...he or she must speculate as to what crime he or she will have to meet in defense.” Id. (alterations omitted) (quoting Kreck v. Spalding, 721 F.2d 1229, 1233 (9th Cir.1983)) (internal quotation marks omitted); see also id. at 73–75, 890 P.2d at 310–12 (characterizing a defective charge as a ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT