State v. Barnes

• Decision Date: 28 March 2002
• Docket Number: No. 71329-4.,71329-4.
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. David Jeffrey BARNES, Petitioner.

43 P.3d 490

146 Wash.2d 74

STATE of Washington, Respondent, v. David Jeffrey BARNES, Petitioner.

No. 71329-4.

Supreme Court of Washington, En Banc.

Argued July 28, 2000.

Decided March 28, 2002.

Nielsen, Broman & Associates, Eric J. Nielsen, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, James Morrissey Whisman, Deputy County Prosecutor, for Respondent.

SMITH, J.

Petitioner David Jeffrey Barnes seeks discretionary review of a decision of the Court of Appeals, Division One, which affirmed his conviction for resisting arrest as charged in an additional count in an amended information granted before trial by the King County Superior Court, but not filed with the clerk of the court. Petitioner argues that failure by the State to file the amended information which added the resisting arrest charge divested the King County Superior Court of subject matter jurisdiction over that count. We granted review. We affirm.

QUESTION PRESENTED

The question presented in this case is whether a superior court loses subject matter jurisdiction when the State does not file an amended information adding a second count, even though it was approved by the court and was used by the court as the case proceeded to trial before a jury which convicted Petitioner of the second count charged in the amended information.

STATEMENT OF FACTS

On May 3, 2000 Petitioner David Jeffrey Barnes was charged by information in the King County Superior Court with assault in the third degree.¹ In a pretrial proceeding before the Honorable Michael S. Spearman, at which Petitioner and his counsel were present on June 28, 2000, the State moved to amend the information to add as a second count a charge of resisting arrest.² The motion was granted by Judge Spearman.³ Petitioner at that time was arraigned on the amended information and entered a plea of "not guilty" to both counts.⁴ The amended information is not in the record. Respondent State merely states the "amended information has been lost" without any explanation.⁵

Trial began in the King County Superior Court before the Honorable William L. Downing on July 12, 2000.⁶ Immediately prior to trial, Judge Downing in open court asked Respondent State whether the information had been amended.⁷ The Deputy Prosecuting Attorney handed to the court an informal copy of the amended information and responded "[i]t was amended on the 30th of June [sic]. I just wanted the Court to have it before it in case it hadn't caught up with the court file."⁸ The State indicated that the original information charging assault in the third degree and the amended information adding the resisting arrest charge as Count II related to different officers.⁹

At trial, Seattle Police Officer Ella Elias testified that at about 8:00 P.M. on April 30, 1999, while in a police vehicle patrolling the 200 block of Yesler Way in downtown Seattle, she observed a group of five or six male persons sitting on a wall alongside a fountain.¹⁰ As she approached, driving her vehicle onto the sidewalk, several of the men walked off in different directions, but Petitioner Barnes and another person remained sitting along the wall.¹¹ She stated that Petitioner handed a "crack cocaine pipe" to the other man who then sat up, walked away and proceeded up Third Avenue.¹² Petitioner then stood up, walked away, and leaned against the Metro bus tunnel.¹³ Officer Elias approached Petitioner and asked him for identification.¹⁴ She testified that Petitioner replied with obscenities and walked away. As she attempted to grab him, Petitioner struck Officer Elias in her shoulder with his fist.¹⁵ As Petitioner started to jog away, Officer Elias reached to restrain him. Petitioner again swung at her, but she blocked the blow with her left hand.¹⁶

Officer Elias radioed for assistance.¹⁷ Police Officers Christopher Snyder and Patricia Manning responded and confronted Petitioner.¹⁸ Officer Snyder pushed him to the ground when he did not respond to their arrest instructions.¹⁹ Officer Manning stated that Petitioner tried to get away, twisting and turning while the officers attempted to subdue him, and caused her and Officer Snyder to collide with serious force.²⁰

Petitioner Barnes testified at trial. He testified that Officer Elias ordered everyone to vacate Pioneer Park where he was standing;²¹ that she approached him and asked for identification, but he did not comply;²² he asked her the reason for her request; and after she did not respond, he told her he would leave the park.²³ Petitioner said Officer Elias followed him and prevented him from leaving the area by walking and standing in front of him as he attempted to walk away;²⁴ that Officer Elias reached for him, but he eluded her and left the area because he was afraid.²⁵

Petitioner testified that police officers alighted from their patrol vehicles and forced him to the ground onto his stomach.²⁶ He stated he did not resist when the officers handcuffed him.²⁷ He said the officers held him down while he was handcuffed, kicked him, and banged his head onto the pavement.²⁸ He also testified that Officer Elias punched him in the face as he sat in the back of a patrol car.²⁹

On July 19, 2000 the jury convicted Petitioner on Count II, the resisting arrest count, but was unable to reach a verdict on Count I, the assault in the third degree count which the court later dismissed with prejudice. On July 28, 2000 Judge Downing sentenced Petitioner to 90 days in the King County Jail with credit for the 90 days already served.³⁰

Petitioner appealed his conviction to the Court of Appeals, Division One, on August 24, 2000. Relying on State v. Corrado³¹ he argued that the King County Superior Court did not have subject matter jurisdiction over the resisting arrest charge because the State had not filed the amended information with the court.³² The Court of Appeals, in an unpublished per curiam opinion filed July 2, 2001, rejected his argument and affirmed his conviction, citing State v. Franks for the proposition that subject matter jurisdiction is not dependent upon compliance with procedural rules.³³

Petitioner sought review, claiming the decision of the Court of Appeals, Division One, conflicts with the decision of Division Two in Corrado.³⁴ Review was granted on December 4, 2001.³⁵

DISCUSSION

Commencement of a criminal action by filing an information instead of by grand jury indictment is constitutional.³⁶ Whether to file a charge by indictment or information is within the discretion of the prosecuting attorney.³⁷ Indictments are rarely used in Washington courts because grand juries are impaneled only infrequently. The nature and content of an information are governed by Superior Court Criminal Rule (CrR) 2.1 and statutes imposing additional form and content requirements not of consequence in this case.³⁸

CrR 2.1 provides that a criminal proceeding is commenced when the State files an initial pleading either by indictment or information.³⁹ "From the time an action is commenced, the superior court acquires jurisdiction."⁴⁰

The initial information filed in the King County Superior Court on May 3, 2000 is not at issue. The trial court acquired jurisdiction over the criminal proceeding when the State filed that information charging Petitioner with assault in the third degree.⁴¹ The issue we now consider relates to the procedural and jurisdictional consequences of the amended information approved on June 28, 2000 which added Count II, the resisting arrest charge, upon which the jury found Petitioner "guilty." Petitioner focuses on the procedure under which a superior court acquires subject matter jurisdiction upon approval of an amended information.⁴²

CrR 2.1(d) authorizes the court to amend any information "at any time before verdict or finding if substantial rights of the defendant are not prejudiced."⁴³ Amendment to an information may include new charges if completed before trial and no specific prejudice results.⁴⁴ "[T]he primary purpose of [a charging] document is to supply the accused with notice of the charge that [the accused] must be prepared to meet."⁴⁵ An assignment of error challenging a charging document may be raised for the first time on appeal.⁴⁶

Petitioner contends the King County Superior Court was divested of subject matter jurisdiction in this case because the State did not file the amended information with the clerk of the court.⁴⁷ He does not dispute that the trial court acquired subject matter jurisdiction when the initial count charging him with assault in the third degree was filed. But he argues that continuing subject matter jurisdiction by the court depended on the procedural act of filing the court-approved amended information with the clerk of the court and that⁴⁸ failure by the State to do so warrants reversal of his conviction.⁴⁹

In support of his assertion, Petitioner cites State v. Corrado for the proposition that "a superior court acquires subject matter jurisdiction over a criminal action only at such time as an indictment or information is filed."⁵⁰ That is a correct statement of the law as far as it goes. His reliance on Corrado, however, is misplaced. That case is distinguishable from this one. In Corrado, the State filed an information charging Defendant Corrado with attempted murder in the first degree.⁵¹ As the trial date approached, the trial court granted the State's motion to dismiss the charge without prejudice because the State was unable to locate a material witness. Shortly thereafter, the State located the witness and Defendant Corrado was rearraigned. No new information was filed. The case proceeded to trial and the defendant was convicted. The Court of Appeals, Division Two, reversed his conviction, holding that the superior court lost subject matter jurisdiction when the information was dismissed without prejudice. "[T]he superior court acquired jurisdiction when an information was filed.... It lost jurisdiction when the information was...