State v. Bell
| Decision Date | 30 September 1988 |
| Docket Number | No. 19785,19785 |
| Citation | 770 P.2d 100 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Steven A. BELL, Defendant and Appellant. |
| Court | Utah Supreme Court |
Thomas D. Roberts, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Paul M. Warner, David J. Schwendiman, Salt Lake City, for plaintiff and appellee.
Steven Bell appeals from a conviction of racketeering by means of drug trafficking. Bell asserts that he was not given sufficiently detailed notice of the charges against him to enable him to prepare a defense. We agree and therefore reverse the conviction and remand for a new trial. We also address several issues which may arise in a subsequent trial.
During 1982 and 1983, Weber County authorities conducted a broad investigation of cocaine trafficking allegedly perpetrated by Molly Kingston and a number of individuals associated with her, including Steven Bell. There was evidence that Bell, who owned a convenience store, trafficked in cocaine on the store premises and deposited drug receipts in the store bank accounts.
A grand jury indicted Bell on racketeering charges pursuant to Utah's "RICE" or "Little RICO" statute, Utah Code Ann. §§ 76-10-1601 to -1608 (Supp.1983). 1 The grand jury also indicted several other individuals associated with the group that prosecutors termed the "Molly Kingston organization." A number of other persons investigated were granted immunity, and some were required to testify against Bell.
Bell was tried before a jury, found guilty of racketeering, and sentenced to one to fifteen years' imprisonment. In a subsequent forfeiture proceeding, for which a jury was waived, the trial judge found that Bell had used his convenience store as a "vehicle of sale" of the cocaine and had invested proceeds of the cocaine dealing in the store. Pursuant to section 76-10-1603 of the Code, the court ordered the forfeiture of the convenience store and the land on which it is located. Pending the outcome of this appeal, service of the prison term was stayed and Bell was allowed to post a bond and continue to possess and operate the store.
Bell raises a plethora of claims. Because of the disposition we make of his appeal, we address only a few of them. Determinative of Bell's appeal is his claim that he was given insufficient notice of the particulars of the charges against him.
The indictment against Bell consisted of a verbatim reprinting of the RICE statute and a simple allegation that Bell had violated the statute sometime between September 1982 and June 1983. Bell complained that the indictment was too vague and requested a bill of particulars. The State initially refused to provide a bill. Bell obtained a court order requiring one, and after much delay, the State provided a bill which Bell then challenged as also being too vague to give him adequate notice of the charge. The State refused to amend the bill of particulars, and the trial court rejected Bell's timely and persistent challenges to the adequacy of the notice he had received.
On appeal, Bell argues that the indictment alone was too vague to give him adequate notice of the charges, that the State's response to his request for a bill of particulars was wholly inadequate, and that the trial court erred in not sustaining his objections on that ground and in refusing to grant a new trial. More specifically, Bell contends that the notice he received was inadequate to inform him of the State's factual allegations as to what constituted an "enterprise" within the meaning of the RICE statute. Because the existence of an "enterprise" is an essential element of RICE crimes, 2 Bell argues that the inadequate notice given on this point prejudiced his ability to prepare a defense, thus denying him the right to notice guaranteed by the Utah Constitution 3 and by Utah Rule of Criminal Procedure 4. 4
The State argues that Bell was put on notice of the factual basis for the enterprise allegations by various documents, other than the indictment and the bill of particulars, and by information presented during various pretrial hearings.
Article I, section 12 of the Utah Constitution guarantees, "In criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him [and] to have a copy thereof." Utah Const. art. I, § 12. In State v. Fulton, 742 P.2d 1208 (Utah 1987), cert. denied, --- U.S. ----, 108 S.Ct. 777, 98 L.Ed.2d 864 (1988), we explained that this provision requires "that the accused be given sufficient information 'so that he [or she] can know the particulars of the alleged wrongful conduct and can adequately prepare his [or her] defense.' " Id. at 1214 (quoting State v. Burnett, 712 P.2d 260, 262 (Utah 1985)); see also State v. Taylor, 14 Utah 2d 107, 108, 378 P.2d 352, 353 (1963); State v. Myers, 5 Utah 2d 365, 372 302 P.2d 276, 280 (1956). 5
Fulton also explained that this constitutional right to notice is normally implemented through Utah Rule of Criminal Procedure 4, which governs, inter alia, the contents of informations, indictments, and bills of particulars. See 742 P.2d at 1214; Utah R.Crim.P. 4 (codified at Utah Code Ann. § 77-35-4 (1982)). Rule 4(b) 6 provides for the commencement of a criminal action by filing an information or indictment. Although an information may be accompanied by a fact statement detailing the prosecution's contentions in support of the charges, an information or indictment is legally sufficient even if it consists of nothing more than an extremely summary statement of the charge that would not provide the accused with sufficient particulars to prepare an adequate defense. Fulton, 742 P.2d at 1214; Utah R.Crim.P. 4(b). When an indictment or information legally sufficient under rule 4(b) does not provide the notice guaranteed by article I, section 12, the accused may request a bill of particulars under rule 4(e). 7 Once such a request is made, the accused is entitled to receive, and the State has the burden of providing, a written 8 bill of particulars which, in conjunction with the indictment or information, gives notice of the particulars of the charges in sufficient factual detail to enable the accused to prepare an adequate defense. Fulton, 742 P.2d at 1214; State v. Robbins, 709 P.2d 771, 773 (Utah 1985); Utah R.Crim.P. 4(e).
Applying these standards to the present case, the first question is whether the indictment was itself detailed enough to give Bell sufficient notice of the charges. The indictment merely repeated verbatim the broad, vague language of the RICE statute without describing any facts or circumstances constituting the crime charged other than a statement that the crime had been committed during a ten-month period. 9 This indictment met the minimal standards of rule 4(b), see Fulton, 742 P.2d at 1208, but by no stretch of the imagination did it provide Bell with sufficient notice of the facts underlying the charges to enable him to prepare an adequate defense. 10
The next question is whether Bell exercised his right to seek more particular notice by requesting a bill of particulars under rule 4(e) and, thus, preserved his claim of error. Bell did submit a timely request that the State provide a bill of particulars describing the factual basis for the element of racketeering activity and specifically explaining "what enterprise is alleged as being involved." Therefore, under rule 4(e), the State had the burden of providing an adequate bill of particulars.
The final question is whether the State met that burden. The answer is that it did not. At first, the State ignored Bell's request. Bell then secured a court order directing that the bill be provided. The State delayed further, but ultimately provided this brief response:
1. Specific activities of racketeering include those listed in the wiretap and those provided in the transcripts of the Grand Jury.
2. As to a statement of what consitutites [sic] a racketeering activity, this calls for a legal conclusion and is beyond factual information necessary to set forth an essential elements [sic] of the offense charged. Defendant should clearly realize this.
3. Enterprise consists of the trafficing [sic] in controlled substances and investing the proceeds.
Before this Court, Bell focuses his argument on the enterprise element addressed in paragraph 3 of the bill of particulars. He argues that the brief reply was not adequately detailed to put him on notice of the alleged factual basis for the element of an enterprise. Under rule 4(e), a bill of particulars must contain sufficient "factual information ... to set forth the essential elements of the particular offense charged." The ultimate test of the adequacy of such a statement, as noted above, is that the accused be enabled to prepare a defense.
The record shows that at trial, the State presented three theories as to who or what factually constituted the enterprise: Bell as an individual, the group of persons associated with Molly Kingston, or Bell's convenience store. By no stretch of the imagination could the single enigmatic sentence in paragraph 3 of the State's reply to Bell's request be construed as containing sufficient factual information to describe the State's actual theories of this essential element of the crime, much less to permit Bell to prepare his defense on this element. 11 Although Bell persistently objected to the inadequacy of the bill of particulars, the State refused to amend or supplement the bill as it would have been permitted to do under rule 4(e). The State failed to meet the burden of notice imposed on it by rule 4(e), and the trial court's failure to enforce this requirement was clearly error under the plain language of rule 4(e), as well as the standards described in Fulton.
The next question is whether this error was harmless or prejudicial. Because the error was in violation of a rule of criminal procedure, its...
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