State v. Dallas

• Decision Date: 27 April 1995
• Docket Number: No. 61999-9,61999-9
• Citation: 892 P.2d 1082,126 Wn.2d 324
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Pearl DALLAS, Petitioner.

Page 324

126 Wn.2d 324

892 P.2d 1082

The STATE of Washington, Respondent, v. Pearl DALLAS, Petitioner.

No. 61999-9.

Supreme Court of Washington,

En Banc.

April 27, 1995.

Washington Appellate Defender Ass'n, Matthew R. Miller, Seattle, for petitioner

Norm Maleng, Pros. Atty., and Ann Foerschler, Deputy Pros. Atty., Seattle, for respondent.

JOHNSON, Justice.

This case involves the issue of the proper remedy for an untimely amendment of an information. Pearl Dallas (hereafter "Kandi") was charged in juvenile court with third degree possession of stolen property. At the conclusion of its case, the State moved to amend the stolen property count to third degree theft. The trial court granted the motion and found Dallas guilty. On appeal, the State conceded the amendment was improper. The Court of Appeals vacated the theft conviction and remanded without prejudice to the State's right to refile. Dallas appealed to this court, arguing the dismissal should have been with prejudice. We agree and reverse.

FACTS

Kandi Dallas and Tia Weiss (Tia) were friends. In February of 1991, Tia, age 13, had an argument with her mother and ran away to 14-year-old Kandi's home in Seattle's central area. Because Tia had left without clothing, she and Kandi returned to her house in north Seattle to get personal items. While there, Kandi took a Walkman cassette tape player and tape belonging to Tia's sister. Back at Roosevelt High School, Tia noticed Kandi had the tape player and asked for it back. Kandi gave it back to Tia without the tape.

While Tia was with Kandi, Pearlene Christoper, Kandi's mother, called Katheryn Weiss (Weiss), Tia's mother, several times. On the final telephone call, she gave Weiss her address. Weiss then drove to the Christoper-Dallas apartment where she found the girls hiding in a bedroom closet.

Weiss demanded Tia accompany her home and the two began taking Tia's clothes and personal items to the car.

According to Kandi and Tia, some of Kandi's tapes were inadvertently taken by Tia, and Tia was wearing Kandi's coat. Kandi accompanied Tia and Weiss with the last load in order to get her coat back.

At the car, Kandi told Tia to run and both girls did. Weiss pursued them, grabbing the hood of the jacket Tia was wearing. Tia fell and her mother tripped over her. A scuffle ensued in which Kandi hit and kicked Weiss. While Kandi claimed at trial she was defending Tia, the court found her guilty of assault. This conviction was not appealed.

As a result of this incident, Kandi was also charged with third degree possession of stolen property--the Walkman and tape. At trial, the State moved to amend the information to delete the possession of stolen property charge and substitute third degree theft. The motion came at the close of the State's case. The commissioner allowed the amendment.

In her defense, Kandi testified she had returned the Walkman but was holding the tape until her own tapes were returned. The commissioner found Kandi guilty of theft. Although the Walkman had been returned to the Weiss home with Tia, the court found Kandi had taken it without permission and without the intention of returning it.

On appeal, the State conceded the untimely nature of its amendment. The sole issue then became the remedy. The Court of Appeals held the conviction was reversed without prejudice to refile. State v. Dallas, No. 30334-1-I, slip op. at 2 (May 31, 1994) (per curiam). Dallas appealed to this court, contending the Court of Appeals decision conflicts with State v. Pelkey, 109 Wash.2d 484, 745 P.2d 854 (1987).

ANALYSIS

Washington case law is settled that the State may not amend a criminal charging document to charge a different crime after the State has rested its case unless the amended charge is a lesser degree of the same charge or a lesser included offense. See State v. Vangerpen, 125 Wash.2d 782, 888 P.2d 1177 (1995). However, the remedy for this violation continues to be a question, at least in some procedural contexts. ¹

Pelkey involved a criminal charge of bribery which was amended to trading in special influence. We held the appropriate remedy for the improper amendment of the information was dismissal with prejudice. We based our holding on CrR 4.3, the mandatory joinder rule. The rule provides:

A defendant who has been tried for one offense may thereafter move to dismiss a charge for a related offense, unless a motion for joinder of these offenses was previously denied or the right of joinder was waived as provided in this rule. The motion to dismiss must be made prior to the second trial, and shall be granted unless the court determines that because the prosecuting attorney was unaware of the facts constituting the related offense or did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted.

CrR 4.3(c)(3). Because the two charges were related and could have been joined in the original information, we found that, in a subsequent trial for trading in special influence, the charge would be subject to dismissal under the rule. Pelkey, 109 Wash.2d at 491, 745 P.2d 854. Therefore, rather than wait for a second appeal, we dismissed with prejudice. State v. Pelkey, supra.

Our decision in Pelkey relied on State v. Anderson, 96 Wash.2d 739, 638 P.2d 1205 (Anderson II), cert. denied, 459 U.S. 842, 103 S.Ct. 93, 74 L.Ed.2d 85 (1982). Anderson was originally charged and found guilty of first degree murder by the alternative means of extreme indifference to human life. State v. Anderson, 94 Wash.2d 176, 616 P.2d 612 (1980) (Anderson I). Because we found the "extreme indifference" alternative could not apply on the facts of the case, we dismissed without prejudice to refile. Anderson I, 94 Wash.2d at 192, 616 P.2d 612. Although the State could have refiled a lesser included charge, it again charged first degree murder but under a different alternative means. Anderson II, 96 Wash.2d at 743, 638 P.2d 1205. We dismissed the second first degree murder charge because it violated the mandatory joinder rule. Anderson II, 96 Wash.2d at 740-41, 638 P.2d 1205.

Anderson II made two distinctions of importance to the present case. The first is between double jeopardy and mandatory joinder. Anderson petitioned the court to dismiss his second charge based on double jeopardy. The court found double jeopardy was not implicated but mandatory joinder was. Anderson II, 96 Wash.2d at 740, 638 P.2d 1205.

The second important distinction made by the Anderson II court was between lesser included crimes and alternative means of committing the same crime. The mandatory joinder rule prohibits the filing of new charges based upon an alternative means of committing first degree murder because these means could have been charged in the original information. Anderson II, 96 Wash.2d at 741, 638 P.2d 1205. Lesser included crimes, on the other hand, need not be charged at all. RCW 10.61.006. Based on the facts in Anderson I, the trial court could have dismissed the first degree murder charge as inapplicable to the facts of the case, but proceeded to verdict on a lesser included charge. Therefore, Anderson II properly dismissed the alternative means charge, but allowed the refiling of a lesser included charge. Had no appropriate lesser included charge existed, the remedy for failure to join alternative means would have been dismissal with prejudice.

Pelkey and Anderson II are straightforward applications of the mandatory joinder rule. A similar application to the facts of the case before us results in dismissal of a new charge of theft. Theft and possession of stolen property are related charges as defined in CrR 4.3(c)(1) because they are based on the same conduct and were within the jurisdiction and venue of the same court. Petitioner asserts and Respondent agrees neither is a lesser included of the other. ² If neither is a lesser included of the other, the mandatory joinder rule would operate to require the second charge, theft, to have been brought in the original information or not at all.

The State argues this result conflicts with the Court of Appeals decision in State v. Vangerpen, 71 Wash.App. 94, 856 P.2d 1106 (1993), which we recently affirmed. State v. Vangerpen, 125 Wash.2d 782, 797, 888 P.2d 1177 (1995). However, the issue in Vangerpen was the proper remedy for a charging document which was defective as to the highest charge but adequate to support lesser included charges. Because lesser included crimes were involved, the parties did not assert and we did not consider application of the mandatory joinder rule.

The State also argues a conflict with State v. Markle, 118 Wash.2d 424, 823 P.2d 1101 (1992). The conflict is not direct, however. Like this case, Markle deals with separate crimes--indecent liberties and statutory rape--that could have been joined in the original information. However, the defendant in Markle did not raise the question of the mandatory joinder rule, but instead asked for dismissal with prejudice based upon violation of the constitutional prohibition against double jeopardy. Markle holds there is no double jeopardy bar to retrying the defendant. Markle, 118 Wash.2d at 441, 823 P.2d 1101. We did not consider the application of the mandatory joinder rule.

Markle was based on State v. Irizarry, 111 Wash.2d 591, 763 P.2d 432 (1988). Irizarry involved alternative means of committing a crime. We dismissed the case because of an improper amendment but allowed retrial based on a double jeopardy analysis. Irizarry, 111 Wash.2d at 596, 763 P.2d 432. Irizarry cites Anderson II for its double jeopardy holding, but does not discuss the latter case's distinction between double jeopardy and mandatory joinder. Although a mandatory joinder challenge would have been appropriate, the issue appears not to have been raised. The failure of the defendants in Markle and Irizarry to...