State v. Faltynowicz, 5763
| Decision Date | 18 March 1983 |
| Docket Number | No. 5763,5763 |
| Parties | The STATE of Wyoming, Plaintiff, (Appellant), v. Kathy Ann FALTYNOWICZ, Defendant, (Appellee). |
| Court | Wyoming Supreme Court |
Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Allen C. Johnson, Sr. Asst. Atty. Gen., Cheyenne, for appellant.
Dallas J. Laird, Casper, for appellee.
Before ROONEY, C.J., and RAPER, THOMAS, ROSE and BROWN, JJ.
This case is before us on a bill of exceptions. A complaint charging appellee with committing a misdemeanor was filed in county court on August 30, 1982. The arraignment was held on the same date, and appellee entered a plea of guilty. The court, to establish a factual basis for the plea, asked appellee to describe what had happened on August 29, the date of the incident which led to her arrest. As appellee was describing the events which led to her arrest, the court interrupted her and said that there was a defect in the complaint because it did not state the year of the alleged crime. The court also said that since appellee had attempted to enter a plea, it would dismiss the complaint with prejudice.
We sustain the bill of exceptions taken by the State.
Section 5-5-108, W.S.1977, Cum.Supp.1982, provides:
This court has adopted rules for county courts, effective January 1, 1983. Since the rules were not in effect when the complaint against appellee was dismissed, we will consider only the Wyoming Rules of Criminal Procedure in this appeal. Rule 3, W.R.Cr.P., says, The complaint here had blanks for the day, month, and year of an alleged offense. The day and month were filled in, but the year was not typed in.
At the time this complaint was issued, a complaint in county court could serve two purposes. The first was to allow the court to make an independent probable cause determination that an offense had been committed and that the appellee had committed it. The second purpose was that the complaint functioned as an indictment or information.
Concerning the probable cause determination, a complaint provides a foundation for a neutral judgment by a judicial officer that resort to further criminal process is justified.
" * * * It must provide the affiant's answer to the magistrate's hypothetical question, 'What makes you think that the defendant committed the offense charged?' * * * " Jaben v. United States, 381 U.S. 214, 224, 85 S.Ct. 1365, 1371, 14 L.Ed.2d 345, 353 (1965).
The question to ask in evaluating the complaint for probable cause sufficiency is whether it meets the test of minimal adequacy in setting forth the essential facts establishing probable cause, using a commonsense approach. Organ v. State, 65 Wis.2d 36, 221 N.W.2d 823 (1974). It does not make sense to dismiss a complaint as being insufficient because it has an obvious typographical error. In United States v. Markis, 352 F.2d 860 (2nd Cir.1965), an agent swore to a complaint before a commissioner on October 5, 1964. The complaint alleged that John Doe had been engaged in criminal activity on or about October 8, 1964. John Doe had later been identified as Joseph Markis. The commissioner then issued a warrant of arrest. Concerning the attack on the warrant based on the discrepancy in the date, the court ruled:
* * * " United States v. Markis, supra, at 864.
This court has taken the same commonsense approach to evaluate the adequacy of a complaint. In Martinez v. State, Wyo., 511 P.2d 105 (1973), appellant contended that there was a lack of reasonable cause for the issuance of a warrant for his arrest, because the complaint recited that it was based on attached affidavits, when no affidavits were attached. This court said that where a justice of the peace had access to sworn statements and knew their contents at the time he issued the arrest warrant, it was immaterial whether the statements were in fact actually attached.
As we have noted, the second purpose of the complaint in county court was that it functioned as does an indictment or information in district court. 1 Rule 9, W.R.Cr.P., speaks to indictments and informations; at the time the complaint was filed the rule also applied to complaints in county court when the complaints had the same function as an indictment or information.
Rule 9(c), W.R.Cr.P., provides:
2
The rule makes the granting of an amendment to an information mandatory if it is requested before the defendant pleads. It allows more discretion to the trial court after a defendant pleads. However, this discretion is limited by Rule 9(a), W.R.Cr.P., which says in part:
" * * * Error in the citation or its omission or any other defect or imperfection which does not tend to prejudice any substantial right of the defendant upon the merits or to mislead the defendant to his prejudice shall not be grounds for the dismissal of the indictment or information or for reversal of a conviction. * * * "
This rule is similar to statutes which were in effect before they were superseded by the Rules of Criminal Procedure. Because of the similarity in our present rules and previous statutes, the rationale of cases interpreting the previous statutes is still pertinent. According to State v. Hickenbottom, 63 Wyo. 41, 178 P.2d 119 (1947), § 33-415, W.R.S.1931, used to provide that no indictment should be deemed invalid, nor should a trial, judgment or other proceeding be affected for " ' * * * any defect or imperfection which does not tend to prejudice the substantial rights of the defendant upon the merits.' " We said in State v. Hickenbottom, supra, that under statutory provisions of this type, slight verbal inaccuracies, or typographical or spelling errors were not to be favorably regarded, but that objections to them had to at least be raised. We then ruled that appellant's contention concerning the defect in the indictment was without merit, implying that, if the defect is merely one of form and not substance, defendant must object to the defect.
This court has not taken the same position with respect to a defect of substance. In Town of Green River v. Martin, Wyo., 254 P.2d 198 (1953), we noted a fatal defect in an information, and took notice of it as a fundamental reversible error, even though appellant had not objected below or raised the issue on appeal. We further said in Gonzales v. State, Wyo., 551 P.2d 929, 931 (1976), that we do not approve or allow haphazard and careless pleading charging a crime. " ' * * * [T]he substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules.' "
Rule 9(a), W.R.Cr.P., is also similar to Rule 7(c)(3), Federal Rules of Criminal Procedure, except that the latter rule only pertains to error in the citation or its omission, and does not have the language "or any other defect or imperfection," which arguably gives the federal courts more discretion to dismiss indictments or informations. The policy of these rules is that imperfections of form which are not prejudicial are disregarded. United States v. Dreer, 457 F.2d 31 (3rd Cir.1972); and United States ex rel. Harris v. Illinois, 457 F.2d 191 (7th Cir.1972), cert. denied 409 U.S. 860, 93 S.Ct. 147, 34 L.Ed.2d 106 (1972). " ' * * * [T]he practice of fine combing indictments for verbal and technical omissions is no longer countenanced by the courts.' " Gonzales v. State, supra, at 931.
An indictment to be legally sufficient must fairly indicate the crime charged, must state the essential elements of the alleged crime and be sufficiently definite so that the defendant can prepare his defense, and definite enough so that the indictment will grant protection from further prosecution for the same offense. Hovee v. State, Wyo., 596 P.2d 1127 (1979). Such an indictment will allow the accused his Sixth Amendment right under the United States Constitution "to be informed of the nature and cause of the accusation," and his right under Art. 1, § 10 of the Wyoming Constitution "to demand the nature and cause of the accusation." The same standards, of course, would apply in judging the sufficiency of an information. 3
Other courts have given only cursory attention to arguments that a defendant was prejudiced in being able to prepare a defense because of an obvious error in the indictment. In United States v. Reece, 547 F.2d 432 (8th Cir.1977), one count of an indictment contained a typographical error in a date, alleging that appellant had illegally possessed a check on October 1, 1975, instead of October 1, 1974. The court said that any argument for error was frivolous, since the appellant failed to point to any prejudice to his case as a result of the error. In United States v....
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