State v. Gehrke

Decision Date14 February 2019
Docket NumberNo. 95635-9,95635-9
Citation434 P.3d 522
CourtWashington Supreme Court
Parties STATE of Washington, Respondent, v. Michael L. GEHRKE, Petitioner.

John Clinton Julian, John C. Julian, Attorney At Law, PLLC, 5 W. Alder Street, Suite 238, Walla Walla, WA 99362-2863, for Petitioner.

Brian Clayton O'Brien, Gretchen Eileen Verhoef, Spokane County Prosecuting Attorney, 1100 W. Mallon Avenue, Spokane, WA 99260-2043, for Respondent.

WIGGINS, J.

¶ 1 Michael Gehrke was charged with second degree murder, predicated on second degree assault, for the death of Christopher Pineyro. Immediately before the State rested its case, the trial court allowed the State to amend its charges to include first degree manslaughter. The jury found Gehrke guilty of first degree manslaughter but not second degree murder.

¶ 2 Gehrke asks us to order the trial court to vacate his conviction for first degree manslaughter and dismiss with prejudice, arguing that allowing the amendment violated his constitutional right to be informed of the charges against him. We hold that allowing the State to amend its charge after completing its case in chief and immediately prior to resting violated Gehrke’s constitutional right. We agree with Gehrke and reverse the decision of the Court of Appeals and remand to the trial court for vacation of his conviction, dismissal of the first degree manslaughter charge with prejudice, and further proceedings consistent with this Opinion.

FACTS AND PROCEDURAL HISTORY

¶ 3 Michael Gehrke was convicted of first degree manslaughter for the death of Christopher Pineyro, who died after being stabbed in a street fight with Gehrke. The two men had a history of conflict. At trial, the opposing sides offered conflicting accounts of the fight. According to Gehrke, he had just arrived at a friend’s house in a vehicle driven by his girlfriend when Pineyro rode up to him on a bicycle. Pineyro stated that he had "something" for Gehrke and stopped his bicycle. Pineyro then reached behind himself and began to "shed his things." Gehrke reacted and kicked Pineyro’s bike frame, which hit Pineyro in the leg. Pineyro and the bike fell to the ground together.

¶ 4 When Pineyro stood up, he was wielding a hammer. Gehrke drew a pocketknife. Pineyro began swinging the hammer at Gehrke, and Gehrke backed away. Pineyro advanced, and Gehrke retreated approximately 17 feet, toward a fence. Gehrke testified that he saw no opportunity to get any farther back and that "I thought that if I didn't do something, he would — he would back me up against the fence and hit me with the hammer." Gehrke jabbed at Pineyro twice with the knife, fatally wounding Pineyro in the neck. The police arrived and Gehrke admitted to striking Pineyro, saying, "I’m the guy. I stabbed him and it was self-defense."

¶ 5 The State charged Gehrke with second degree felony murder predicated on second degree assault. Clerk’s Papers (CP) at 1. On the first day of trial, the prosecutor stated that the State was considering amending the charges to include first degree manslaughter as an alternative charge but noted that he was not currently seeking such an amendment. The prosecutor told the trial court, "I don’t think that it would be prejudicial [to amend the charge], and it’s a lesser offense.[1 ][The defense was] not in favor of that [amendment], therefore, I’m not going to submit that, but I did put them on notice that, at the conclusion of the State’s case, I may be moving for that to be charged in the alternative."

¶ 6 After the State called its last witness but before it had formally rested, the prosecutor moved to amend the information to add a manslaughter charge. The State made clear that it intended to rest even if the amendment was not allowed ("The State does intend on. resting [regardless] of the Court’s decision [to allow the amendment] in this case."). Defense counsel objected to the prosecutor’s motion to amend, on the grounds that manslaughter is not a lesser included offense of felony murder and that Gehrke did not mount a defense to manslaughter, which requires an element of recklessness not required for felony murder.

¶ 7 The trial court granted the State’s motion to amend the information. The court explained that Gehrke’s possible defense strategy against a first degree manslaughter charge was "essentially the same" as the defense he had presented to the second degree murder charge. It is unclear from the record whether the trial court believed that the manslaughter charge was a lesser included offense of the original felony murder charge.

¶ 8 The jury was apparently unable to agree as to whether Gehrke was guilty of second degree murder.2 It found Gehrke guilty of first degree manslaughter.

¶ 9 Gehrke appealed. The Court of Appeals affirmed the trial court, holding that, under CrR 2.1(d), Gehrke could not demonstrate prejudice because his defense at trial was self-defense and that would have also been his defense to the amended charge. Gehrke petitioned this court for review, which we granted.

STANDARD OF REVIEW

¶ 10 We review a trial court’s ruling on a proposed amendment to an information for abuse of discretion. State v. Lamb, 175 Wash.2d 121, 130, 285 P.3d 27 (2012) (citing State v. Schaffer, 120 Wash.2d 616, 621-22, 845 P.2d 281 (1993) ).

ANALYSIS

¶ 11 The trial court violated Gehrke’s constitutional rights by allowing the State to add an alternative charge against Gehrke after it finished its case in chief and immediately before it rested.

I. Criminal defendants are entitled to receive notice of the nature of the charges and an opportunity to present a defense

¶ 12 It is a central right, provided in our constitution, that "[i]n criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him." WASH. CONST. art. I, § 22. Pursuant to this right, "[t]he accused, in criminal prosecutions, has a constitutional right to be apprised of the nature and cause of the accusation against him. ... This doctrine is elementary and of universal application, and is founded on the plainest principle of justice." State v. Ackles, 8 Wash. 462, 464-65, 36 P. 597 (1894). The "accused must be informed of the charge he is to meet at trial and cannot be tried for an offense not charged." State v. Carr, 97 Wash.2d 436, 439, 645 P.2d 1098 (1982). Thus, "defendants have a right to be fully informed of the nature of accusations against them so that they may prepare an adequate defense. This right is satisfied when defendants are apprised with reasonable certainty of the accusations against them." State v. Leach, 113 Wash.2d 679, 695, 782 P.2d 552 (1989) (citations omitted).3

A. Criminal rules that allow for midtrial amendments operate within the confines of the constitution and cannot be read to contravene the constitution

¶ 13 The constitutional rights created by article I, section 22 inherently limit when and whether the State may make midtrial amendments to its information. State v. Olds, 39 Wash.2d 258, 261, 235 P.2d 165 (1951) (holding that "a new count charging a different crime ... would contravene Art. I, § 22, of the state constitution"). Thus, although CrR 2.1(d) —used here by the State to amend its information midtrial—provides that "[t]he court may permit any information or bill of particulars to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced," this rule is inherently limited by article I, section 22. State v. Pelkey, 109 Wash.2d 484, 490, 745 P.2d 854 (1987) (referring to what was then CrR 2.1(e) but is now 2.1(d) ).

¶ 14 Courts of this state have long made clear that CrR 2.1 (d) is thus limited by our constitution. See, e.g., State v. Lutman, 26 Wash. App. 766, 768, 614 P.2d 224 (1980). In Lutman, the defendant was originally charged with hit-and-run and failure to yield. Id. at 767, 614 P.2d 224. At the conclusion of evidence, the trial court granted "a motion to amend the complaint to negligent driving." Id. Lutman was convicted of negligent driving and appealed. Id. The relevant criminal rule in effect at the time permitted an information " ‘to be amended at any time before judgment’ " if the amendment did not prejudice the defendant. Id. at 768, 614 P.2d 224 (quoting JTR (Justice Court Traffic Rules) 3.04). Nevertheless, the Court of Appeals held that this rule "cannot bear an interpretation which would contravene [article I, section 22]" of the constitution and that "[a]n amendment during trial stating a new count charging a different crime violates this provision." Id. at 768, 767, 614 P.2d 224.

¶ 15 In Carr, this court extended the holding in Lutman to the pretrial amendment of an information, reaffirming Olds in the process. 97 Wash.2d at 440, 645 P.2d 1098. In Carr , the defendant was originally charged with failing to register to carry goods intrastate. Id. at 438, 645 P.2d 1098. Prior to trial, the prosecution discovered that the goods in question were to be transported interstate, to Utah, not intrastate. Id. Just before trial began, the prosecutor amended the information to charge the defendant under a different statute, which required that he register to carry goods interstate. Id. The trial court granted Carr a one-week continuance to prepare for the new charge, as well as an additional continuance at the conclusion of the State’s case. Id. Carr was found guilty of the amended charge. Id. We held that despite the difference in the timing of the amendments made in Carr and in Lutman , the concerns in Carr were "analogous to the Lutman case." Id. at 440, 645 P.2d 1098. We noted that in Lutman, amending the complaint to a new charge "[a]t the conclusion of the evidence" violated Lutman’s rights to be informed of the accusations against him. Id. There was no substantive difference in Carr , as we held that "amending the complaint at the start of trial violated Carr's right to be informed of the accusations against him." Id.

B. Pelkey and its...

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    ...doctrine is elementary and of universal application, and is founded on the plainest principle of justice.’ " State v. Gehrke, 193 Wash.2d 1, 6, 434 P.3d 522 (2019) (lead opinion) (first and third alterations in original) (quoting State v. Ackles, 8 Wash. 462, 464-65, 36 P. 597 (1894) ). The......
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