State v. Leach

Decision Date22 November 1989
Docket Number56144-3,Nos. 56016-1,s. 56016-1
Citation782 P.2d 552,113 Wn.2d 679
CourtWashington Supreme Court
PartiesSTATE of Washington, Petitioner, v. Duncan LEACH, Respondent. CITY OF SEATTLE, Respondent, v. Maureen ELVERSTON, Petitioner.

Norm Maleng, King County Prosecutor, Donna L. Wise, Senior Appellate Atty., Seattle, for petitioner State.

Seattle-King County Public Defender, Helen L. Halpert, Seattle, for petitioner Elverston.

Associated Counsel for the Accused Suzanne Lee Elliott, Seattle, for respondent Leach.

Douglas N. Jewett, Seattle City Atty., Tamera Van Ness, Douglas B. Whalley, Asst. City Attys., Seattle, for respondent City of Seattle.

SMITH, Justice.

The State of Washington asks this court to review a decision of the Court of Appeals, Division One, which affirmed the King County Superior Court in dismissing a Renton District Court conviction of Duncan Leach for public indecency. The Court of Appeals agreed that the charge against Mr. Leach was constitutionally deficient because it did not adequately describe the statutory elements of the offense.

Petitioner Maureen Elverston asks this court to review a decision of the King County Superior Court which affirmed her conviction in the Seattle Municipal Court for driving while under the influence of intoxicating liquor. Ms. Elverston challenges the charge against her, claiming that it was constitutionally deficient because it did not adequately describe the offense under the Seattle Municipal Code and under court rules.

The two cases were consolidated for review by this court because of the similarity of the issues involved. The issues are:

A. Whether a charging document, involving a misdemeanor offense filed in a court of limited jurisdiction, must state all the statutory elements of the crime in order to satisfy the due process notice requirements of Const. art. 1, § 3, and § 22 (amend. 10) and the fifth, sixth and fourteenth amendments to the United States Constitution;

B. Whether the defendant may challenge the charging document for the first time on appeal because it does not contain statutory elements of the misdemeanor charged where the challenge alleges error affecting a constitutional right and alleges lack of trial court subject matter jurisdiction caused by constitutional deficiency in the charging document C. Whether distinguishing between accused persons charged by misdemeanor citation and those charged by complaint violates the equal protection guaranties of U.S. Const. amend. 14, § 1 and Const. art. 1, § 12 concerning the extent of notice to which those persons are entitled; and

D. Whether the citation charging procedure is unconstitutional because it permits initiation of criminal charges by persons other than prosecuting attorneys, namely, police officers, in violation of the due process clauses of the state and federal constitutions.

We affirm the Court of Appeals and uphold dismissal by the Superior Court of the public indecency charge against Duncan Leach.

We affirm the conviction of Maureen Elverston for driving while intoxicated.

State v. Duncan Leach

The State of Washington seeks review of a published Court of Appeals decision reversing Duncan Leach's Renton District Court conviction for public indecency and dismissing the charge. The Court of Appeals concluded that the complaint signed by the investigating police officer and the prosecuting attorney did not state necessary elements of the offense charged; and while the complaint cited RCW 9A.88.010, it did not specify which of the two offenses described in that statute was charged. State v. Leach, 53 Wash.App. 322, 766 P.2d 1116 (1989). The State contends the more stringent due process notice requirements of State v. Holt 1 should not apply to misdemeanor complaints or citations filed in courts of limited jurisdiction.

On August 8, 1986, Duncan Leach was notified that a complaint had been filed in Renton District Court accusing him of committing "RCW 9A.88.010 Public Indecency (see case)" 2 on July 8, 1986. The cited statute defines both misdemeanor and gross misdemeanor offenses, but the complaint did not specify which level of crime respondent was being charged with. 3 Further, as the State conceded at trial, the photocopy of the police report received by Mr. Leach and incorporated by reference into the complaint omitted the year of birth of one of the alleged victims. Thus, Mr. Leach was not put on notice that one of his victims was under the age of 14. If that crucial information had been provided him, he would have been able to determine that he was charged with a gross misdemeanor.

When Mr. Leach appeared for arraignment on two counts of public indecency, 4 the Honorable Charles J. Delaurenti, II, Renton District Court Judge, informed him he had been charged with two misdemeanors, each of which carried a maximum penalty of 90 days in jail and a $1,000 fine. After respondent pleaded "not guilty" to both counts, the court realized, and then informed Mr. Leach, that one of the two charges was actually a gross misdemeanor carrying a maximum penalty of 1 year in jail and a $5,000 fine.

Duncan Leach later waived his right to a jury trial and stipulated that the court could base its decision on the police report. However, defense counsel advised the court that Mr. Leach had not received appropriate notice of the actual charges. Counsel contended that the State should not be allowed to amend the charge to a gross misdemeanor because Mr. Leach had been charged only with two misdemeanors. The prosecutor requested that the charge based on the July 8, 1986, incident be amended to a gross misdemeanor because one of the alleged victims was under the age of 14, and that the other matter proceed as a simple misdemeanor. The court allowed the amendment after offering defendant Leach a continuance to prepare his defense on the amended charge. Defense counsel neither requested a continuance nor a bill of particulars on the amended charge. After considering the evidence, the court found Mr. Leach "guilty" of one misdemeanor and one gross misdemeanor.

In appealing his conviction to the King County Superior Court, Mr. Leach contended that the complaint charging the July 8, 1986, offense was constitutionally defective because it did not describe the statutory elements of the offense. Judge Lloyd W. Bever ruled in his favor and remanded the matter with directions to dismiss the July 8 charge, basing his decision on State v. Holt, 104 Wash.2d 315, 704 P.2d 1189 (1985).

On January 23, 1989, Division One of the Court of Appeals filed its opinion affirming the Superior Court dismissal of Mr. Leach's public indecency conviction because the District Court complaint was constitutionally defective for not stating the statutory elements of the charged offense as required by Holt. State v. Leach, 53 Wash.App. 322, 766 P.2d 1116 (1989).

The Justice Court Criminal Rules were in effect on July 8, 1986, 5 the date of the offense of public indecency charged against Duncan Leach under RCW 9A.88.010. 6

Misdemeanor criminal charges were initiated by complaint or by citation and notice under the Justice Court Criminal Rules (JCrR), JCrR 2.01(a)(1). A law enforcement officer could initiate charges by citation and notice without prior approval of the prosecutor. JCrR 2.01(b)(4). Both complaints and citations were final charging documents. JCrR 2.01(a)(3); 2.01(b)(4).

A criminal proceeding initiated by a complaint under the Justice Court Criminal Rules required that the complaint be in writing and that it contain "(i) the name of the court; (ii) the title of the action and the name of the offense charged; (iii) the name of the person charged; and (iv) the offense charged, in the language of the statute, together with a statement as to the time, place, person, and property involved to enable the defendant to understand the character of the offense charged." JCrR 2.01(a)(2).

In an information or complaint for a statutory offense, it is sufficient to charge in the language of the statute if the statute defines the crime sufficiently to apprise an accused person with reasonable certainty of the nature of the accusation. State v. Grant, 89 Wash.2d 678, 686, 575 P.2d 210 (1978) (citing State v. Royse, 66 Wash.2d 552, 403 P.2d 838 (1965)). See also RCW 10.37.050. However, it is not necessary to use the exact words of the statute if other words are used which equivalently or more extensively signify the words in the statute. State v. Knowlton, 11 Wash. 512, 39 P. 966 (1895).

In Holt, the court dismissed a complaint which omitted two statutory elements of the crime of child pornography. Further, the court concluded that "[t]he omission of any statutory element of a crime in the charging document is a constitutional defect which may result in dismissal of the criminal charges." Holt, 104 Wash.2d at 320, 704 P.2d 1189 (citing State v. Bonds, 98 Wash.2d 1, 16, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831, 104 S.Ct. 111, 78 L.Ed.2d 112 (1983)). The court further cited Bonds for distinction between a constitutionally defective information and one merely deficient for vagueness. A constitutionally defective information is subject to dismissal for failure to state an offense on the face of the charging document by omitting allegations of essential elements constituting the offense charged. Holt, 104 Wash.2d at 320-21, 704 P.2d 1189; In re Richard, 75 Wash.2d 208, 211, 449 P.2d 809 (1969). However, a charging document which states the statutory elements of a crime, but is vague as to some other significant matter, may be corrected under a bill of particulars. A defendant may not challenge a charging document for "vagueness" on appeal if no bill of particulars was requested at trial. Holt, 104 Wash.2d at 320, 704 P.2d 1189; Bonds, 98 Wash.2d at 17, 653 P.2d 1024.

In holding that a charging document which omits a statutory element of the crime charged violates a defendant's constitutional...

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