State v. Leach
| Citation | 766 P.2d 1116,53 Wn.App. 322 |
| Decision Date | 23 January 1989 |
| Docket Number | No. 21893-0-I,21893-0-I |
| Court | Court of Appeals of Washington |
| Parties | STATE of Washington, Respondent, v. Duncan LEACH, Appellant. |
Norm Maleng, Pros. Atty., and Scott Peterson, Deputy Pros. Atty., Seattle, for the State.
Suzanne Elliott, of Associated Counsel for Accused, Seattle, for Duncan Leach.
The State of Washington appeals from a superior court decision reversing respondent Leach's public indecency conviction because the district court complaint failed to set forth the statutory elements of the charged crime. We affirm.
On July 8, 1986, at about 9:45 a.m., Susan Pannell and her 11-year-old daughter were sitting in a parked car near 144th and Petrovsky in Seattle when they observed a man come out of a nearby building, lean against the door, and begin masturbating. While masturbating, the man looked directly at Ms. Pannell and her daughter. Pannell subsequently identified respondent Leach from a photo montage.
Leach was charged in Renton District Court with public indecency pursuant to former RCW 9A.88.010. 1 The complaint, which was prepared by the investigating officer and signed by the prosecuting attorney, provided in pertinent part:
The undersigned certifies and says [Duncan Leach ] ... Violation Date 7/8/86 Time 9:45 a.m. Location 14410 SE Petrovsky ... did then and there commit each of the following offenses/infractions ... RCW 9A.88.010 Public Indecency (see case). 2
On October 16, 1986, when the parties appeared for trial, the State maintained that the charge was a gross misdemeanor pursuant to former RCW 9A.88.010(2). After examining the discovery information, the trial court concluded that the charge was subject to a bill of particulars and ruled that the State could proceed under either portion of the statute. The State then moved to amend the charge to a gross misdemeanor.
After Leach stipulated to the facts contained in the police reports, the trial court found him guilty as charged. Upon appeal, the superior court reversed, finding that
[t]he State failed to state every statutory element of the charge of public indecency, RCW 9A.88.010, in the complaint filed against appellant. Thus, the complaint is constitutionally defective and the charge against appellant must be dismissed pursuant to the reasoning in State v. Holt, 104 Wash.2d 315, 704 P.2d 1189 (1985).
The State appeals from this ruling.
In State v. Holt, 104 Wash.2d 315, 704 P.2d 1189 (1985), our supreme court reiterated the long-standing rule 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.
(Emphasis in original.) Holt, at 320, 704 P.2d 1189; see also 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). A charging document fails to state an offense if it omits a specified element of a statutory crime. State v. Ashker, 11 Wash.App. 423, 426, 523 P.2d 949 (1974), overruled on other grounds in State v. Braithwaite, 92 Wash.2d 624, 600 P.2d 1260 (1979). A charging document is not entitled to a favorable presumption regarding its sufficiency. State v. Moser, 41 Wash.2d 29, 31, 246 P.2d 1101 (1952).
In Holt, the defendant was convicted of selling obscene materials. On appeal, he argued that the information was constitutionally defective because it omitted two statutory elements pertaining to knowledge. Our supreme court agreed and ordered the charges dismissed. The court first noted that a defendant is permitted to challenge an information that fails to state an offense at any time, including for the first time on appeal. Holt, 104 Wash.2d at 321, 704 P.2d 1189. Moreover, a defendant is not required to request a bill of particulars "nor to take any other action to preserve his right to challenge the constitutionality of the information on appeal." (Italics ours.) Holt, at 322-23, 704 P.2d 1189.
The State does not argue that the complaint charging Leach sets forth the statutory elements of public indecency or that the complaint can, by any reasonable construction, be found to charge an offense. See State v. Smith, 49 Wash.App. 596, 598, 744 P.2d 1096 (1987), review denied, 110 Wash.2d 1007 (1988). Nor does the State seriously maintain that the Holt rule is completely inapplicable to charging documents filed in district court. Rather, the State urges this court to adopt a rule that a defendant charged by complaint, unlike a defendant charged by information, forfeits the right to challenge a constitutionally defective charging instrument by not raising the issue at trial. Given the history and rationale of the Holt rule, however, we are constrained to affirm the superior court.
Generally, two types of challenges are raised to the specificity of criminal charges:
First, a criminal charge may be so vague as to fail to state any offense whatsoever. In this event, the charge is constitutionally defective and subject to dismissal. Secondly, a criminal charge may state an offense but yet be so vague with regard to particulars as to render it subject to a timely motion for a more definite statement. In this event the charge is not subject to dismissal unless the prosecuting officials refuse to comply with an order calling for greater particularity.
(Citations omitted.) In re Richard, 75 Wash.2d 208, 211, 449 P.2d 809 (1969). A third type of challenge involves defects of form. See Seattle v. Jordan, 134 Wash. 30, 34, 235 P. 6 (1925). Objections to defects of form are also waived if not timely raised. See Seattle v. Jackson, 70 Wash.2d 733, 425 P.2d 385 (1967) (); State v. Taylor, 196 Wash. 37, 81 P.2d 853 (1938) ().
Although the superior court cited Holt in dismissing the charge against Leach, the essential elements rule has always been the law in this state, as has the proposition that a charging instrument that fails to state an offense may be challenged at any time. See, e.g., Blanton v. State, 1 Wash. 265, 24 P. 439 (1890); Leonard v. Territory, 2 Wash.Terr. 381, 7 P. 872 (1885). Moreover, the rule has been applied uniformly to various kinds of charging instruments, including misdemeanor complaints. See, e.g., Seattle v. Morrow, 45 Wash.2d 27, 273 P.2d 238 (1954); Seattle v. Jordan, supra; State v. Heath, 57 Wash. 246, 106 P. 756 (1910); State v. Carey, 4 Wash. 424, 30 P. 729 (1892); see also State v. Grant, 89 Wash.2d 678, 575 P.2d 210 (1978) (). Holt itself cites Seattle v. Jordan, supra, and Seattle v. Morrow, supra, both of which involved complaints, for the proposition that an objection to an information that completely fails to state an offense can be raised at any time. Holt, 104 Wash.2d at 321, 704 P.2d 1189. 3
The cases relied upon by the State for the proposition that a defendant waives any objection to a misdemeanor complaint by not raising the matter at trial are inapposite. In Seattle v. Jackson, supra, the defendant contended for the first time on appeal that the complaint was signed by an unauthorized person under former JCrR 2.01. The court held that the defendant had waived any objection to the irregularity by failing to raise the issue at trial. In Seattle v. Reel, 69 Wash.2d 227, 418 P.2d 237 (1966), the defendant claimed that a citation failed to set forth the date and time of the alleged violation, the date of issuance, the amount of bail, and the date and time for his court appearance. The court concluded that these claims were meritless because they were directly refuted by unchallenged findings of fact.
Thus, neither Jackson nor Reel involved a charging instrument that failed to state a crime. Both decisions involved defects of form that, along with defects that can be cured by a bill of particulars, are waived if not raised timely at trial. Jackson and Reel are completely consistent with the Holt rule and provide no basis for distinguishing misdemeanors from felonies. Cf. State v. Jordan, supra 134 Wash. at 34, 235 P. 6. 4
We recognize, as the State points out, that constitutional guarantees do not mandate the adoption of identical procedures in superior court and courts of limited jurisdiction. See, e.g., Seattle v. Williams, 101 Wash.2d 445, 680 P.2d 1051 (1984). However, none of the authorities cited by the State suggests that a defendant's right to challenge a charging document that fails to state any crime whatsoever depends on whether the charge is a misdemeanor or a felony or whether the charge is filed in district court or superior court.
Finally, the State maintains that application of the Holt rule to misdemeanor complaints would lead to inconsistent results for persons charged with comparable offenses by citation and notice. We do not reach this question, however, as the issue before us involves a complaint. We therefore have no occasion to consider the different circumstances and procedures governing the issuance of citations and the use of citations as final charging documents. Cf. CrRLJ 2.4(b); see also Task Force Comment to Rule 2.4, 4A L. Orland, Wash.Prac., Rules Practice, at 314 (Supp.1988).
The Holt court, without further elaboration, characterized the failure of the charging document to state an offense as a "constitutional defect." Holt, 104 Wash.2d at 320, 704 P.2d 1189. The court further noted that the constitutional nature of the defect permits consideration of the issue even when raised for the first time on appeal. Holt, at 321, 704 P.2d 1189. The constitutional principle is generally formulated in terms of due process, i.e., an accused's right to be informed with reasonable certainty of the nature of the charges in order to prepare a defense and to plead a judgment as a bar to...
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