State v. Pelkey

• Decision Date: 25 November 1987
• Docket Number: No. 53282-6,53282-6
• Citation: 109 Wn.2d 484,745 P.2d 854
• Parties: The STATE of Washington, Appellant, v. Chae San PELKEY, Respondent.
• Court: Washington Supreme Court

Page 484

109 Wn.2d 484

745 P.2d 854

The STATE of Washington, Appellant, v. Chae San PELKEY, Respondent.

No. 53282-6.

Supreme Court of Washington,

En Banc.

Nov. 25, 1987.

Reconsideration Denied Jan. 20, 1988.

Seth Dawson, Snohomish County Prosecutor, Seth Aaron Fine, Deputy Snohomish County Superior Court, Everett, for appellant.

Charles Hermann, Jeffrey D. Gross, Tacoma, for respondent.

UTTER, Justice.

The State of Washington appeals the trial court's order of dismissal with prejudice following defendant's jury trial for trading in special influence, RCW 9A.68.050(1). The trial court granted defendant's motion for dismissal based on a finding that the statute is unconstitutional on its face for vagueness and overbreadth. We affirm the trial court's dismissal of the case, but on other grounds. The State violated Const. art. 1, § 22 (amend. 10) when it amended its information to charge a separate crime after it had already presented its case-in-chief. Accordingly, we do not reach the issue of whether the trial court erred in holding that the trading in special influence statute is void for vagueness and overbreadth.

The parties dispute some of the facts. ¹ Detective Sergeant James Brauch is a member of the Everett Police Department vice and gambling unit. In the course of his official duties he became friends with the defendant, Chae San Pelkey, who operated several sauna parlors in the city of Everett and elsewhere. Pelkey and Brauch had a meeting on October 17, 1983 at a restaurant in Everett. At that meeting, the State alleges Pelkey complained that the possible presence of undercover officers in her Bellingham sauna parlor business hindered her employees' performance of sexual acts for customers, which cost her increased profit and clients. Pelkey allegedly offered to pay money to a friend of Brauch's, who was a vice officer in the Bellingham Police Department, in order to be kept apprised of vice surveillance activity in Bellingham. According to Pelkey, it was Brauch who initiated the contact and suggested the payments. They agreed to meet again on October 19.

Based on the foregoing information, Brauch sought and received an order authorizing the wire interception of the October 19 meeting, on the grounds that he had probable cause to believe that an attempt at bribery would take place at the meeting. Brauch wore a transmitter to the meeting, and the conversation was recorded and later transcribed. Pelkey gave Brauch $2,000 in cash, and asked if he had talked to his friend in Bellingham. Pelkey told Brauch that $500 per month would go to the Bellingham officer and that she would make payments to Brauch, too. The two specifically discussed advance warning of undercover surveillance, $10,000 for each closing of competing sauna parlors, and performance of sexual acts for customers of Pelkey's sauna parlor. Pelkey was arrested and charged with one count of bribery.

At the conclusion of the presentation of the State's case at trial, the defense moved to dismiss based on the lack of evidence that Brauch was acting in his official capacity at the time of the alleged offense. ² Brauch had testified that he had no particular authority in Bellingham. In response, the State moved to amend the charge to trading in special influence, RCW 9A.68.050(1)(a), which, unlike the bribery statute, does not require that the result sought by the special influence affect a public servant's official duties.

The trial judge denied Pelkey's motion to dismiss based on the amendment of the information, and the jury found Pelkey guilty of trading in special influence. Pelkey moved for an arrest of judgment, on the grounds that RCW 9A.68.050(1)(a) is unconstitutionally vague and overbroad on its face. The trial court granted the motion, and issued an order arresting judgment and dismissing the charges with prejudice because an information charging violation of an unconstitutional statute does not constitute a crime.

The State timely perfected its appeal, and the Court of Appeals certified the case to this court. We base our resolution of this case on the first issue presented in the appeal but not ruled on by the trial court: the trial court erred in permitting the State to amend the information from bribery to trading in special influence after the State completed presentation of its case-in-chief.

I

Pelkey convincingly argues the trial judge violated article 1, section 22 of the Washington State Constitution by allowing the State to amend the information against the defendant after the State completed presentation of its case-in-chief. Article 1, section 22 provides in pertinent part:

In criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him ...

Under this constitutional provision, an accused person must be informed of the charge he or she 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), State v. Rhinehart, 92 Wash.2d 923, 602 P.2d 1188 (1979). An amendment during trial stating a new count charging a different crime violates this provision. State v. Olds, 39 Wash.2d 258, 235 P.2d 165 (1951). In State v. Lutman, 26 Wash.App. 766, 614 P.2d 224 (1980), cited with approval in Carr, the court held that charges of hit-and-run and failure to yield the right-of-way could not be amended during the trial to a charge of negligent driving. The court ruled that the amendment charging a different crime violated the constitutional provision against being tried for an offense not charged. "It is fundamental that an accused must be informed of the charge he is to meet at trial and cannot be tried for an offense not charged." State v. Lutman, supra at 767, 614 P.2d 224.

This rule is subject to two narrowly defined statutory exceptions. In State v. Foster, 91 Wash.2d 466, 471, 589 P.2d 789 (1979), we described these exceptions: "(1) where a defendant is convicted of a lesser included offense of the one charged in the information pursuant to RCW 10.61.006; and (2) where a defendant is convicted of an offense which is a crime of an inferior degree to the one charged, pursuant to RCW 10.61.003."

This court has long recognized this principle. Almost 100 years ago, we said:

While it is true that the jury may find a defendant not guilty of the crime charged, but guilty of an offense of lesser degree, or of an offense necessarily included within that charged, it is also true that "accusation must precede conviction," and that no one can legally be convicted of an offense not properly alleged. The accused, in criminal prosecutions, has a constitutional right to be apprised of the nature and cause of the accusation against him. Const., art. 1, § 22. And this can only be made known by setting forth in the indictment or information every fact constituting an element of the offense charged. 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).

RCW 10.61.003 does not apply to this case, as trading in special influence is not a lesser degree of the crime of bribery, but is contained in a separate statute. Neither does trading in special influence constitute a lesser included offense of bribery. In State v. Rhinehart, supra 92 Wash.2d at 926, 602 P.2d 1188, we reviewed the law establishing the requirements for a conviction of a lesser included offense of the crime charged:

A lesser included offense exists when all of the elements of the lesser offense are necessary elements of the greater offense. Put another way, if it is possible to commit the greater offense without having committed the lesser offense, the latter is not an included crime.

State v. Bishop, 90 Wash.2d 185, 191, 580 P.2d 259 (1978).

See also State v. Roybal, 82 Wash.2d 577, 583, 512 P.2d 718 (1973).

Under RCW 9A.68.010(1)(a), a person is guilty of bribery if:

With the intent to secure a particular result in a particular matter involving the exercise of the public servant's vote, opinion, judgment, exercise of discretion, or other action in his official capacity, he offers, confers, or agrees to confer any pecuniary benefit upon such public servant; ...

(Italics mine.) A person is guilty under RCW 9A.68.050(1)(a) of trading in special influence if:

He offers, confers, or agrees to confer any pecuniary benefit upon another person pursuant to an agreement or understanding that such other person will offer or confer a benefit upon a public servant or procure another to do so with intent thereby to secure or attempt to secure a particular result in a particular matter; ...

(Italics ours.) These statutes differ in at least two material respects. The special influence statute requires that a third party act as intermediary between the defendant and the public official. No such element exists in the bribery statute. Secondly, the bribery statute requires that the "particular result in a particular matter" involve the exercise of the public official's official duties, and the special influence statute by its terms does not. Trading in special influence is not a lesser included offense of the crime of bribery.

In State v. Purdom, 106 Wash.2d 745, 725 P.2d 622 (1986), we recently held that the trial court abused its discretion under CrR 3.3(h) when it denied the defendant's motion for a continuance after the prosecutor was allowed to amend the information on the day of trial. We found the court's denial was error. We construed Crr 3.3(h) to require allowance of a continuance under those circumstances. The constitutional challenge was not addressed.

Here, the constitutional argument is dispositive. The State argues that a mid-trial amendment to an information does advise the defendant of the charges against him or her, in conformity with article 1, section 22. To support its contention, the State cites CrR 2.1(e) ³, and case...