State v. Schaffer

• Decision Date: 04 February 1993
• Docket Number: No. 58944-5,58944-5
• Citation: 120 Wn.2d 616,845 P.2d 281
• Parties: The STATE of Washington, Respondent, v. Patrick J. SCHAFFER, Petitioner.
• Court: Washington Supreme Court

Page 616

120 Wn.2d 616

845 P.2d 281

The STATE of Washington, Respondent, v. Patrick J. SCHAFFER, Petitioner.

No. 58944-5.

Supreme Court of Washington En Banc.

Feb. 4, 1993.

Reconsideration Denied March 17, 1993.

Washington Appellate Defender Ass'n, Andrew P. Zinner, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Theresa Fricke, Sr. Deputy, Seattle, for respondent.

DURHAM, Justice.

Prior to resting its case in Patrick Schaffer's juvenile hearing for malicious mischief, the State moved to amend the information to bring it into conformity with the evidence. The trial court granted the motion and found that Schaffer had committed the offense. The Court of Appeals affirmed in State v. Schaffer, 63 Wash.App. 761, 822 P.2d 292 (1991). We agree.

On July 7, 1989, Schaffer was charged with one count of third degree malicious mischief, RCW 9A.48.090. The information alleged:

That the respondent Patrick J. Schaffer ... on or about 4 December 1988, did knowingly and maliciously cause physical damage in excess of $50, to tires, the property of Jeff Syverson and Janice Krogstadt and Lisa Galster ...[.]

Clerk's Papers, at 1. A fact-finding hearing was held on March 7-8, 1990. Initially, the State produced three witnesses. A fourth witness, Heidi Hughes, was available on a material witness warrant. Janice Krogstadt testified that a "loud and boisterous" group of kids were walking up and down the street on the night of December 4, 1988. She witnessed one boy knocking her mailbox from its stand, while another boy stood nearby. The next day she discovered that a tire on her husband's pickup truck had been slashed. She was unable to identify any of the group members. Her testimony was bolstered by Richard Mathews, a neighbor who lived across the street from the Krogstadts. He testified that he saw Pat Schaffer, Tony DeArment and Heidi Hughes walking down the street with some other kids on the night in question. Further, he testified that Pat and Tony were knocking mailboxes off their stands with a baseball bat. The next morning he observed that a number of mailboxes, including the one belonging to the Krogstadts, had been knocked from their stands. The court also heard testimony from Jeffery Syverson, who lives near the Krogstadts. He testified that on December 4, 1988, someone stole several items from his vehicle and punctured the tires.

Following Syverson's testimony, the State moved to amend the information to allege damage to both tires and mailboxes. It also deleted any reference to the value of the property, thereby reducing the charge from a gross misdemeanor to a misdemeanor. See RCW 9A.48.090(2). The trial court denied this motion because the testimony up to that point had failed to demonstrate a sufficient relationship between the tire and mailbox incidents. Without some relationship, it would prejudice Schaffer's case to allow an amendment alleging a separate incident. Nonetheless, the trial court informed the prosecution that it could renew its motion if it could establish a connection between the events.

To establish this nexus, the State called Heidi Hughes under a grant of transaction immunity. Hughes testified that the acts of vandalism occurred while she, Schaffer and several friends were walking to, and home from, a bowling alley. During this walk, Schaffer and two other boys "were slashing tires and knocking down mailboxes." Report of Proceedings, at 49. Based upon this testimony, the trial court granted the State's renewed motion to amend the information. The court found that any motion in limine to exclude testimony regarding the mailboxes would have been denied, and that Schaffer suffered no prejudice with regard to cross examination strategy prior to the amendment. The State rested following Schaffer's cross examination of Hughes. The defense called no witnesses.

The court found Schaffer guilty of third degree malicious mischief as charged in the amended information. Specifically the court found that Schaffer damaged a mailbox belonging to Janice Krogstadt. This vandalism occurred while "the respondent was participating with a group of juveniles in a continuous course of vandalism that included the slashing of tires and knocking off mailboxes from their stands." Clerk's Papers, at 19. The acts of vandalism involving tires and mailboxes did not occur separately, but were part and parcel to each other.

Schaffer appealed, challenging the propriety of the mid-trial amendment of the information. In a unanimous decision, the Court of Appeals affirmed the conviction, holding that the amendment comported with constitutional notice requirements. It also found that the amendment was appropriate under CrR 2.1(e) because it did not substantially prejudice Schaffer's case. According to the appellate court, evidence regarding the mailboxes would have been admissible under a res gestae (same transaction) analysis. We accepted review.

In this proceeding, the sole issue before us is the constitutional validity of an amendment to a charging document during the State's case. ¹ Schaffer claims that our decision in State v. Pelkey, 109 Wash.2d 484, 487, 745 P.2d 854 (1987), does not allow midtrial amendments which add an additional method of committing an offense. We disagree.

A criminal defendant is to be provided with notice of all charged crimes. Under article 1, section 22 of the Washington Constitution, "the accused shall have the right ... to demand the nature and cause of the accusation against him". As this court has often noted, "[i]t is fundamental that under our state constitution an accused person must be informed of the criminal charge he or she is to meet at trial, and cannot be tried for an offense not charged." State v. Irizarry, 111 Wash.2d 591, 592, 763 P.2d 432 (1988); accord State v. Markle, 118 Wash.2d 424, 432, 823 P.2d 1101 (1992); Pelkey, 109 Wash.2d at 487, 745 P.2d 854.

In enforcing the state constitution's notice provision, this court has avoided technical rules. Instead, we have tailored our jurisprudence toward the precise evil that article 1, section 22 was designed to prevent--charging documents which prejudice the defendant's ability to mount an adequate defense by failing to provide sufficient notice. State v. Leach, 113 Wash.2d 679, 695-96, 782 P.2d 552 (1989). For example, in Pelkey, this court adopted a per se rule limiting the ability to amend an information once the State has rested its case "unless the amendment is to a lesser degree of the same charge or a lesser included offense." 109 Wash.2d at 491, 745 P.2d 854. Any greater amendment "necessarily prejudices" the defendant's rights under the state constitution. Pelkey, at 491, 745 P.2d 854; accord Markle, 118 Wash.2d at 436-37, 823 P.2d 1101. Other cases from this court have also emphasized the relationship between article 1, section 22 and prejudice. See, e.g., State v. Kjorsvik, 117 Wash.2d 93, 105-07, 812 P.2d 86 (1991) (When an information is challenged for the first time on appeal, the conviction will not be overturned if a fair reading of the charging document reveals the necessary elements and the defendant fails to demonstrate that he or she was "actually prejudiced".); Leach, 113 Wash.2d at 696, 782 P.2d 552 ("Technical defects not affecting the substance of the charged offense do not prejudice the defendant and thus do not require dismissal."); State v. James, 108 Wash.2d 483, 490, 739 P.2d 699 (1987) (under facts of case, amendment caused no "specific prejudice"); State v. Purdom, 106 Wash.2d 745, 748, 725 P.2d 622 (1986) (as a matter of law, substantial rights prejudiced when court denies defendant's request for a continuance following an amendment on day of trial).

Schaffer's attempt to read into Pelkey a per se rule prohibiting amendments during the State's case is misplaced. Pelkey did not paint with so broad a brush. Instead, it addressed only the constitutionality of an amendment adopted after the State has rested its case.

In Pelkey, the State moved to amend the information following the close of its case. This amendment came in response to a defense motion to dismiss due to the State's failure to sufficiently prove the originally charged crime. Whereas the original information charged Pelkey with bribery, the amended information charged trading in special influence--a completely different crime. This court held that:

A criminal charge may not be amended after the State has rested its case in chief unless the amendment is to a lesser degree of the same charge or a lesser included offense. Anything else is a violation of the defendant's article 1, section 22 right to demand the nature and cause of the accusation against him or her.

State v. Pelkey, 109 Wash.2d 484, 491, 745 P.2d 854 (1987). Such amendments are not permitted following the close of the State's case because the likelihood of prejudice is too great. Pelkey, at 491, 745 P.2d 854.

As for amendments during the State's case, however, Pelkey cited the court rule allowing such amendments, CrR 2.1(e), with approval. Pelkey, at 490-91, 745 P.2d 854. Consistent with our cases interpreting article 1, section 22 of our Constitution, CrR 2.1(e) allows amendments which do not prejudice a defendant's "substantial rights". Because CrR 2.1(e) "necessarily operates within the confines of article 1, section 22", Pelkey, at 490, 745 P.2d 854; Markle, 118 Wash.2d at 437, 823 P.2d 1101, the possibility of amendment will vary in each case. For example, when a jury is involved and the amendment occurs late in the State's case, impermissible prejudice could be more likely. Pelkey, 109 Wash.2d at 490, 745 P.2d 854. On the other hand, impermissible prejudice is less likely:

where the amendment merely specif[ies] a different manner of committing the crime originally charged[,] State v. Gosser, 33 Wn. App. 428, 656 P.2d 514 (1982), or charge[s] a lower degree of the original crime charged, State v. Brown, 74 Wn.2d 799, 447 P.2d 82 (1968...