State v. Semancik

• Decision Date: 01 October 2004
• Docket Number: No. S-10846.,S-10846.
• Citation: 99 P.3d 538
• Parties: STATE of Alaska, Petitioner, v. Wayne SEMANCIK, Respondent.
• Court: Alaska Supreme Court

99 P.3d 538

STATE of Alaska, Petitioner, v. Wayne SEMANCIK, Respondent.

No. S-10846.

Supreme Court of Alaska.

October 1, 2004.

Terisia K. Chleborad, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Petitioner.

David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Respondent.

Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

OPINION

FABE, Justice.

I. INTRODUCTION

This petition for hearing arises out of a conviction for attempted burglary. Semancik challenged the sufficiency of his attempted burglary indictment for the first time on appeal on the basis that it failed to specify what crime he intended to commit when he entered the dwelling. The court of appeals, bound by the rule in Adkins v. State,¹ reversed Semancik's conviction and dismissed the indictment. The State appeals, asking us to overrule Adkins to the extent that it (1) requires burglary indictments to specify the defendant's intended crime and (2) permits a defendant to challenge a burglary indictment for the first time on appeal. While we continue to require the State to specify a defendant's intended crime in a burglary indictment, we conclude that the failure to do so is a defect of form, rather than substance. Thus, any challenge must be raised in the trial court or it is waived.

II. FACTS AND PROCEEDINGS

On July 10, 1998, Wayne Semancik went over to his neighbor Harvel Young's property, apparently to retrieve his missing dog.² Semancik thought that the cries of a baby in Young's house were those of his dog, and he tried to force Young's door open, beating on the doors and walls of the house and shattering a window with a rock. Semancik threatened to "shoot anything that moves" once he gained entry into the house. Semancik broke a small window near the door and punched through the screen, pushing his arm through the broken window.³ When the state troopers arrived, they subdued and arrested Semancik.

The State charged Semancik with various crimes, including assault in the third degree and attempted burglary in the first degree.⁴ The attempted burglary indictment failed to specify the target crime; rather, the indictment alleged that Semancik "intend[ed] to commit the offense of Burglary in the First Degree [and] engage[d] in conduct which constitute[d] a substantial step toward the commission of that crime."⁵ Semancik neglected to challenge the indictment or seek a bill of particulars before or during the trial.⁶ At trial, Semancik's lawyer adopted the position that the target crime was assault.⁷ The jury found Semancik guilty of attempted burglary, rejecting his argument that his intention in entering the house was only to retrieve his dog and not to commit any crime.⁸

On appeal, Semancik, for the first time, challenged the burglary indictment as fatally flawed.⁹ A divided court of appeals reversed the conviction on the basis that our decision in Adkins v. State¹⁰ was controlling.¹¹Adkins requires that a burglary indictment specify the defendant's intended crime and holds that an indictment lacking specification of the target crime is "fatally defective,"¹² so that a challenge may be raised for the first time on appeal.¹³ The State petitions, asking that we overrule the rule in Adkins.

III. DISCUSSION

A. Standard of Review

The principle of stare decisis is implicated in our consideration whether to overrule one of our past decisions.¹⁴ We will only overrule a prior decision when "clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent."¹⁵

B. The State Is Required To Include a Defendant's "Intended Crime" in a Burglary Indictment, but Failure To Do So Is a Defect of Form that Cannot Be Raised for the First Time on Appeal.

The State asks us to overrule our decision in Adkins v. State,¹⁶ arguing that Adkins "mistakenly added an element to the statutory crime of burglary" when it required that the intended crime be specified in a burglary indictment. The State also challenges Adkins's conclusion that omission of the specific intended offense in an indictment amounts to a fatal defect that can be challenged for the first time on appeal.¹⁷

The procedural background of Adkins was similar to that of the present case: The defendant's burglary indictment did not specify the crime that he intended to commit, the defendant was convicted, and he challenged the sufficiency of the indictment for the first time on appeal.¹⁸ The Adkins court determined that "[i]n the case of burglary the essential elements of the offense are the breaking and entry of a dwelling house by the accused and the intent on his part to commit some specific crime therein."¹⁹ The court then concluded that the "elements are matters of substance and must be set forth in the indictment, otherwise it is fatally defective"²⁰ and that this defect is "not waived by the failure to object below."²¹

We consider whether a burglary indictment must include the defendant's intended offense and, if so, whether omission of the intended offense is a substantive defect that permits a defendant to challenge the indictment for the first time on appeal.

1. Strong public policy requires that the State include the target crime in a burglary indictment.

The principle of stare decisis requires that two conditions be met to depart from precedent: We must conclude that the decision was erroneous when it was decided and that the change represents good public policy such that "more good than harm [will] result" from the departure.²²

Departure from the requirement that the target crime be specified in the indictment raises public policy concerns about adequate notice of criminal charges for defendants. In Russell v. United States, the United States Supreme Court established two criteria for measuring the adequacy of an indictment: "whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet"; and whether "in case any other proceedings are taken against [the defendant] for a similar offense, ... the record shows with accuracy to what extent he may plead a former acquittal or conviction."²³ In Christie v. State, we affirmed these principles, noting that "the purpose [of the indictment] is to give the defendant notice of the charge against him so as to enable him to prepare his defense and to permit him to claim double jeopardy in the future should he again be charged with the same offense."²⁴ In Adkins, we emphasized the Russell protection of "appris[ing] the [defendant] of the specific crime he is supposed to have intended to commit"²⁵ and we continue to find this policy compelling.

Semancik argues persuasively that "without a requirement that the underlying crime be specified, the accused will be forced to go to trial without knowing what type of case the state is going to present." The State responds that in some cases it will be impossible to determine which of many possible crimes the defendant intended to commit, making it unreasonable to require that the State include the intended crime in the indictment. But in State v. James, we adopted the Sullivan rule for cases in which a jury is instructed disjunctively on alternative methods, which permits jurors to find the defendant guilty of a crime even though they do not agree as to the method by which the crime was committed.²⁶ In such cases, the State can charge alternative target crimes to avoid a defect and present those alternatives to the jury, obtaining a conviction so long as the jury agrees that the defendant committed the burglary.

After considering the strong public policy of providing defendants with adequate notice of criminal charges, we cannot say that "more good than harm would result from a departure"²⁷ from Adkins's requirement that the State specify the target crime in a burglary indictment. Thus, we continue to require the State to specify the defendant's intended crime in a burglary indictment.

2. Failure to include the target offense in a burglary indictment cannot be challenged for the first time on appeal.

We now turn to the question whether Adkins v. State correctly permitted a defendant to challenge for the first time on appeal a burglary indictment that failed to identify the defendant's intended crime. The principle of stare decisis requires that we first consider whether the rule in Adkins was erroneous when it was decided. Alaska Statute 11.46.310 defines burglary as a crime in which "the person enters or remains unlawfully in a building with intent to commit a crime in the building."²⁸ In reaching its conclusion, the Adkins court noted that "the weight of authority" required that the intended crime be specified in the burglary indictment, citing eleven cases from other jurisdictions for the proposition.²⁹ But the majority of these cases came from jurisdictions that define burglary in more limited terms, requiring that the defendant enter with the intent to commit a felony or other specific type of crime.³⁰

In addressing this issue, several courts, including the court of appeals in considering Semancik's case, have noted the split among jurisdictions as to whether the intended offense must be included in the burglary indictment.³¹ Generally, in states where the burglary statute requires that the defendant have intended to commit a specific type of crime, such as a felony or theft, the burglary indictment must allege the intended crime and failure to do so renders the indictment fatally flawed.³² But in jurisdictions where the burglary statute only requires that the defendant intended to commit "a crime," the burglary indictment is not invalidated for failure to identify the intended crime.³³ The distinction is logical; as the Iowa Supreme Court noted when...