State v. Wright
| Decision Date | 26 January 1996 |
| Docket Number | No. 73507,73507 |
| Citation | 911 P.2d 166,259 Kan. 117 |
| Parties | STATE of Kansas, Appellant, v. Kenneth Paul WRIGHT, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The State's appeal of the dismissal of an indictment as insufficient involves the construction of a written instrument, which is a question of law over which we have unlimited review.
2. The sufficiency of an indictment or information is to be measured by whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he or she must be prepared to meet, and by whether it is specific enough to make a plea of double jeopardy possible.
3. Our criminal threat statute, K.S.A.1994 Supp. 21-3419, does not require, as an element of the offense, that the defendant knew his or her threat would be communicated to the person terrorized. It is sufficient if there is an intent to terrorize or an act in reckless disregard of causing such terror.
4. While it is true that a charging document drawn in the language of the statute may be sufficient to inform the accused of what charge he or she faces, it is also necessary that it be sufficient to apprise the accused of the accusation against the accused.
5. Although an indictment must be sufficiently specific to inform the accused of the charge he or she must defend, it need not be exhaustive of the evidence to be faced during trial.
6. Once the specific offense has been identified in an indictment, there is no further and independent requirement to identify the acts by which the defendant may have committed that offense.
7. Unlike bills of rights of some states, § 10 of the Kansas Constitution Bill of Rights does not prescribe the degree of particularity and specificity required in an indictment or information. It guarantees only the right to every accused person to appear and "demand the nature and cause of the accusation against him."
8. A bill of particulars serves the dual purpose of informing a defendant of the nature of the charge and the evidence against the defendant to enable the defendant to prepare his or her defense, and of enabling the defendant to avoid further prosecution for the same offense. The State is restricted in its proof to the items specified in the bill of particulars.
9. Given the legislative and judicial preference for substantial justice rather than technical formalities as the polestar of criminal procedure, we hold that under the facts of this case, where a defendant has not requested a bill of particulars, an indictment by a grand jury, drawn in the language of the statute, shall be deemed sufficient. K.S.A.1994 Supp. 21-3201(b).
10. Before an accused should be successful in challenging an otherwise statutorily sufficient indictment because it fails to fully inform the accused of the specific conduct which is the basis of the offenses charged, the accused must, if he or she desires a more elaborate or detailed statement of the facts, set forth in a motion for a bill of particulars the portions of the indictment or information which he or she claims to be insufficient or defective, and point out to the court a desire for a fuller, more complete, more definite, or more circumstantial or particular statement of the facts.
11. If an accused who makes a proper request for a bill of particulars is unable to obtain the required details because the State opposes the request, the request is not granted by the trial court, or the bill of particulars furnished fails to contain sufficient information, the accused retains the right to challenge his or her indictment. However, after receiving a requested bill of particulars, the accused's challenge of the indictment must then be tested by considering, in addition to the indictment, the information contained in the bill of particulars.
12. An indictment need not be so detailed that, standing alone, it could bar later prosecution on the grounds of double jeopardy. One of the purposes of a bill of particulars is to illuminate the dimensions of jeopardy and to supplement allegations in an indictment to preclude second prosecution for the same offense. Hence, the defendant should be required to request a bill of particulars before the court is warranted in dismissing the indictment as lacking sufficient factual details to establish a claim of double jeopardy in a subsequent case.
Appeal from Rooks district court, Glenn D. Schiffner, assigned judge. Opinion filed January 26, 1996. Affirmed in part, reversed in part, and remanded.
Leonard J. Dix, County Attorney, argued the cause, and Carla J. Stovall, Attorney General, was with him on the brief for appellant.
Edward C. Hageman, of Edward C. Hageman, P.A., of Stockton, argued the cause and was on the brief for appellee.
The State of Kansas, pursuant to K.S.A.1994 Supp. 22-3602(b)(1), appeals from the dismissal of five counts of an eight-count indictment against Kenneth Paul Wright for insufficiency of the charges.
In September 1994, a Rooks County grand jury returned a true bill of indictment charging Wright, the Plainville Chief of Police with eight counts, including criminal threat, stalking, harassment by telephone, and theft.
Prior to trial, Wright moved to dismiss the entire indictment or, alternatively, five of the eight counts. The trial court refused to dismiss the entire indictment but did dismiss the five counts.
Count 2, charging criminal threat, is as follows:
"That on or about the 17th day of June, 1994, the said KENNETH PAUL WRIGHT, within Rooks County, Kansas, then and there being, did then and there contrary to the Statutes of the State of Kansas unlawfully and feloniously threaten to commit violence communicated with the intent to terrorize another, to-wit: Julie Smith, or in reckless disregard of the risk of causing such terror in said Julie Smith, contrary to K.S.A. 21-3419(a)(1), 1993 Supp."
The trial court dismissed this charge because it found the charge "merely concludes the statutory elements without alleging any specific facts and does not assert what the Defendant allegedly did to threaten the victim."
Count 3, charging stalking, is as follows:
"That on or about or between the 1st day of June 1994 and the 20th day of July, 1994, the said KENNETH PAUL WRIGHT, within Rooks County, Kansas, then and there being, did then and there contrary to the Statutes of the State of Kansas unlawfully, feloniously, intentionally, and maliciously did follow or [sic ] course of conduct directed at a specific person, to-wit: Julie Smith, when such following or course of conduct seriously alarmed, annoyed or harassed the said Julie Smith, and which served no legitimate purpose, contrary to K.S.A. 21-3438(a), as amended in Chapter 348, Section 13 of the 1994 Session Laws of Kansas."
Similarly, the trial court dismissed this count, reasoning it "merely concludes the statutory elements without alleging any specific facts and does not assert how the Defendant followed or what course of conduct the Defendant allegedly took to threaten the victim."
Count 4, charging harassment by telephone, is as follows:
"That on or about or between the 1st day of June 1994 and the 20th day of July, 1994, the said KENNETH PAUL WRIGHT, within Rooks County, Kansas, then and there being, did then and there contrary to the Statutes of the State of Kansas unlawfully and intentionally use telephone communication to make a telephone call or calls, whether or not conversation ensued, with the intent to abuse, threaten or harass any person, to wit: Julie Smith, at the called number contrary to K.S.A. 21-4113, 1993 Supp."
As with the second and third counts, the trial court found the charge
Counts 7 and 8 charge Wright with misdemeanor theft:
Both of these counts were dismissed because they did not "clearly inform the Defendant of the particular acts which violate the cited statute."
The State's appeal of the dismissal of these counts involves the construction of a written instrument, which is a question of law over which we have unlimited review. See Galindo v. City of Coffeyville, 256 Kan. 455, 463, 885 P.2d 1246 (1994).
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