Ríos Mora v. Superior Court of Puerto Rico

95 P.R. 115

• Court: Supreme Court of Puerto Rico
• Decided: June 28, 1967
• Docket: No. C-65-117
• Status: Published

Opinions

Mr. Justice Dávila

delivered the opinion of the Court.

Appellant was accused of the crime against nature committed by coercion on the person of a thirteen-year-old boy. He was tried by jury. In the information he was charged that the facts for which he was prosecuted occurred “on or about the first days of the first week of September 1964.” At the trial the aggrieved party testified that the facts occurred on the date alleged in the information. Another witness testified that they occurred on the 8th. At the terminátion of the presentation of the evidence for the prosecution the prosecuting attorney prays to the court “to consider. the information as amended to read that the facts occurred in the month of September, starting September 8, to be more specific.”

The judge allows the amendment relying on the provision of Rule 38(d)¹ of the Rules of Criminal Procedure of 1963, and inquires from defendant whether he opposes “that- this proceeding be postponed for another date to be held before another jury and that the jury in attendance be .discharged.”

The defense informs that it objects that the jury be discharged and to the postponement of the trial.² The judge chooses to discharge the jury. He sets the case for new trial.

On the day set for the hearing the defense requests a term to file a motion alleging former jeopardy. After the motion was filed and the question raised was discussed, it was denied. We issued this writ of certiorari to review said order.

After the prosecuting attorney proposed the amendment of the information, one of the attorneys for the defense stated that . . we would have to commence another trial to give the defense the opportunity to prepare for it.” After the court allows that the information be amended the defense assumes the position of objecting to the continuation of the hearing and of not giving its consent to have the jury discharged and to hold a new trial.

• Without considering whether the amendment proposed by the prosecuting attorney was actually necessary, since apparently there was no such incongruency or variance.'be^ tween the pleadings and the evidence to- warrant the- application of Rule 38(d), the truth is that the action of the court in permitting the amendment did not impair defendant’s right to a fair and impartial trial. In allowing.the amendment the court offered the defense the alternative of continuing with the hearing or of discharging the jury and granting a new trial. But the defense did not accept either the one or the other. )

The attitude assumed by the defense in the sense of opposing to the continuation of the hearing forced the presiding judge to adopt the measure which he believed .was less prejudicial to defendant, which was to discharge .the jury and start a new trial. It was the least prejudicial; since in view of the attitude of the defense to object to the continuation of the trial, the court would have had to-assign to-.him another' attorney, who evidently, could not offer, even if - the continuation of the hearing was postponed so that he could confer.with the defendant and'the witnesses, the Same assistance that the attorneys who had attended him from the onset of the proceeding and who were acquainted with all. the details of the evidence, could offer him. A new trial wa,s certainly more beneficial to defendánt.

Rule 38(d) stems from § .184 of the Model Code,³ arid in § 1009 of the Penal Code of California: In California whéix the amendment of an information is allowed to conform it to the evidence, it is discretionary with the court' to grant a new trial and its determination is generally honored although it has been established that said discretion may not be exercised in such a manner as to deprive a defendant of a reasonable opportunity to prepare his defense. People v. Murphy, 382 P.2d 346 (1963). The purpose of these provisions is to prevent that the administration of justice be thwarted where there is a variance between the evidence and the information, but safeguarding at the same time defendant’s rights to an impartial and fair trial with reasonable opportunity to prepare his defense. People v. Shutler, 59 P.2d 1050 (Cal. 1963). Under our procedure prior to the Rules of 1963 the amendment to the information was proper if the offense charged in the same was not changed, but it did not provide as to the granting of a new trial, as provided in the rule now in force. See People v. Calero, 68 P.R.R. 295, 304 (1948) and § 158 of the Code of Criminal Procedure.

Rule 38 (d), however, mandatorily establishes that where an information is amended to conform it to the evidence presented, the court, if “the substantial rights of the defendant have been impaired” shall grant a new trial. See People v. Rodríguez Marrero, 90 P.R.R. 475 (1964). Thus, the rule states that “The variance between the pleadings and' the- evidence shall not constitute ground for the acquittal of the defendant, but the court shall . . . postpone the trial if the substantial rights of the defendant have been impaired . . . It is an additional guarantee to defendant that he will have the opportunity to prepare his defense adequately. Now then, defendant might reach the conclusion that it is more beneficial to continue the hearing of the case after the amendment has been allowed, and hence the condition provided in the rule. It will be postponed and a new trial will be granted provided the defendant does not oppose it. It is a privilege given by the rule to the defendant. But we have seen that in this case defendant expressed his opposition to have the jury discharged and objected to the continuation of the trial which was being held. Defendant seeks through his action rejecting the application of the provisions of Rule 38(d) to frustrate the administration of justice. The attorney, as an officer of the court, in addition to protecting defendant’s rights, is bound to protect the proper administration of justice. In his mission of assisting a defendant he should not adopt positions which hinder its fair administration.

Under the attendant circumstances in this case, could the estoppel of former jeopardy be invoked to defeat the new trial? Certainly not. In Piñero Agosto v. Superior Court, 94 P.R.R. 193 (1967), we stated:

“In Gori v. United States, 367 U.S. 364 (1961), a case in which both the Court of Appeals, 282 F.2d 43 (2d Cir. 1960), and the Supreme Court doubted the necessity and wisdom of the judge’s action in discharging a jury and in spite of that they sustained the validity of a second trial, it was said:

‘Since 1824 it has been settled law in this Court that “The double-jeopardy provision of the Fifth Amendment . . . does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.” [Citations] Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection and he may be retried consistently with the Fifth Amendment. [Citations] It is also clear that “This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served . . . ,” [Citations] and that we have consistently declined to scrutinize with sharp surveillance the exercise of that discretion. [Citations] In the Pérez case, the authoritative starting point of our law in this field, Mr. Justice Story, for a unanimous Court, thus stated the principles which have since guided the federal courts in their application of the concept of double jeopardy to situations giving rise to mistrials:

“. . . We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office ...” 9 Wheat., at 580.’ ”

The decision of the Superior Court, San Juan Part, of July 29, 1965, to the effect that the defense of former jeopardy did not lie, was correct.

The writ issued will be quashed and the case will be remanded for further proceedings.

Mr. Chief Justice Negrón Fernández dissented. Mr. Justice Santana Becerra dissented in a separate opinion.

1 It provides:

“(d) Variance between pleadings and the evidence. The court may allow amendments to be made to the information, complaint or to a bill of particulars at any time before the conviction or acquittal' of the defendant, in case there is a variance between these pleadings and the evidence. The variance between the pleadings and the evidence shall not constitute grounds for the acquittal of the defendant; but the court shall, provided the defendant does not oppose it, postpone the trial if the substantial rights of the defendant have been impaired, to hold it before another jury or before the same court if the trial is not by jury, and as determined by the court.

“If the discrepancy or variance is of such nature that the evidence establishes an offense different from the one charged against the defendant, and not included therein, or if it establishes an offense beyond the jurisdiction of the court, the jury shall be discharged and the case shall be dismissed.”

2 After the prosecuting attorney proposes the amendment of the information, the record shows that the following occurred:

“Mr. Amadeo:

Then, we would have to commence another trial to give the defense the opportunity to prepare for it.

“Judge:

Pardon me, the court grants the petition of the prosecuting attorney to amend the information and the bill of particulars, to conform, the information as well as the bill, to the evidence offered by him; the amendment requested is allowed. Now then, pursuant to Rule 38, with which my colleagues are acquainted, it provides that after the amendment is allowed, if defendant does not' oppose it, the court shall postpone the trial if the substantial rights of the defendant have been impaired, to hold it before another jury or before the same court if the trial is not by jury. I must understand, then, and I must ask whether the colleagues of' tlie defense understand that the rights of this defendant have been or may be fundamentally impaired by the amendment allowed by the court.

‘ Sure, we are also going to anticipate the court that if this case is tried again, we intend to raise the question of double jeopardy. “Judge:

What you are going to raise in another proceeding you ‘ do later. Then, the colleagues do not object that this proceeding be postponed for another date to be held before another jury and that the jury in- attendance be discharged?

“Mr.' Amadeo :

We object, we take exception of Your Honor’s ruling permitting the amendment.

That is already decided, the amendment is allowed as to that, the colleagues may, at the proper time, raise the question of law.

“Mr. Amadeo:

Now we are not going to waive anything, Your Honor shall deeide according to your opinion.

The court understands that the substantial rights of this defendant may be impaired by the amendment requested by the prosecuting attorney and allowed by the court, and must ask, for the purpose of deciding, whether the colleagues object that his proceeding be postponed and be held before another jury.

We object because we believe that it would be double jeopardy.

Do the colleagues understand that we should continue with this proceeding ?

No, Your Honor, if you permit us, we are defenseless.

Then, you do not want to hold it either now or later?

That is a question for Your Honor to decide.

But, pardon me, you have to answer categorically whether you object to the suspension of this proceeding.

“Mr. Maldonado Pérez:

With the leave of the court, we see the situation created by the rule Your Honor has repeatedly referred to, however, our objection at this time to proceed with the trial on the merits of this case is equivalent to a waiver on our part of defendant’s rights, and we understand, Your Honor, that in addition to the proposed amendment introduced and accepted by the court in this case the substantial rights of defendant would also be impaired by any question of law, Your Honor, which could be raised on a subsequent date, it would have to be raised on a subsequent date, and doing it now entails the anticipation of a trial, so that we cannot object strictly in that sense, Your Honor, to the postponement of this case considering the situation created to Your Honor by the Rules of Criminal Procedure, specifically Rule 38, without it being understood that any constitutional right which, in our opinion, the defendant has, may be raised at the proper time when we return to this court, if it is so ordered by Your Honor.

That is, that we do not waive anything.

Does our colleague object to the continuation of the hearing of the case ?

Exactly. That is not a waiver of defendant’s rights to raise the corresponding contentions at the proper time.

Then, please recall the jury.

Gentlemen of the Jury, the prosecuting attorney, the district attorney, at the termination of the presentation of the evidence, requested that the court allow him to amend the information to conform it to the allegations in the information, or the allegations of the information to the evidence offered through some witnesses; the prosecuting attorney also requested to be allowed to amend an answer to a bill of particulars; the attorneys for the defense objected to it. The court, in the light of a provision of Rule 38 of the Rules of Criminal Procedure, allowed the amendment of the prosecuting attorney and ordered that the information be amended at this stage of the proceeding; it also sustained the request of the prosecuting attorney for the amendment of the bill of particulars; but this court understands, and it is thus understood by defendant’s attorneys, that the substantial rights of defendant may be and actually are impaired by the action taken by this court, in permitting the amendment requested, and in the light of the provisions of Rule 38 of the Rules of Criminal Procedure, this court, in ordering the amendment requested by the prosecuting attorney, should, and it is so done, order the jury which has been sitting in this case to be discharged in order that another jury hear the evidence in the light of the new information which has been amended at the request of the prosecuting attorney to conform it to the evidence he has presented. For said reasons the jury is discharged by the court and the court thanks them for sitting up to this time,' and orders a new trial against defendant herein, which is set for . . . .”

3 Rule 184 insofar as pertinent provides:

“Section 184. Defects, variances and amendment.

“(1)-

“(2) No variance between those allegations of an indictment, information or bill of particulars, which, state the particulars of the offense, whether amended or not, and the evidence offered in support thereof shall be ground for the acquittal of the defendant. The court may at any time cause the indictment, information or bill of particulars, to be amended in respect to any such variance, to conform to the evidence.

“(3) If the court is of the opinion that the defendant has been prejudiced in his defense upon the merits by any such defect, imperfection or omission or by any such variance the court may, because of such defect, imperfection, omission or variance, unless the defendant objects, postpone the trial, to be had before the same or another jury, on such terms as the court considers proper. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution.”