State v. Faltynowicz

660 P.2d 368, 1983 Wyo. LEXIS 295

• Court: Wyoming Supreme Court
• Decided: March 18, 1983
• Docket: 5763
• Status: Published

Opinions

BROWN, Justice.

This case is before us on a bill of exceptions. A complaint charging appellee with committing a misdemeanor was filed in county court on August 30, 1982. The arraignment was held on the same date, and appellee entered a plea of guilty. The court, to establish a factual basis for the plea, asked appellee to describe what had happened on August 29, the date of the incident which led to her arrest. As appel-lee was describing the events which led to her arrest, the court interrupted her and said that there was a defect in the complaint because it did not state the year of the alleged crime. The court also said that since appellee had attempted to enter a plea, it would dismiss the complaint with prejudice.

We sustain the bill of exceptions taken by the State.

Section 5-5-108, W.S.1977, Cum.Supp. 1982, provides:

“The Wyoming supreme court shall adopt rules governing the procedures and practices of the county courts. The Wyoming Rules of Civil Procedure and the Wyoming Rules of Criminal Procedure, as amended or supplemented from time to time, shall govern county courts unless such rules or any parts thereof are declared inapplicable by the supreme court. Commissioners, as used in the Wyoming Rules of Criminal Procedure, shall include county court judges and county court commissioners.”

This court has adopted rules for county courts, effective January 1,1983. Since the rules were not in effect when the complaint against appellee was dismissed, we will consider only the Wyoming Rules of Criminal Procedure in this appeal. Rule 3, W.R. Cr.P., says, “The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a commissioner.” The complaint here had blanks for the day, month, and year of an alleged offense. The day and month were filled in, but the year was not typed in.

At the time this complaint was issued, a complaint in county court could serve two purposes. The first was to allow the court to make an independent probable cause determination that an offense had been committed and that the appellee had committed it. The second purpose was that the complaint functioned as an indictment or information.

Concerning the probable cause determination, a complaint provides a foundation for a neutral judgment by a judicial officer that resort to further criminal process is justified.

« * * * It must provide the affiant’s answer to the magistrate’s hypothetical question, ‘What makes you think that the defendant committed the offense charged?’ * * * ” Jaben v. United States, 381 U.S. 214, 224, 85 S.Ct. 1365, 1371, 14 L.Ed.2d 345, 353 (1965).

The question to ask in evaluating the complaint for probable cause sufficiency is whether it meets the test of minimal adequacy in setting forth the essential facts establishing probable cause, using a eom-monsense approach. Organ v. State, 65 Wis.2d 36, 221 N.W.2d 823 (1974). It does not make sense to dismiss a complaint as being insufficient because it has an obvious typographical error. In United States v. Markis, 352 F.2d 860 (2nd Cir.1965), an agent swore to a complaint before a commissioner on October 5, 1964. The complaint alleged that John Doe had been engaged in criminal activity on or about October 8, 1964. John Doe had later been identified as Joseph Markis. The commissioner then issued a warrant of arrest. Concerning the attack on the warrant based on the discrepancy in the date, the court ruled:

“The attack on the arrest warrant, based on the point that, in obvious error, the complaint alleged Markis had committed the offense three days in the future requires no discussion. * * * A complaint, like affidavits supporting a search warrant, must be read ‘in a commonsense and realistic fashion.’ * * * ” United States v. Markis, supra, at 864.

This court has taken the same commonsense approach to evaluate the adequacy of a complaint. In Martinez v. State, Wyo., 511 P.2d 105 (1973), appellant contended that there was a lack of reasonable cause for the issuance of a warrant for his arrest, because the complaint recited that it was based on attached affidavits, when no affidavits were attached. This court said that where a justice of the peace had access to sworn statements and knew their contents at the time he issued the arrest warrant, it was immaterial whether the statements were attached.

As we have noted, the second purpose of the complaint in county court was that it functioned as does an indictment or information in district court.¹ Rule 9, W.R. Cr.P., speaks to indictments and informa-tions; at the time the complaint was filed the rule also applied to complaints in county court when the complaints had the same function as an indictment or information.

Rule 9(c), W.R.Cr.P., provides:

“(c) Amendment of information. — An information may be amended in matter of form or substance at any time before the defendant pleads without leave of court. The court may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.”²

The rule makes the granting of an amendment to an information mandatory if it is requested before the defendant pleads. It allows more discretion to the trial court after a defendant pleads. However, this discretion is limited by Rule 9(a), W.R.Cr.P., which says:

“ * * * Error in the citation or its omission or any other defect or imperfection which does not tend to prejudice any substantial right of the defendant upon the merits or to mislead the defendant to his prejudice shall not be grounds for the dismissal of the indictment or information or for reversal of a conviction. * * * ”

This rule is similar to statutes which were in effect before they were. superseded by the Rules of Criminal Procedure. Because of the similarity in our present rules and previous statutes, the rationale of cases interpreting the previous statutes is still pertinent. According to State v. Hickenbottom, 63 Wyo. 41, 178 P.2d 119 (1947), § 33-415, W.R.S.1931, used to provide that no indictment should be deemed invalid, nor should a trial, judgment or other proceeding be affected for “ ‘ * * * any defect or imperfection which does not tend to prejudice the substantial rights of the defendant upon the merits.’” We said in State v. Hickenbottom, supra, that under statutory provisions of this type, slight verbal inaccuracies, or typographical or spelling errors were not to be favorably regarded, but that objections to them had to at least be raised. We then ruled that appellant’s contention concerning the defect in the indictment was without merit, implying that, if the defect is merely one of form and not substance, defendant must object to the defect.

This court has not taken the same position with respect to a defect of substance. In Town of Green River v. Martin, Wyo., 254 P.2d 198 (1953), we noted a fatal defect in an information, and took notice of it as a fundamental reversible error, even though appellant had not objected below or raised the issue on appeal. We further said in Gonzales v. State, Wyo., 551 P.2d 929, 931 (1976), that we do not approve or allow haphazard and careless pleading charging a crime. “ ‘ * * * [T]he substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules.’ ”

Rule 9(a), W.R.Cr.P., is also similar to Rule 7(c)(3), Federal Rules of Criminal Procedure, except that the latter rule only pertains to error in the citation or its omission, and does not have the language “or any other defect or imperfection,” which arguably gives the federal courts more discretion to dismiss indictments or informations. The policy of these rules is that imperfections of form which are not prejudicial are disregarded. United States v. Dreer, 457 F.2d 31 (3rd Cir.1972); and United States ex rel. Harris v. Illinois, 457 F.2d 191 (7th Cir.1972), cert. denied 409 U.S. 860, 93 S.Ct. 147, 34 L.Ed.2d 106 (1972). “ ‘ * * * [T]he practice of fine combing indictments for verbal and technical omissions is no longer countenanced by the courts.’ ” Gonzales v. State, supra, at 931.

An indictment to be legally sufficient must fairly indicate the crime charged, must state the essential elements of the alleged crime and be sufficiently definite so that the defendant can prepare his defense, and definite enough so that the indictment will grant protection from further prosecution for the same offense. Hovee v. State, Wyo., 596 P.2d 1127 (1979). Such an indictment will allow the accused his Sixth Amendment right under the United States Constitution “to be informed of the nature and cause of the accusation,” and his right under Art. 1, § 10 of the Wyoming Constitution “to demand the nature and cause of the accusation.” The same standards, of course, would apply in judging the sufficiency of an information.³

Other courts have given only cursory attention to arguments that a defendant was prejudiced in being able to prepare a defense because of an obvious error in the indictment. In United States v. Reece, 547 F.2d 432 (8th Cir.1977), one count of an indictment contained a typographical error in a date, alleging that appellant had illegally possessed a check on October 1, 1975, instead of October 1, 1974. The court said that any argument for error was frivolous, since the appellant failed to point to any prejudice to his case as a result of the error. In United States v. Zambito, 315 F.2d 266 (4th Cir.1963), cert. denied, 373 U.S. 924, 83 S.Ct. 1524, 10 L.Ed.2d 423 (1963), the appellant complained of a typographical error in the indictment which stated October 23, 1962, rather than 1961, as the date of an alleged false statement. The court ruled that the obvious clerical mistake was in no way prejudicial. In Government of Canal Zone v. Green C., 521 F.2d 241 (5th Cir.1975), the court held that appellant was not prejudiced by a typographical error giving the wrong date of an alleged offense. The correct date was specified at his arraignment, at the preliminary hearing, and at trial.

Here, it would have been impossible for appellee to be prejudiced by the omission of the year of the alleged offense. Two other defendants, a Mr. and Mrs. Hoff-land, were charged with the same offense arising from the same incident. They were arraigned at the same time as appellee. Appellee was present when the trial court read the complaint against Mr. Hoffland; that complaint included the year. Furthermore, when the trial court began to ask her questions to establish a basis for the guilty plea, appellee began describing the events of August 29, 1982. She obviously knew the offense with which she was being charged.

When a defendant cannot possibly be prejudiced, the trial court does not, under Rule 9(a), W.R.Cr.P., have the discretion to dismiss a complaint, information, or indictment. For that reason, the State’s bill of exceptions to the trial court’s dismissal of the complaint with prejudice is sustained.

1 . Rule 3, Wyoming Rules of Criminal Procedure, County Courts, provides that all prosecutions or offenses triable in the county courts shall be by information supported by affidavit. Rule 4, W.R.Cr.P.C.C., provides that if it appears from the information or affidavits that there is probable cause to believe an offense has been committed and that the defendant committed it, a summons upon the defendant shall issue. The new rules, then, contemplate that the information can be both the document supporting probable cause to arrest and the charging document informing defendant of the offense with which he is charged.

2 . Appellee here had entered her plea, although the court had not yet accepted it. The State did not ask to amend the complaint, probably because the court had summarily said, in the middle of appellee’s description of the incident, that it was dismissing the complaint. The State did argue that since appellee had entered her plea, she had waived any defects in the complaint.

3 , “ * * * Generally, where an information can be filed only after a preliminary hearing, * * * the information must charge substantially the same offense alleged in the complaint under which a preliminary hearing was held. * * * ” Bartlett v. State, Wyo., 569 P.2d 1235, 1243 (1977).