State v. Schaffer

845 P.2d 281, 120 Wash. 2d 616, 1993 Wash. LEXIS 27

• Court: Washington Supreme Court
• Decided: February 4, 1993
• Docket: 58944-5
• Status: Published

Opinions

Durham, J.

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 Wn. 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 Mends 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 Wn.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 Wn.2d 591, 592, 763 P.2d 432 (1988); accord State v. Markle, 118 Wn.2d 424, 432, 823 P.2d 1101 (1992); Pelkey, 109 Wn.2d at 487.

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 Wn.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 Wn.2d at 491. Any greater amendment "necessarily prejudices" the defendant's rights under the state constitution. Pelkey, at 491; accord Markle, 118 Wn.2d at 436-37. Other casés from this court have also emphasized the relationship between article 1, section 22 and prejudice. See, e.g., State v. Kjorsvik, 117 Wn.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, at 696 ("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 Wn.2d 483, 490, 739 P.2d 699 (1987) (under facts of case, amendment caused no "specific prejudice"); State v. Purdom, 106 Wn.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 Wn.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.

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. 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; Markle, at 437, 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, at 490. On the other hand, impermissible prejudice is less likely:

where the amendment merely specifies] 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).

Pelkey, at 490-91. It is for the trial court to judge each case on its facts, and reversal is required only upon a showing of abuse of discretion. State v. James, 108 Wn.2d 483, 490, 739 P.2d 699 (1987); State v. Wilson, 56 Wn. App. 63, 65, 782 P.2d 224 (1989), review denied, 114 Wn.2d 1010 (1990).

Several cases from the Court of Appeals support our analysis. In Wilson, the trial court granted the State's motion to amend the information to include a third count of indecent liberties on the day of the trial. The Court of Appeals upheld Wilson's conviction finding "no specific evidence ... to support a claim of prejudice". Wilson, at 65. Like the current case, the amended information in Wilson alleged an additional act related in scope to the previous counts. Less prejudice exists here than in Wilson, though, because the amendment in Schaffer's case did not add any additional counts.

Similarly, a midtrial amendment was allowed in State v. Mahmood, 45 Wn. App. 200, 724 P.2d 1021, review denied, 107 Wn.2d 1002 (1986), which added a new theory of criminal liability. When making the amendment, the State indicated that a later witness would offer testimony supporting the new theory. The Court of Appeals upheld this amendment because there was no showing that Mahmood was "misled or. surprised". Mahmood, at 205. Again, the case is factually similar to the current one. Schaffer, like the defendant in Mahmood, was aware that the State might pursue the additional theory prior to the actual amendment. Moreover, the new theory presented in the amended information arose out of the same general factual circumstance. Also, like Mahmood, Schaffer had the opportunity to cross-examine the key witness — Heidi Hughes — with firll knowledge of the proposed amendment.

In short, Schaffer provides no compelling reasons for interpreting article 1, section 22 of our constitution as a blanket prohibition against midtrial amendments. There is no need to redraw the line established in Pelkey to a point earlier in the criminal process. Our longstanding court rule, CrR 2.1(e), amply delineates the constitutional boundaries applicable to amendments during the State's case. See also State v. Brown, 55 Wn. App. 738, 780 P.2d 880 (1989), review denied, 114 (1990) (Amendment on first day of trial did not create prejudice because "reduced charge involved the same evidence and presented no problems for the preparation of Brown's defense."); State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 (1982) ("Where the principal element in the new charge is inherent in the previous charge and no other prejudice is demonstrated, it is not an abuse of discretion to allow amendment on the day of trial."). If a defendant is prejudiced by an amendment, then he or she should be able to demonstrate this fact.

The amendment was proper under article 1, section 22 of our constitution and Schaffer's juvenile conviction for malicious mischief is affirmed.

Brachtenbach, Dolliver, Andersen, Smith, and Guy, JJ., concur.

1 In supplemental briefing before this court, Schaffer raised the additional issue of whether the amendment was proper under CrR 2.1(e), claiming that he was substantially prejudiced. We do not consider this issue, however, because it was not properly raised in the petition for review. Douglas v. Freeman, 117 Wn.2d 242, 257-58, 814 P.2d 1160 (1991). Under RAP 13.7(b), this court "will review only the questions raised in the . . . petition for review. . . unless the Supreme Court orders otherwise upon the granting of the . . . petition." Review, here, was granted only on the constitutional issue. As such, the determination by both the trial court and the Court of Appeals that the amendment did not operate to the substantial prejudice of Schaffer's rights stands as a verity.