Walker v. State

847 P.2d 542, 1993 Wyo. LEXIS 27, 1993 WL 27914

• Court: Wyoming Supreme Court
• Decided: February 9, 1993
• Docket: 91-140
• Status: Published

Opinions

MACY, Chief Justice.

In this appeal, we consider whether we are required to reverse convictions for indecent liberties with a minor because of the prosecution’s refusal, as well as the county court’s and the district court’s refusals, to reveal the victims’ names to the defendant, Jerald Walker. The victims were identified only as Jane Doe 1 and Jane Doe 2 until some four months after the prosecution had begun. Several months before the criminal trial began, the victims’ names were revealed in confidence to the defendant’s attorney, but the charging documents, including the information, were never amended to include those names.

We reverse with directions.

The defendant contends that the lack of the victims’ names in the charging documents, including the information, deprived him of the effective assistance of his counsel, was prejudicial to his defense, and deprived the courts of jurisdiction to proceed. The State contends that the defendant’s attorney provided effective assistance and that the defendant was not prejudiced by the use of the Jane Doe designations for the victims’ names.

Article 1, Section 10 of the Wyoming Constitution provides:

In all criminal prosecutions the accused shall have the right to defend in person and by counsel, to demand the nature and cause of the accusation, to have a copy thereof, to be confronted with the witnesses against him, to have compulsory process served for obtaining witnesses, and to a speedy trial by an impartial jury of the county or district in which the offense is alleged to have been committed. When the location of the offense cannot be established with certainty, venue may be placed in the county or district where the corpus delecti [delicti] is found, or in any county or district in which the victim was transported.

Article 1, Section 13 of the Wyoming Constitution provides:

Until otherwise provided by law, no person shall, for a felony, be proceeded against criminally, otherwise than by indictment, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger.

We have held that prosecution by information or indictment is proper because a Supreme Court rule, duly adopted, is as “otherwise provided by law.” Barnes v. State, 642 P.2d 1263, 1266 (Wyo.1982). This Court has provided for prosecutions by information in W.R.Cr.P. 9.¹ At the time this prosecution was initiated, that rule provided:

(a)Nature and contents. — All prosecutions shall be by indictment or information and carried on in the name and by the authority of the state of Wyoming, and shall conclude “against the peace and dignity of the state of Wyoming[.”] The indictment or information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and it shall be signed by the prosecuting attorney. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown, or that he committed it by one (1) or more specified means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission or any othgr 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 dismissal of the indictment or information or for reversal of a conviction. When the information in any case is verified by the prosecuting attorney, it shall be sufficient if the verification is made on information and belief.

(b) Surplusage. — The court on motion of the defendant may strike surplusage from the indictment or information.

(c) Amendment of information. — An information may be amended in matter of form or of 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.

(d) Bill of particulars. — The court for cause may direct the filing of a bill of particulars. A motion for bill of particulars may be made only within ten (10) days after arraignment or at such other time before or after arraignment as may be prescribed by rule or order. The bill of particulars may be amended at any time subject to such conditions as justice requires.

In Babbitt v. State, 26 Wyo. 27, 34, 174 P. 188 (1918), we acknowledged and applied a rule which demands:

“[T]he want of a direct, positive and material allegation, in the description of the substance, nature or manner of the offense cannot be supplied by any intendment, argument or implication.” (Joyce on Indictments, Sec. 246 et seq., and authorities cited in the notes.)

In that case, we held that the information, which charged defacement of ballots in an election, was lacking in “direct and positive allegations” in several respects, and we reversed and ordered vacation of the judgment and discharge of the defendant. 26 Wyo. at 34, 174 P. 188.

In Town of Green River v. Martin, 71 Wyo. 81, 254 P.2d 198 (1953), we ordered the acquittal of a defendant who was charged with violating a hawkers and peddlers ordinance because the information did not allege a sale or offer of sale (the defendant was a Jehovah’s Witness distributing religious materials). We viewed the defect as being fatal because it was a “material fact or circumstance[ ] necessary to constitute the crime charged.” 71 Wyo. at 96, 254 P.2d 198.

These principles are tempered somewhat by our rule that:

[A]n indictment is sufficient if it contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend and enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.

Hovee v. State, 596 P.2d 1127, 1131 (Wyo.1979). See also Gonzales v. State, 551 P.2d 929 (Wyo.1976) (per curiam) (citing Boyd v. State, 528 P.2d 287 (Wyo.1974), cert. denied, 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102 (1975)).

In the instant case, a criminal complaint was filed on May 7, 1990, which charged the defendant with two counts of taking immodest, immoral, or indecent liberties with a child (Wyo.Stat. § 14-3-105 (1986)). In Count I, the victim was identified as Jane Doe 1, and, in Count II, the victim was identified as Jane Doe 2. A criminal warrant was filed on May 9, 1990, with those same descriptions. The information was filed in the district court on June 5, 1990, and again the same pattern was followed. A preliminary hearing was held in the Natrona County Court on May 29,1990. At that hearing, the victims were referred to as Jane Does or by their initials. The defendant’s counsel asked for the victims’ names at that time, but the prosecutor objected, and the trial judge sustained the objection. At the arraignment held on July 6, 1990, the defendant’s counsel objected to the victims being unnamed, and the defendant stood mute rather than plead to the charges. The district court entered a plea of not guilty for him. The prosecutor objected to naming the victims and stated that the defendant knew who they were. On July 19, 1990, the defendant’s counsel filed a motion for a bill of particulars which demanded the victims' names, as well as a motion to dismiss the information because it was deficient in that it lacked the victims’ names. On August 8, 1990, the district court issued a discovery order, but the prosecution continued to withhold the victims’ names. On September 14, 1990, the district court ordered the prosecution to divulge the victims’ names to the defendant’s counsel. This was achieved by the prosecutor placing a sealed envelope in the record which was labeled, “No-one else can see this but [the defendant’s counsel]. Candy 9/19/90. Instructions per [the prosecuting attorney].” The document gave two names, but it did not say which was Jane Doe 1 and which was Jane Doe 2. That document was filed on September 19, 1990. A trial had been scheduled to begin on September 24, 1990, but it was continued. Eventually, the case was tried to a jury in February 1991. The information was never amended. When the evidence phase of the trial was concluded, the jury received Instruction No. 4 which substituted, for the first time, the victims’ names for the Jane Doe designations.

In State v. Robinson, 229 Kan. 301, 624 P.2d 964 (1981), the Kansas Supreme Court held that an information was fatally defective and voided the convictions because one count of the information contained neither the elements of the offense charged nor the victim's name. 624 P.2d at 968. The Kansas Supreme Court applied its rule “that in a prosecution for a felony, the indictment or information is the jurisdictional instrument upon which an accused stands trial. A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void.” Id. Also, it has been held that rape is not a difficult crime to charge with sufficient specificity and that an indictment which includes the elements of the statute, the victim’s name, the date of the occurrence, and perhaps the location, will be sufficient. Hines v. State, 472 So.2d 386 (Miss.1985); B. Anthony Moros-co, The PROSecution and Defense of Sex Crimes § 3.07[2] (1991).

We also recognize that some courts have reached results which hold that such a defect in an information is not prejudicial. For instance, in People v. Schneider, 178 A.D.2d 934, 579 N.Y.S.2d 500 (1991), the court held that withholding the victims’ names did not make the indictment insufficient because the defendant demonstrated a propensity to tamper with the witnesses and because the court surmised that the defendant was aware of the victims’ names at the time of his arraignment. In Sallings v. State, 789 S.W.2d 408 (Tex.App.1990), prejudice was not found because the record demonstrated that the victim’s name had been disclosed to the defendant’s counsel at a pretrial hearing. See also Stevens v. State, 822 S.W.2d 810 (Tex.App.1992), remanded, 844 S.W.2d 753, 1993 WL 3865 (1993). In State v. Day, 129 N.H. 378, 529 A.2d 887 (1987), the court held that the victim’s name was not within the definition of the offense, that the defendant knew who the victim was from his earliest contacts with the police, and that the defendant was not prejudiced at trial.

Wyoming statutes appropriately seek to protect juvenile victims’ names from being “released to the public” when the defendant is charged under Wyo.Stat. §§ 14-3-104 and 14-3-105 (1986). Wyo. Stat. § 14-3-106 (1986). See also In re VV Publishing Corporation, 120 N.J. 508, 577 A.2d 412 (1990). However, we are at a loss to locate persuasive authority or legal principles which would justify a holding by this Court that the victims’ names may be left out of an information and then withheld from the defendant under such circumstances as those presented here. It was error, pure and simple. Under the Wyoming Constitution, this Court is charged with “general superintending control over all inferior courts, under such rules and regulations as may be prescribed by law.” Wyo. Const, art. 5, § 2. The criminal complaint, the criminal warrant, and the information used in this case were fatally defective from the time they were filed. Until these documents were filed in plain and definite language, i.e., with the victims’ names in this instance, they were void and, thus, the lower courts lacked jurisdiction to proceed further.

The factual circumstances underlying this case have burdened this Court with a profound responsibility. The error committed by the prosecution, and then condoned by the lower courts, is clearly beyond our power to excuse, sanction, or find harmless. We cannot, by “intendment, argument or implication,” or by supposition, inference, or surmise, or by wishing it were not so, place material allegations into an information which did not exist. See Babbitt, 26 Wyo. at 34, 174 P. 188.

The judgment and sentence is reversed, and the case is remanded to the district court with instructions to vacate the judgment and sentence and discharge the defendant. Because the complaint and information were invalid, double jeopardy did not attach, and the defendant may again be tried for the alleged offenses. 22 C.J.S. Criminal Law §§ 214, 236 & 239 (1989).

THOMAS, J., files a specially concurring opinion.

GOLDEN, J., files a dissenting opinion in which CARDINE, J., joins.

1 . Revised effective March 24, 1992.