State v. Gehrke

was filed for record

/^Tcibrks office ^
iUKeaE COURT. STATE OF VVAGXMTOtI
at__8AikL on feXo^^jcj
SUSAN L. CARLSON
jTCMiEFJUsr^^ SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent, No. 95635-9
V.

En Banc
MICHAEL L. GEHRKE,

Petitioner. Filed FEB 1 4

WIGGINS, J.—Michael Gehrke was charged with second degree murder,

predicated on second degree assault, for the death of Christopher Pineyro.

Immediately before the State rested its case, the trial court allowed the State to amend

its charges to include first degree manslaughter. The jury found Gehrke guilty of first

degree manslaughter but not second degree murder.

Gehrke asks us to order the trial court to vacate his conviction for first degree

manslaughter and dismiss with prejudice, arguing that allowing the amendment

violated his constitutional right to be informed of the charges against him. We hold

that allowing the State to amend its charge after completing its case in chief and

immediately prior to resting violated Gehrke's constitutional right. We agree with

Gehrke and reverse the decision of the Court of Appeals and remand to the trial court

for vacation of his conviction, dismissal of the first degree manslaughter charge with

prejudice, and further proceedings consistent with this Opinion.
state V. Gehrke (Michael), No. 95635-9

FACTS AND PROCEDURAL HISTORY

Michael Gehrke was convlctecl of first degree manslaughter for the death of

Christopher Pineyro, who died after being stabbed in a street fight with Gehrke. The

two men had a history of conflict. At trial, the opposing sides offered conflicting

accounts of the fight. According to Gehrke, he had just arrived at a friend's house in a

vehicle driven by his girlfriend when Pineyro rode up to him on a bicycle. Pineyro

stated that he had "something" for Gehrke and stopped his bicycle. Pineyro then

reached behind himself and began to "shed his things." Gehrke reacted and kicked

Pineyro's bike frame, which hit Pineyro in the leg. Pineyro and the bike fell to the

ground together.

When Pineyro stood up, he was wielding a hammer. Gehrke drew a

pocketknife. Pineyro began swinging the hammer at Gehrke, and Gehrke backed

away. Pineyro advanced, and Gehrke retreated approximately 17 feet, toward a fence.

Gehrke testified that he saw no opportunity to get any farther back and that "I thought

that if I didn't do something, he would—he would back me up against the fence and

hit me with the hammer." Gehrke jabbed at Pineyro twice with the knife, fatally

wounding Pineyro in the neck. The police arrived and Gehrke admitted to striking

Pineyro, saying, "I'm the guy. I stabbed him and it was self-defense."

The State charged Gehrke with second degree felony murder predicated on

second degree assault. Clerk's Papers (CP) at 1. On the first day of trial, the

prosecutor stated that the State was considering amending the charges to include first

degree manslaughter as an alternative charge but noted that he was not currently

seeking such an amendment. The prosecutor told the trial court, "I don't think that it
state v. Gehrke (Michael), No. 95635-9

would be prejudicial [to amend the charge], and It's a lesser offense. [The defense

was] not in favor of that[amendment], therefore, I'm not going to submit that, but I did

put them on notice that, at the conclusion of the State's case, i may be moving for that

to be charged In the alternative."

After the State called Its last witness but before It had formally rested, the

prosecutor moved to amend the Information to add a manslaughter charge. The State

made clear that It Intended to rest even If the amendment was not allowed ("The State

does Intend on.resting [regardless] of the Court's decision [to allow the amendment]

In this case."). Defense counsel objected to the prosecutor's motion to amend, on the

grounds that manslaughter Is not a lesser Included offense of felony murder and that

Gehrke did not mount a defense to manslaughter, which requires an element of

recklessness not required for felony murder.

The trial court granted the State's motion to amend the Information. The court

explained that Gehrke's possible defense strategy against a first degree manslaughter

charge was "essentially the same" as the defense he had presented to the second

degree murder charge. It Is unclear from the record whether the trial court believed

that the manslaughter charge was a lesser Included offense of the original felony

murder charge.

The jury was apparently unable to agree as to whether Gehrke was guilty of

second degree murder.^ It found Gehrke guilty of first degree manslaughter.

^ As discussed below, this characterization of first degree manslaughter as a "lesser offense" was
inaccurate and misleading.
^ When.filling out the verdict forms, the jury left blank "Verdict Form A," for second degree murder,
but on "Verdict Form B" found Gehrke guilty of first degree manslaughter. CP at 188-89. The jury
state V. Gehrke (Michael), No. 95635-9

Gehrke appealed. The Court of Appeals affirmed the trial court, holding that,

under GrR 2.1(d), Gehrke could not demonstrate prejudice because his defense at

trial was self-defense and that would have also been his defense to the amended

charge. Gehrke petitioned this court for review, which we granted.

STANDARD OF REVIEW

We review a trial court's ruling on a proposed amendment to an information for

abuse of discretion. State v. Lamb,.175 Wn.2d 121, 130, 285 RSd 27 (2012)(citing

State V. Schaffer, 120 Wn.2d 616, 621-22, 845 R2d 281 (1993)).

ANALYSIS

The trial court violated Gehrke's constitutional rights by allowing the State to

add an alternative charge against Gehrke after it finished its case in chief and

immediately before it rested.

I. Criminal defendants are entitled to receive notice of the nature of the charges
and an opportunity to present a defense

It is a central right, provided in our constitution, that "[i]n criminal prosecutions

the accused shall have the right... to demand the nature and cause of the accusation

against him." Wash. Const, art. I, § 22. Pursuant to this right, "[t]he accused, in

criminal prosecutions, has a constitutional right to be apprised of the nature and cause

of the accusation against him. . . . This doctrine is elementary and of universal

application, and is founded on the plainest principle of justice." State v. Ackles, 8

Wash. 462, 464-65, 36 R. 597(1894). The "accused must be informed of the charge

had been instructed to leave Verdict Form A blank if it could not agree on a verdict on that charge.
4 Report of Proceedings at 773 (oral instruction); CP at 173 (written instruction). This indicates
that the jury was unable to agree on the charge of second degree murder.
state V. Gehrke (Michael), No. 95635-9

he is to meet at trial and cannot be tried for an offense not charged." State v. Carr, 97

Wn.2d 436, 439, 645 P.2d 1098 (1982). Thus, "defendants have a right to be fully

informed of the nature of accusations against them so that they may prepare an

adequate defense. This right is satisfied when defendants are apprised with

reasonable certainty of the accusations against them." State v. Leach, 113 Wn.2d 679,

695, 782 P.2d 552(1989)(citations omitted).^

A. Criminal rules that allow for midtrlal amendments operate within the confines
of the constitution and cannot be read to contravene the constitution

The constitutional rights created by article I, section 22 inherently limit when

and whether the State may make midtrial amendments to its information. State v. Olds,

39 Wn.2d 258, 261, 235 P.2d 165 (1951) (holding that "a new count charging a

different crime . . . would contravene Art. I, § 22, of the state constitution"). Thus,

although CrR 2.1(d)—used here by the State to amend its information midtrial—

provides that "[t]he court may permit any information or bill of particulars to be

amended at any time before verdict or finding if substantial rights of the defendant are

not prejudiced," this rule is inherently limited by article I, section 22. State v. Pelkey,

109 Wn.2d 484, 490, 745 P.2d 854(1987)(referring to what was then CrR 2.1(e) but

is now 2.1(d)).

^ A due process right also exists in this realm. The United States Supreme Court has articulated
that "the most basic ingredients of due process of law" include '"[a] person's right to reasonable
notice of a charge against him, and an opportunity to be heard in his defense.'" Washington v.
Texas, 388 U.S. 14, 18, 87 S. Ct. 1920, 18 L. Ed. 2d 1019(1967)(quoting in re Oliver, 333 U.S.
257, 273, 68 S. Ct. 499, 92 L. Ed. 682 (1948)). However, given that this right is fully fleshed out
by article I, section 22 of our constitution, no further discussion of a defendant's due process right
to be informed of the charges against him is necessary.
state V. Gehrke (Michael), No. 95635-9

Courts of this state have long made clear that GrR 2.1(d) is thus limited by our

constitution. See, e.g., State v. Lutman, 26 Wn. App. 766, 768, 614 P.2d 224 (1980).

In Lutman, the defendant was originally charged with hit-and-run and failure to yield.

Id. at 767. At the conclusion of evidence, the trial court granted "a motion to amend

the complaint to negligent driving." Id. Lutman was convicted of negligent driving and

appealed. Id. The relevant criminal rule in effect at the time permitted an information

'"to be amended at any time before judgment'" if the amendment did not prejudice the

defendant. Id. at 768 (quoting JTR (Justice Court Traffic Rules) 3.04). Nevertheless,

the Court of Appeals held that this rule "cannot bear an interpretation which would

contravene [article I, section 22]" of the constitution and that "[ajn amendment during

trial stating a new count charging a different crime violates this provision." Id. at 768,

767.

In Carr, this court extended the holding in Lutman to the pretrial amendment of

an information, reaffirming Olds in the process. 97 Wn.2d at 440. In Carr, the

defendant was originally charged with failing to register to carry goods intrastate. Id.

at 438. Prior to trial, the prosecution discovered that the goods in question were to be

transported interstate, to Utah, not intrastate. Id. Just before trial began, the

prosecutor amended the information to charge the defendant under a different statute,

which required that he register to carry goods interstate. Id. The trial court granted

Carr a one-week continuance to prepare for the new charge, as well as an additional

continuance at the conclusion of the State's case. Id. Carr was found guilty of the

amended charge. Id. We held that despite the difference in the timing of the

amendments made in Carr and in Lutman, the concerns in Carr were "analogous to
state V. Gehrke (Michael), No. 95635-9

the Lutman case." Id. at 440, We noted that in Lutman, amending the complaint to a

new charge "[a]t the conclusion of the evidence" violated Lutman's rights to be

informed of the accusations against him. Id. There was no substantive difference in

Carr, as we held that "amending the complaint at the start of trial violated Carr's right

to be informed of the accusations against him." Id.

B. Pelkey and Its progeny

Five years after we decided Carr, the court accepted review of Pelkey. 109

Wn.2d 488. The State originally charged Pelkey with one count of bribery. Id. at 486.

However, "[a]t the conclusion of the presentation of the State's case at trial," the State

amended the information to charge trading in special influence, a different crime. Id.

We held that allowing the amendment violated Pelkey's article I, section 22 rights. Id.

at 491.

The State argued that under CrR 2.1, the defendant bears the burden of

establishing that prejudice resulted from the midtrial amendment. Id. at 490. We

rejected this argument, repeating that CrR 2.1 operates "within the confines of article

I, section 22" and that "[w]e cannot sustain an interpretation of a court rule which

contravenes the state constitution." Id. Accordingly, we reversed Pelkey's conviction.

W. at 491.

In doing so, we created a rule 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.

Id. A violation of this right is per se prejudicial for the purposes of CrR 2.1.
state V. Gehrke (Michael), No. 95635-9

The bright-line rule established in Peikey, which prohibits certain midtrial

amendments, is not concerned with whether the State has formally rested. As Justice

Utter repeatedly stated in the Peikey decision, a trial court cannot allow the "State to

amend the information . . . after the State completed presentation of its case in chief."

Id. at 487(emphasis added); see also id. at 485 (other instances of this language). In

State v. Markle, we reaffirmed this, stating that "amending a criminal charge after the

State had presented its case in chief violate[s] the defendant's state constitutional

rights under article 1, section 22 to be informed of the charges against him when the

new charge is not a lesser included offense or an offense of a lesser degree." 118

Wn.2d 424, 433, 823 P.2d 1101 (1992)(emphasis added). Indeed, in Markle we did

not even evaluate whether the State had formally rested—that the amendment was

made at the end of the State's case in chief (described as a "midtrial amendment")

was enough to disqualify it as "reversible error per se." Id. at 437.

On the other hand, we have declined to apply Pelkey's bright-line rule when the

State amends its case in the midst of its case in chief, when the defendant has an

opportunity to respond meaningfully to the amendment. Schaffer, 120 Wn.2d at 620-

21. In Schaffer, the trial court initially denied the State's motion to amend for lack of

evidence of the charge sought, id. at 618. In response, the State called an additional

witness to testify, id. After the witness's testimony, the State renewed its motion, and

the trial court granted the amendment, id. The defense then had the opportunity to

cross-examine the witness(which it did), after which the State rested, id. Schaffer was

found guilty of the amended charge, id. We upheld the amendment, noting that the

rule established in Peikey did not extend to this situation, id. at 620-21. The court will
state V. Gehrke (Michael), No. 95635-9

grant relief in these circumstances only if the defendant was prejudiced by the

amendment. CrR 2.1(d). In so doing, Sc/?afifer reaffirmed the Peikey rule, noting that

the State cannot amend its information "following the close of the State's case." id. at

621.

II. The amendment to the information violated Gehrke's constitutional rights to
receive notice of the nature of the charges and an opportunity to present a
defense

Here, the State moved to amend the information immediately before resting its

case. The State told the court, upon moving to amend, that it "intend[ed to] rest[]

[regardless] of the Court's decision [to allow the amendment." Gehrke argues that the

Peikey rule applies to this situation. We agree. By informing the court that it would rest

its case regardless of the court's decision of the amendment, the State made clear

that it had completed its case in chief. As Peikey and Markle stated expressly, when

the State has completed its case in chief, it cannot amend the information. Peikey,

109 Wn.2d at 487; Markle, 118 Wn.2d at 433. In light of that, we agree with Gehrke.

The Peikey rule applies, and the amendment is barred as per se prejudicial.'^

Situations like the one before us now are within the scope of the Peikey rule

because when the State explicitly states that it will rest its case after moving to amend.

"The existence of per se prejudice in this situation is no accident, in situations where, as in Peikey
and here, the defendant has no opportunity whatsoever to respond to the amended charges,
prejudice exists inherently because the defendant has no opportunity to modify even a shred of
defendant's strategy before being faced with the new charge. The defense always must build its
case around the architecture provided by the State, the latter of which decides what to charge
and what not to charge. (As discussed below, the mere indication provided by the State that a
new charge may be brought is an insufficient foundation on which the defendant can properly
build a case.) When the State amends the information at the end of its case, the State places the
defendant not only (as is necessarily the case) in an edifice not of defendant's own making but
also in one that looks entirely different from what the defendant had, up to that point, been led to
expect. With half of the opportunity to respond to the new charge gone, prejudice necessarily
follows.
state V. Gehrke (Michael), No. 95635-9

it has functionally rested its case in chief. Pelkey, Markle, and Schaffer reiterate that

the Pelkey rule applies when the State has completed its case in chief. If these

statements are to mean something, they must mean, at least, that when the State has

made it clear that it will rest its case, then it may no longer amend. We hold, therefore,

that in a situation like the one before us here, where the State made it clear that it has

completed its case in chief, the Pelkey rule applies.

The dissent argues, and the concurrence agrees, that Gehrke's case cannot

be within the scope of the Pelkey rule because the Pelkey rule requires that the State

formally rest its case; without such ritual formalism, the dissent indicates, the Pelkey

rule cannot apply. Dissent at 1; concurrence at 1.

But this is wrong. Pelkey never required the talismanic invocation of the phrase,

"the State rests." Only 0A7ce does the Pelkey opinion state that its bright-line rule

applies when the State "has rested its case." Pelkey, 109 Wn.2d at 491. In every other

instance. Justice Utter makes clear that the Pelkey rule applies once the State has

completed its case in chief. Id. at 485-86.® In the face of this, it does not matter whether

the State has "formally rested" its case. Rather, Pelkey was, and remains, concerned

with whether the State had completed its case in chief.® When the State informs the

® Specifically, Justice Utter wrote, "The State violated Const, art. 1, § 22 (amend. 10) when it
amended its information to charge a separate crime after it had already presented Its case In
chief," Pelkey, 109 Wn.2d at 485 (emphasis added); "the thai court erred in permitting the State
to amend the information from bribery to trading in special influence after the State completed
presentation of Its case in chief, id. at 487 (emphasis added); and "Pelkey convincingly argues
the trial judge violated article 1, section 22 of the Washington State Constitution by allowing the
State to amend the information against the defendant after the State completed presentation of
its case in chief." Id. (emphasis added).
® Contrary to the dissent's arguments (and the concurrence's agreement with them), Schaffer 6\di
not disturb Pelkeys emphasis on whether the State had completed its case in chief, but, instead.

10
state V. Gehrke (Michael), No. 95635-9

trial court that after its motion to amend, it will rest its case, then it has completed its

case in chief. That is what the State did here. Accordingly, the Pelkey rule applies.

This is not to say that formalities are irrelevant. The formality of Miranda^

warnings, for instance, are central to criminal procedure. But the rule advocated for

by the dissent and the concurrence would make formal resting the only indicator of

whether the Pelkey rule applies and would elevate formality over reality in a manner

that undermines Pelkey. Such a formalistic rule ignores the underlying logic of that

case. Pelkey held that article I, section 22 assures that a defendant will not be faced

with a situation where the State can amend its case without affording the defendant

an opportunity to adequately respond. See Schaffer, 120 Wn.2d at 620 (citing Leach,

113 Wn.2d at 695-96). Were the State allowed to amend prior to resting but when it

has made clear that it has completed its case in chief (as was the case here), the

Pelkey rule would be rendered toothless. From the defendant's perspective—the

perspective the Pelkey rule is concerned about—there is no difference between

allowing an amendment immediately before the State rests and immediately after, in

reaffirmed it. See dissent at 1. The dissent relies on State v. Vangerpen, 125 Wn.2d 782, 790,
888 P.2d 1177(1995), to make this argument. Vangerpen states, In dicta and without citation, that
"[w]e explained In Schaffer that Peikey only prohibits amendments after the State has rested Its
case because the likelihood of prejudice Is so great." id. (emphasis added). Vangerpen's dicta
mischaracterlzes Schaffefs treatment of Peikey. While Schaffer does say that Pe/key"addressed
only the constitutionality of an amendment adopted after the State had rested Its case," this was
not a statement of law but merely a recitation of Peike/s facts—^for In Pelkey, the State had Indeed
rested Its case before moving to amend. Schaffer, 120 Wn.2d at 620-21 (some emphasis added).
True, Schaffer also says that the Pelkey rule prohibits amendments made after the State has
rested—but this recitation of law must be read In conjunction with another, as we went on to say
that"amendments are not permitted following the close of the State's case because the likelihood
of prejudice Is too great." Id. at 621 (emphasis added). In other words, Schaffer reaffirmed what
Pelkey Itself held: the State cannot amend after It completes Its case In chief. Including, but not
necessarily limited to, after It rests Its case. Our holding In today's case Is merely an application
and clarification of that doctrine.
7 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).

11
state V. Gehrke (Michael), No. 95635-9

a situation where, as here, the State has made clear it will rest regardless of whether

the court allows the amendment. Any "unsettl[ing]" of the Pelkey rule is perpetrated by

the dissent and the concurrence, not by our opinion. See dissent at 2; concurrence at

1. Pelkey therefore applies.

Applying Pelkey in the instant case creates no "unnecessary confusion" for

litigants, trial judges, or appellate courts. Dissent at 2; see also concurrence at 1.

Pelkeys bright-line rule remains intact. Litigants and judges both are given a clear

statement of the law: when the State has made it abundantly clear that it will rest its

case after moving to amend, irrespective of the decision on that amendment, then the

State has completed its case in chief and the Pelkey rule applies. No substantial

"factual finding" is required of appellate courts to understand when this has occurred.

See dissent at 3. Here, all that was required was to look at what the State actually

said: that it would rest.its case after moving to amend, irrespective of whether that

amendment was permitted. A trial court and an appellate court need only take a

prosecutor at his or her word to resolve this question.

We do not move the line of where the Pelkey rule applies any further into the

State's case in chief than did Pelkey or Schaffer. The facts here, indeed, are very

specific, concerning a likely rare situation in which the State has said it will rest after

amending. Schaffer's holding that the Pelkey rule does not apply in the midst of the

State's case in chief thus stands. If the State had not completed its case in chief—

and,for instance, had made clear that were the amendment denied, it would then call

witnesses whose testimony would be used to support the amendment, as the State

did in Schaffer—the outcome of this case would be different. That would not fall within

12
state V. Gehrke (Michael), No. 95635-9

the Pelkey rule. But that is not what happened. The State made it clear that it had

completed its case in chief. In such a situation, the Pelkey rule applies.

Contrary to the State's arguments, the amended charge in this case more

closely resembles the amendments made in Pelkey and Markle than that made in

Schaffer. As in Pelkey and Markle, the State here did not move to amend until it had

finished presenting its entire case in chief. Gehrke was not given an opportunity during

the State's case to defend against the amended charge of manslaughter, which

contains an element not present In felony murder: recklessly causing the death of

another. He had not been charged with manslaughter during voir dire, and he was

unable to cross-examine any witnesses called by the State with the objective of raising

a reasonable doubt as to recklessness in the death of Pineyro. All the concerns that

this court had in Pelkey and reaffirmed in Markle exist with equal force here.

This case is unlike Schaffer, in which the trial court initially denied the State's

motion, forcing the State to present additional testimony to support the amended

charge. 120 Wn.2d at 618. In Schaffer, following the new witness testimony, the State

renewed its motion and it was granted. Id. Importantly, "Schaffer had the opportunity

to cross-examine the key witness . . . with full knowledge of the proposed amendment"

after[he amendment was allowed. Id. at 622. Here, the amendment came after the

State had presented all its witnesses, and Gehrke was not able to cross-examine any

witnesses regarding the new manslaughter charge.

Schaffer\n6ee6 demonstrates why we must answer as we do today. There, we

noted that when protecting defendants' rights to fair notice of the charges and the

opportunity to present a defense, "this court has avoided technical rules. Instead, we

13
state V. Gehrke (Michael), No. 95635-9

have tailored our jurisprudence toward the precise evil that article I, 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." Schaffer, 120

Wn.2d at 620 (citing Leach, 113 Wn.2d at 695-96).

The State also argues that the State's informing Gehrke of the possibility of a

later amendment prior to voir dire provided adequate notice. Suppl. Br. of Resp't at

12. We disagree. Warning a defendant that the State "may" charge an additional

offense after the State presents its evidence does not provide the "reasonable

certainty" necessary to satisfy the defendant's constitutional right to be properly

informed of the charges. See Leach, 113 Wn.2d at 695 ("[Djefendants have a right to

be fully informed of the nature of accusations against them so that they may prepare

an adequate defense. This right is satisfied when defendants are apprised with

reasonable certainty of the accusations against them." (citations omitted)); see also

City of Seattle v. Proctor, 183 Wash. 299, 304, 48 P.2d 241 (1935)("[A defendant] is

entitled to have the nature of the accusation against him sufficiently stated for the

further reason that he may be enabled to prepare his defense."). Nor does a pretrial

oral alert "fully inform[ ]" the defendant of the nature of the accusations such that the

defendant should be expected to mount a defense against the hypothetical charge.

Leach, 113 Wn.2d at 695. The State's implication that defendants must form a defense

around the possibility of additional charges is entirely antithetical to our constitutional

guaranties under article I, section 22.

Were it considered adequate notice to advise the defendant that another

charge "may" be added, the defendant would be uniquely harmed. The defendant,

14
state V. Gehrke (Michael), No. 95635-9

once told that the prosecution might add another charge, would have the option either

to proceed as if that charge will never be brought or to alter the defense to address

that possibility. This creates a dilemma. If the defendant chooses to act as if the charge

will never be brought but the prosecution does bring the additional charge at the close

of the State's case, then the defendant will have insufficiently prepared to defend

against it. However, if the defendant expends time and resources defending against

the charge and the prosecution declines to bring it, then the defendant will have

wasted that time and those resources, which would otherwise have solely been

utilized defending against the actual charge brought. Given that what to charge (and

not to charge) rests solely in the hands of the State—and that in any criminal case the

power of the State vastly outweighs that of the criminal defendant—the State cannot

avoid the rules established by Pe/Zrey and its progeny merely by dropping pretrial hints

regarding possible additional or amended charges. To permit the State to wait until

resting its case to amend the information would allow fundamental unfairness to creep

into the trial, and "our system of the administration of justice suffers when any accused

is treated unfairly." Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d

215 (1963). The State must put all of Its cards on the table at the outset; the State

may not bluff.

Not only is a verbal hint insufficient to notify a defendant of the charges but,

here, the prosecutor did not even give Gehrke an accurate warning against which he

could have mounted a defense. In telling Gehrke that the State "may" add a charge,

the prosecutor also mistakenly indicated that first degree manslaughter was a lesser

offense to felony murder. If manslaughter were a lesser included offense, it would by

15
state V. Gehrke (Michael), No. 95635-9

its nature require no additional notice and no changes to the defense at trial, as a

lesser included offense necessarily contains only elements present in the charged

offense. State v. Berlin, 133 Wn.2d 541, 545, 947 P.2d 700 (1997). However, the

prosecutor's warning to Gehrke was misleading: first degree manslaughter is not a

lesser included offense to Gehrke's original felony murder charge. State v. Gamble,

154 Wn.2d 457, 469, 114 P.3d 646 (2005)("We hold that first degree manslaughter is

not a lesser included offense of second degree felony murder where second degree

. assault . . . is the predicate felony."). Second degree felony murder based on second

degree assault requires the State to prove that the defendant "acted intentionally and

'disregard[ed] a substantial risk that [substantial bodily harm] may occur,"' while first

degree manslaughter requires the State to prove that the defendant "'[knew] of and

disregard[ed] a substantial risk that a [homicide] may occur.'" Id. at 467-68 (alterations

in original) (emphasis omitted) (quoting RCW 9A.08.010(1)(c)). Further, "[b]ecause

manslaughter requires the proof of a mens rea element [recklessness] vis-a-vis the

resulting death, while felony murder as charged here [predicated on second degree

assault] does not, it cannot be a lesser included offense to the State's felony murder

charge." Id. at 469. Therefore, the prosecutor's warning did not alert Gehrke to such

additional elements or the crucial differences between the two crimes. Thus the State

cannot convincingly argue that the erroneous "warning" provided Gehrke with

constitutionally sufficient notice to mount a defense against the then hypothetical

charge.

The State also argues that Gehrke's failure to request a continuance is

evidence that the amendment should be upheld. This, too, is inapposite. Failure to

16
state V. Gehrke (Michael), No. 95635-9

seek a continuance indicates a lack of surprise and prejudice only when the

amendment is made at the beginning of trial. See State v. Brown, 74 Wn.2d 799, 801,

447 P.2d 82(1968)(holding that failure to request a continuance after an information

is amended at the start of trial is "persuasive of a lack of surprise and prejudice").

When the State amends the charges after it has presented its entire case in chief, as

it did here, a continuance is of little value: a jury has been picked, opening arguments

have been made, and the defense has already cross-examined the State's

witnesses—all based on the offense as charged. See Pelkey, 109 Wn.2d at 490 ("All

of the pretrial motions, voirdire of the jury, opening argument, questioning and cross

examination of witnesses are based on the precise nature of the charge alleged in the

information."). Furthermore, Gehrke's attorney indicated that he would have sought a

continuance had the information been amended prior to the commencement of trial.

Finally, the State's amendment also does not fit into either of the two exceptions

to the rule against midtrial amendments. These exceptions apply when the

amendment either is to a lesser degree of the original charge or is a lesser included

offense of the original charge. Pelkey, 109 Wn.2d at 491. Here, the State initially

charged Gehrke with second degree felony murder predicated on second degree

assault and then moved to amend to first degree manslaughter. As we held in Gamble,

"first degree manslaughter is not a lesser included offense of second degree felony

murder where second degree assault. . . is the predicate felony." 154 Wn.2d at 469;

see also Berlin, 133 Wn.2d at 550. Thus, the first degree manslaughter charge could

not have been a lesser included offense. See id. First degree manslaughter is also

17
 state V. Gehrke (Michael), No. 95635-9

not a lesser degree felony murder. Therefore, neither of the exceptions to the rule

applies.®

In light of this, we hold that by allowing this amendment to the information, the

trial court abused its discretion as it acted on an erroneous view of the law set down

in Pelkey. State v. Quismundo, 164 Wn.2d 499, 504, 192 P.Sd 342 (2008)("a court

'would necessarily abuse its discretion if it based its ruling on an erroneous view of

the law'" (quoting Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122

. Wn.2d 299, 339, 858 P.2d 1054 (1993))).

III. We remand to the trial court for vacation of Gehrke's conviction and dismissal
of the first degree manslaughter charge with prejudice

Gehrke has asked us to order that his manslaughter conviction be dismissed

with prejudice pursuant to the mandatory joinder rule. The mandatory joinder rule

provides that related charges against a defendant shall be consolidated for trial. CrR

4.3.1(a). Charges are related within the meaning of this rule if "they are within the

jurisdiction and venue of the same court and are based on the same conduct." CrR

4.3.1(b)(1). In the case of an untimely amendment to the information, the mandatory

® We have decided this case under the per Se ruie crafted by Pelkey. However, were it otherwise—
that is, were this case outside the boundaries of the perse rule—we would still reverse, as Gehrke
was clearly prejudiced by the trial court's allowing the amendment to the information. The
concurrence is correct to so conclude. Prejudice in this context involves surprise or inability to
prepare a defense. See State v. James, 108 Wn.2d 483, 489, 739 P.2d 699 (1987)(citing State
V. Purdom, 106 Wn.2d 745, 725 P.2d 622 (1986); State v. Jones, 26 Wn. App. 1, 6, 612 P.2d 404
(1980)). Prejudice is also more likely when the amended information alleges additional counts
rather than merely specifying '"a different manner of committing the crime originally charged or
charg[ing] a lower degree of the original crime charged.'" Schaffer, 120 Wn.2d at 621 (citation
omitted)(quoting Pelkey, 109 Wn.2d at 490-91). Here, because the State's amendment occurred
after the jury had heard the State's entire case and the amendment alleged an additional charge,
Gehrke would have been prejudiced. The State's warning that an additional charge might be
brought does no more to cure the prejudice than it does to insulate the State against the per se
ruie.

18
 state V. Gehrke (Michael), No. 95635-9

joinder rule requires dismissal with prejudice of the charge in the iate-filed amendment

(unless the ends of justice exception applies). See State v. Dallas, 126 Wn.2d 324,

327-28, 892 P.2d 1082(1995)(citing Pelkey, 109 Wn.2d at 491).

In light of this clear precedent, we agree with Gehrke. We remand to the trial

court for vacation of his conviction and dismissal of the first degree manslaughter

charge with prejudice.®

CONCLUSION

For the foregoing reasons, we reverse the Court of Appeals and remand to

the trial court for vacation of Gehrke's conviction and dismissal of the first degree

manslaughter charge with prejudice, and for further proceedings consistent with this

opinion.

'As the concurrence correctly points out, the result would be the same were we to hold that CrR
2.1(d) prejudice, not the Pelkey rule, disposes of this case. Concurrence at 2,

19
state V. Gehrke (Michael), No. 95635-9

WE CONCUR.

20
State V. Gehrke, No. 95635-9
Fairhurst, C.J.(concurring)

No. 95635-9

FAIRHURST, C.J. (concurring)—CrR 2.1(d) permits amendments to

criminal charges "at any time before verdict or finding if substantial rights of the

defendant are not prejudiced." We have established a bright line rule that "[a]

criminal charge may not be amended after the State has rested its case in chiefunless

the amendment is to a lesser degree ofthe same charge or a lesser included offense"

because such an amendment creates prejudice per se. State v. Pelkey, 109 Wn.2d

484, 491, 745 P.2d 854 (1987) (emphasis added). I agree with the dissent that

maintaining this bright line rule is important in order to give clarity to both judges

and litigants. See dissent at 3-4. I also agree that because, in this case, the State

moved to amend before resting its case in chief, this rule does not apply.

However, I write separately because I believe that Michael L. Gehrke

demonstrated actual prejudice in this case. See lead opinion at 18 n.7. Prejudice

under CrR 2.1(d) involves surprise or inability to prepare a defense. See State v.

James, 108 Wn.2d 483,489, 739 P.2d 699(1987). Prejudice is more likely "when a

jury is involved and the amendment occurs late in the State's case." State v. Schaffer,
State V. Gehrke, No. 95635-9
Fairhurst, C.J.(concurring)

120 Wn.2d 616, 621, 845 P.2d 281 (1993). In this jury trial, the State added a new

charge directly before resting. This charge included a new element—^recklessness.

Gehrke could not address this element in his voir dire, opening statement, or cross-

examination of any of the State's witnesses. See Pelkey, 109 Wn.2d at 490

(explaining that where all of this has already occurred, "the defendant is highly

vulnerable to the possibility that jurors will be confused or prejudiced by a variance

from the original information"). A continuance would not have allowed Gehkre to

retroactively change his trial strategy in these crucial stages. See lead opinion at 17.

The lead opinion convincingly explains why the State's warning at the beginning of

trial that it may move to amend at some point was insufficient to cure this prejudice.

See id. at 14-17. In this case, the trial court also conceded that a defense to

manslaughter may involve "somewhat of a differen[t] strategy" than a defense to

second degree felony murder but allowed the amendment because it felt that the

defenses were similar enough. I believe this was an abuse of discretion. 3 Verbatim

Report of Proceedings at 550. Because Gehrke was unable to effectively prepare a

defense to the recklessness element of first degree manslaughter, I would hold that

the trial court improperly allowed the State to amend the charges and would dismiss

the manslaughter charge with prejudice.
State V. Gehrke, No. 95635-9
Fairhurst, C.J.(concurring)

^^(aaa 1^vu/u-(- t
State V. Gehrke

No. 95635-9

GonzAlez,J.(dissenting)—^Resting a case means something. After the

State formally rests in a criminal case, it may not offer any more evidence, call any

more witnesses, or amend the information without reopening the case with

permission ofthe court for good cause shown. This is a bright line rule. See State

V. Schaffer, 120 Wn.2d 616,621, 845 P.2d 281 (1993)(citing State v. Pelkey, 109

Wn.2d 488, 490-91, 745 P.2d 854(1987)). The lead opinion proposes the per se

rule ofPelkey applies before the State has rested its case in chief. I respectfully

dissent.

We have previously declined to extend the per se rule "to a point earlier in

the [trial,]" and we should decline to do so again. See id. at 622; accord State v.

Vangerpen, 125 Wn.2d 782, 790, 888 P.2d 1 111 (1995); see also State v.

Hockaday, 144 Wn. App. 918, 926, 184 P.3d 1273(2008)("In Schaffer, our

Supreme Court strictly limited Pelkey to situations where the State brings the

motion to amend the information after resting its case, emphasizing the risk of

prejudice").
State V. Gehrke, No. 95635-9(Gonzalez, J., dissenting)

The State can amend the charges midtrial, but that power is properly limited

by constitutional concerns. See Const, art. I, § 22; Pelkey, 109 Wn.2d at 490(CrR

2.1(d)"operates within the confines of article 1, section 22."). As a practical

matter, the further into the trial, the harder it is to amend the charges because ofthe

increasing likelihood of prejudice. CrR 2.1(d). Further,"[a] criminal charge may

not be amended after the State has rested its case in chief." Pelkey, 109 Wn.2d at

491. Once the State rests, prejudice is presumed, except in well-established

situations. See, e.g., State v. Peterson, 133 Wn.2d 885, 889-90,948 P.2d 381

(1997)(quoting State v. Ackles, 8 Wash. 462,464-65, 36 P. 597(1894)). All of

this is settled law.

The lead opinion attempts to unsettle this law because it believes allowing

the State to amend the information after it has called its last witness but before it

has rested would be unfair to Michael Gehrke. See lead opinion at 9. But the

current rule already protects against unfairness. The lead opinion need only apply

CrR 2.1(d)to the facts ofthe case to determine whether it is unfair to the defendant

to allow amendment. See Hockaday, 144 Wn. App. at 927("Where, as here, the

Pelkey rule,does not apply, the defendant has the burden of demonstrating

prejudice under CrR 2.1(d)."). Ifthe amendment is unfair—ifit prejudices the

defendant—it is not allowed. Instead of hewing to this simple approach, the lead

opinion attempts to change the rule itself, creating urmecessary confusion.
State V. Gehrke, No. 95635-9(Gonzalez, J., dissenting)

Some formalities are meaningful, including when the State formally rests in

a criminal case. See, e.g., Pelkey, 109 Wn.2d at 491. When the State has no more

witnesses to call, no more evidence to offer, and is, for all purposes, done

presenting its case in chief, then the State will rest its case. Then Pelkey applies

because "[a] criminal charge may not be amended after the State has rested its case

in chief," except under highly limited circumstances. Id. Now,the lead opinion

proposes a rule that calls on appellate courts to make a factual finding that the State

has "functionally rested its case in chief in order to apply Pelkey. See lead

opinion at 10(emphasis omitted). The lead opinion states that its proposed rule

does not disturb the bright line rule or move it to a point earlier in the trial. See id.

at 12-13. This is simply false.

The lead opinion argues that if the State were "allowed to amend prior to

resting but when it has made clear that it has completed its case in chief(as was the

case here), the Pelkey rule would be rendered toothless." Lead opinion at 11.

Presumably, what it means is that Pelkey would not protect against prejudice. But

Pelkey is only a piece ofthe whole; the constitutional protection against prejudicial

amendments and the right to know charges brought against you would remain. See

Const, art. I, § 22; CrR 2.1(d). At this point, because the State had not rested, the

CrR 2.1(d) standard would apply, and the trial court could still find prejudice
State V. Gehrke, No. 95635-9(Gonzalez, J., dissenting)

against the defendant and deny the amendment. Pelkey would not be rendered

toothless, it is simply not yet invoked.

It appears that the lead opinion's confusion grows largely from the fact that

cases have characterized the Pelkey application point as the point when the State

"rested its case" but also when the State "completed its case in chief." Under my

reading of the cases, it is clear that the State's actual resting point is the desired

Pelkey application mark. This is why it is a "bright line" rule. Vangerpen, 125

Wn.2d at 790. But as the lead opinion correctly states, Justice Utter stated the

holding ofPelkey as "after the State has rested its case in chief and in other parts

ofthe opinion characterized the same point as "after the State completed

presentation of its case in chief." Pelkey, 109 Wn.2d at 491,487. This may be

because no verbatim report of proceedings was presented to the Pelkey court and it

had to make reasonable inferences from the narrative report before it. Id. at 485

n.1. Justice Utter simply equated "after the State has rested its case in chief with

"after the State completed presentation of its case in chief." In other words,

"completion of the State's case in chief means it has rested. Through semantic

gynmastics, the lead opinion splits the two and attempts to move the application

point to a point earlier in the trial. We should not, and since a majority in this case

would not, we do not.
State V. Gehrke, No. 95635-9(Gonzalez, J., dissenting)

Extending the per se rule interferes with a trial judge's courtroom

management. Trial courts can no longer rule on the State's amendment when the

court entertains "halftime" motions "[fjollowing the State's final witness but

before the State rests." See, e.g., State v. Holtz, No. 43995-6-II(Wash. Ct. App.

Aug. 19, 2014)(unpublished),

http://www.courts.wa.gov/opinions/pdf/D2%2043995-6-II%20%20Unpublished%

20Opinion.pdf; see also State v. Phillips, 98 Wn. App. 936, 940, 991 P.2d 1195

(2000)(quoting State v. Kjorsvik, 117 Wn.2d 93, 103, 812 P.2d 86 (1991)).

Instead, the court will need to entertain the State's motion before the indeterminate

moment when the State has "functionally rested its case in chief." Lead opinion at

10(emphasis omitted).

This court should apply our existing CrR 2.1(d) standard. Under that

standard, Gerhke cannot show that he suffered any actual prejudice from the

amendment. In other words, it was not an abuse of discretion for the trial judge to

allow that amendment. Under the lead opinion's proposed rule, there would be per

se prejudice. I disagree. Under the lead opinion's approach, the mandatory joinder

rule would attach and it would necessarily follow that the manslaughter charge

must be dismissed with prejudice. State v. Dallas, 126 Wn.2d 324, 327-28,892

P.2d 1082(1995). This shows the arbitrary and unfortunate consequences of

extending the per se rule to an indeterminate point earlier in the trial. The lead
State V. Gehrke, No. 95635-9(Gonzalez, J., dissenting)

opinion can reach the same result if it believes there was prejudice to Gehrke

without changing the rule. I respectfully dissent.
State V. Gehrke, No. 95635-9(Gonzalez, J., dissenting)

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