State v. McCarty

Talmadge, J.

(dissenting) — Attorney Jason McCarty was convicted by a jury of his peers of conspiracy to deliver methamphetamine. The parties all concede the jury that convicted McCarty was properly instructed by the trial court on the elements of the crime of conspiracy under Washington law; the jury obviously found the State proved all the elements of conspiracy beyond a reasonable doubt. Only after his conviction, and for the first time on appeal, McCarty contends the information charging him with conspiracy was fatally defective. Yet McCarty does not claim his defense to conspiracy was in any way affected of *429prejudiced by this allegedly defective information. Notwithstanding these facts, and despite its admirable presentation of the facts establishing McCarty’s guilt, the majority opines the jury’s decision must be reversed and the case retried, presumably on the same facts and jury instructions as to conspiracy to deliver a controlled substance. This makes no sense. I dissent.

The starting place for our treatment of the issues here is in article I, sections 3 and 22 of the Washington Constitution and the fifth, sixth, and fourteenth amendments to the United States Constitution. In particular, the sixth amendment requires, at a minimum, the accused shall be informed of “the nature and cause of the accusation” and article I, section 22 mandates the accused he apprised of “the nature and cause of the accusation” against him or her. The essential concern is due process. The accused must have proper notice of the State’s charges in order to be able fairly to prepare and present a defense. State v. Kjorsvik, 117 Wn.2d 93, 101, 812 P.2d 86 (1991); State v. Bergeron, 105 Wn.2d 1, 18, 711 P.2d 1000 (1985).

The majority says:

Conspiracy to deliver a controlled substance, unlike conspiracy in general, necessarily requires the involvement of at least three people because the crime of delivery itself necessarily involves two people. Thus a document charging conspiracy to deliver a controlled substance must allege that persons involved outside the act of delivery took part in the conspiracy agreement.

Majority op. at 426. The first sentence is correct: “There can be no conviction for conspiracy to deliver a controlled substance unless there is evidence of delivery or intent to deliver to a third person.” State v. Miller, 131 Wn.2d 78, 91, 929 P.2d 372 (1997). But the second sentence is a complete non sequitur: if a conspiracy to deliver a controlled substance necessarily implies the involvement of at least three people as a matter of law, there is no constitutional obligation to state as much in the information. An information charging a defendant with “conspiracy to deliver a *430controlled substance” on its face tells the defendant three or more people must have been involved — two who conspire to deliver, and one or more who takes delivery. The charge itself gives the defendant all the information needed to mount a defense — in this case, that the State will have to prove the involvement of at least two people in addition to the defendant. Our federal and State constitutions do not require more.

The source of the majority’s error is not in its choice of authority, State v. Valdobinos, 122 Wn.2d 270, 280, 858 P.2d 199 (1993), and. Miller, 131 Wn.2d at 91, but in its backward interpretation of those cases. Those cases concerned jury instructions, not charging documents. The difference is crucial. A jury instruction informs the jury what the State must prove to convict; a proper charge in an information informs the defendant what the State will attempt to prove to convict.

In Valdobinos, we found the following “to convict” instruction erroneous: “That between the 9th and 13th days of December, 1990, the defendant agreed with one or more persons to engage in or cause the performance of conduct constituting the crime of Delivery of A Controlled Substance[.]” 122 Wn.2d at 280. The flaw in the instruction, we noted, was the failure to require the jury to find there was a third person involved. Thus, the jury might have convicted after finding the defendant and only one other person were parties to the conspiracy to deliver, when the crime of Conspiracy to Deliver a Controlled Substance requires involvement of three or more persons. We said, “[WJhere both delivery and conspiracy are alleged, the conspiracy must allege the involvement of a person additional to those involved in the delivery.”2 Id.

Valdobinos is correct insofar as “to convict” jury instruc*431tions are concerned. “The basic purpose of instructions is to enunciate the essential elements of the legal rules necessary for a jury to reach a verdict.” Harris v. Robert C. Groth, M.D., Inc., 31 Wn. App. 876, 881, 645 P.2d 1104 (1982), aff'd, 99 Wn.2d 438, 663 P.2d 113 (1983). In Valdobinos and Miller, the challenged jury instructions omitted the element of delivery to a third person, and were therefore defective.3

Jury instructions must be exactingly precise, both as to the law and as to the facts the jury must find to convict. A charge against a defendant must also be precise, but neither the federal nor the State constitutions require charges to contain the detail of a jury instruction. All that is necessary is for the defendant to be fairly informed of the charges against him or her. The charge, “Conspiracy to Deliver a Controlled Substance,” is both necessary and sufficient to inform a defendant the State must prove three or more persons were involved in the crime.

Thus, the majority is mistaken when it says, “Nothing in the conclusory language of the information, however liberally construed, could imply anything more than a simple conspiracy — an agreement between two or more people to commit a crime.” Majority op. at 427. The challenged charge here was not simple conspiracy, the charge was conspiracy to deliver. Under Valdobinos, a conspiracy to deliver implicates at least three people.4 I would affirm the Court of Appeals and uphold McCarty’s conviction.

The majority’s confusion and conflation of a jury instruction with a criminal charge is symptomatic of carrying a good and important concept — a constitutionally adequate information — too far. I therefore take this opportunity to review our approaches to the question.

*432While some of our cases have suggested the information must contain a recitation of each element of the crime to pass constitutional muster, State v. Holt, 104 Wn.2d 315, 704 P.2d 1189 (1985), other of our cases have strongly indicated the so-called essential elements test is more factually oriented. For example, in State v. Leach, 113 Wn.2d 679, 689, 782 P.2d 552 (1989), citing cases dating from territorial days, we said:

It may be concluded from these authorities that the “essential elements” rule requires that a charging document allege facts supporting every element of the offense, in addition to adequately identifying the crime charged. This is not quite the same as a requirement to “state every statutory element of’ the crime charged, as suggested in State v. Holt, 104 Wn.2d 315, 320, 704 P.2d 1189 (1985). However, any imprecision in delineating the “essential elements” rule in Holt does not alter our conclusions in the two cases we now decide.

(Court’s emphasis.)

Subsequently, in Kjorsvik, 117 Wn.2d at 101-02, we held the information must include all essential elements of the crime, both statutory and nonstatutory. However, we also provided for a different test for constitutional sufficiency of the information where the accused first challenged the information on appeal. The federal courts have applied a rule of liberal construction that looks to the facts underlying the charge against the accused:

Upon a proceeding after verdict at least, no prejudice being shown, it is enough that the necessary facts appear in any form, or by fair construction can be found within the terms of the indictment.

Hagner v. United States, 285 U.S. 427, 433, 52 S. Ct. 417, 76 L. Ed. 861 (1932). Our own formulation of the liberal construction rule is less liberal, looking to the elements of the crime:

A close reading of the federal cases shows that the federal standard is, in practice, often applied as a 2-prong test: (1) do the necessary facts appear in any form, or by fair construction *433can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?
The standard of review we here adopt will require at least some language in the information giving notice of the allegedly missing element(s) and if the language is vague, an inquiry may be required into whether there was actual prejudice to the defendant. The second prong — allowing the defendant to show that actual prejudice resulted from inartful or vague language — affords an added layer of protection to a defendant even where the issue is first raised after verdict or on appeal.
The first prong of the test — the liberal construction of the charging document’s language — looks to the face of the charging document itself. The second or “prejudice” prong of the test, however, may look beyond the face of the charging document to determine if the accused actually received notice of the charges he or she must have been prepared to defend against. It is possible that other circumstances of the charging process can reasonably inform the defendant in a timely manner of the nature of the charges. This 2-prong standard of review strikes a balance: on the one hand it discourages the defense from postponing a challenge to the charge knowing the charging document is flawed; on the other hand, it insures that the State will have given fair notice of the charge to the defendant.

Kjorsvik, 117 Wn.2d at 105-06 (footnotes omitted).

In the cases arising since the adoption of the liberal construction test, we have noted the information must be read as a whole, in a commonsense manner, from the perspective of a person of common understanding rather than a legal expert. Valdobinos, 122 Wn.2d at 286.

It is ironic that our court rules appear to be inconsistent with our decisional law on the adequacy of an information. CrR 2.1(a) states:

(a) Use of Indictment or Information. The initial pleading by the State shall be an indictment or an information in all criminal proceedings filed by the prosecuting attorney.
*434(1) Nature. The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. 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 that the means by which the defendant committed the offense are unknown or that the defendant committed it by one 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 shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to the defendant’s prejudice.
(2) Contents. The indictment or the information shall contain or have attached to it the following information when filed with the court:
(i) the name, address, date of birth, and sex of the defendant;
(ii) all known personal identification numbers for the defendant, including the Washington driver’s operating license (DOL) number, the state criminal identification (SID) number, the state criminal process control number (PCN), the JUVIS control number, and the Washington Department of Corrections (DOC) number.

This rule seems to be more in tune with Leach and does not appear to contemplate the kind of code pleading approach to informations that has become the sine qua non of our criminal jurisprudence.

An accused is also afforded significant opportunities to flesh out the State’s charges if a concern arises before trial regarding their adequacy. CrR 2.1(c) allows the accused to seek a bill of particulars. CrR 4.7 affords the accused discovery regarding the State’s case. Moreover, if the State’s case is flawed as a matter of law, the accused may seek its dismissal. State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).

*435In the present case, McCarty was silent pretrial and during trial regarding the adequacy of the information. He offers no evidence of prejudice to his trial preparation or conduct of the trial arising from the allegedly inadequate information. He filed no Knapstad motion. He knew precisely what the State was contending at trial and did not object to the instruction to the jury on the elements of conspiracy.

The logic of the Court of Appeals opinion below is unimpeachable when it states:

Liberally construed, the information alleging that he “did unlawfully conspire to deliver a controlled substance” necessarily implies a conspiracy of two or more persons to commit a crime, and necessarily includes the implied fact that one of them took a substantial step to further the crime. But even if we were persuaded that the information is lacking, McCarty fails to identify any prejudice whatever. He knew the State’s theory of the case from the start. The jury was instructed that he had to conspire with two or more persons. Both in opening statement and closing argument, the prosecutor outlined the State’s proof of a conspiracy involving McCarty and four other persons — Jordan, Yoder, Moore, and Becky Andrade.

State v. McCarty, Nos. 21095-9-II, 22303-1-II, slip op. at 9 (Wash. Ct. App. Mar. 5, 1999) (footnotes omitted).

A sporting theory of justice should not be the basis for our criminal jurisprudence.5 If we are to apply our law in a commonsense fashion, without divorcing it from reality, we must keep in mind the salutary function of a charging document, and not confuse it with a precisely crafted jury instruction. I would affirm the jury’s conviction of McCarty.

*436Guy, C.J., and Ireland and Bridge, JJ., concur with Talmadge, J.

The syntax in this sentence is imprecise. A “conspiracy” cannot allege anything. In context — a review of the challenged jury instruction — a more accurate expression of the evident meaning the writer intended to convey might be: “Where both delivery and conspiracy are charged, the State must prove three or more persons were involved in order for the defendant to be found guilty of Conspira<y to Deliver a Controlled Substance.”

In Valdobinos, we held the omission was harmless error. In Miller we held the omission was prejudicial.

On its face, the phrase “conspiracy to deliver” could possibly mean two people conspiring to deliver contraband. That is not our law, however. Valdobinos and Miller control here. The words “conspiracy to deliver” implicate three or more persons.

At oral argument, in answer to the question whether McCarty should have objected to the allegedly defective charge, counsel candidly answered it would not be in the best interests of a defendant to make such an objection. To paraphrase counsel’s remarks: were a defendant to object, the State would simply amend the information to cure the defect. Curing the defect would deprive the defendant of an appealable issue, i.e., the defective information. We should not countenance and reward such cynical gaming of our criminal justice system by creating hyper-technical loopholes.