State v. FreeneyState v. Freeney
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¶ 1 Absent the defendant’s consent, a criminal “charge may be amended only to correct mistakes of fact or remedy formal or technical defects.”
¶ 2 Because the elements of the amended charge differ from those of the original charge, we conclude the amendment changed the nature of the offense and therefore violated
I
¶ 3 A neighbor saw Freeney beat the victim, his girlfriend, with a metal bar or pipe outside the couple’s home and heard Freeney threaten to kill her. The neighbor called the police, but Freeney left before they arrived. The victim was treated for a four-inch laceration on her head and other injuries. She told police Freeney had hit her repeatedly with a metal pipe.
¶ 4 Freeney was indicted on a charge of aggravated assault using a deadly weapon or dangerous instrument,
see
[T]he offense charged in this count is a dangerous felony because the offense involved the discharge, use, or threatening exhibition of a METAL BAR or PIPE, a deadly weapon or dangerous instrument and/or the intentional or knowing infliction of serious physical injury upon [the victim], in violation ofAR.S. § 13-604(P) .
(Emphasis added.)
¶ 5 The State also filed an Allegation of Aggravating Circumstances Other Than Pri- or Convictions, alleging “the offense(s) involved the infliction or threatened infliction of serious physical injury.” In the parties’ joint pretrial statement, the State listed the treating emergency room physician as a witness and alleged that Freeney had “hit the victim . . . several times in the head and body with a metal bar while threatening to kill her,” and that the victim had “received a head injury from the beating and was transported to the hospital.”
¶ 6 Just before jury selection on the first day of trial, citing
¶ 8 On appeal, citing State v. Sanders, 205 Ariz. 208, 68 P.3d 434 (App.2003), Freeney argued that the amendment to the indictment was improper and that such error was prejudicial per se. State v. Freeney, 220 Ariz. 435, 440 ¶ 18, 207 P.3d 688, 693 (App. 2008). In affirming Freeney’s conviction, the court of appeals distinguished Sanders by noting the amendment in that case occurred mid-trial, whereas the amendment here occurred before jury selection. Id. at 441-42 ¶¶ 27-28, 30, 207 P.3d at 694-95. On that basis, the court “decline[d] to impose the prejudiee-per-se rule of Sanders, and instead eonclude[d] that [Freeney] must show that he suffered actual prejudice from the amendment,” which he failed to do. Id. at ¶¶ 28, 30.
¶ 9 In a concurring opinion, Judge Hall, who had dissented in
Sanders,
found no “principled basis on which both
Sanders
and the lead opinion’s analysis can co-exist.”
Id.
at 443 ¶ 34, 207 P.3d at 696 (Hall, J., concurring in the result). Even assuming the amendment changed the nature of the offense, Judge Hall stated,
“Sanders’
prejudice-per-se analysis is theoretically flawed,” and “the harmless-error doctrine should apply when a trial court erroneously overrules a defendant’s objection to a prosecutor’s motion to amend an indictment or information pursuant to
¶ 10 We granted review to resolve a recurring issue of statewide importance pertaining to a rule of criminal procedure and to address the apparent tension between the court of appeals’ opinion and
Sanders.
We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and
II
¶ 11
The preliminary hearing or grand jury indictment limits the trial to the specific charge or charges stated in the magistrate’s order or grand jury indictment. The charge may be amended only to correct mistakes of fact or remedy formal or technical defects, unless the defendant consents to the amendment. The charging document shall be deemed amended to conform to the evidence adduced at any court proceeding.
“A defect may be considered formal or technical when its amendment does not operate to change the nature of the offense charged or to prejudice the defendant in any way.” State v. Bruce, 125 Ariz. 421, 423, 610 P.2d 55, 57 (1980).
¶ 12 In
Sanders,
the defendant was charged with aggravated assault in violation of
¶ 13 Reversing the conviction, the court of appeals concluded that the “two types of assault [under subsections (A)(2) and (A)(3) of
¶ 14 In dissent, Judge Hall argued the nature of the offense had not changed because the overarching crime of aggravated assault remained the same, despite changing the theory of the underlying
¶ 15 In this case, the court of appeals noted “the ultimate crime charged is the same,” but found no need to decide “whether the nature of the offense [was] changed” by the amendment.
Freeney,
220 Ariz. at 441-42 ¶ 28, 207 P.3d at 694-95. That issue, however, has a direct bearing on whether the amendment was authorized by
¶ 16 When the elements of one offense materially differ from those of another — even if the two are defined in subsections of the same statute — they are distinct and separate crimes.
E.g., State v. Leenhouts,
218 Ariz. 346, 349 ¶ 13, 185 P.3d 132, 135 (2008) (“Because the elements required to prove a violation of subsection A.1 [of
¶ 17 Here, the elements required to prove a violation of
¶ 18 Further, proper application of
¶ 19 Here, however, as in Sanders, 205 Ariz. at 214 ¶ 20, 68 P.3d at 440, the amendment did not correct a mistake of fact or remedy a formal or technical defect in the indictment. In fact, the indictment was not defective at all. It simply charged Freeney with an offense the State later determined might be difficult to prove, given the victim’s recantation of her earlier statements.
¶ 20 In sum, not only did the amendment change the nature of the offense, but also the original indictment was not defective. Therefore, the amendment was not authorized under
Ill
¶21 Relying on
Sanders,
Freeney next argues a violation of
¶ 22 Although
Bruce
neither addressed nor decided any Sixth Amendment issues, the
Sanders
court viewed
Bruce
as establishing a disjunctive “test for a Sixth Amendment violation,” concluding that a violation of
¶ 23 As we have previously noted, however, most errors, even constitutional errors, are not structural.
State v. Ring,
204 Ariz. 534, 552 ¶ 45, 65 P.3d 915, 933 (2003). Structural error arises in a very limited set of circumstances — those in which “defendants [are deprived] of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for [determination of] guilt or innocence.”
State v. Henderson,
210 Ariz. 561, 565 ¶ 12, 115 P.3d 601, 605 (2005) (quoting
Neder v. United States,
527 U.S. 1, 8-9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999));
accord Valverde,
220 Ariz. at 584-85 ¶ 10, 208 P.3d at 235-36.
¶ 24 Relying on federal ease law,
Sanders
reached a different conclusion by incorrectly conflating
¶ 25 In contrast,
¶ 26 For Sixth Amendment purposes, when a defendant does not receive constitutionally adequate notice of the charges against him, he is necessarily and actually prejudiced.
See, Sheppard v. Rees,
909 F.2d 1234, 1237 (9th Cir.1989) (“A trial cannot be fair unless the nature of the charges against a defendant are adequately made known to him or her in a timely fashion.”);
see also Hunter v. New Mexico,
916 F.2d 595, 598-99 (10th Cir.1990). Contrary to
Sanders,
however, we conclude that a violation of
¶ 27 The State has met its burden in this case. Freeney had notice the State was alleging and intending to prove that the victim had suffered serious physical injury. This notice came from various pretrial disclosures, including photographs, medical records, and the State’s expressed intent to call the treating physician as a witness; the allegation of dangerousness, which cited serious physical injury to the victim; and the parties’ joint pretrial statement in which the State alleged Freeney had beaten the victim and caused severe injuries. In fact, when the State moved to amend the indictment, Freeney acknowledged he had notice of the victim’s injuries.
IV
¶ 29 Freeney also contends the amended indictment violated the Sixth Amendment. As noted above, the touchstone of the Sixth Amendment notice requirement is whether the defendant had actual notice of the charge, from either the indictment or other sources. See Stephens, 59 F.3d at 934-36; Calderon v. Prunty, 59 F.3d 1005, 1009-10 (9th Cir.1995); Morrison, 981 F.2d at 428-29. A Sixth Amendment violation occurs when the defendant received insufficient notice and is therefore actually prejudiced by a new or amended charge. See, e.g., Stephens, 59 F.3d at 934-36 (failure of indictment to charge felony murder did not violate Sixth Amendment notice requirement when defendant “had five days of actual notice [before closing arguments] of the prosecution’s intention to rely on a felony-murder theory”); see also Sheppard, 909 F.2d at 1237; cf. United States v. Odom, 252 F.3d 1289, 1298 (11th Cir.2001) (“Even an inadequate indictment satisfies due process if the defendant has actual notice, so that she suffers no prejudice.”).
¶ 30 The same factors that led us to find the
V
¶ 31 We hold that the trial court erred in granting the State’s motion to amend the indictment under
¶ 32 We vacate the opinion of the court of appeals and affirm Freeney’s conviction.
CONCURRING: REBECCA WHITE BERCH, Chief Justice, ANDREW D. HURWITZ, Vice Chief Justice, MICHAEL D. RYAN and W. SCOTT BALES, Justices.
Notes
. That motion apparently was prompted by a newly assigned prosecutor learning that the victim had recently recanted earlier statements implicating Freeney.
. The Sixth Amendment to the United States Constitution, applicable to the states via the Fourteenth Amendment, requires that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation.” E.g., Gray v. Raines, 662 F.2d 569, 571 (9th Cir.1981).
. Although we conclude that the error in this case was harmless, we caution prosecutors and trial courts that
. An amended indictment that changes the nature of the offense by alleging new or different elements raises another constitutional issue: failure “to ensure that a neutral intermediary — a grand jury comprised of ordinary citizens — finds that probable cause exists
before
the State can bring charges.”
McKaney v. Foreman,
209 Ariz. 268, 274-75 ¶ 31, 100 P.3d 18, 24-25 (2004) (Hurwitz, J., dissenting in part and concurring in part);
see also