State v. GarrisonState v. Garrison
- Reporters:
- , ,
- Before:
- McFarland
This is а consolidated appeal by the prosecution pursuant to
1. The counts as charged in the infоrmations lacked sufficient specificity to adequately advise each respective defendant of the criminal act with which he or she was charged; and
2. Successful prosecution for any violation of
“(a) Except as authorized by the uniform controlled substance act, it shall be unlawful for any person knowingly or intentionally to use any communication facility in conspiring or soliciting, as defined in article 33 of chapter 21 of the Kansas Statutes Annotated, or facilitating any felony viоlation ofK.S.A. 65-4127a and 65-4127b and amendments thereto. Each separate use of a communication facility may be charged as a separate offense under this subsection.
“(b) As used in this section, ‘communication facility’ means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures or sounds of all kinds and includes telephone, wire, radio, computer, computer networks, beepers, pagers and all other means of communication.
“(c) Any person who violates this section shall be guilty of a class D felony.”
A total of 16 counts of alleged violations of
“On or about October 26, 1990, in Finney County, Kansas, Susan K. Garrison, did knowingly, intentionally, unlawfully and feloniously use a communication facility, to-wit: a telephone, to conspire or solicit (as defined byK.S.A. 21-3302 and 21-3303) or to facilitate any felony violation ofK.S.A. 65-4127a and 65-4127b and amendments thereto, to-wit: cocaine and/or methamphetamine, contrary to the form of the statutes made and provided and against the peace and dignity of the State of Kansas.”
SUSAN K. GARRISON
Count 1 — October 26 No. 6
Count 2 — November 2
Count 3 — November 2
Count 4 — November 3
Count 5 — November 5
Count 6 — November 5
Count 7 — November 9
DOUG HAPES
Count 1 — October 29 Nos. 87 and 90
Count 2 — November 5 No. 256
TAMES HILL
Count 1 — October 29 No. 90
Count 2 — November 2
Count 3 — November 2
Count 4 — November 3
Count 5 — November 5*
Count 6 — November 5*
* One of these two counts apparently arises from conversation No. 256, but there is nothing in the record to indicate which one.
DEANNE GRAHAM
Count 1 — October 26 No. 6
The record reflects much discussion over the fact the recordings involved were of such low quality. The few transcripts furnished to us show many “inaudibles” reflecting nondecipherable portions of the conversations. Further, new versions of the transcripts have
As shown by the foregoing, the record is in considerable disarray and confusion as to the factual background underlying mоst of the charges herein. However, within the confines of the issues presented, we are, fortunately, not called upon to determine the sufficiency of the evidence supporting each count. We are presented herein with questions of law concerning the legal sufficiency of the informations and whether a conviction under
We turn now to the first issue.
SUFFICIENCY OF THE INFORMATION
“The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information or indictment, drawn in the language of the statute, shall be deemed sufficient. The precise time of the commission of an offense need not be stated in the indictment or information; but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offense.”
Most issues arising out of
“In a felony action, the indictment or information is the jurisdictional instrument upon which the accused stands trial.” Syl. ¶ 10.
“A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. Failure of an information to sufficiently state an offense is a fundamental defect which can be raised at any time, even on appeal.” Syl. ¶ 11.
“If the facts alleged in an information do not constitute an offense within the terms and meaning of the statute upon which it is based, the information is fatally defective. The evidence introduced at trial to show commission of the crime sought to have been charged, and the jury instruction thereon, have no bearing on this question.” Syl. ¶ 12.
“In Kansas all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute.” Syl. ¶ 13.
“An information which omits one or more of the essential elements of the crimes it attempts to charge is jurisdictionally and fatally defective, and convictions for those offenses must be reversed.” Syl. ¶ 14.
In State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), we modified our prior holdings relative to defective informations, including State v. Smith, in situations where the defect is asserted for the first time on apрeal. Reversal of the conviction is no longer automatic but subject to the rules set forth in Hall which are not relevant to the issues herein as the informations before us were challenged, held defective, and dismissed by the district court prior to adjudication.
The claim herein is, in essence, that the charge is so broad that it covers too many possible criminal activities. As noted by the district court,
The sufficiency of an indictment or information is to be measured by whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and by whether it is specific enough to make a plea of double jeopardy possible. State v. Michaux, 242 Kan. 192, Syl. ¶ 1, 747 P.2d 784 (1987).
“The purpose of the information in a criminal case is to advise the accused and the court of the charges allеged to have been committed and the essential facts constituting the crime charged. State v. Carpenter, 228 Kan. 115, 612 P.2d 163 (1980). In a felony action, the information is the jurisdictional instrument upon which the accused stands trial. An information must be stated with enough clarity and detail to inform a defendant of the criminal act with which he is charged. City of Altamont v. Finkle, 224 Kan. 221, 579 P.2d 712 (1978). The failure to so inform the defendant denies the defendant procedural due process and violates his right to be informed of the charges against him.K.S.A. 22-3205 ; Kansas Const. Bill of Rights, § 10; U.S. Const., 6th Amend.; State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977).”
We agree therewith.
The State argues on appeal that any problems concerning lack of specificity could be corrected by amendment or the furnishing of a bill of particulars in each of the cases. Such position is a departure from that expressed to the district court. The defendants, through their motions to dismiss, sought narrowing of the charges so they would be informed of exactly what they would be required to defend against. Bills of particulars were requested. The State opposed said requests and forced the court to decide on the validity of the information as written. The State’s position before the district court is reflected in the fоllowing excerpts from the hearing in the Garrison case:
Ms. Jack (assistant attorney general): “I’d submit to the Court that just because it’s written that way, and while it may be difficult to defend, that doesn’t require me to elect or to furnish a bill of particulars. And I’m not sure exactly what counsel is asking for when he says a bill of particulars, if he wants a specific time and date or if he wants me to say exactly what it is we’re relying on, either conspiracy or a solicitation or a facilitation. And, quite frankly, I don’t think I’m required to do that.
“Quite frankly, it’s a crime to use a telephone to facilitate, to conspire, to solicit in any felony drug transaction. That’s a crime. And while it might be difficult to defend, that doesn’t mean that I’m required to elect.
“As Mr. Lindner [defense attorney] pointed out, in the Information the purpose is to alert the defendant as to what the charges are, and she’s definitely bеen alerted. She’s been informed. And there is nothing in his motion to indicate, except for the fact that it would be difficult to defend,any specific reasons why I would be required to elect or to provide him with a bill of particulars.”
The issue before us is whether the district court erred in dismissing the infоrmations. The district court could not order the amendment of the information unless requested to do so by the State. The State was satisfied with the informations and elected to stand or fall on the sufficiency of the informations as written. On appeal, the State evinces a willingness tо amend, but that is irrelevant herein.
We conclude that the district court correctly held that the informations herein were fatally flawed as they lacked sufficient specificity to inform the respective defendants of the charges he or she must defend against and thus denied procedural due process as guaranteed by
NECESSITY OF PROVING COMMISSION OF UNDERLYING FELONY
As a second ground for dismissing the informations herein, the district court held that prosecutions under any of the three means of violations of
In Hill we stated:
“Facilitation is not in this category. One cannot facilitate the commission of a crime which never occurs within the context ofK.S.A. 65-4141 . We conclude that the district court correctly held that in a prosecution underK.S.A. 65-4141 charging a defendant with having used a communication facility to facilitate a felony violation ofK.S.A. 65-4127a and 65-4127b, the State is required to prove the commission of the underlying felony violation.Dismissal of the information, accordingly, was not erroneous.” 252 Kan. at 645.
Solicitation is another inchoate or anticipatory crime. Thus, proof of the actual commission of the underlying crime is unnecessary.
“(a) Criminal solicitation is commanding, encouraging or requesting another pеrson to commit a felony, attempt to commit a felony or aid and abet in the commission or attempted commission of a felony for the purpose of promoting or facilitating the felony.
“(b) It is immaterial under subsection (a) that the actor fails to communicate with thе person solicited to commit a felony if the person’s conduct was designed to effect a communication.
“(c) It is an affirmative defense that the actor, after soliciting another person to commit a felony, persuaded that person not to do so or оtherwise prevented the commission of the felony, under circumstances manifesting a complete and voluntary renunciation of the actor’s criminal purposes.
“(d) Criminal solicitation of a class A or B felony is a class D felony. Criminal solicitation of a felony other than a class A or B felony is a class E felony.”
Thus, commission of an overt act need not be proven to establish solicitation.
CONCLUSION
The district court did not err in dismissing the informations herein on the ground that they lacked sufficient specificity to inform the respective defendants of the charges he or she must defend against. Further, the district court did not err in holding that a prosecution under
The judgments are affirmed in part and reversed in part.