State v. MottaState v. Motta
- Reporters:
- ,
- Before:
- Padgett
OPINION OF THE COURT BY
PADGETT, J.Dеfendant-Appellant David Kalei Motta (Motta) appeals his jury conviction for burglary in the second degree. Motta’s contention on appeal is that the grand jury indictmеnt against him failed to allege the specific crime against a person or property which he intended to commit when entering the building. He argues that such an allegation is an essential element in charging the offense of burglary, and therefore, his conviction should be reversed.
At the outset, we decide that since Motta failed to raise any objection to the indictment until after trial, it must be liberally construed.
1
We are mindful that the
The Second Circuit has expressed this post-conviction liberal construction rule as follows:
Technically, a claim that the indictment does not chargе an offense may be raised on a motion in arrest of judgment. ... But the courts of the United States long ago withdrew their hospitality toward technical claims of invalidity of an indictment first raisеd after trial, absent a clear showing of substantial prejudice to the accused — such as a showing that the indictment is “so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had.”
U.S. v. Thompson, 356 F.2d at 226. The Ninth Circuit has said that
although such defects are never waived, indictments which are tardily challenged are liberally сonstrued in favor of validity____[W]hen an indictment is not challenged before the verdict, it is to be upheld on appeal if “ ‘the necessary facts appear in any form or by fair сonstruction can be found within the terms of the indictment.’”
U.S. v. Pheaster, 544 F.2d at 361, citing Kaneshiro v. U.S., 445 F.2d at 1269, quoting Hagner v. U.S., 285 U.S. 427, 433, 52 S.Ct. 417, 420, 76 L.Ed. 861 (1932). In similar vein, the Sixth Circuit has recently said that “unless the defendant can show prejudice, a conviction will not be reversed where thе indictment is challenged only after conviction unless the indictment cannot within reason be construed to charge a crime.” U.S. v. Hart, 640 F.2d at 857-58. See also U.S. v. Previte, 648 F.2d at 80.
Our adoption of this liberal construction standard fоr post-conviction challenges to indictments means we will not reverse a conviction based upon a defective indictment unless the defendant can show prejudicе or that the indictment cannot within reason be construed to charge a crime.
Although the Intermediate Court of Appeals in
State
v.
Tuua,
3 Haw. App. 287, 294, 649 P.2d 1180, 1185-86 (1982), concluded that our decision in
State
v.
Jendrusch,
58 Haw. 279, 567 P.2d 1242 (1977),rejected the liberal rule inasituation where the alleged defect was raised for the first timе after a conviction, we read
Jendrusch
as neither rejecting nor expressly adopting the liberal rule. In
Jendrusch
we held that a complaint for disorderly conduct was fatally defectivе because the charge only contained allegations that the defendant
intended to cause “public inconvenience, annoyance or alarm.” We noted that an allegation of an “intent to cause
physical
inconvenience or alarm by a member or members of the public” is a necessary element. We found that the complaint “by any fair construction” was “constitutionally insufficient and therefore fatally defective” because we found no way to construe the charge as alleging either actual оr threatened
physical
Analyzing Motta’s indictment under the principles of liberal construction, we determine that Motta has not been prejudiced and that the indictment can, “within reason”, be construed to charge the crime of burglary in the second degree.
The indictment against Motta reads as follows:
On or about the 10th day of July, 1980, . . . DAVID KALEI MOTTA,... did intentiоnally enter into or remain unlawfully in a building, to wit, Waiau Elementary School, ... with intent to commit therein a crime against a person or property rights, thereby committing the offense of Burglary in the Second Degree in violation of Section 708-811 of the Hawaii Revised Statutes.
Motta argues that an allegation of the specific underlying crime is an essential element for an offense of burglary, and that since the indictment does not identify the particular offense he allegedly intended to commit inside the school, the indictment is fatally defeсtive.
The State’s view is that the statute under which Motta was indicted,
Some jurisdictions agree with the State’s view that where the statute for burglary requires only a general felonious or criminal intent, it is not necessary for the charging instrument to specify the crime the accused allegedly intended to commit. Commonwealth v. Madison, 263 Pa. Super. 206, 213, 397 A.2d 818, 822 (1979); Commonwealth v. Wilks, 250 Pa. Super. 182, 189, 378 A.2d 887, 890 (1977); State v. Murie, 140 Wash. 71, 248 P. 79, 80 (1926). The general rule, however, in most jurisdictions is that an indictment for burglary is defective when it fails to specify the particular ulterior crime intended, even when the required intent, as defined by statute, is simply the intent to commit “a felony” or “a crime.” 13 AM. JUR.2d, Burglary, § 36, p. 341 (1964). At least 14 jurisdictions which have such statutes, and which have addressed this preсise issue, have ruled that the failure to specify the underlying crime in a burglary indictment is such a fatal defect as to require reversal. State v. Sanders, 280 Or. 685, 572 P.2d 1307 (1977); U.S. v. Thomas, 444 F.2d 919 (D.C. Cir. 1971). Other jurisdictions, although recognizing the general view, take a more liberal approach when the failure of the indictment to specify the underlying crime is challenged after trial, and will uphold burglary convictions based upon such indictments, where there is no showing that the defendant was prejudiced by the failure of the indictment to specify the underlying offense. State v. Adams, 283 S.E.2d 582, 587-88 (S.C. 1981); State v. Wilson, 297 N.W.2d 477, 481-82 (S. D. 1980); State v. Lora, 213 Kan. 184, 515 P.2d 1086, 1090-92 (1973).
We decline to reject the general rule entirely, as the State urges, but we also decline to follow the strict view that Motta urges upon us. Instead, since Motta failed to raise any challenge to the indictment until after conviсtion, we choose to apply the flexible rule of liberal construction, as discussed above. Under this standard, we must liberally construe the indictment in favor of validity
(U.S.
v.
Pheaster,
544 F.2d at 361) and uphold it, unless there is some showing of substantial prejudice to Motta, “such as . . . that the indictment is ‘so
Motta has shown no prejudice in the outcome of his trial from the failure of the indictment to specify the underlying offense, and we cannоt find that the indictment is “so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had”, i.e. burglary in the secоnd degree. Under
We emphasize that if the challenge had been raised in a timely fashion, we would not construe the indictment so liberally. Our adoption of this liberal construction standard is limited to construing indictments, when the issue is only raised after trial. 3
Finding the indictment sufficient under these standards, we affirm.
Notes
The grand jury indictment was filed on March 25,1981. Motta pleaded not guilty to the indictment on April 6, 1981. Trial by jury was held on May 27-28, 1981 and thе verdict of guilty was returned on May 28, 1981. Motta’s objection to the indictment was raised for the first time on his Motion to Dismiss the Indictment, filed on August 5, 1981, more than two months after entry of the verdict.
A person commits the offense of burglary in the second degree if he intentionally enters or remains unlawfully in a building with intent to commit therein a crime against a person or property rights.
(Emphasis added.)
By adopting this liberal standard for post-trial challenges, we do not mean to condone or encourage the prosecutors in failing to take greater care expressly to include all the elements of the offense being charged. Fifteen minutes to an hour more thought and effort spent on the drafting of indictments, would save the prosecutor, as well as our crowded courts, hours of time having to deal with these vexatious challenges to carelessly drawn indictments.
Our adoption of this liberal standard should also put an end to what appears to be a pattern and practice on the part of the criminal defense bar, of waiting until after conviction before raising any objections to indictments.