THE STATE OF WASHINGTON, Aрpellant, v. CHAE SAN PELKEY, Respondent.
No. 53282-6
En Banc.
November 25, 1987.
Reconsideration denied January 20, 1988.
109 Wn.2d 484
PEARSON, C.J., UTTER, DOLLIVER, ANDERSEN, CALLOW, GOODLOE, and DURHAM, JJ., and HAMILTON, J. Pro Tem., concur.
Charles J. Herrmann and Jeffrey D. Gross, for respondent.
UTTER, J.—The State of Washington appeals the trial court‘s order of dismissal with prejudice following defendant‘s jury trial for trading in special influence,
The parties dispute some of the facts.1 Detective Sergeant James Brauch is a member of the Everett Police Department vice and gambling unit. In the course of his official duties he became friends with the defendant, Chae San Pelkey, who operated several sauna parlors in the city of Everett and elsewhere. Pelkey and Brauch had a meeting on October 17, 1983, at a restaurant in Everett. At that meeting, the State alleges Pelkey complained that the possible presence of undercover officers in her Bellingham sauna parlor business hindered her employees’ performance of sexual acts for customers, which cost her increased profit
Based on the foregoing information, Brauch sought and received an order authorizing the wire interception of the October 19 meeting, on the grounds that he had probablе cause to believe that an attempt at bribery would take place at the meeting. Brauch wore a transmitter to the meeting, and the conversation was recorded and later transcribed. Pelkey gave Brauch $2,000 in cash, and asked if he had talked to his friend in Bellingham. Pelkey told Brauch that $500 per month would go to the Bellingham officer and that she would make payments to Brauch, too. The two specifically discussed advance warning of undercover surveillance, $10,000 for each closing of competing sauna parlors, and performance of sexual acts for customers of Pelkey‘s sauna parlor. Pelkey was arrested and charged with one count of bribery.
At the conclusion of the presentation of the State‘s case at trial, the defense moved to dismiss based on the lack of evidence that Brauch was acting in his official capacity at the time of the аlleged offense.2 Brauch had testified that he had no particular authority in Bellingham. In response, the State moved to amend the charge to trading in special influence,
The trial judge denied Pelkey‘s motion to dismiss based on the amendment of the information, and the jury found Pelkey guilty of trading in special influence. Pelkey moved for an arrest of judgment, on the grounds that
The State timely perfected its appeal, and the Court of Appeals certified the case to this court. We base our resolution of this case on the first issue presented in the appeal but not ruled on by the trial court: the trial 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.
I
Pelkey convincingly argues the trial judge violated
In criminal prosecutions the accused shall have the right . . . to demand the nature and cause of the accusation against him . . .
Under this constitutional provision, an accused person must be informed of the charge he or she 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); State v. Rhinehart, 92 Wn.2d 923, 602 P.2d 1188 (1979). An amendment during trial stating a new count charging a different crime violates this provision. State v. Olds, 39 Wn.2d 258, 235 P.2d 165 (1951). In State v. Lutman, 26 Wn. App. 766, 614 P.2d 224 (1980), cited with approval in Carr, the court held that charges of hit and run and failure to yield the right of way could not be amended during the trial to a charge of negligent driving. The court rulеd that the amendment charging a different crime violated the constitutional provision against being tried for an offense not charged. “It is fundamental that an accused must be informed of the charge he is to meet at trial and cannot be tried for an offense not charged.” State v. Lutman, supra at 767.
This court has long recognized this principle. Almost 100 years ago, we said:
While it is true that the jury may find a defendant not guilty of the crime charged, but guilty of an offense of lesser degree, or of an offense necessarily included within that charged, it is also true that “accusatiоn must precede conviction,” and that no one can legally be convicted of an offense not properly alleged. The accused, in criminal prosecutions, has a constitutional right to be apprised of the nature and cause of the accusation against him.
Const., art. 1, § 22 . And this can only bе made known by setting forth in the indictment or information every fact constituting an element of the offense charged. 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 P. 597 (1894).
A lesser included offense exists when all of the elements of the lesser offense are necessary elements of the greater offense. Put another way, if it is possible to commit the greater offense without having committed the lesser offense, the latter is not an included crime.
State v. Bishop, 90 Wn.2d 185, 191, 580 P.2d 259 (1978).
Under
With the intent to secure a particular result in a particular matter involving the exercise of the public servant‘s vote, opinion, judgment, exercise of discretion, or other action in his official capacity, he offers, confers, or agrees to confer any pecuniary benefit upon such public servant; . . .
(Italics ours.) A person is guilty under
He offers, confers, or agrees to confer any pecuniary benefit upon another person pursuant to an agreement or understanding that such other person will offer or confer a benefit upon a public servant or procure another to do so with intent thereby to secure or attempt to secure a particular result in a particular matter; . . .
(Italiсs ours.) These statutes differ in at least two material respects. The special influence statute requires that a third party act as intermediary between the defendant and the public official. No such element exists in the bribery statute. Secondly, the bribery statute requires that the “particular result in a рarticular matter” involve the exercise of the public official‘s official duties, and the special influence statute by its terms does not. Trading in special influence is not a lesser included offense of the crime of bribery.
In State v. Purdom, 106 Wn.2d 745, 725 P.2d 622 (1986), we recently held that the trial court abused its discretion under CrR 3.3(h) when it denied thе defendant‘s motion for a continuance after the prosecutor was allowed to amend the information on the day of trial. We found the court‘s denial was error. We construed CrR 3.3(h) to require allowance of a continuance under those circumstances. The constitutional challеnge was not addressed.
Here, the constitutional argument is dispositive. The State argues that a midtrial amendment to an information does advise the defendant of the charges against him or her, in conformity with article 1, section 22. To support its
Amendment. The 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.
The State contends that, under this rule, the defendant bears the burden of showing that she has suffered prejudice from the midtrial amendment, that she has failed to do so, and therefore, her challenge must fail. Wе cannot sustain an interpretation of a court rule which contravenes the state constitution.
CrR 2.1(e) necessarily operates within the confines of article 1, section 22. During the investigatory period between the arrest of a criminal defendant and the trial, the State frequently discovers new data that makes it necessary to alter some aspect of the information. It is at this time amendments to the original information are liberally allowed, and the defendant may, if necessary, seek a continuance in order to adequately prepare to meet the charge as altered. CrR 3.3(h).
The constitutionality of amending an information after trial has already begun presents a different question. All of the pretrial motions, voir dire of the jury, opening argument, questioning and cross examination of witnesses are based on the precise nature of the charge alleged in the informatiоn. Where a jury has already been empaneled, the defendant is highly vulnerable to the possibility that jurors will be confused or prejudiced by a variance from the original information.
Midtrial amendment of a criminal information has been allowed where the amendment merely specified a different manner of committing the crime originally charged. State v. Gosser, 33 Wn. App. 428, 656 P.2d 514 (1982), or charged a lower degree of the original crime charged, State v. Brown,
Since we have determined that the amendment of the informatiоn constituted error, we do not reach the question of whether
“provides that offenses are related if based upon the same conduct and are within the jurisdiction and venue of the same court.”
The two charges brought against Pelkey are related, and could have been joined in the original information. Rather than wait for this issue to be raised in a subsequent appeal, wе hold in the interest of judicial economy that the State is precluded under CrR 4.3 and our holding in State v. Anderson, supra, from asserting the charge of trading in special influence once again against Pelkey. Accordingly, the cause is reversed and remanded for further proceedings not inconsistent with this opinion.
PEARSON, C.J., and BRACHTENBACH, DOLLIVER, DORE, and GOODLOE, JJ., concur.
DURHAM, J. (concurring)—The majority establishes a blanket rule prohibiting the amendment of a criminal charge after the State has rested its case in chief, unless the amendment is to a lesser degree of the original charge or a lesser included offense. With these exceptions, it concludes
Pelkey was originally charged with bribery under
Pelkey‘s counsel filed a post-trial motion to dismiss claiming, inter alia, prejudice “which occurred during the course of the trial as a result of the prosecution‘s failure to properly charge the defendant and the resulting amendment allowed at the close of the prosecution‘s case-in-chief“. Counsel then sets forth in detail several ways in which his trial preparation and conduct were impaired by the amendment, including lack of notice, inadequate pretrial preparation and briefing of legal issues, possible prejudice of the jury as a result of the bribery charge, change of trial tactics, especially relating to cross examination of the key witness, and the focus of closing argument. Unfortunately, the record before us is limited to a narrative report of proceedings which makes a thorough evaluation of Pelkey‘s claim difficult. Nonetheless, it appears that Pelkey‘s claim is meritorious. Thus, I believe Pelkey has established
ANDERSEN and CALLOW, JJ., concur with DURHAM, J.
Reconsideration denied January 20, 1988.