Monday, July 16, 2007

Late amendment dooms felony murder conviction

James R. Pratt of Monnat & Spurrier won in State v. Wade, No. 95,649 (Kan. July 13, 2007), reversing a Chautauqua County felony murder conviction. The state had charged Mr. Wade with felony murder based on an underlying felony of aggravated burglary, but the initial information did not specify what offense underlay the aggravated burglary charge. Before trial, the state amended the information to allege that Mr. Wade entered the residence with intent to commit murder. After the close of evidence, and after Mr. Wade testified, the state sought to amend the complaint again to allege an alternative offense underlying the burglary charge: aggravated assault. The KSC observed the unfairness of allowing the state to change its theory after hearing Mr. Wade's testimony:
Wade made the critical decision to testify at trial, based upon everyone's understanding of what the State had assumed the responsibility of proving. The modified instruction permitted by the trial court relieved the State of its obligation to prove a premeditated intent to kill as an element of aggravated burglary. Rather, the State could meet its burden by convincing the jury that Wade entered the Coffman house with the intent to scare Juul with the handgun, which, of course, was exactly what Wade had admitted on the witness stand. In other words, the erroneous instruction, adding aggravated assault as an alternative ulterior felony, transformed Wade's defense testimony into an after-the-fact confession.
The KSC found the state's excuses for the late amendment to be circular and held that the error required reversal of the aggravated burglary conviction:

Finally, the State complains that it could not have anticipated Wade's testimony and that public policy mandates that we not allow a defendant to get away with a crime based on one predicate felony by confessing to another felony. First, one might be somewhat skeptical of the notion that a prosecutor could not anticipate a defendant declaring, "I didn't mean to do it." More to the point, however, our public policy is that the State has the burden to prove, beyond a reasonable doubt, that the defendant is guilty of the crimes charged, and the defendant carries the presumption of innocence. If the State's proof is challenged by the defendant's self-serving testimony, then it is the jury's function to weigh the evidence and assess the defendant's credibility. We do not change the rules of engagement, after the fact, to dilute the State's burden and make a conviction more likely. The integrity of the process is the cornerstone of our criminal justice system.

In summary, the instruction on the elements of aggravated burglary was erroneous in adding an ulterior felony for which the defendant had no notice prior to the completion of the evidentiary portion of the trial. The error adversely affected the defendant's ability to prepare for and present his defense and prejudiced the defendant's critical decision to waive his Fifth Amendment rights and testify. The error cannot be excused in this case.

The KSC went on to analyze whether this error also affected the felony-murder conviction and had little trouble noting the extreme prejudicial impact of the late amendment in both the aggravated burglary and felony murder cases:

The State urges us to make a clear statement as to whether an analysis of the prejudice to a defendant's substantial rights is necessary in each case in which either felony murder or the underlying felony supporting felony murder are not charged in the complaint/information.

The answer to the State's request for clarification is rudimentary. We can all agree that a criminal defendant is constitutionally entitled to a fair trial, and that entitlement is a substantial right which is unrelated to the quantum of evidence against the defendant. Cf. State v. Tosh, 278 Kan. 83, 97, 91 P.3d 1204 (2004) ("Denial of a fair trial violates the due process rights of the guilty defendant just as surely as those of the innocent one."). "The fundamental requirement of due process is a fair trial in a fair tribunal. The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case." In re Care & Treatment of Hay, 263 Kan. 822, Syl. ¶ 4, 953 P.2d 666 (1998).

Obviously, trial by ambush does not comport with due process. Therefore, where a jury is instructed to convict a defendant in a manner or upon a theory which was not identified in the charging document, an analysis of whether the defendant had sufficient notice to pass due process muster is in order. Thus, the analysis of whether Wade's felony-murder conviction can stand in the face of the erroneous aggravated burglary instruction tracks that of the aggravated burglary conviction by analyzing the prejudice to Wade's substantial rights.

When the State cured its defective amended complaint/information by notifying the ourt and defendant that the aggravated burglary charge was based upon an intended ulterior felony of premeditated first-degree murder, it assumed the burden of proving premeditation as an element of first-degree murder under either of the alternative means. To prove premeditated first-degree murder, the State had to prove that Wade had a premeditated intent to kill Juul when he discharged the firearm. To prove felony murder, the State had to prove that Wade had a premeditated intent to kill Juul when he made the unauthorized entry into Coffman's house.

Thus, Wade could prevail on the charge of first-degree murder, either premeditated or felony murder, by convincing the jury that he never "formed the design or intent to kill before the act." PIK Crim. 3d 56.04(b) (defining premeditation). Therefore, our above analysis of the prejudice visited upon Wade by the erroneous aggravated burglary instruction applies equally to his felony-murder conviction. His ability to prepare and present a defense and his decision to waive his Fifth Amendment rights were compromised.

Some nice language regarding notice in felony murder cases.

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