Walker v. State

¶1dissenting, with whom CARDINE, Justice, joins.

¶2I respectfully dissent.

¶3On May 7, 1990, a two-count criminal complaint along with a factually detailed affidavit were filed against the defendant Jerald Walker. Marilyn Hill of the Natro-na County, Wyoming, sheriffs office, signed and executed the documents. Count I alleged the commission of indecent liberties with “one known, unnamed Jane Doe 1, age 12 years of age,” and Count II alleged the commission of indecent liberties *547with “one known, unnamed Jane Doe 2, 13 years of age.”

¶4The accompanying affidavit recounted in remarkable detail deputy sheriff Tim Ros-tad’s encounter with the defendant and two young girls, Jane Doe 1, whose date of birth is September 2, 1977, and Jane Doe 2, whose date of birth is December 2, 1976. The encounter took place around 5:40 p.m., on April 29, 1990, at a location about four miles south of Highway 220 on Coal Mountain Road. The affidavit also recounted that on May 1, 1990, Ms. Hill had interviewed Jane Doe 1 and Jane Doe 2 and was told by the former about the sexual contact, in graphic detail, between the defendant and the girls on April 29 just before deputy sheriff Rostad arrived at their location.

¶5Based upon the criminal complaint, the county court judge, on May 7, 1990, issued a criminal warrant for the defendant’s arrest. On May 10, 1990, appellant’s attorney entered a general appearance in the case. Before the preliminary hearing, which was held on May 29, 1990, appellant’s attorney did not move to dismiss the criminal complaint; he did not subpoena any witnesses to appear at the preliminary hearing. During the preliminary hearing, appellant’s attorney neither moved to dismiss the complaint nor called any witnesses.

¶6At the preliminary hearing, the prosecution called two witnesses, deputy sheriff Rostad and Marilyn Hill. On cross-examination appellant’s attorney only once asked deputy sheriff Rostad about the victims’ names. Appellant’s attorney never asked Marilyn Hill about the victims’ names. During their testimony these two witnesses used the victims’ initials, A.P. and M.H., when referring to the victims.

¶7From the charging documents, including Ms. Hill’s affidavit, and the testimony of the two witnesses, appellant and his attorney knew at the preliminary hearing that the state was charging appellant with being at a specifically described location at a specifically identified time and date in the company of two young girls, whose initials and birth dates were identified, and taking specifically described indecent liberties with them. At no time before and during the preliminary hearing did appellant’s attorney request a continuance in order to become better prepared to contest the probable cause determination which is the sole purpose of the preliminary hearing. He voiced no complaint that his defense was hampered.

¶8As a result of the prosecution’s showing at the preliminary hearing, the defendant was bound over to stand trial on the indecent liberties charges. Ultimately, a jury found him guilty as charged. The record of that trial reveals that the defendant had known one of the girls for more than a year, the other for several months.

¶9The above and foregoing facts are the only facts of consequence for the purpose of resolving the principal issue raised on appeal by appellant.

¶10As narrowly stated by the defendant, that principal issue is whether the government’s conduct of withholding the alleged victims’ names from the accused before and during the preliminary hearing fatally compromised the reliability of the preliminary hearing from which the probable cause finding issued. Thus, the only focus of the defendant’s challenge to his convictions in district court is on the reliability of the preliminary hearing conducted in the county court.

¶11Unfortunately, the majority of this appellate court misstates that principal issue. The majority has expanded the issue beyond the absence of the victims’- names in the criminal complaint to encompass the absence of the victims’ names in the information which, of course, is filed in the district court.

¶12Be that as it may, I prefer to stay focused on the issue presented by the defendant, as I do not think it appropriate for this court to frame the issues for litigants. We have resisted the temptation to do that in the past, and the majority does not explain its departure today from that longstanding practice.

¶13The defendant alleges, for the first time on appeal but makes no showing, that since *548the prosecution did not state the victims’ names in the criminal complaint, the reliability of the probable cause determination at the preliminary hearing was fatally compromised. That is the sum and substance, the essence if you will, of his claim on appeal. It is important to remember that appellant did not allege this error before or during the preliminary hearing. Our time-honored rule in the face of such failure is to disregard the claim on appeal. Again, the majority does not explain its departure from a time-honored rule.

¶14The sole issue is whether the charging documents, here the criminal complaint and attached affidavit, are fatally deficient for not including the names of the victims. In May, 1990, Wyo.R.Crim.P. 3 read:

The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a commissioner.

¶15In the same time period, Wyo.R.Crim.P. 7 provided the authorization of the preliminary hearing. Such rule or statute authorization was necessary because no common law right to a preliminary hearing exists. Montez v. State, 670 P.2d 694 (Wyo.1983). The purpose of a preliminary hearing is to determine whether a sound factual basis exists for continuing to hold the accused for prosecution. More specifically, the purpose is to determine whether sufficient evidence exists to cause a person of ordinary care to conscientiously entertain a reasonable belief that a public offense has been committed in which the accused participated. Wilson v. State, 655 P.2d 1246 (Wyo.1982). The determination of the accused’s guilt is not a purpose of the preliminary hearing.

¶16The litigants have not referred us to any cases directly on point. Research reveals, however, several cases dealing with claims that the information, as a charging document, was defective for want of the victim’s name. Of those cases, State v. Day, 129 N.H. 378, 529 A.2d 887 (1987), is factually similar and instructive.1 Charging the defendant with sexual conduct with minor victims, the indictments did not specify the victims’ names. After conviction, the defendant appealed, claiming the absence of the victims’ names in the charging document violated a provision of the New Hampshire Constitution which reads, in relevant part, that “[n]o subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to him … Day, 529 A.2d at 888 (quoting from Part I, art. 15 of the' New Hampshire Constitution.)2 In the course of rejecting the defendant’s claim and affirming the conviction, the court noted that the test is “whether the indictment meets the basic requirements of specificity and fair notice.” Day, 529 A.2d at 888.

¶17Further, the court observed:

Thus, to be sufficient, an indictment must state the elements of the offense; the statement thereof must be specific enough to allow adequate trial preparation; and the defendant must be protected from later being placed in jeopardy again for the same offense.

¶18Day, 529 A.2d at 888.

¶19The court held that the victim's name is not an attendant circumstance as is included in the definition of the offense. The court reasoned:

The essential elements of the offense here are that the defendant must have sexually penetrated a person who was under the age of thirteen at the time of the offense. The indictments at issue specified exactly that. The protection of the victim from unnecessary disclosure of her identity, particularly in view of her age, is an appropriate policy concern *549of the State, and omission of her name from the indictment was one, though perhaps not the best, way to so protect her. On the facts of this case, in which the omission of the name of the victim did not hobble the defendant’s preparation of his defense, the omission does not, per se, render the indictment constitutionally insufficient.

It is clear that the defendant knew from his earliest contacts with police who the alleged victim was, and was therefore not prejudiced in his ability to prepare to meet the charges against him at trial. This is thus not a case where the defendant could have been confused as to the identity of the victim described in the indictments. Nor could he be put again in jeopardy for the same offenses, as he would be entitled to rely on the trial record as well as on the indictments in any subsequent attempt to prosecute him.

¶20Day, 529 A.2d at 888-89 (citations omitted).

¶21I would apply the above and foregoing reasoning to our case. The criminal complaint and attached affidavit, as charging documents, specified the essential elements and facts of the indecent liberties charges. The record discloses that the prosecutor was concerned about the protection of the victims from unnecessary disclosure of their identities. That is an appropriate policy concern of the state. Omission of the victims’ names from the charging documents was one way to so protect them. On the facts of this case, the omission of the victims’ names from the charging documents did not hamper the defendant’s preparation for or participation in the preliminary hearing — a preliminary hearing is a probable cause proceeding, not a guilt-determination proceeding. The omission does not, per se, render the charging documents or the reliability of the preliminary hearing constitutionally insufficient.

¶22This is not a case where the defendant could have been, or was, confused as to the identities of the victims. He had known one for over a year, the other for several months; on the date and at the specific location of the criminal activity he knew exactly who he was with, their names, and their ages.

¶23I would reject the defendant’s claim and affirm the convictions.