Parker v. State

¶1concurs in result.

¶2The majority uses this case to repeal the century old rule that an Indictment or Information must allege all of the essential elements of the offense that has been in existence since before statehood. See, Parker v. Territory, 9 Okl. 109, 59 P. 9 (1899). One of the strongest pronouncements of the rules is found in Plotner v. State, 762 P.2d 936, 940-941 (Okl.Cr.1988), wherein we stated:

The basic criteria for determining the sufficiency of an Information or Indictment in Oklahoma were described in Lamb v. State, 626 P.2d 1355, 1356 (Okl.Cr.1981):

The test of the sufficiency of an Information is whether it alleges every element of the offense intended to be charged, and sufficiently apprises defendant of what he must be prepared to meet and so defines and identifies the offense that if convicted or acquitted will be able to defend himself against any subsequent prosecution of the same offense.

This pronouncement reflects a tripartite test, requiring a valid Information to include: (1) the essential elements of the offense charged [an “essential elements” test]; (2) a sufficient enough description of these elements to inform the defendant of the nature and cause of the charge [a “specificity” test]; and (3) a description adequate enough to permit a later defense of former jeopardy [a “double jeopardy” test]. Our analysis will be confined to tests (1) and (2), since a later claim of *991double jeopardy is seldom based on the face of the Information or Indictment alone. See Woodring v. United States, 376 F.2d 619, 622 (10th Cir.1967).

Essential Elements Test. It is well settled that a criminal Information or Indictment is insufficient if it does not allege all the essential elements of the offense charged. Hendricks v. State, 698 P.2d 477, 480 (Okl.Cr.1985); Johnston v. State, 681 P.2d 90, 92 (Okl.Cr.1984). If any. essential element is omitted, it cannot be supplied by intendment or implication or liberal construction. Group v. State, 94 Okl.Cr. 401, 236 P.2d 997, 1000 (1951); State v. Sowards, 64 Okl.Cr. 430, 82 P.2d 324, 328 (1938). Such an omission renders the Information incapable of charging a crime and so fatally defective that it cannot confer jurisdiction upon the trial court. White v. State, 582 P.2d 1334, 1335 (OM. Cr.1978). Moreover, these jurisdictional defects are not waived and may be raised at any time, even for the first time on appeal. City of Tulsa v. Haley, 554 P.2d 102, 103 (Okl.Cr.1976).

¶3The majority recognizes these principles when it states that an Information “must set forth a statement of facts constituting the offense sufficient to form the essentials of the crime and apprise a defendant of what he must meet.” However, the opinion then states this Court will no longer enforce the theory that a failure to comply with these dictates affects the jurisdiction of the trial court and, with particular emphasis on Miller v. State, 827 P.2d 875 (Okl.Cr.1992), overrules a long list of cases.

¶4The majority misconstrues Millerwhen it states that Millercreates a rule that all defects in an Information are fatal to jurisdiction. The statement is overbroad. Milleronly states that a failure to allege all elements of a crime does not confer jurisdiction on the trial court. It does not say that all defects deny jurisdiction.

¶5However, the majority rejects even the more limited and correct statement of Millerand concludes that if an Information states that the defendant committed a crime within the venue of the court it is sufficient to confer jurisdiction. In other words, all that is necessary in the current case is to allege that the defendant committed the crime of murder without giving any of the particulars of the crime and that the murder occurred within OMahoma County. Even though the majority cautions prosecutors “to be careful and to adequately plead acts sufficient to give notice as required by this opinion”, the majority does not require it and says that it will be excused if you do a good job at preliminary and with discovery.

¶6It is interesting to note that the majority does not discuss the statutes pertaining to what constitutes a proper Information. 22 O.S.1991, § 402 requires an Information to contain a statement of the acts constituting the offense. Section 402 of the same title dictates the Information set out the particular circumstances of the offense charged when they are necessary to constitute a complete offense. In Millerwe found this statute requires that an Information must set forth facts to show all elements of the offense in order to constitute the offense.

¶7The majority correctly states that Millersets out a bright line rule that all Informa-tions not alleging each element of a charge crime would be reversed.1 The majority then states: “Where the Information alleges an offense and pleads particular facts constituting the offense in ordinary language, such that a person of common understanding can Miow what is intended and prepare a defense to the charge, no due process violation occurs.” This implies that if the requisites are not met then a due process violation occurs. The majority then in effect creates a new “harmless error” doctrine by stating that the due process violation may be cured by looking to the material made available to the defendant at the preliminary examination or through discovery to determine if he or she had notice of the crime for which the charges were brought. Since under 22 O.S.Supp. 1994, § 2002 discovery does not have to be complete until ten days prior to trial, notice *992as to all elements of the crime does not have to be completely furnished until that date. By this time the defendant has been arrested, charged, put through preliminary examination,2 arraigned and has reached a point in the prosecution of the offense where trial is imminent. In my opinion, this is not due process.

¶8The ability to use other sources than the Information to determine if a defendant has been given proper notice has been rejected in Oklahoma since before statehood. In Jewell v. Territory, 4 Okl. 53, 43 P. 1075 (1896) the court said in Syllabus 4:

An indictment must fully charge the crime, and set out all that the law requires to be proved; and want of averment cannot be supplied by an independent finding of fact not alleged in the indictment.

¶9I see no reason to change today, particularly since no legal precedent has been presented to justify the change.

¶10This does not mean that I would reverse our present case on this issue. The latest of our cases to find that an Information charging felony murder must allege the elements of the underlying felony is Tiger v. State, 900 P.2d 406, 408 (Okl.Cr.1995). Tigerrelied upon the following language in Pickens v. State, 885 P.2d 678 (Okl.Cr.1994): “An information intended to charge a defendant with felony murder must recite facts to allege every element of the underlying felony.” This statement is based on an interpretation of Miller. I believe we made a mistake in reaching this conclusion. In the situation presented in Tiger, Pickens and the current case, the allegation of the commission of the underlying felony is an allegation of fact and not a charge of the crime. As such the allegation gives the defendant notice that he is being accused of committing murder while in the commission of the predicate felony. The elements of the underlying felony do not have to be alleged unless the State is also charging and prosecuting the defendant separately for the felony. Therefore, I would affirm the judgment and sentence in this case, but reject the majority’s reasoning concerning the Information.