Saturday, November 28, 2009

Footing the Bill of Particulars

State v. Corder (HSC November 19, 2009)

Background. The family court granted Allison Corder's extension of a protective order against Lawrence Corder. Months later, Corder was charged with two separate counts of violating the order of protection (HRS §§ 586-5.5 and 586-11(a)(1)(A)). In the complaint the counts referred to police report numbers. Those police reports detailed Corder's conduct and noted the allegedly violated section in order of protection. The police reports were provided in discovery. Corder filed a motion to dismiss or, in the alternative, a bill of particulars. The family court denied the motion and a jury found Corder guilty. The ICA concluded that the trial court erred in denying Corder's motion for a bill of particulars.

Requiring a Bill of Particulars. "If the court is of the opinion that the accused . . . has been actually misled and prejudiced in the accused's defense upon the merits of any defect, imperfection, or omission in the indictment, insufficient to warrant the quashing of the indictment, or by any variance, not fatal, between the allegations and the proof, the [State] shall, when so ordered by the court," file and serve the defendant with a bill of particulars "of the matters in regard to which the court finds that the defendant should be informed." HRS § 806-47; see also Hawai'i Rules of Penal Procedure Rule 7(g). Furthermore, "[a] trial court has the discretion to order a bill of particulars, and it must exercise this discretion in consideration of the purpose of a bill of particulars, which is to help the defendant prepare for trial and prevent unfair surprise." State v. Balanza, 93 Hawai'i 279, 286, 1 P.3d 281, 288 (2000). A bill of particulars is not required when the requested information has been provided in some other way. State v. Reed, 77 Hawai'i 72, 78, 881 P.2d 1218, 1224 (1994).

Discovery Did the Trick. Corder argued that the complaint did not specify the alleged acts in violation of the order of protection and did not specify which section in the order had been violated. The HSC, however, agreed with the State that the discovery provided to Corder included detailed police reports that provided the information Corder needed to prepare for trial: the name of the complainant, the time and location of the incidents, and the underlying conduct that constituted the alleged violation of the protection order.

. . . And the Family Court's Analysis was Sound. The HSC also disagreed with the ICA's conclusion that the family court did not consider whether the bill of particulars were necessary for Corder's trial preparation and to prevent unfair surprise. The family court, according to the HSC, was aware of the purpose of the bill of particulars and was aware of the police reports and that they had been disclosed during discovery. The HSC also noted that the family court anticipated unanimity instructions pursuant to State v. Arceo, 84 Hawai'i 1, 32-33, 928 P.2d 843, 874-75 (1996). The HSC further examined the jury instructions and concluded that the family court had complied with Arceo "by instructing the jury on the necessity of reaching a unanimous verdict on the same underlying act." Thus, according to the HSC, the family court did not have to require the State to make an election--be it in a bill of particulars or otherwise--of the specific acts that establish the conduct element.

Justice Acoba's Dissent. "In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation[.]" Haw. Const. Art. I, Section 14. Moreover, an indictment or bill of particulars must provide that "the nature and cause of the accusation can be understood by a person of common understanding." HRS § 806-31. Justice Acoba wrote that the complaint here failed to designate the conduct and sections of the order of protection were violated. That meant, according to Justice Acoba, that "the nature and cause of the accusation [could not] be understood by a person of common understanding from a reading of the Complaint itself." State v. Israel, 78 Hawai'i 66, 71, 890 P.2d 303, 308 (1995). As for the reference in the complaint to the police reports, Justice Acoba found this inadequate. Justice Acoba explained that the State is not bound to prove "all matters in the police reports or to adhere to the [protection order] sections as cited by the police officers[.]" Thus, the complaint did not fairly permit Corder to prepare for trial and was defective.

Justice Acoba further believed that even if the complaint was sufficient, a bill of particulars should been granted. Justice Acoba acknowledged that a bill of particulars is not required if some "other satisfactory form" has been provided. In this case, however, Justice Acoba believed that there was no way for Corder to adequately prepare for trial. A bill of particulars, he wrote, would have clarified "the conduct covered by the charges and would avoid prejudice." "[I]t is fairer to require a bill of particulars to be filed rather than to leave a defendant uncertain as to the particular conduct he or she is alleged to have committed until trial, and it is more efficient to grant a bill of particulars to avoid appeals regarding questions of the kind raised in this case." Chief Justice Moon joined.

Police v. Prosecutor. This case highlights the difference between a charge from the prosecution--in the form of an indictment, complaint, or information--and the allegations made by police officers. The majority's position was that the complaint in this case made reference to police reports that adequately covered the information underlying the charged offenses. These same police reports were provided to the defendant during discovery. This meant that the complaint was not deficient and that a bill of particulars was not required. Justice Acoba and Chief Justice Moon, however, took the position that a complaint referencing police reports is not enough. The dissent correctly points out that the prosecution is not bound to the allegations in a police report. This is because the prosecution, and only the prosecution, can bring formal charges against a defendant. The police investigate alleged offenses and report what they think should be the proper charge. Justice Acoba and the Chief Justice believe that it is a far fairer thing to specifically allege the instances from the prosecuting attorney--the sole party that has the authority to bring formal charges against a person--than to guess from the police reports what conduct will constitute the underlying offense. On the other hand, the majority recognizes that in almost all cases the offenses suspected in police reports is the underlying offense charged by the prosecution.

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