Attorney Notes; Goodloe v. Parratt Court Opinion

    tv,,l 605 FEDERAL REPORTFR" 2d SqRIES Ca^^ p^ 6clain \1

l. Jn this da). of suo
r, * uno' plJi.;il,"1ir,:'::*"IffiffiTl ilsay the least, for an indr'idual ;;;.;;il;';;year penirentrar). senrence ro. o.iring-"' _ltolvehicle in a u.illful and reckless ;;;r;.ffi;:out causing damape,'"'"*,i ii ;il':",'"#":: ::fi ,.j,::;:;I : 

j
rrc and brings to mind tfre rofrowinJ.;;;;;H;
by' Justice Benjamin N. Cardozo.

I have faith
rro. no*l"o* a".""nat#,t " j,,:1,ffiuo;:".T

:l:l ,h. penal s).stem of today 
".iit-iiiiame surpnse and horror ttrat fitt ";;-";;minds when \.!.e are totd ,t"i 

""irX"r,,-lcentury ago 160 crir
engrisi ;'; ;il i,iffiil;ffiff,,:i J;fi.and that in r8ol a "nirj or iJ'*r; #d;;,:iTt'burn for the lrr,l,
.,r,, p, 

"..' i." ;'" # i ; "J;', ;i,,: jr"T,:_ "ii:thrnk of them Bith
ourseri.es that *-e ,.,r1 -'tnyor"r, 

and say to
merc5 arrd or.""ro,,11", ffi:,:.". ir"i:i:i,.Tenormitir.s l.he furr
Ienrentlf ,t,or,'*= 

ruulre nla-v jLidge us less

B N 
.Cardozo- u; 

" 
;' ;:;,", ;""ii"t"J?;:".X:in Selected \i,rrrirrgs 381 (I,t. O. Hr,i 

"U. 

,rr-iil.

2,.-In, 1g75. ia,hen Goo(llDe u.us indicted andlrleJ, oper.atjng a motor 
".fri.f" to,",rn-lal.I.iu'as punishable in sercral d,ffer*r,t ;;;; "ir;:

Rer..Srir. S On .llO OZ i
pen,,!.. , ;. , ,,,'l:':.",1 ."Y.1'' ,T" ml,rrinrrrrn

, Paul L. Douglrrs, Atty. Gen., C. C. Shel_don, Assr. Atty. Gen. 1""gr"ai ;i#,r.Neb., on brief, ior appellee.o---" 
sr'revrrt'

,..Yuro.u l1y and HENLEY, CircuirJudges, and WANGEI,IX; n:J.i., ila*.:
LAy, Circuit Judge.
This unusual state habeas corpus case isan extremely perplexing on" 

"iir,-"-il".t,result. The petitioner, "Ronald 
F. coffi;:fas_driving his automobile on the ;;;;,;:of May ?,lg71, u,hen a poli.u offi.u. in'ttE*lommyni.ty of Blair, Nebraska ."* f,ir'""Jsuspected he was driving *.ith a .r*;;;;driver's license. Goodloe-was *JI-lrrl,", i"the police; he had been convicted of willfuland reckless driving on four 

"th"; ;;.*;;;.and had two state 
-felory 

convictions. See-ing the police car,s fla.hing lig;t.,';#;;
accel_erated to a high rate of ,p""a, 

""jli"olllcer gave chase. Goodlos *". -ii""iry,

* The Honorable H. Kenneth Wangelin, UnitedStares District Coun foi trr" e"rt"i"'r"r"#;:Tern Districts of Missouri, .i,,trg Ui: lJe"",il.

apprehended and charged with willful andreckless driving (third offens"), N;.R";.
star.. g B9-669.06 (tsl 4), or""ti;r;;;;*
vehicle to avoid arest, Nel.Rer.Siut. 

S 

=d
430.07 (1974), and being ,n f,uUitr"i *inii_nal, Neb.Rev.Stat. g n_znl (1964). ;;
r.r'as convicted by a jury on all counts, andsentenced to two concument l0 to 15 vearterms of imprisonment.t The N"U.^t"'S]_
preme Court affirmed the convictior, ir,modified the sentence to two.on.r"r.nt t0year terms.2 Goodloe sought a writ of ha_
beas corpus in federal distiict .";;;. ;;;;denial this appeal followed.

. .The scenario began when Goodloe wastried on one count of a two count inform!_
lj:".t:. driving with a suspended license in
Y*hir"r"-" County court. Much to thecnagTln of the prosecutor, the conviction
was reversed by the district court for insJ

ishment u.ere imposed, the offense would be afelony under Nebraska law. S*" ;'';r;;r:sfreck, t6z Neb. 192, rS6, sZ N.w.ia ,ri,,-iii(1958) (quoting Goedert v. Jones, rrO ile"c,rr;:78,1, 36 N.W.2d lr9, r20 o949)j til:;";;;was amended to provide ,tut u'p"rron ;;.;:;:rng a motor vehrcle to flee in an 
"rr"" i" ir:roarrest for violation of a rrusdemeano, o. ,iri,linfracrion could not be jmprisoned ; ;;;^,;

Il.^11, 
Orl u.outd be guitr). of a class Iil mrsde_m€anor. A person operating a motor r;;;;l;;

I,"*.i: ln effort to a'oid arrest f.. ; ';;;;,;;woutd be punished for a class l"-,elo"nri
!.6o1|0 07. as amended al. r_ e l+9, .ri".,,rr"May 23,.1979 If Goodloe were indicted andconvicted toda), of avoidi
witrr a susienilr";,;;"r'":'19 

arrest for. dnving

rh.. .o-pr;;;;;; ;;;,1i:TJl,: .*:il:
guiltl' of a misdemeanor, and the habrtual of_lender statute s.uuid not be applrcable

felalse ot re\isions in the Nebraska Cnmi-
ll,-l:1":, ir is no ronger crear if witrful andreckless dri\.ing (third offense) i. " f;i";;;;l:rrT.,se-s of the habir,ral crimrnal ,r,,tu,"., SJ"\\^ 29 102 (repeale,t lgiu), ,. ,rSfil, IOi
11978 

sunp ) Thus, Goodroe'r ro ;;;; ;;-tence would appear to be no longei ;.r,;j;runder the amended Nebraska .,utr,u, ?;; ;;;ol the oflenses chargcd. I" fSZS. 1,.;"r.;'through the exercjse of

:::i,", . "';:;; ":#:;f :;,"",::,.;Jupon.another. a I0 .v_ear sentence u.as not onl\.l)ossihl,'. hrrt drre r. :r^. .hra. l.rt , r!

GOODLOE v. PARRATT
Clte rs 605 F3d t(Xt (1920)

r043
ficient evidence. However, sweet prosecu- could give Goodloe a term of imprisonment
torial revenge was in theoffing. Following less than 10 years for what was an attempt
reversal, the State amended the filed infor- to evade arrest for the misdemeanor ofmation to include not only the remaining driving with a suspended license.
count of operating a motor vehicle to avoid
arrest, bui also a second count of lreing an Although Goodloe's counsel raises several
habitual criminal. This information was distinct points on appeal we find these can
consolitlated with another information, pre- be basically summarized as:

viously filed, r,r'hich alleged one count of l. Due process and double jeoparcll.
willful and reckless driving (third offense) challenges to prosecution for both operation
and a second count of being an habitual of a motor uuhi.lu to avoid arrest and r+,ilL-criminal.3 ful and reckless driving when the evidence

The 15 year concurrent sentences (latrer demonstrating operation of the vehicle to
modified to 10), were made possible in the avoid the arrest was the same as that which
follorving manner. The prosecutor charged shorved the reckless <iriving. Stated in an-
avoidance of arrest as a felony. Willful other way, the issue is whether a person in
and reckless driving, normally a misde- a motor vehicle being pursued by a police
meanor, becomes a felony by operation of officer for reckless operation of the vehicle
enhanced penalty provisions when it is a may be charged with avoidance of arrest
third offense or subsequent offense, and the for the same ieckless driving incident.
prosecutor charged third offense.r Habitu_ f_,- / t / Jal offender counts were added to each in- tll z. Due"offi, und dorbtu jeopardr
formation. Upon conviction of a felony challenges to simultaneoLs application of
committed in Nebraska, proof of two prior two penalty enhancement statutes, one that
felony convictions results in imposition of a made a subsequent misdemeanor offense
mandatory l0-year prison term under the into a felony, (i. e., third offense reckless
habitual criminal statute. Neb.Rev.Stat. driving), ahd an habitual criminal sratute
S 29-221 (1964).5 Thus, even with use of that enhanced the penalty for this offense
concurrent sentences, no Nebraska court upon proof of conviction of prior felonies.6

3' Goodloe offered stipulations, affidavits from 5. At a subsequent hearing ihe court foundtu'o Nebraska county attorne5.s, which state Goodloe \.\.as guilt), of being an habitual crimi_that for the past twenty years or so neither nal, as charged in count II of each information.knew of cases in which the habitual criminal In support of the habitual charges, the prosecu-
act ,*'as applied when willful and reckless driv- tion proved two lg72 third offense willful anding (third offense) was charged. reckress driving con'ictions, (each using the

4. rhe possibre term or imprisonment ror the :i,ff::;:.fl'J[:::'i,#il;"i:XTH::Xjrl;
first offense of willful and reckless driving is a relied instead, how.ever, on proof of a lg6l
ntaximum of 30 days, u'hile the mayimum term state burglary conviction, a lg72 srate posses-
for a second offense is 60 days. Neb.Rev.Stat. sion of controlled substance con\ictron, and
SS 39-669'04-.05 (1974). Upon a third or sub- lg73 federal convictions for possession of and
sequent conviction, imprisonment in the Ne- receipt of a firearm in interstate commerce b1. abraska Penal and Correctional Complex for Dot convicted felon.
less than one year nor more than three vears is
mandatory' S 39669.06 (t974). Thus, al- 6. Goodloe also attacks the harsh sentence re-thouS'h the offense is unlabeled, the third con- sulting from applicarion of the habirual offend-viction became a felony by virtue of the Ne- er act under the Eighrh Amendment. \f,e agreebraska crimtnal code's general definition of fel- with the distrrct court that there is no merit roonl at the tlme of Goodloe's indictment and the claim. The severit!' of the sentence, argu-tria: "[t]he term felonl' signifies such an of. abll dispropon,rn",. 

"nd 
excessive for a traf-fense as mal be punished $rth death or inrpri,, fic offen-s, rras o,.henced br-:c.r. -.e of rer ptiti\c

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crime of operating a motor vehicle to avoid
arrest as applied in his case.8 He makes the
same argument here. We need not pass on
the constitutionality of the statute, but re-
late the challenge to the statute only in a
collateral sense, as it affects the fairness of
Goodloe's conviction under it. See State v.
Etchison, 190 Neb. 6n, Ztt N.W.2d 405
(1973), cert. denied, 416 U.S. 949, 94 S.Ct.
1950, 40 L.Ed.2d 295 (t9?a); Heywood v.

,, , Brainard, 181 Neb. n4, 147 N.W.zd ??2

)Dtt1 (i96?). The statute's Iack of specificity in
t - definition of criminal conduct is reflected in

disputes which arose at trial over whether a
specific prior violation of la,*. had to be
alleged and proved for conviction. While
we hold Goodloe's trial was fundanrentally
unfair due to lack of fair and reasonable

S.Ct. 384, 24 L.Ed.Zd 248 (1969). Nor does rhe
unfettered discretion given the prosecutor un_
der the Nebraska statute render it unconstitu_
tional. Erowzr v. Parratt,560 F.2d 303 (gth Cir.
19?7).

7. We do not make the discretionarl.decision to
apply the concurrent sentence doctrine. Even
if we held the attack made on the willful and
reckless driving conviction failed to disclose a
constitutional infirmity., we could not say there
is no possibility' that adverse collateral conse-
quences w'ould flou' from the ar.oidance of ar-
rest conviction if it $.ere not rerie*,ed. United
srares v. BeIr, 516 F.2d 873, 876 (8rh cir. 1975),
cert. deuied,423 U.S. 1056, 96 S.Ct. ?90, 46
L.Ed.zd 646 (1976).

8. Neb.Rei .Sr"ar. S 60 430.07 ( 1974) reads as
follo'*'s:

Operating motor vehicle to avoid anest;
penalty. It shall be unlarvful for any person
operating any motor vehicle to flee in such
vehicle in an effort to avoid arrest for violat-
ing any la" of this state. Anv person violat_
ing the provisions of th:s section shall, upon

tors: the speciricity of the complaint and
arrest wamant'that alleged flight from ar-
rest for driving with a sg(pended license,
the general language E( tn" information,
the trial court rulingfon the elements of
the offense, the mid-trial switch in the pros-
ecution's case in chief, and the instructions
given.

It is clear from the arregt warrant and
the first information filed, statements made
in court and the progress of the trial, that
.the State based its avoidance of arrest
clarge under the statute on the theory that
the arresb Goodloe was avoiding was an
arrest based upon probable cause that he
was driving with a suspended license. Dur-
ing trial, the court ruled proof Goodloe had
violated a state Iaw was required for the
State to sustain its charge of avoiding ar-
rest. Thus, because Goodloe had been pre-
viously acquitted on the suspended license
charge, the district court ruled that proof of
flight from arrest for driving with a sus-
pended license was precluded and sustained
Goodloe's motion to exclude evidence con-
cerning suspension of his license.e There-
after the State, without amending the in-
formation, changed its theory of prosecu-
tion r0 and,attempted tg prove flisht from

^^m,,[nrhe, gJ 
"ity.,fr#a, 

ga
sum not exceeding five hundred dollars, (2) V
imprisoned in the county jail for not to ex-
ceed six months, (3) imprisoned in the Ne-
braska Penal and Correctional Complex for a
period not less than one ),ear nor more than
three years, or (4) punished by both such fine
and imprisonment. The court shall, as a part
of the judgment of conliction, order such
person not to operate any motor vehicle for
any purpose for a period of one year from the
date of his release from imprisonment, or in
the case of a fine only, for a period of one
year from the date of satisfaction of the fine.

9. The correctness of the state district court,s
ruling is not before us. Even if the State were
not able to produce competent evidence to
prove that Goodlo,, was driving with a sus-
pended license, the record indicates the offrcer
had a good faith suspicion and could have
stopped him for questioning.

10. In the habeas proceeding in the federal dis,
trict court, Judge Denney found this to be the
case, observing in tris opinion:

Referring to the language of the arrest w,ar_
rant, Coodloe established the undispute(l tJct

them willful and reckless drr r ir€

court allowed the switch, but tr 'ru, of its
concern over'!bg-issu9--Olja*--+otice to
(!qqdlA:6-rjhq q!g--be had :o meet, it
.p""ifl"a tiru ,rna"-".b'ing viola: ron and in-
structed the jury that it must find, as an
element of the offense of operating a motor
vehicle to avoid arrest, that Goodloe "had
violated a Iaw of this State, to-wit: Operat-
ing a motor vehicle in such a manner as to
indicate a willful disregard for the safety of
persons or propert)' ." ll

The fundamental right "to be informed
of the nature and cause of the accusation,"
guaranteed criminal defendants by both the
Nebraska and United States Constitutions,
U.S.Const. Amend. VI; Neb.Const. art. 1,

$ 11, is implemented primarily by charging

7' papers which contain the elements of the

/ off.ense so as to fairly inform a defendant
of the charge against which he must de-

fend. Hamling v. United States, 418 U.S.

87, 117, 94 S.Ct. 2887, 4r L.Ed.2d 590 (1974);

United States v. Brown, 540 F.2d 364, 3?1

(8th Cir. 1976); State v. Harig,192 Neb. 49,

56-57, 218 N.W.zd 884, 889 (1974). This
most basic ingredient of due process, a per-
son's right to reasonable notice of the
charge against him, is incorporated in the
Fourteenth Amendment to the United
States Constitution and thus cannot be

abridged by the states. See fn re Oliver,
333 U.S. 257, ffi S.Ct. 499, 92 L.Ed. 682

(19a8); Cole v. Arkansas,333 U.S. 196, 68

S.Ct. 514, 92 L.Ed. 6a4 (19a8); DeJonge v.

Oregon,299 U.S. 353, 362, 57 S.Ct. j55, 81
& Uu{ar-vf,s\*)

that the pros6cutlon originally intended to
prove that the preexisting violation of law
was the misdemeanor of driving on a sus-
pended license.

The reversal of the county court's decision
foreclosed the State from pursuing this theo-
ry. Forced to adopt another tack, the prose'
cution asserted that the defendant could be
found guiltl'of fleeing to avoid arrest for the
offense of u'rllful reckless driving.

ll. The rnstruction, at least insofar as it stated
that the jury must find Goodloe had violated a

law of the state and r,r'as fleeing in an effort to
avoid arrest for that violation, was upheld b1'

the Nebraska Supreme Court as a correct state-
ment of the law. State v. Goodloe, 197 Neb.
632. 637, 250 N W.2d 606. 6t0 (1977).

330, 3ll8 (6th Cir. 19, i,l.tz

.An information in the words of the stat-
ute creating the offense will generally suf-
fice, Hamling v. United States,418 U.S. at
117, 94 S.Ct. 2887, but the requirement of
fair notice is only met if "those words of
themselves fully, directly, and expressly,
without any uncertainty or ambiguity, set

forth all the elements necessary to consti-

tute the oflence interrded-to-be- punished."

Id. (quoting United States r'. Carll, l0it
U.S. 611, 6L2,26 L.Ed. 1135 (1882)t; see a/so

State v. Abraham,l89 Neb. 7L8,7n40,205
N.W.zd 342,343-4 (1973). 

,

The indictment upon which Goodloe u'as

tried charged that hc did, in the words of
"the statute, "unlawfully operate a motor
vehicle to flee in such vehicle in an effort to
avoid arrest for violating any law of this
State." There is no indication from this
statutory language that, as the trial court
held and instructed the jury, an additional
element must be proven for conviction: ac-

tual commission of the violation of state

law for which the arrest.
at-

titled not onl

quire states to observe Fifth Amendment provi-
sions regarding indictment, it does guaratrtee
state prisoners a fair trial. Nexander v. Loui.
srarra, 405 L.i.S. 625. 633, 92 S.Ct. 1221. 3

L.Ed.2d 536 (1972). Sufficiencl of ar] rndrct-
ment or information is primarily a question of
state la\r', but liolations of due process arising
from lack of fair and reascnable notlce are
cognizatrle in habeas corpus. See, e. I, Rjdge
w'ay v. Hutto, 474 F.zd 22 (8th Ctr. 1973):
Blake v. Morford,563 F.2d 248 (6th Cir. 1977),
cert. denied. 43{ U:S. 1038, 98 S Ct. 7?5, 54
L.Ed.2d 787 (1978).

254, 43 L.Ed. 505 (1899); United States r'.
Cruikshank, 92 U.S. 5.{2. 56ffi6. 23 L.Eds8tt

d-ikT,J<-r -I u<cfuu-t ^- r/12. While the Due Process'Clause does not,te-

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..-.r._;^-_._. 
i.:,i .,vv,!! uJ rtrrurrilallull was agg.ra!a_license charge iilustrated, whether i*atou td rv uncertai4ty during trial over whathad.violated a specifie state statute was a {eciric ,i"r"a,r"r'the prosecution wourdcrucial factuar determination. In such " /iou". ti"--i*r" urged, as rate as thesituation' an information which describes conference on instructions, that the jurythe offense in generic terms fails to ade- could find from its proof that the underly-quately inform of the specific offense ing violation wa. eithe" failing to stop at acharged so as to arow preparation of a stop sign, speeding, careless driving or wilr_defense. Russe/1 v. ILnited states, 869 u.s. ful anJ .""kro., i"irrrg, even though the749, ?u-66, g2 S.Ct. 103g, g L.Ed.zd. 240 first three violations were never mentioned(1962); united sfates v--r{ess, r24 U.S.4gB, in a compraint, arrest warrant, or informa-487, 8 s.ct. bzr, 81 L.Ed. b16 (1gs8). Thus tion. Thus, in mid-rriar the State not onrythe information, while couched in the lan_ changed tt" unau.ty:lrg violation it soughtguage of the statute, nev_ertheless failed to to prove, Dgl-j,hen_&iled_tLsg:_qify -Iuhatadequatell'describe the oifense charged be__ ,;nl"tion i'fils attqBptfug to prove. Thecause it did not allege an essential .uu.tun--I.i"t 

"ii"t-iFffi the problem of fairtive element. see u1iled states v. caril, notice to Goodli and onry alrowed the jury105 u's' 611' 612' 26 L'Ed' 1185 (1gg2); see to find willful ancr reckless driving as thealso Dutiel v. State, 185 Neb. g11,2g4 N.w. necessary prior violation element of the321 (1939). voidance oi arrest charge. f!:_491[qctionIf a defendant is actuallv notifio.r ^r th" to the jury could not, hoo.""Jfirre thec"ntsfundamentaIunfairnessofreqrriringGood.
?y be met- even if the ation is loe to defend {iifiurt notice oi .p"jri" 

"r"-= See United Stut"t iVli{st1 . ments of rhe oifense_ sL^_rcgq. 
'- -'-

--T.2d 737,740 (8th cir. 19?6); cf. inited The mid-trial shift, from proof of flightstates v' cartano,5g4 F.2d ?gs, ?g1 (gth to avoid arrest for driving with a suspendedcir')' cert. denied,42g u.s. g4g,9? s.ct. izr, ricense, for which Goodroe had prepared a50 L'Ed'2d 113 (19?6). Goodloe was noti- defense, to proof of flight to avoid arrestfied by complaint and arrest warrant of the for any one of four possible violations, illus-prosecution's theory that he fled arrest for trates the prejudice inherent in an informa-driving with a suspended license. He was tion which fails to specify an essential ele-prepared to defend on those grounris and ment of the offense. The defendant is giv_therefore would not necessarily have been en insufficient notice to prepare a defense,prejudiced if the trial court ruling had been he proceeds to trial with factual issues un-lim.ited to requiring commission of the uio- defined, and the prosecution is left,,free tolation for which his arrest u'as sought, driv- roam at rarge-to shift its theory of crimi-ing with a suspended license, be ploven as nalitl.so as io take advantage of each pass-an essential element of the charge.ll ing vicissitude of the trial and appeal.,,' However, even assuming Goodloe was not Eusse/I v. IJnited states, s6g u.s. at ?6g, g2
prejudiced by the information's lack of no_ S.Ct. at 1049.

absent element, of which Goodlot did have
notice, was changed by events at trial, ef-
fectively amending the already deficient in-
formation or creating a variance; and, be-
cause the State did not specify the element
it sought to prove until the end of trial,
Goodloe had to prepare to meet, or without
notice was unable to meet, proof of four
possible statutory violations. Under these
circumstances, we conclude Goodloe was not
given fair and reasonable notice of the of-
fense charged and the case against which
he had to prepare a defense; the result was
a fundamentally unfair trial that requires
the conviction be set aside. See Watson v.

Jago, 558 F.2d 330 (6th Cir. 1977).t5

t4l Willful and Reckless Driving. Re-
maining is Goodloe's attack on double en-
hancement of his penalty for willful and
reckless driving-punishment as a felony
upon finding the conviction was for a third
or subsequent offense follorved by imposi-
tion of the mandatory 10 year minimum
sentence under the habitual criminal stat-
ute upon proof of two prior felonies.ls

A statute that enhances punishment on
the basis of subsequent convictions fr.rr the
identical offense and an habitual criminal
statute, which enhances the penalty on the
basis of any prior felony convictions, have
been repeatedly upheld against almost ev-
ery conceivable constitutional challenge, in-
cluding due process, douhle jeopardy, and
cruel and unusual punishment. See Spen-
cer v. Texas,385 U.S. 554, 559-60, 87 S.Ct.

fJ 8ao,*/1"kf.*.ts5,"1"o ?1$JJ o,
presenting the substance of his claim to the
Nebraska courts. He brought to the attention
of the trial court, through a motion to dismiss
for insufficient evidence and objections to in-
structicns, prrblerns in definition of the ele-
ments of the offense and the resultant lack of
notice of what underlying l'iolation the State
had sought to prove. Fundamental unfairness,
due to confusion as to lhe elements of the
crime and lack of notice. was raised in a due
process attack on the vague language of the
statute in briefs in both the Nebraska Supreme
Court and this court.

16. \l'e hold the evidence was suftrcient to sup-
port the conviction of willfirl and reckless dnr.
ing. r*'e have revieu'ed the evidence under the
standard set forth in Jack.snrr v. Virginia.

Bennett, 410 l 2d Zltx, Ni (8th Oir. lgt'e).
The reasoning is that the statutes do not
charge a separate and distinct crime so as

to put a defendant again in jeopardy for
the prior offenses, but bear only on permis-
sible punishment for the latest offense.
Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7
L.Ed.% ,U6 (1962); Gryger v. Burke, 3U
u.s. 728, 68 S.Ct. t?56,92 L.Ed. 1683 (19a8);

Graham v. West Virginia, 224 U.S. 616, 32

S.Ct. 583, 56 L.Ed. 91? (f912). Nor is penal-
ty enhancement considered multiple punish-
ment for one offense, but rather,impxrsition
of a heavier punishment for dn offense
aggravated by repetitious criminal conduct.
Gryger v. Burke; Graham v. West Virginia.

Nonetheless, we have been unable to find
any federal cases which consider challenges
under the United States Constitution to
stacking a specific subsequent offense pen-
alty enhancement statute and a general ha-
bitual criminal statute upon one another in
sentencing for a single offense.

Several state court decisions have in-
volved use of a statute ,that enhances :r
misdemeanor to a felony upon repetition of
the same offense and a general habitual
criminal statute. Very few of these cases

address the instant situation, however, in
which the conduct being currently punished,
the offense which "triggers" application of
the habitual criminal statute, is a misde-
meanor that has been enhahced to felony
status only by virtue of its repetition.lT

U.S. --, 99 S.Cr. 2781, 6l L.Ed.2d 560 (1979),
decided subsequent to the federal district
court's opinion.

17. Some cases decide *'hether an "enhanced
misdemeanor" is a felony to be used as a prior
fe,lony conviction to enhance the penaltl' for a
current charge under an habitual criminal stat-
ute. Although it is stated as a general rule that
offenses *'hich are felonres only when those

'*'ho perpetrate them have been prer.iousll,con-
victed of crimes do not constitute "felonies"
within the meaning of prior felonies that en-
hance penalties under habitual criminal stat-
utes, annot., l9 A.L.R.2d 227,232 (1951). state
courts are evenly divrded. Prohibiting use of
enhanced misd"meanors as prior "felonres"

S.E. 874 (1895): Srare v. Bro*'n,9i W.Va. 187.

tice of an esscntial element of the offense, Due to a unique combination of circurn_

3: j*'::.1 :j,lI.,,l.rmatior. rvas com_ rtrn"".,-ir,u i;il ;;;;ff;,". #:il;
notice or amendnrent of the information, in the inf-ormation ,ror-lri:i;,;r:;rir;i::::l
I3. The trial judse realized rhis rrcrioienr., .,.h-- t' ,3:t L+ . "1 

; ;:r)ff;*0";;)r^fi'';,JH :'J " ii:':: J:r,Y,:i :'' : ::'' :: 
=.* 

I:I Ii:,fri:ilfr J;#ffi#,d
:::',:lH, :?".,'1.:',T-"::r,i:.. iil :g::;g ,r: ;, ;;;.;;,';;.';;*,#iJil::Ji: i'j'83:::
::::::,,f: Ti,::,,::"..l:llre_the s_tate shourd r*, in"..,";.;,ffi;,;il;.;ffi,:"il:.i"T:;set out the particular violations underlS,ing the not been stopped and the driver has not been

inforrned he is subject to arrest, proof of a

r i.

ll-2;

marn offense

f\q eter"^e^r-]-s .{tp "($r4< -na ::,:,:..";}:,,,:iJ:.". "",""iil,1"1""I1 i
lo<.1< 6-(

case of flight in an attempt to avoid arrest



I
t

l'

GruJtOe e krov*rn, u^r-,,{ia {r',.^re^ *l <-,n--.tJ ("t*U Sef^h./ WtL^."[L \-*." o 5*!pt,.^-l"c.l (rtezrrse )fu W y c-l,.$rtg

A G,c< z.Q-o-1-i'o.o
r) E.t \^,c-,4 *+# il i,\ u\e. C6L*-.f - l/v t+,1

w/ t-Ja{}*^d lsa*''a-o'@'^ 44 oped-,
,nn.rT,ot.rrr, t o^ t*, 

^-A 
-'- \ - oc.3 t ., Fto-/ (u' ,r""1[yrrutU'l+

)v of{r r-0 c^1La )

-co.r,.^;t 1L+ b aa,) <.(ea-.,*k" a bvq bo.r1 4"1
(rr- ^r-u&/r, 6,-v4* (* drvr^f witL a luspe,xle<l, ^],r.sen<.eG*t toov{) 4ftr,€ ,*/ &$[m^-^n frffi'C,*?prlu)
%stde^e1 Ltuo ir*l of r1,".,,, 17 N sto/e vritu, L, ,ot-il
*^rtC * )

- cr^ce, +1*/^*trr.,-,-tw,^ l^rrr*.o+) .) s+de .*M u, l^tf
fl^.",/ ..,-^.4a^^-rT (u".- al,,^^\ t^r,t\ t* lil ,;'r-.) r lO
r1- (<^-r ctc LJ L ,\t-^.ot.*T o-ruJ (ox .tt ^ 'l L"*, t u - &-(kZ

Lr-^,t rU1



useri in the general deseription of an him, ." United States v Sim-
mons, supra (96 US at 862). A. oflence it must be accompanied

such a statement of the facts ptic form of indictment in cases
circumstances as will inform the f this kind requires the defendant

go to trial with the chief issue
ption, ndefined. It enables his conviction

rest on one point and the affirm-
Sta 493, 497,31

meandering .tot"*Jit.u'o;;;;"; "" ' .r.j6e us ?esl
to iclentify the subject under inquiry. He *r,r'as not told at the time what
It was said that the hearilgs wele subject the subcommittee was in-.,not . an attack upo, the vestigating. The prior record of the
free press," that the investigatiol subcommittee hearings, rvith which
*r. of "such attempt as may be dis- Price may or may not have been
closed on the part of the Communist familiar, gave a completely confused
Pat.ty to influence or to sub- and inconsistent accottnt of rvhat, if
velt the American press." It rvas anythillg, that subject lvas. Price
also said that "We are simply inyes- was pttt to trial and convictetl upon
tigatipg commlnism whereyer we all indictment 'which did not even
finrl it." In clealing with a witness purport to inform hini in an1'way of
rvho testified sholtly before Price, the identity of the topic under sttb-
co*,sel for the subcommittee em- committee inquiry. At every stage

L-N

8 S Ct 571. See also
Pettibone v United States, 149 US
197,202-204,87 L ed 419, 4ZZ,4ZB,
13 S Ct 542; Btitz v United States,
153 US 308, 31b, 38 L ed 725,727,
14 S Ct 924; Kecli v Unitecl States,
172 US 434,487,43 L ed bOb, b07,
19 S Ct 254; I\{orissette v Unitecl
States, :1.12 US 246, 270, note 80,
96 L ed 2S8, B0l, 72 S Ct Z4O. Cf.

+ l.a(! United States v Petrillo, BB2 US 1,

n",l-E^ 10, 11,12 91 L ed 18?2, 1884, 1985,
U* ' 67-S Ct 1538. That these basic
prfto,*'7"'Ur- princinles of frnrrl:.men-

ern concepts of pleacling, and spe-
cifically nndcr Rule T(c) of the Fed-
eral Rules of Criminal procedure,
is illustrated by many recent fecleral
decisions.13

The vice which inheres in the fail_
ure of an inclictntent urlder Z USC
$ 192 to iclentify the subject uncler
inquiry is thus the violation of the
basic principle ,'that the accuserl
must be apprised by the inrlictnient,
rvith rcasonable certairrty, of the
nature of the accusation against

ance of tXe conviction to rest on
another. (lt gives the prosecution
free hand-bn appeal to fill in the
gaps of proof b1- surmise or conjec-
ture. The Court has hacl occasiorr
before now to condemn just such a
practice in a quite different factual
settifi!1 Cole v Arkansas, B3B US
79G,291,202,92 L ed 61.i, 647, 648,
68 S Ct 514. And the unfairness and
uncertaiuty rvhich have chnracteris-
ticallv infected criminal proceedings
under this statute l.hich rvere based
upon indictments rvhich failed to
specifl. the subject uncler inquir.y
are illustrated by the cases in this
Court u'e have alreacly discussecl.
The same uncertainty ancl unfair-
ness are unclerscored by the records
of the cases now before us. A single
example rvill sufljce to illustrate the
point.

In No. 12, Price v Unitetl States,
the petitioner refused to ansryer a
nurnbel of questions put to him b1,

* [.']69 L:S 7671
the Internal +security Subcomnrittee
of the Seuate Judiciar5' Comntittce.
At the begiruting of the hearing in
question, the Chlrirman and othcr
subconrmittee members made rviclely

^ 

(, t- I ;ubconrmittee's purpose "to investi- Price was nlet lvith a different
v, II gate Conlmunist infiltration of the !I"o.y-q!r no theorl' at ,!]l=as

phaticalll, denied that it \virs the in .the ensuing criminal proceedi4g

prcss anti other folms of communi- (to what the-tbBle-hcrdt-€6fi. Firr
catigp." But when Plice g,as callecl I from infot'ming Price of the nature
to testify before the subconrnrittee ( of the accttsltion q€3lL1s!-bjn tfre
no one offered eyen to attempt to/ itndictment instead left the DroS€cu:
lnlol'm Illm or \4'niIL suoJecL [Ile suu-l tr r
committee dicl have untler inquity.[ its theor."- of climinalitl' so as to
At the trial the Government tookl take advantage of each passing

12. Rosen v Unitcd States, 161 US 29,
40 L ed 606, 16 S Ct 43,I,480. ireavilv relied
upon ri.r the clissenting opinion, is inappo-site. In that case the Court held thai^an
indictmcnt charging the mailing of obscene
material did not need to spccify the par_
ticular yrortions of the prLli""iior, .,i.,i.h
rvere allegedly obscenc. As pointcd out in
tsartell v United States, 22T US 42i, 4Bt,
!7. ! $ 583, 585, 33 S Ct BS:t, thc .uiu orj
tablislrcd in Rosen rvas ahvrivs r.cgar.rle<t
as-a "u'ell r.ccognizcd exrcl)tion', to usual
in,lictrnorrt rules, applit,lrl,lt, o,,," t" ..ti;;
I'ir.edirrrl of Ir.iut<.tl <rr rvr.itt,.tr nratt.,r
nhich is allcgctl to bc too obsccrr,r <rr in-

decent to be spread upon the recor.ds of
the court." flnder Iloih v Unit, tl States,
q9l_US 4?6, 488, 489, 1 L ed 2cl 1t{rS, 1509,
77 S Ct 1304, the issue dealt rvith in Roseri
would presunrably no longer arise.

13. United States v Lamont (CA2 Ny)
236 P2d 312; ltleer v United States (CA10
Colu) 235 F2d 65; Bahh v liniie,d Stntos
( CAS Tes ) 2 I S F2d-fflT;llofrt,,t-;-,
Fn-ffitllid-ilE'D- rsz n Supp ?:r1;
Unitcd Statcs v Devine's I\Iilk Labora
^oories, Inc. (DC llla.s) 179 F Srrlrp ?{}1,:
U_1ited States v Ape-x DistlibuLing Co.
(DC ill) 1-18 I' Supp 3rj5.

the position that the subjcct under\icissitude of the trial and appeal.
inquiry had been Communist aciivi- i-inquiry had been Communist activi-
ties generally. The district iuqs! nal offense unless the questions lhe
before whom the case was tried refusecl to ansrver. rvere ii fact perti-
founcl that "the questi<-rns ptlt \\'ere nent to a specific toltic untler sub-
pertinent to the matter utlder in- c.mmittee inorrirv at the time he

,! , * [Lii;:r'i;,*#':,iii:;[,1*"*iT, il" c,mmittee inquirv at the time he

'yfu l*.':t,:tix$ilf^H[x;irx ss:ii;%t ']i'i;;,iYt':!
,,, f e/ b,A firming the conviction, likervise \
-trj\ I trt , omitted to state rvhat it thought the It has long been recognized that
i u q{ +U _ subject ttncler inquiry had been. In there is an irnportant cor.ollar."- pur-
'_ir'-.- , OP this Corrrt the Governmettt colttends pose to be sen-ecl by the requirenient
S'2fl1 t"-' - that the subject ttttder inquiry. at ihot r., inclictrnent set out..the spe-

y :.H* ili:}iil".1!".%i*iL',iJx'.illli,1 
n 

;ii! ;fftffi,ii}1inilii',il,lH"";:
:' ,)r-r: 'crlD rrrsur(" fendant is charged. Tltis pttrpose,
lx.t-*'":e, It is rlilficult to imagine a case in as defined in Unitecl

Lottn F"' ' u'hich an indictnrent's insufficiency Headnote l{ States v Cruikshank, 92

T- ; fu!,-1 resultecl so clearly in the inclici- US 542, 558, 23 L ecl 588,
.lL. k'1, -t ztrr - melt,s failur.e to fulfill its plimary 5C3, is "to inform the court of the
rl,voo Po-' -"-!n oflice-to inform the defenclant of facts alleged, so thrrt it ma1' clecide

a--'- Y'- the nature of the accusation against whether thel'are sufficient in larv to
ao /: t,'x - t 4 him. Price refused to ansq'er some support a conviction, if one should

-Ld,()* questions of a Senate sul;conrmitl.ee. be harl."rs This criterion is oI the

$_f rry w -l I5. This principlc en rrtci:rtcd in Cruik- sevct:rl l'oc(nt cascs attcst. "Arother rer-

t-tJ )14.4 ,tt*-r*@'tt- t'-il,, A +,,t c.tt^t t,4-*<o-d-€oy4 a-'"-Tto" ./fu,ti
H.,^n<-ro.t



r.rri, u s ;uyr. gleatest relevance *here, in the light
. of the difficulties and uncertainties

with which the federal trial and re-
1 viewing courts have had to deal int cases arising under 2 USC g 192, to

which reference has already been
r made. See, e. g., Watkins v United

States, 354 US 178, 1 L ed 2d 1273,
77 S Ct 1173; Deutch v United
States, 367 US 456, 6 L ed 2d 963,
81 S Ct 1587. Viewed in this con-
text, the rule is designed uot alone
for the protection of the defendant,
but for the benefit of the prosecutiorr
as well, by making it possible for
courts called upon to pass on the
validity of convictions under the
statute to bring an enlightened judg-
ment to that task. Cf. Watkins v
United States (US) supra.

It is argued that any deficiency in
the indictments in these qrses could
have been cured by bills of particu-

*[369 US 770]
Iars.* But it is a set-

Eeailnote 15 tled rule that a bill of
particulars cannot save

an invalid indictment. See United

blaLcs v r\r.1.'rrs, zo1 trS blg, 6Z2,
74 L ed 1076, L077,50 S Ct 424;
United States v Lattimore, 94 App
DC 268, 275FZd 847; Babb v United
States (CA5 Tex) 218 F2d EB8;
Steiner v United States (CA9 Cal)
229 FZd 745; United States v Dier-
ker (DC Pa) 164 F Supp 304; 4
Anderson, Wharton's Criminal Law
and Procedure, g 1870. When Con-
gress provided that no one could be
prosecuted under 2 USC g 192 ex-
cept upon an indictment, Congress
made the basic decision that only a
grand jury could determine whether
a person should be held to ansrver
in a criminal trial for refusing to
give testimony peltiirent to a ques-
tion under congressional committee
inquiry. A grancl jurl', in orcler to
make that ultimate detelmination,
must necessarill' determine r,iJrat the
question uncler inquiry rras. {ho al-
lorv the prosecutor, or the court, to
make a subsequent guess as to what
was in the mincls of the grand jury
at the time they returned the indict-

\rt
@.1! and accurately alleged-ii-lb
d i c tm en-Flia'nd-ffiffi i i rniFv c r l o o k e d,
iftO--Cffite the court to decidc rvhethcr

cuse L Rev 389, 392. See also Orfield,
Crirninal Procedure fronr Arrest to Appcal,
226-230.

16. In No. 128, Gojack v United States,
the petitioner filed a timely motion for a
bill of particulars, r'equesting that he be
informed of the question undcr subcom-
nrittee inquiry. The motion rvas denied.

In No. 9, Shelton v United States, the
petitioner filed a similar motion. The mo-
tion rvas granted, and the Covernt.uent re-
sponded orally as follorvs:

"As to the second asking, the Govern-
ment contends, and the indictnrent states,
that the inquiry being conducted rvas pur-
suant to this resolution. \Ye do not Ieel,
and it is not the case, that there rvas any
smaller, more limited inquiry being con-
ducted.

"This conrmittee was conducting the in-
quiry for the purposes containcd in the
rcsolution and no lesser purpose so that,
in that sense, the asking No. 2 of counsel
u'ill be supplied by his reading the resolu-
tion."

In the four other cases no motions for
bills of particulars lvere filed.

the facts alleged are snflicient in larv to
withstand a motion to disnriss the indict-
ment or to support a conviction in the
event that one should be had." United
States v Lamont (DC NY) 18 FRD 27, 31.
"Ir: addition to informing the defendant,
another purpose served by the indictment
is to inform the trial judge u'hat the case
involves, so that, as he presides and is
called upon to make rulings of all sorts,
he may be able to do so intelligently."
Puttkammer, Adnrinistration of Criminal
Law, L25-126. See Flying Eagle Publica-
tions, Inc. v United States (CA1 NH) 273
F2d,?99; United States v Goldberg (CA8
Minn) 225 F2d 180; United States v Sil-
verman (DC Conn) 129 F Supp 496; Unit-
ed Statcs v Richman (DC Conn) 190 F
Supp 889; United States v Callanan (DC
I\{o) 113 F Supp ?66. See 4 Anderson,
Wharton's Criminal Law and Procedure,
506; Orfield, Indictment and Infornration
in Federal Criminal Procedure, 13 Syra-

son [for the requirement that every in-

.t

t

ment would deprive the defendar '

of I basic protection which the
guaranty of the intervention of a
grand jury was designed to secure.
For a defendant could then be con-
victed on the basis of facts not found
by, and perhaps not even presented
to, the grand jury rvhich indicted
him. See Orfield, Criminal Proce-
dure from Arrest to Appeal, 243.

This underlying principle is re-
flected by the settled rule in the fed-

eral courts that an in-
Headnote lG dictment may not be

amended except by re-
submission to the gral'rd jury, unless
the change is merely a matter of
form. Ex parte Bain, 121 US 1, 30
L ed 849, 7 S Ct 781; Unitcd States
v Norris, 281 US 679,74 L ecl 1076,
50 S Ct 424; Stirone v Unitcd States,
361 US 2\2, 4 L ed 2d 252, 80 S Ct
270. "If it lies rvithin the province
of a court to change the charging
part of an indictment to suit its ou'n
notions of what it ought to have
been, or what the grand jury rvould
probably have macle it if their atten-
tion hacl been called to suggested
changes, the great importance rvhich

+t369 US 77tl
the common lalv attaches to *an in-
dictrnent by a grancl jurl', as a pre-
requisite to a prisoner's trial for a
crime, and rvithout which the Con-
stitution says 'no person shall be

irerd to answer,' may be frittered
away until its value is almost de-
stroyed. . Any other doctrine
would place the rights of the eitizen,
which were intended to be protected
by the constitutional provision, at
the mercy or control of the court or
prosecuting attorney; for, if it be
once held that changes can be made
by the consent or the order of the
court in the body of the indictment
as plesented b1'the grand jury, and
the prisoner catl be called uilon to
ansryer to the indictment as thus
changed, the restriction l,hich the
Constitution places upon the power
of the court, in regard to the pre-
requisite of an indictnrent, in reality
no longer exists." Ex parte Bain,
supra (121 US at 10, 13). \\re re-
alErmecl this rule onl)' recently,
pointing out that "The verl' prlr.pose
of the requiremeut that a man be
inrlicterl by grand jury is to limit his
jeopardy to offenses chat'ged by a
group of his fellorv citizens acting
independentll- of either prosecuti4g
attorney or judge." Stirone 'v
United States, supra (361 US at
218;.rz

For these reasons lve conchrde
that an inclictment under 2 USC
$ 192 must state the question under
congressional committee inquiry as

rt369 US 7721
found by the grand jur]-.* Only

17. Sce also Smith v United States, 360
US 1,13,3 L ed 2d 1011,1050,79 S Ct 991
(dissenting opinion); Cornment, 35 l\Iich L
Rev 456.

18. The federal perjury statute, 18 USC
S 1621, makcs it a crinre for a person undcr
oath willfully to state or subscribe to "any
material matter rvhich he does not believe
to be true," The Governmcnt, pointing to
the analogy bctrvecn the perjury nraterial-
ity requiremcnt and the pertincncy rc-
quircnrcnt in 2 USC $ 1C2 recoguized in
Sinclair v United States, 279 US 263, 298,
7ll L ed 692, 699, 49 S Ct 268, contends that
the present cases are controllcd by I\Iark-
harn v tinitcd States, 160 lls :119, 40 L ed
441, 1G S Ct 28S, s lrere t;hc Court sns-
taincd a perjury indictnrcnt. But llrrrk-

hatn is inapposite. Thc analogy betrveen
the pcrjury statute and 2 USC g 192, rvhile
persuasive for some purpos?s, is not per-
suasive here, for the determination of the
subject under inquiry does not play the
central rolc in a perjury prosecution rvhich
it plays under 2 USC S 192. But even
rvere the analogy perfect 1\Iarkham rvould
still not control, for it holds only that a
perjury indictment nce<l not set for.th horv
arrd rvhy the statements rvere allegedly
nratelial. The Court careiully pointed out
that the indictnrent did in fact reveal the
subject under inquily, stating that "as
[the fourth count of indictment] charged
that such statenrent s'as matelial to an
inquiry pending befole, and rvithin the ju-
risdiction of, the Cornmissioner of Pen-



.-r l_rer.soll calllo[ torrense("t;";;;;;""i"=-,li,floll 
t{ilf-i:;fl:,rt",,HffHlT:,-i,T 

i

offense) not charged a_gainsr 
11,n 

Lr:'l"l irl . o**ii;;;;;;.rr against doubtedictmenr or information, wherher oi not j"-"arl* Ca,ey;.-;;;;.*rr,sl9 F.zd 184,there was evidence 
"t rt, ,i"i-i"-rn"* Lu Orn Cir. t9?5); IJtfrthathehadcommittedthat"rr"*"....'.;;,.*^.zas8;.,;'m.

The information charging fr""iUI".rp" infilo."ou"r, the Sul,rcme Court has held oth_the present case did not advise p"tiuon"" J".o,r" p.o.o.r;;,.';;",ated with a fairthat he must be prepared to ront"o'""i t"i"r,"'n"." r^i.'ii",iir"," infraction canevrden@ that his alleged victim was un- il:: F rreated u.iu'.riu., 
"".o". Gideoncrer the age of 2l years.and to defenJ a ,. 1r.r.i*"irt,il;:i.,;r5,88 S.Ct. ?92,9il"11:;lJt":,:".:mitted ., * ;"; i.e9 r,a d&;)i;iiio .o,,,"r) ; payne 

,

rd. at 173,288 p.2d at ? (citations omitted). iT^r"f{ i;;;i,r,i;i.ll 1H:i. ?'# 0t3l what makes statutorv and forcibre 11 sro*r" -dr;;"i."*rage 
in core and,rape separate offenses ro. .trurging pu.l oriu.er, supra, indicating that the right to I

poses is ths fact that proor or"air-rele]rt notice of " "r,".*" I basic and the most
:i#:fJ [:i,;:]"lnl ,'" 

"r 
r**,..1, crearry *,"rri.r,"i"auu 0.o.",, righr or an

"r,r,",iJ*'#:il:J111;.ffiT:;:: 
accused in a criminar proceeding,-!.h-e.o,- +-trfrl 1r,\

Tp". Neither element is common t;;;;;degrees Because,,"iil$ifll{{"ry; ;@;;ffi,* )p1o/ . 
o

rapearedistinct"-j.i::"i:.:::,ffT,,il:m,."o'o,".",gtt
sree rape is not an incrudecr orr"n.", ** .r.ilor;; ;;;;;; JJr.,"ffii:",i.Tiiiil;ilstate was obrigated to comprl' with the sensitivitl' tt ut -u]t ue protected. TheH'IffXlT."J.il:*:"::::;*";;;h* Supreme courr has herd that i

Cite as 662 F2<l 569 (l9r I )

transmute the test to a subjective that principle of due process. Gray,s entire
issue of the respondent's understanding nse to the forcible rape charge was that

lr: of a defective charge would place the
. constitutional purpose in danger. Au-

thoritarian caprice, against which the
whole structure of constitutional law was
erected as a barrier, could begin again to
outflank our objectives of justice and fair

, tzt yt. 387,205 A.zd
407, 409 (1964).t

ln l|'atson v. Jago,558 F.Zd BB0 (6th Cir.
19?7), the Sixth Circuit, in finding that the
state trial court had violated the Si.xth
Amendment right to notice, held:

To allow the prosecution to amend the
indictment at trial so as to enable the
prosecution to seek a conviction on a
charge not brought by the grand jury
unquestionably constituted a denial of
flue process by not giving appellant fair
notice of criminallharges to be brought
against him . .f It a matter of law,

llant w-as prejudiced by the construc-
tive amendment.

sexual relations were consensual. This
'ense gained Gray an acquittal on the
ible rape charge, but as was pointed out
the dissent to the Arizona Supreme
rt's opinion affirming Gray's statutory

conviction,
different defenses are involved, and a
defendant may virtually conr-ict himself
of statutory rapr if he is surpristrl h1 a
statutory rape instruction after present-
ing a consent defense to a forcible rape
charge.

State v. Gray, 122 Ariz. at 450, S9b p.2d at
995 (Justice Grirdon, dissenting). This is
precisely what occurred here. The state
was permitted to wait until Gra1, had put
on evidence of consent as a defense to the
charged offense, and then use that evidence
to convict Gra.r- of the secontl offense. Such
a procedure is repugnant to the concept of
due process and fundamental fairness.2

For these reasons, a reversal is rcquired
based solell' on the inadequaby of the charg-
ing information.

t5] Even if the defendant's actual
knowledge of the victim's age is considered,
the conviction still must be overturned.

sent, did not seem quite certain of its relevance,
for the opinion went on to state:

The lack of pretrial notice dy information
was aggravated b1- uncertainty during trial
over u'hat specific l,iolation the prosecution
would prove. The State urged, as late as the
conference on instructions, that the jury
could find from its proof that the underlying
violation was [any of the four separate
crimes] even though the first three r,l,ere nev-
er mentioned in a cotnplaint, arrest s,arrant.
orinfoJmation 

. * t *
The mid-trial shift . . . illustrares the preju

dice inherent in an information *'hich fails t
specifl' an essential clenrent of the rrtfensel
The defendant is given rnsufficrent notlce t
prepare a defense. he proceeds to trial wit
factual issues undefined. and the prosecutio
is left "free to roanr at la;qe-to shift irl
theory of criminalitl. so as ro take advantag
of each passing \.icissitucle of [he trial an
appeal."

g)5 F 2d at l0{6 (enrph.rsis ad.'..t) (..:.1.io

bringing a seconcl desree ;;;;-::..*":: 
Dul)reme uourt has held that

*'" in'tl''t ;'l#:"" T:"#11';t 
't 

l:]:"':'tY:'"lur 'ur"g'u,"a' ror the protec-
obligation. "'" 

-:" 
Irruct rrs tlon of all u'ho are charged *ittr oirens".

ailure of the prosecutil) :.^.,.n, to be disregarded in o"du. tn

Id. at 339 (footnote and citations omitted)
(emphasis supplied).

The facts in the instant case demonstrate
that Gray's conviction significantly violated

l. A number of states have had occasion recent-
ly to approach this issue. The results have
been remarkably similar. Addis v. State, Ind.,

1404 N.E.2d 59, 62 n.2 (1980) (,.tt woutd be
I fundamental error to convict a criminal defend-

pnt upon a charge never made.")i State v.
Booker, La., 385 So.2d 1186, llgl (1980)
("[N]otice of the specific charge, and a chance
to be heard in a trial of the issues raised by that
charge" are constitutionally mandated.); State
t,. Handley. 585 S.W.2d 458, 461 (t\Io.l9Z9)
("A court is tvrthout jurisdiction to trv a
person for an offense ut-iess the offense has
been charged by information or indictment.',).

2. There is, as noted by the dissent, some sup_
port for rhe proposition that the insufficiency
of an information may not be fatal if the ac_
cused received actual knowledge of the specific
crime with which he is charged. Goodloe v.
Parratt, 605 F.2d lO4l, 1046 (8th Cir. 1979).
This unfortrrrrate di(ta has been ignored by
subsequent decisions which have cited Good-
loe. See generally Ltnited Srates v. Bonilla.6lg
F.2d I373, 1385 86 (lst Cir. l98l): united
States r.. Partsien.5lS F supp 24. 26 (D. N.D
lrl. I , i.

f-r *e ra,ure o, ,1"^ prosecutio\ infrict.merited punishment on some whogive Gray notice in the infoimatU 
"] lX are guilry.

:l[il#,j[fiWil.r.;,"3":i'd1y,7, uru s,, ,,, 6s s ct,,

convicting " a"r*a",,""1.i"".xff:r":\ ffiT,T,";::",;:fi,;1?ilIn*"ffi (

:1,#fl,:,":ll.#*::*j"#; tf.: ;;+;,",iill',,{n" court norerr the
ffi;il/,',tttteoscates-.v-3tew{r1technicalnatureoftheobjectionraisedbut
(eth cir. rss,',,-J#Kl'2d 8y.' 907 

reasoned that

ffirtro;ret'.Unitedthe[accused]isentitIedtohaveaninfor.
L.Ed.2d 2sz se60); ,,,|"Y.f,;tl :,''"':1,! mation '.",';;;;,,'i;dicate thp exacr or-ta'Lo"zd'ztjz (1e60); united skres v. B""i;;, ;;;";'."' 

^ 
"r'jlj;,:''ili 

lT..i* 1r; \
587 l'.2d B40, B4B (6th,Cir. t9?8). ir*; make inrelligent-plJpu.r,ion of his de_ff,|, tff:1[::,J:",",ion must il;"il r"n." ,-i.]oi.,,",*i*o: 

I

i-rrr, ar"la;;; :';rq"poses 
behind the rhe form of rhe charge is the re-

lH_,::;i,::ffiJ"Jil',tffi,^"*"fl::l ii",:.,11;,1,""j,:t:;::::,ling authorit.r, I

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